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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1998
REGISTRATION NO. 333-50049
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DTI HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
MISSOURI
(State or Other Jurisdiction of
Incorporation or Organization)
4813
(Primary Standard Industrial
Classification Code Number)
43-1674259
(I.R.S. Employer
Identification Number)
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11111 DORSETT ROAD
ST. LOUIS, MISSOURI 63043
(314) 253-6600
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
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RICHARD D. WEINSTEIN
PRESIDENT, CHIEF EXECUTIVE OFFICER AND SECRETARY
11111 DORSETT ROAD
ST. LOUIS, MISSOURI 63043
(314) 253-6600
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copies to:
J. MARK KLAMER, ESQ.
BRYAN CAVE LLP
211 NORTH BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102
(314) 259-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY 13, 1998
PROSPECTUS CONFIDENTIAL
DTI DIGITAL TELEPORT LOGO
OFFER TO EXCHANGE
12 1/2% SERIES B SENIOR DISCOUNT NOTES DUE 2008
FOR ALL OUTSTANDING 12 1/2% SENIOR DISCOUNT NOTES DUE 2008
OF
DTI HOLDINGS, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME
ON , 1998 UNLESS EXTENDED
------------------------
DTI Holdings, Inc. ("DTI" or the "Company") is hereby offering (the
"Exchange Offer"), upon the terms and subject to the conditions set forth in
this Prospectus and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), to exchange $1,000 principal amount at maturity of its 12 1/2%
Series B Senior Discount Notes due 2008 (the "Exchange Notes"), which exchange
has been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a registration statement of which this Prospectus
is a part (the "Registration Statement"), for each $1,000 principal amount at
maturity of its outstanding 12 1/2% Senior Discount Notes due 2008 (the "Private
Notes"), of which $506,000,000 in aggregate principal amount at maturity was
issued on February 23, 1998 and is outstanding as of the date hereof. The form
and terms of the Exchange Notes are identical in all material respects to those
of the Private Notes, except for certain transfer restrictions and registration
rights relating to the Private Notes and except for certain interest provisions
related to such registration rights. The Exchange Notes will evidence the same
indebtedness as the Private Notes (which they replace) and will be entitled to
the benefits of an Indenture dated as of February 23, 1998 governing the Private
Notes and the Exchange Notes (the "Indenture"). The Private Notes and the
Exchange Notes are sometimes referred to herein collectively as the "Notes." See
"The Exchange Offer" and "Description of the Notes."
The Exchange Notes will be redeemable at the option of the Company, in whole
or in part, at any time on or after March 1, 2003 at the redemption prices set
forth herein, together with accrued interest, if any, to the date of redemption.
In addition, at any time or from time to time on or prior to March 1, 2001, the
Company may redeem up to 33 1/3% of the aggregate principal amount at maturity
of the originally issued Notes with the net proceeds of one or more Public
Equity Offerings (as defined herein) at a redemption price equal to 112.5% of
the Accreted Value (as defined herein) thereof; provided that immediately after
giving effect to such redemption, at least 66 2/3% of the aggregate principal
amount at maturity of the originally issued Notes remain outstanding. Upon the
occurrence of a Change of Control (as defined herein), each holder of Exchange
Notes may require the Company to purchase all or a portion of such holder's
Exchange Notes at a purchase price in cash equal to 101% of the Accreted Value
thereof, together with accrued interest, if any, to the date of purchase. See
"Description of the Notes -- Redemption" and "-- Certain Covenants." There can
be no assurance that the Company will have available, or will be able to acquire
from alternative sources of financing, funds sufficient to repurchase the
Exchange Notes in the event of a Change of Control. See "Risk Factors -- High
Leverage; Ability to Service Indebtedness; Restrictive Covenants."
The Exchange Notes will be senior unsecured obligations of the Company,
ranking pari passu in right of payment with the Private Notes and all future
unsecured senior indebtedness of the Company and senior in right of payment to
all future obligations of the Company expressly subordinated in right of payment
to the Exchange Notes. As of March 31, 1998, the Company had approximately
$268.9 million of indebtedness outstanding, all of which was evidenced by the
Private Notes. Because the Company is a holding company that conducts its
business through its wholly owned subsidiary, Digital Teleport, Inc., all
existing and future indebtedness and other liabilities and commitments of the
Company's subsidiary, including trade payables, will be effectively senior to
the Notes. The Company's subsidiary will not be a guarantor of the Exchange
Notes. As of March 31, 1998 Digital Teleport, Inc. had aggregate liabilities of
$21.1 million, including $14.4 million of deferred revenues. See "Description of
the Notes."
The Company will accept for exchange any and all validly tendered Private
Notes not withdrawn prior to 5:00 p.m., New York City time, on ,1998,
unless the Exchange Offer is extended by the Company in its sole discretion (the
"Expiration Date"). Tenders of Private Notes may be withdrawn at any time prior
to the Expiration Date. Private Notes may be tendered only in integral multiples
of $1,000. The Exchange Offer is subject to certain customary conditions. See
"The Exchange Offer."
SEE "RISK FACTORS" BEGINNING ON PAGE 17 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN CONNECTION WITH THE
EXCHANGE OFFER AND AN INVESTMENT IN THE EXCHANGE NOTES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998.
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[MAP OF U.S. WITH PLANNED DTI NETWORK]
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NOTICE TO INVESTORS
The Exchange Notes are being offered hereunder in order to satisfy certain
obligations of the Company contained in the Notes Registration Rights Agreement
(as defined herein). Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission") set forth in no-action letters issued to
third parties, the Company believes that the Exchange Notes issued pursuant to
the Exchange Offer in exchange for Private Notes may be offered for resale,
resold and otherwise transferred by any Holder thereof (other than any such
Holder which is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act), without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Exchange Notes are acquired in the ordinary course of such Holder's business and
such Holder has no arrangement with any person to participate in the
distribution of such Exchange Notes. Notwithstanding the foregoing, each
broker-dealer that receives Exchange Notes for its own account pursuant to the
Exchange Offer must acknowledge that (i) Private Notes tendered by it in the
Exchange Offer were acquired in the ordinary course of its business as a result
of market-making or other trading activities and (ii) it will deliver a
prospectus in connection with any resale of Exchange Notes received in the
Exchange Offer. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with any resale of the Exchange Notes received in
exchange for Private Notes where such Private Notes were acquired by such
broker-dealer as a result of market-making or other trading activities (other
than Private Notes acquired directly from the Company). The Company has agreed
that, for a period of 120 days after the Expiration Date, it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution." Any holder who tenders in the Exchange Offer
for the purpose of participating in a distribution of the Exchange Notes cannot
rely on the no-action letters discussed above or similar letters and must comply
with the registration and prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction.
Tenders of Private Notes pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date. The Exchange Offer is subject to certain
customary conditions. In the event the Company terminates the Exchange Offer and
does not accept for exchange any Private Notes, the Company will promptly return
the Private Notes to the Holders thereof. The Company will give oral or written
notice of any extension, amendment, non-acceptance or termination of the
Exchange Offer to the Holders of the Private Notes as promptly as practicable,
such notice in the case of any extension to be issued by means of a press
release or other public announcement no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
The Company can, in its sole discretion, extend the Exchange Offer indefinitely,
subject to the Company's obligation to pay Special Interest (as defined herein)
if the Exchange Offer is not consummated by September 21, 1998 and, under
certain circumstances, file a shelf registration statement with respect to the
Private Notes. The Company has agreed to pay the expenses of the Exchange Offer.
The Company will not receive any proceeds from the Exchange Offer. See "Use of
Proceeds."
Prior to the date of this Prospectus, there has been no public market for
the Exchange Notes. The Company does not currently intend to list the Exchange
Notes on any securities exchange or to seek approval for quotation through any
automated quotation system. Accordingly, there can be no assurance as to the
development or liquidity of any public market that may develop for the Exchange
Notes, the ability of holders to sell the Exchange Notes, or the price at which
holders would be able to sell the Exchange Notes. The National Association of
Securities Dealers, Inc. ("NASD") has designated the Private Notes as securities
eligible for trading in the Private Offerings. Resales and Trading through
Automatic Linkages ("PORTAL") market of the NASD, and the Company has been
advised that Merrill Lynch, Pierce, Fenner & Smith Incorporated and TD
Securities (USA) Inc. (together, the "Initial Purchasers") have heretofore acted
as market makers for the Private Notes. The Company has been advised by each of
the aforesaid market makers that it currently intends to make a market in the
Exchange Notes. Future trading prices of the Exchange Notes will depend on many
factors, including among other things, prevailing interest rates, the Company's
operating results and the market for similar securities. Historically, the
market for securities similar to the
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Exchange Notes, including non-investment grade debt, has been subject to
disruptions that have caused substantial volatility in the prices of such
securities. There can be no assurance that any market for the Exchange Notes, if
such market develops, will not be subject to similar disruptions. See "Risk
Factors -- Absence of a Public Market for the Notes."
The Private Notes were sold by the Company on February 23, 1998 (the
"Original Issue Date") in transactions which were not registered under the
Securities Act, in reliance upon the exemption provided by Section 4(2) of the
Securities Act.
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-4 (the "Exchange Offer Registration Statement") under the Securities Act with
respect to the Exchange Notes covered by this Prospectus. This Prospectus does
not contain all of the information set forth in the Exchange Offer Registration
Statement and the exhibits and schedules thereto, certain portions of which have
been omitted pursuant to the rules and regulations of the Commission. Statements
made in this Prospectus as to the contents of any contract, agreement or other
document are not necessarily complete. With respect to each such contract,
agreement or other document filed or incorporated by reference as an exhibit to
the Exchange Offer Registration Statement, reference is made to such exhibit for
a more complete description of the matter involved, and each such statement is
qualified in its entirety by such reference.
The Company will be subject to the periodic reporting and other
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith will file reports and other
information with the Commission. The Exchange Offer Registration Statement and
reports and other information filed by the Company may be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and will also be
available for inspection and copying at the regional offices of the Commission
located at Suite 1400, 500 West Madison Street, Chicago, Illinois 60661 and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. The Commission maintains a website (http://www.sec.gov)
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. Under the
terms of the Indenture pursuant to which the Private Notes were, and the
Exchange Notes will be, issued, the Company will be required to file with the
Commission, and to furnish holders of the Notes with, the information, documents
and other reports specified in Sections 13 and 15(d) of the Exchange Act,
including reports on Forms 10-K, 10-Q and 8-K. On May 15, 1998, the Company
filed with the Commission its Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, in accordance with the Indenture.
FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT INCLUDE, AMONG
OTHERS, STATEMENTS CONCERNING THE COMPANY'S PLANS TO COMPLETE THE DTI NETWORK,
EXPECTATIONS AS TO FUNDING ITS CAPITAL REQUIREMENTS, ANTICIPATED EXPANSION OF
CARRIER'S CARRIER AND END-USER SERVICES, AND OTHER STATEMENTS OF EXPECTATIONS,
BELIEFS, FUTURE PLANS AND STRATEGIES, ANTICIPATED DEVELOPMENTS AND OTHER MATTERS
THAT ARE NOT HISTORICAL FACTS. MANAGEMENT CAUTIONS THE READER THAT THESE
FORWARD-LOOKING STATEMENTS ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD
CAUSE ACTUAL EVENTS OR RESULTS TO DIFFER MATERIALLY FROM THOSE EXPRESSED OR
IMPLIED BY THE STATEMENTS. THE MOST IMPORTANT FACTORS THAT COULD PREVENT THE
COMPANY FROM ACHIEVING ITS STATED GOALS INCLUDE, BUT ARE NOT LIMITED TO, FAILURE
BY THE COMPANY TO (I) OBTAIN SUBSTANTIAL AMOUNTS OF ADDITIONAL CAPITAL AND
FINANCING AT REASONABLE COSTS AND ON SATISFACTORY TERMS AND CONDITIONS, (II)
MANAGE EFFECTIVELY AND COST EFFICIENTLY
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THE CONSTRUCTION OF THE DTI NETWORK ROUTE SEGMENTS, (III) ACCESS MARKETS
AND ENTER INTO ADDITIONAL INDEFEASIBLE RIGHTS TO USE AND WHOLESALE NETWORK
CAPACITY AGREEMENTS AND OTHERWISE EXPAND ITS TELECOMMUNICATIONS CUSTOMER BASE ON
THE DTI NETWORK, (IV) OBTAIN ADDITIONAL FRANCHISES, PERMITS AND RIGHTS-OF-WAY
AND MAINTAIN ALL NECESSARY FRANCHISES, PERMITS AND RIGHTS-OF-WAY AND (V)
MAINTAIN EXISTING STRATEGIC ALLIANCES AND CUSTOMER AND SUPPLIER RELATIONSHIPS.
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SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information, the financial statements and
the notes thereto and other financial data contained elsewhere in this
Prospectus. Prospective investors should carefully consider the factors set
forth herein under the caption "Risk Factors" and are urged to read this
Prospectus in its entirety. References in this Prospectus to the "Company" and
"DTI" refer to DTI Holdings, Inc. and its subsidiary, Digital Teleport, Inc.
("Digital Teleport"), except where the context otherwise requires. The Company's
fiscal year ends on June 30 of each year. Unless otherwise indicated, or the
context otherwise suggests, (i) references in this Prospectus to the design or
physical characteristics of the DTI network refer to the design and physical
characteristics of the DTI network as currently completed and the presently
anticipated design and physical characteristics of the remaining network sought
to be built by the Company in the Midwest region, (ii) references herein to
years and quarters shall refer to calendar years and calendar quarters, rather
than fiscal years and fiscal quarters, and (iii) the summary and selected
financial data and the other financial data contained herein give effect to the
100-for-1 stock split, in the form of a stock dividend, of the common stock, par
value $0.01 per share ("Common Stock") of the Company effected on October 21,
1997, the reorganization of the Company in which Digital Teleport became an
operating subsidiary of the newly created DTI Holdings, Inc., effected on
December 23, 1997, as more fully described elsewhere in the Prospectus, and the
1,000-for-1 stock split, in the form of a stock dividend, of the Common Stock
effected on February 17, 1998. Certain terms used in this Prospectus have the
respective meanings ascribed to them in the Glossary included as Annex A hereto,
and certain capitalized terms used herein have the respective meanings ascribed
to them in "Description of the Notes -- Certain Definitions" and in "Description
of the Warrants -- Certain Definitions."
THE COMPANY
DTI is a facilities-based provider of long-haul and local
telecommunications services primarily to interexchange carriers ("IXCs") and
other communications entities on a wholesale basis ("carrier's carrier
services"), as well as directly to business and governmental end users
("end-user services"). The Company is building out the DTI network through the
creation of regional rings by interconnecting long haul routes among primary,
secondary and tertiary cities in the Midwest region because it believes that
substantial unmet demand for additional IXC capacity exists in secondary and
tertiary markets located between the primary markets. The Company has plans to
expand its fiber optic telecommunications network outward from the Midwest
region to other similarly underserved markets in the United States. The Company
will strive to position itself as a low-cost provider of telecommunications
services, and believes it will be able to offer regional ring transport to
carrier customers on a more economical basis than is currently available to such
customers, particularly among secondary and tertiary cities.
DTI initially will focus on carrier's carrier services because it believes
that (i) the scope and flexibility of its ringed network design will be
attractive to carrier customers, (ii) revenues from carrier's carrier services
can be achieved more rapidly than from end-user services, and (iii) net margins
from the Company's carrier's carrier services are higher than the Company could
typically achieve from the Company's end-user services. DTI currently provides
carrier's carrier services under contracts with AT&T, Sprint, MCI and IXC
Carrier, and long-haul and local private line services to targeted business and
governmental end-user customers ("end-user customers") in Missouri.
DTI has completed construction of approximately 1,800 route miles of a
planned 2,000 route mile fiber optic network in the state of Missouri, including
an aggregate of approximately 500 local route miles in St. Louis, Kansas City
and four other population centers in Missouri with populations of over 70,000
people. DTI currently provides services over 750 route miles of its network. The
Company is expanding its fiber optic network (the "DTI network") to cover a
14-state region in the Midwest (the "Midwest region") which is expected to
consist of approximately 7,700 route miles of fiber optic cable and Northern
Telecom Inc. ("Nortel") DMS-500 switches. DTI is also pursuing the expansion of
the DTI network to the east and west coasts of the United States, as well as
additional network in the Midwest region to facilitate such national
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expansion. (See the DTI network map located on the inside front cover page of
this Prospectus). The Company's preliminary plans provide for a total national
network of approximately 15,000 route miles and 20 Nortel DMS-500 switches. The
Company expects to construct approximately half of such network and to obtain
indefeasible rights to use fiber optic facilities of other carriers for the
other half. As a part of this national expansion of the DTI network, the Company
has recently entered into a preliminary agreement for a long term indefeasible
right to use fiber optic strands and related facilities along a route from
Washington, D.C. to Texas.
DTI intends to interconnect its long haul routes to form regional rings
around the primary, secondary and tertiary cities located along such routes. The
Company also intends to interconnect the DTI network to major IXC POPs and ILEC
access tandems along its regional rings. The Company will offer its carrier
customers with transmission capacity through individual wavelength-specific
circuits of OC-48 capacity, or optical windows, on dense wavelength division
multiplexing ("DWDM") equipment deployed throughout the regional rings. DTI also
intends to provide local switched service capacity to its carrier customers on a
wholesale basis as it deploys its switches. The Company believes these services
will provide each of its carrier customers with a high quality, ring redundant
means to efficiently deliver its calls to a significant number of end-users
along these rings and aggregate, for further long haul transport, the outgoing
calls of a carrier's customers along such rings to a single regional point of
interconnection between the carrier's network and DTI's network. The Company
will also offer use of its optical windows to its carrier customers as a means
to transport point-to-point dedicated data and voice circuit communications
along its network. The Company believes that its regional rings will offer its
carrier customers greater reliability and accountability and less administrative
burden than their typical current transport methods. Through strategic routing
and switch placement, DTI believes it can also leverage its regional rings and
long haul capacity to permit the Company to cost-effectively construct local
loops and pursue other revenue-generating opportunities.
The Company believes deregulation in the telecommunications industry has
created a significant market opportunity by allowing carriers such as DTI to
compete in both local and long haul markets. The FCC has reported that, in 1996,
toll service revenues of long distance carriers in the U.S. were approximately
$82 billion and revenues of reporting local exchange carriers in the U.S. were
approximately $101 billion. Based on FCC data, toll service revenues of long
distance carriers and revenues of reporting local exchange carriers grew at a
compound annual rate of approximately 8.5% and 3.3%, respectively, during the
period 1991 through 1996. The Company believes that these growth trends
generally will continue and that non-facilities-based companies will need to
either invest in network facilities or lease high bandwidth network capacity to
remain competitive. The Company believes additional network transmission
capacity and faster response times will be required to accommodate the use of
the Internet and other high-bandwidth multimedia and data applications.
The DTI network's self-healing, SONET ring architecture provides virtually
instantaneous rerouting in the event of a cut in a fiber ring. DTI expects that
more than 90% of the DTI network will be installed underground, providing
protection from weather and other environmental hazards affecting the
reliability of communication connections. The DTI network will have both
high-bandwidth capacity and flexibility as a result of (i) high speed
transmission electronics equipment from Fujitsu, (ii) high capacity DWDM
equipment, (iii) the selective installation on Company-built routes of between
48 and 288 strands of fiber optic cable, incorporating Corning glass, and (iv)
extra conduits along selected long haul routes that the Company constructs. (On
routes that the Company does not build, the Company expects to typically obtain
IRUs ranging from two to 12 optical fibers). The Company believes the use of
Fujitsu fiber optic terminal equipment will provide DTI's customers the ability
to monitor, in their own network control centers, the portions of the DTI
network that they utilize. The Fujitsu equipment should also permit DTI's
customers to utilize their own network control centers to add and remove
services on those portions of the DTI network they have a right to use. The use
of DWDM equipment will give the DTI network an open architecture, providing
compatibility with the broad range of transmission speeds and signal formats
used by the existing transmission systems of its carrier customers. The use of
DWDM equipment also will give the DTI network an open architecture, providing
compatibility with the broad range of transmission speeds and signal formats
used by the existing transmission systems of its carrier customers. The DWDM
equipment also will enable DTI to
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offer its carrier customers high capacity, ring redundant, dedicated optical
windows of a particular wavelength through which its carrier customers can
deliver telecommunications services on a regional basis. The installation of
high-fiber-count cables and extra conduits on selected Company-built routes will
provide DTI with the ability to expand the capacity of its network and to sell
dark fibers to its customers along certain routes.
The Company has installed its first Nortel DMS-500 switch in St. Louis. By
the end of 1998, the Company expects to have substantially completed
construction in Missouri. The Company is currently constructing fiber optic
facilities in Arkansas. In the next 12 to 18 months, the Company expects to have
commenced construction of fiber optic facilities on those routes along which it
will construct its facilities and to have reached agreement or commenced
negotiations for IRUs for the rest of the planned DTI network. The Company has
entered into a preliminary agreement for a long term IRU for fiber optic strands
and related facilities along a route from Washington, D.C. to Texas.
BUSINESS STRATEGY
The Company's objective is to become a leading facilities-based provider of
communication services to other communications entities and end-user customers
in the Midwest region and selected other regions of the United States. To
achieve this objective, the Company intends to:
LEVERAGE INTEGRATED LONG HAUL ROUTES, REGIONAL RINGS AND LOCAL NETWORK
DESIGN. The Company believes that the strategic design of the DTI network will
allow it to offer reliable, high-capacity, long haul and local switched services
on a region-by-region basis to carrier and end-user customers who seek a
competitive alternative to incumbent providers of such services. Through the
strategic routing of the DTI network near primary, secondary and tertiary
markets and major IXC POPs and ILEC access tandems, and the use, on selected
routes, of high-capacity DWDM equipment, the Company will provide its carrier
customers with dedicated, high quality, ring-redundant OC-48 capacity that will
allow such carriers to (i) efficiently deliver their calls to a significant
number of end users along the DTI network's regional rings and (ii) aggregate
the outgoing calls of their customers along such rings to a single regional
point of interconnection between the DTI network and the carriers' networks. The
Company believes that the integrated design of the DTI network will provide
carrier customers with greater reliability and accountability and less
administrative burden than their current transport methods.
STRATEGICALLY LOCATE AND EXPAND ITS NETWORK THROUGH REGIONAL RINGS. The
Company is building out the DTI network through the creation of regional rings
that interconnect primary, secondary and tertiary cities in the Midwest region
because it believes that substantial unmet demand for additional IXC capacity
exists in secondary and tertiary markets located between the primary markets.
The Company plans to expand its fiber optic telecommunications network outward
from the Midwest region to offer services to other underserved markets in the
United States through the initial construction or acquisition of long-haul,
point-to-point routes that will then be interconnected to form regional rings.
The Company believes that its plan to build out the DTI network through a
combination of constructing fiber optic facilities and purchasing or exchanging
IRUs for such facilities will allow it more quickly to (i) offer reliable
connectivity on a regional basis and (ii) offer high quality services cost
effectively to markets where the Company believes it is less likely to face
significant competition from ILECs and competitive local exchange carriers
("CLECs").
POSITION ITSELF AS A LOW-COST PROVIDER OF TELECOMMUNICATIONS SERVICES. The
Company will strive to position itself as a low-cost provider of
telecommunications services by (i) taking advantage of the potential cost
efficiencies of the DTI network design and use of high-speed transmission and
DWDM equipment, (ii) continuing to deploy advanced fiber optic network
technology, which the Company believes lowers construction, operating and
maintenance costs, and (iii) realizing cost efficiencies through existing and
additional fiber optic facility long-term IRUs and swaps with other
telecommunications companies and rights-of-way agreements with governmental
authorities.
PURSUE LOCAL SWITCHED SERVICES OPPORTUNITIES. DTI believes its network
design will allow it to cost-effectively pursue local switched services
opportunities by creating regional and local fiber optic rings along its
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long-haul routes and by leveraging the technical capabilities and high-bandwidth
capacity of the DTI network. In addition to providing switched service capacity
on a wholesale basis to both facilities-based and non-facilities-based carriers,
the Company will have sufficient long-haul capacity to offer a wide range of
local switched services to targeted end-user customers in primary, secondary and
tertiary cities located near the Company's regional rings.
LEVERAGE EXPERIENCED MANAGEMENT TEAM. The Company's management team
includes individuals with significant experience in the deployment and marketing
of telecommunications services. Prior to founding DTI in 1989, Mr. Richard D.
Weinstein, President and Chief Executive Officer of DTI, owned and managed
Digital Tele-resources, Inc., a firm which designed, engineered and installed
telecommunications systems for large telecommunications companies, including SBC
and other Fortune 500 companies. The other members of the Company's senior
management team have over 70 years of collective experience in the
telecommunications industry. See "Management."
FINANCING PLAN
The Company estimates that total capital expenditures necessary to complete
the DTI network will be approximately $673.2 million. Of this amount, the
Company had already expended approximately $62.8 million as of March 31, 1998.
The Company anticipates total capital expenditures of approximately $16.6
million in the fourth quarter of fiscal 1998 and $410.1 million in fiscal 1999.
On February 23, 1998, the Company consummated a private placement (the "Private
Offering") in reliance upon the exemption from registration under Section 4(2)
of the Securities Act, pursuant to which the Company issued and sold 506,000
units (the "Units") consisting of $506.0 million aggregate principal amount at
maturity of Private Notes and warrants to purchase 3,926,560 shares of Common
Stock (the "Warrants"). The net proceeds to the Company of the Private Offering
were approximately $264.8 million. In addition, aggregate amounts of advance
payments expected to be paid to the Company over the next five years under
existing contracts for IRUs and wholesale network capacity total approximately
$21.4 million as of March 31, 1998. Further financing sources may include: (i)
advance payments under additional IRUs and wholesale network capacity
agreements; (ii) borrowings under bank credit facilities; (iii) additional debt
or equity financings; and (iv) any available cash flow from operations. There
can be no assurance that additional financing will be available to the Company
or, if available, that it can be obtained on a timely basis and on acceptable
terms. See "Risk Factors -- Substantial Capital Requirements" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
HOLDING COMPANY REORGANIZATION
On December 23, 1997, the Company completed a corporate reorganization (the
"Reorganization"), pursuant to which DTI was formed as the parent holding
company of Digital Teleport, which became a wholly owned subsidiary of DTI.
Pursuant to the Reorganization, the outstanding shares of common and preferred
stock of Digital Teleport were exchanged for the number of shares of common and
preferred stock of DTI having the same relative rights and preferences as such
exchanged shares. The Reorganization was required in connection with the
establishment of DTI's former bank credit facility in order to permit the
lending group to take a first priority security interest in all of the issued
and outstanding capital stock of Digital Teleport owned by the Company. The
Company has since terminated the bank credit facility. The business operations,
name, charter, by-laws and board of directors of the Company are identical in
all material respects to those of Digital Teleport prior to the Reorganization.
The Company's principal executive offices are located at 11111 Dorsett
Road, St. Louis, Missouri 63043, and its telephone number is (314) 253-6600.
9
<PAGE> 11
THE EXCHANGE OFFER
The Exchange Offer......... The Company is hereby offering to exchange $1,000
principal amount at maturity of Exchange Notes for
each $1,000 principal amount at maturity of Private
Notes that are properly tendered and accepted. As
of the date hereof, $506,000,000 aggregate
principal amount at maturity of Private Notes is
outstanding. The Company will issue the Exchange
Notes to Holders promptly following the Expiration
Date. See "Risk Factors -- Consequences of Failure
to Exchange." Holders of the Private Notes do not
have appraisal or dissenter's rights in connection
with the Exchange Offer under the Missouri General
and Business Corporation Law, the governing law of
the state of incorporation of the Company.
Minimum Condition.......... The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Private Notes
being tendered or accepted for exchange.
Expiration Date............ 5:00 p.m., New York City time, on ,
1998, unless the Exchange Offer is extended, in
which case the term "Expiration Date" means the
latest date and time to which the Exchange Offer is
extended.
Notes Registration Rights
Agreement................ The Private Notes were sold by the Company on
February 23, 1998 to Merrill Lynch, Pierce, Fenner
& Smith Incorporated and TD Securities (USA) Inc.,
who placed the Private Notes with institutional
investors. In connection therewith, the Company
executed and delivered for the benefit of the
holders of the Private Notes a registration rights
agreement (the "Notes Registration Rights
Agreement") providing for, among other things,
certain exchange and registration rights. The
Exchange Offer is intended to satisfy such rights,
which will terminate upon the consummation of the
Exchange Offer. The Holders of the Exchange Notes
will not be entitled to any exchange or
registration rights with respect to the Exchange
Notes.
Conditions to the Exchange
Offer.................... The Exchange Offer is subject to certain customary
conditions, which may be waived by the Company. The
Exchange Offer is not conditioned upon any minimum
aggregate principal amount of Private Notes being
tendered for exchange. See "The Exchange
Offer -- Conditions." The Company reserves the
right to terminate or amend the Exchange Offer at
any time prior to the Expiration Date upon the
occurrence of any such condition. NO VOTE OF THE
COMPANY'S SECURITY HOLDERS IS REQUIRED TO EFFECT
THE EXCHANGE OFFER AND NO SUCH VOTE (OR PROXY
THEREFOR) IS BEING SOUGHT HEREBY.
Procedures for Tendering
Private Notes.............. Each Holder of Private Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, in
accordance with the instructions contained herein
and therein, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, together
with the Private Notes and any other required
documentation to The Bank of New York, as exchange
agent (the "Exchange Agent"), at the address set
forth herein. By executing the
10
<PAGE> 12
Letter of Transmittal, each Holder will represent
to the Company, among other things, that (i) the
Exchange Notes acquired pursuant to the Exchange
Offer by the Holder and any beneficial owners of
Private Notes are being obtained in the ordinary
course of business of the person receiving such
Exchange Notes, (ii) neither the Holder nor such
beneficial owner is participating in, intends to
participate in or has an arrangement or
understanding with any person to participate in the
distribution of such Exchange Notes and (iii)
neither the Holder nor such beneficial owner is an
"affiliate," as defined under Rule 405 of the
Securities Act, of the Company. Each broker-dealer
that receives Exchange Notes for its own account in
exchange for Private Notes, where such Private
Notes were acquired by such broker or dealer as a
result of market-making activities or other trading
activities (other than Private Notes acquired
directly from the Company), may participate in the
Exchange Offer but may be deemed an "underwriter"
under the Securities Act and, therefore, must
acknowledge in the Letter of Transmittal that it
will deliver a prospectus in connection with any
resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by
delivering a prospectus, a broker or dealer will
not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act. See "The
Exchange Offer -- Procedures for Tendering" and
"Plan of Distribution."
Special Procedures for
Beneficial Owners.......... Any beneficial owner whose Private Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and
who wishes to tender should contact such registered
Holder promptly and instruct such registered Holder
to tender on such beneficial owner's behalf. If
such beneficial owner wishes to tender on such
owner's own behalf, such owner must, prior to
completing and executing the Letter of Transmittal
and delivering his Private Notes, either make
appropriate arrangements to register ownership of
the Private Notes in such owner's name or obtain a
properly completed bond power from the registered
Holder. The transfer of registered ownership may
take considerable time and may not be able to be
completed prior to the Expiration Date. See "The
Exchange Offer -- Procedures for Tendering."
Guaranteed Delivery
Procedures............... Holders of Private Notes who wish to tender their
Private Notes and whose Private Notes are not
immediately available or who cannot deliver their
Private Notes, the Letter of Transmittal or any
other documents required by the Letter of
Transmittal to the Exchange Agent prior to the
Expiration Date must tender their Private Notes
according to the guaranteed delivery procedures set
forth in "The Exchange Offer -- Guaranteed Delivery
Procedures."
Withdrawal Rights.......... Tenders may be withdrawn at any time prior to 5:00
p.m., New York City time, on the Expiration Date.
See "The Exchange Offer -- Withdrawal of Tenders."
Acceptance of Private Notes
and Delivery of Exchange
Notes.................... The Company will accept for exchange any and all
Private Notes which are properly tendered in the
Exchange Offer prior to 5:00 p.m., New York City
time, on the Expiration Date. The Exchange Notes
issued
11
<PAGE> 13
pursuant to the Exchange Offer will be delivered
promptly following the Expiration Date. See "The
Exchange Offer -- Terms of the Exchange Offer."
Federal Income Tax
Consequences............. The exchange of Private Notes for Exchange Notes by
tendering holders will not be a taxable exchange
for federal income tax purposes, and such holders
will not recognize any taxable gain or loss or any
interest income for federal income tax purposes as
a result of such exchange (assuming no Special
Interest becomes due). However, the Company is not
providing a tax opinion to holders of the Notes and
recommends that each holder consult such holder's
own tax advisor. See "Certain United States Federal
Income Tax Considerations."
Use of Proceeds............ There will be no proceeds to the Company from, and
the Company has agreed to bear the expenses of, the
Exchange Offer.
Effect on Holders of
Private Notes.............. As a result of the making of this Exchange Offer,
and upon acceptance for exchange of all validly
tendered Private Notes pursuant to the terms of
this Exchange Offer, the Company will have
fulfilled certain obligations under the terms of
the Private Notes and the Notes Registration Rights
Agreement and, accordingly, the holders of the
Private Notes will have no further registration or
other rights under the Notes Registration Rights
Agreement, except under certain limited
circumstances. See "The Exchange Offer -- Purpose
and Effect of the Exchange Offer." Holders of the
Private Notes who do not tender their Private Notes
in the Exchange Offer will continue to hold such
Private Notes and will be entitled to all the
rights and limitations applicable thereto under the
Indenture. All untendered, and tendered but
unaccepted, Private Notes will continue to be
subject to the restrictions on transfer provided
for in the Private Notes and the Indenture. To the
extent that Private Notes are tendered and accepted
in the Exchange Offer, the trading market, if any,
for the Private Notes not so tendered could be
adversely affected. See "Risk
Factors -- Consequences of Failure to Exchange."
Exchange Agent............. The Bank of New York is serving as Exchange Agent
in connection with the Exchange Offer. See "The
Exchange Offer -- Exchange Agent."
SUMMARY DESCRIPTION OF THE EXCHANGE NOTES
The Exchange Offer applies to $506,000,000 aggregate principal amount at
maturity of Private Notes. The terms of the Exchange Notes are identical in all
material respects to the Private Notes, except that the Exchange Notes have been
registered under the Securities Act and, therefore, will not bear legends
restricting their transfer and will not contain certain terms providing for an
increase in the interest rate on the Private Notes under certain circumstances
relating to the timing of the Exchange Offer, which rights will terminate when
the Exchange Offer is consummated. The Exchange Notes will evidence the same
debt as the Private Notes and will be entitled to the benefits of the Indenture,
under which both the Private Notes were, and the Exchange Notes will be, issued.
See "Description of the Notes."
The Exchange Notes......... $506,000,000 aggregate principal amount at maturity
of 12 1/2% Series B Senior Discount Notes due 2008.
Maturity Date.............. March 1, 2008
12
<PAGE> 14
Yield and Interest......... 12 1/2% per annum (computed on a semiannual bond
equivalent basis) calculated from February 23, 1998
(without giving effect to any allocation of net
proceeds of the Private Offering to the Warrants
issued in the Private Offering). Cash interest will
not accrue on the Exchange Notes prior to March 1,
2003, from which time cash interest will accrue on
the Exchange Notes at a rate of 12 1/2% per annum.
Cash interest on the Exchange Notes is payable
semiannually in arrears on March 1 and September 1
of each year, commencing September 1, 2003.
Original Issue Discount.... Each Exchange Note is issued with original issue
discount for United States federal income tax
purposes. Thus, although cash interest will not
begin to accrue on the Exchange Notes until March
1, 2003, and there will be no periodic payments of
interest on the Exchange Notes prior to September
1, 2003, the total amount of original issue
discount (i.e., the difference between the stated
redemption price at maturity of the Notes and the
amount of the issue price of the Units allocated to
the Notes) will accrue from the issue date and will
be includible as interest income periodically in a
holder's gross income for federal income tax
purposes in advance of receipt of the cash payments
to which the income is attributable. The Private
Notes were issued with total original issue
discount of approximately $240.8 million. Assuming
the Exchange Offer is consummated on September 1,
1998, the Exchange Notes will be issued with total
original issue discount of approximately $222.3
million. See "Certain United States Federal Income
Tax Considerations."
Optional Redemption........ The Exchange Notes will be redeemable at the
Company's option, in whole or in part, at any time
on or after March 1, 2003 at the redemption prices
set forth herein together with accrued interest, if
any, to the date of redemption.
In addition, on or prior to March 1, 2001, the
Company may redeem up to 33 1/3% of the aggregate
principal amount at maturity of the originally
issued Notes with the net proceeds of one or more
Public Equity Offerings (as defined) at a
redemption price of 112.5% of the Accreted Value
thereof; provided that at least 66 2/3% of the
aggregate principal amount at maturity of
originally issued Notes remains outstanding. See
"Description of the Notes -- Redemption."
Change of Control.......... Upon the occurrence of a Change of Control, each
holder of Exchange Notes may require the Company to
make an offer to purchase all outstanding Exchange
Notes at a purchase price equal to 101% of the
Accreted Value thereof, together with accrued
interest, if any, to the date of purchase. See
"Description of the Notes -- Certain Covenants."
There can be no assurance that the Company will
have available, or will be able to acquire from
alternative sources of financing, funds sufficient
to repurchase the Exchange Notes in the event of a
Change of Control. See "Risk Factors -- High
Leverage; Ability to Service Indebtedness;
Restrictive Covenants."
Ranking.................... The Exchange Notes will be senior unsecured
obligations of the Company ranking pari passu in
right of payment with all future unsecured senior
indebtedness of the Company and senior in right of
payment to all future obligations of the Company
that are expressly subordinated in
13
<PAGE> 15
right of payment to the Exchange Notes. As of March
31, 1998, the Company had approximately $268.9
million of indebtedness outstanding, all of which
represented the Private Notes. As of the date of
this Prospectus, the Company has no other
indebtedness (including any indebtedness that ranks
pari passu with the Notes) outstanding. Because the
Company is a holding company that conducts its
business through Digital Teleport, its wholly owned
subsidiary, all existing and future indebtedness
and other liabilities and commitments of the
Company's subsidiary, including trade payables,
will be effectively senior to the Exchange Notes,
and the Company's subsidiary will not be a
guarantor of the Notes. As of March 31, 1998,
Digital Teleport had aggregate liabilities of $21.1
million, including $14.4 million of deferred
revenues. Subject to certain limitations, the
Company and its Restricted Subsidiaries (as defined
herein) may incur additional indebtedness in the
future. See "Risk Factors -- High Leverage; Ability
to Service Indebtedness; Restrictive Covenants,"
"-- Holding Company Structure; Priority of Secured
Debt" and "Description of the Notes -- Ranking."
Certain Covenants.......... The Indenture contains certain covenants that
restrict, among other things, the ability of the
Company and its Restricted Subsidiaries to (i)
incur certain indebtedness, (ii) pay dividends and
make certain other restricted payments, (iii)
create liens, (iv) permit other restrictions on
dividends and other payments by Restricted
Subsidiaries, (v) issue and sell capital stock of
Restricted Subsidiaries, (vi) guarantee certain
indebtedness, (vii) sell assets, (viii) enter into
transactions with Affiliates (as defined), (ix)
merge, consolidate or transfer substantially all of
the assets of the Company and (x) make investments
in any Unrestricted Subsidiary (as defined). The
covenants require the Company to make an offer to
purchase specified amounts of Notes in the event of
certain asset sales. There can be no assurance that
the Company will have sufficient funds to complete
any purchase of Exchange Notes upon such a sale of
assets. See "Description of the Notes -- Certain
Covenants."
RISK FACTORS
Holders of the Private Notes should carefully consider the information set
forth in this Prospectus, and in particular, should evaluate the factors set
forth under "Risk Factors" beginning on page 17.
14
<PAGE> 16
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA
The summary consolidated financial data presented below for each of the
three years in the period ended June 30, 1997 have been derived from the audited
consolidated financial statements of the Company, which have been audited by
Deloitte & Touche LLP, independent auditors. The summary consolidated financial
data as of and for the nine-month periods ended March 31, 1997 and 1998 have
been derived from the unaudited consolidated financial statements of the
Company, which have been prepared on the same basis as the audited consolidated
financial statements of the Company and, in the opinion of management, reflect
all normal recurring adjustments necessary for a fair presentation of the
financial position and results of operations as of the end of and for such
periods. The results for the nine months ended March 31, 1998 are not
necessarily indicative of the operating results to be expected for the entire
year. The information set forth below should be read in conjunction with the
discussion under "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Business" and the audited and unaudited
consolidated financial statements of the Company and the notes thereto appearing
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEAR ENDED JUNE 30, MARCH 31,
------------------------------------------- --------------------------
1995(A) 1996(A) 1997 1997 1998
------- ------- ---- ---- ----
<S> <C> <C> <C> <C> <C>
OPERATING STATEMENT DATA:
Revenue
Telecommunications services
Carrier's carrier services...... $ -- $ 188,424 $ 807,347 $ 488,931 $ 1,707,914
End-user services............... 199,537 488,377 515,637 380,914 414,660
Other services(b)................. -- -- 711,006 -- --
------------ ----------- ------------ ----------- ------------
Total revenue................... 199,537 676,801 2,033,990 869,845 2,122,574
------------ ----------- ------------ ----------- ------------
Operating expenses:
Telecommunication services........ 165,723 296,912 847,190 563,791 1,024,578
Other services(b)................. -- -- 364,495 -- --
Selling, general and
administrative.................. 240,530 548,613 1,118,809 845,684 2,437,825
Depreciation and amortization..... 70,500 425,841 757,173 521,049 1,385,750
------------ ----------- ------------ ----------- ------------
Total operating expenses........ 476,753 1,271,366 3,087,667 1,930,524 4,848,153
------------ ----------- ------------ ----------- ------------
Loss from operations................ (277,216) (594,565) (1,053,677) (1,060,679) (2,725,579)
Interest income (expense), net...... (9,516) (191,810) (51,023) (94,534) (2,138,707)
Loan commitment fees................ -- -- (784,500) (784,500) --
Equity in earnings of joint
venture........................... -- -- 37,436 37,436 --
------------ ----------- ------------ ----------- ------------
Loss before income tax benefit...... (286,732) (786,375) (1,851,764) (1,902,277) (4,864,286)
Income tax benefit.................. -- -- 1,214,331 1,042,000 2,020,000
------------ ----------- ------------ ----------- ------------
Net loss(c)......................... $(286,732) $(786,375) $(637,433) $(860,277) $(2,844,286)
============ =========== ============ =========== ============
</TABLE>
<TABLE>
<CAPTION>
AS OF MARCH 31, 1998
--------------------
<S> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................. $263,231,384
Network and equipment, net................................ 60,824,950
Total assets.............................................. 338,467,861
Long-term debt............................................ 268,856,985
Deferred revenues(d)...................................... 14,037,528
Stockholders' equity...................................... 48,536,348
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEAR ENDED JUNE 30, MARCH 31,
------------------------------------------- ---------------------------
1995(A) 1996(A) 1997 1997 1998
------- ------- ---- ---- ----
<S> <C> <C> <C> <C> <C>
OTHER FINANCIAL DATA:
Cash flows from operations......... $ 6,903,884 $ 299,710 $ 7,674,272 $ 4,694,799 $ 5,097,421
Cash flows from investing
activities....................... (11,804,176) (1,122,569) (19,417,073) (10,058,794) (28,210,066)
Cash flows from financing
activities....................... 5,030,000 1,500,030 15,292,316 10,314,313 281,977,123
EBITDA(e).......................... (206,716) (168,724) (259,068) (502,194) (1,339,829)
Capital expenditures............... 6,804,176 5,663,047 19,876,595 10,518,316 28,210,066
Ratio of earnings to fixed
charges(f)....................... -- -- -- -- --
</TABLE>
15
<PAGE> 17
<TABLE>
<CAPTION>
AS OF
---------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31,
1997 1997 1997 1997 1998
--------- -------- ------------- ------------ ---------
<S> <C> <C> <C> <C> <C>
OTHER OPERATING DATA:
Route miles....................................... 520 732 1,361 1,427 1,538
Fiber miles....................................... 33,269 44,071 84,254 87,498 93,006
POP/Collocation sites(g).......................... 19 24 43 45 45
</TABLE>
- ---------------
(a) From its inception in June 1989 through June 30, 1993, the Company had no
significant operations, assets or liabilities and consisted of nominal
organizational activities. In addition, through June 30, 1996, the Company
was considered a development stage enterprise focused on developing the DTI
network and customer base.
(b) Other services revenues and expenses in the year ended June 30, 1997 reflect
the design, construction and installation of innerduct for another carrier's
fiber optic network.
(c) Net loss attributable to Common Stock, loss per share data and weighted
average number of shares outstanding are not meaningful as there was only
one common shareholder and no class of securities was registered.
(d) Does not include current portion of deferred revenues in the amount of
approximately $366,000 as of March 31, 1998. See "Capitalization."
(e) EBITDA represents net loss before interest income (expense), loan commitment
fees, income tax benefit, depreciation and amortization. EBITDA is included
because the Company understands that such information is commonly used by
investors in the telecommunications industry as an additional basis on which
to evaluate the Company's ability to pay interest, repay debt and make
capital expenditures. Excluded from EBITDA are interest income (expense),
loan commitment fees, income taxes, depreciation and amortization, each of
which can significantly affect the Company's results of operations and
liquidity and should be considered in evaluating the Company's financial
performance. EBITDA is not intended to represent, and should not be
considered more meaningful than, or an alternative to, measures of operating
performance determined in accordance with generally accepted accounting
principles ("GAAP"). Additionally, EBITDA should not be used as a comparison
between companies, as it may not be calculated in a similar manner by all
companies.
(f) For purposes of calculating the ratio of earnings to fixed charges: (i)
earnings consist of loss before income tax benefit, plus fixed charges
excluding capitalized interest; and (ii) fixed charges consist of interest
expenses and capitalized costs, amortization of deferred financing costs,
plus the portion of rentals considered to be representative of the interest
factor (one-third of lease payments). For the years ended June 30, 1995,
1996 and 1997, and for the nine months ended March 31, 1997 and 1998, the
Company's earnings were insufficient to cover fixed charges by approximately
$296,000, $2.0 million, $2.4 million, $2.5 million and $4.9 million,
respectively.
(g) Consists of interconnections with ILEC access tandems, ILEC central offices,
IXC POPs, and DTI's network control center and POP buildings.
16
<PAGE> 18
RISK FACTORS
In addition to the other information in this Prospectus, before tendering
their Private Notes for the Exchange Notes offered hereby, holders of Private
Notes should consider carefully the following factors, which may be generally
applicable to the Private Notes as well as to the Exchange Notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Private Notes who do not exchange their Private Notes for
Exchange Notes pursuant to the Exchange Offer will continue to be subject to the
restrictions on transfer of such Private Notes, as set forth in the legend
thereon, as a consequence of the issuance of the Private Notes pursuant to
exemptions from, or in transactions not subject to, the registration
requirements of the Securities Act and applicable state securities laws. The
Company does not currently anticipate that it will register the Private Notes
under the Securities Act. Based on interpretations by the staff of the
Commission set forth in no-action letters issued to third parties, including
Exxon Capital Holdings Corporation, SEC No-Action Letter (available April 13,
1988) (the "Exxon Capital Letter"), Morgan Stanley & Co. Incorporated, SEC
No-Action Letter (available June 5, 1991) (the "Morgan Stanley Letter"), and
similar letters, the Company believes that the Exchange Notes issued pursuant to
the Exchange Offer may be offered for resale, resold or otherwise transferred by
any Holder thereof (other than any such Holder which is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Notes are acquired in the ordinary
course of such Holder's business and such Holder has no arrangement with any
person to participate in the distribution of such Exchange Notes.
Notwithstanding the foregoing, each broker-dealer that receives Exchange Notes
for its own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with any resale of Exchange Notes received in exchange for Private
Notes where such Private Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities (other than Private
Notes acquired directly from the Company). The Company has agreed that, for a
period of 120 days from the Expiration Date, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution." Any holder who tenders in the Exchange Offer for the
purpose of participating in a distribution of the Exchange Notes cannot rely on
the Morgan Stanley Letter or similar letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction. To the extent that Private Notes
are tendered and accepted in the Exchange Offer, the trading market, if any, for
the Private Notes not so tendered could be adversely affected. See "The Exchange
Offer."
FAILURE TO COMPLY WITH EXCHANGE OFFER PROCEDURES
Issuance of the Exchange Notes in exchange for the Private Notes pursuant
to the Exchange Offer will be made only after timely receipt by the Exchange
Agent of such Private Notes, a properly completed and duly executed Letter of
Transmittal and all other required documents. Therefore, holders of the Private
Notes desiring to tender such Private Notes in exchange for Exchange Notes
should allow sufficient time to ensure timely delivery. The Company is under no
duty to give notification of defects or irregularities with respect to tenders
of Private Notes for exchange. Holders of Private Notes who do not exchange
their Private Notes for Exchange Notes pursuant to the Exchange Offer will
continue to be subject to the restrictions on transfer of such Private Notes as
set forth in the legend thereon. See "The Exchange Offer."
LIMITED HISTORY OF OPERATIONS; OPERATING LOSSES AND NEGATIVE CASH FLOW
Digital Teleport was formed in June 1989 and began offering
telecommunications services in February 1994. Prospective investors, therefore,
have limited historical financial information about the Company upon which to
base an evaluation of the Company's performance and an investment in the Notes.
As a result of development and operating expenses, the Company has incurred
significant operating and net
17
<PAGE> 19
losses to date. Operating losses for fiscal 1995, 1996 and 1997, and the nine
months ended March 31, 1998 were approximately $277,000, $595,000, $1.1 million
and $2.7 million, respectively. DTI's operations have resulted in net losses
before interest income (expense), loan commitment fees, income tax benefit,
depreciation and amortization of $207,000, $169,000 and $259,000 for the years
ended June 30, 1995, 1996 and 1997, respectively, and $1.3 million for the nine
months ended March 31, 1998. In addition, the Company's accumulated deficit was
approximately $6.2 million at March 31, 1998. The Company expects to incur
significant operating losses, to generate negative net cash flows after capital
expenditures and to invest substantial funds to construct the DTI network during
the next several years while the Company continues to develop and expand its
telecommunications services and customer base. There can be no assurance that
the Company will achieve or sustain profitability or generate sufficient
positive cash flow to meet its debt service obligations and working capital
requirements. If the Company cannot achieve operating profitability or positive
cash flows from operating activities, it may not be able to service the Notes or
to meet its other debt service or working capital requirements, which would have
a material adverse effect on the Company. See "-- Substantial Capital
Requirements," "Selected Consolidated Financial Data" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
HIGH LEVERAGE; ABILITY TO SERVICE INDEBTEDNESS; RESTRICTIVE COVENANTS
The Company is and will continue to be highly leveraged. As of March 31,
1998, the Company had approximately $268.9 million of indebtedness outstanding,
all of which was evidenced by the Private Notes. Because the Company is a
holding company that conducts its business through Digital Teleport, all
existing and future indebtedness and other liabilities and commitments of the
Company's subsidiary, including trade payables, are effectively senior to the
Notes, and the Company's subsidiary will not be a guarantor of the Notes. As of
March 31, 1998, Digital Teleport had aggregate liabilities of $21.1 million,
including $14.4 million of deferred revenues. See "-- Holding Company Structure;
Priority of Secured Debt," "Capitalization" and "Selected Consolidated Financial
Data." The Indenture limits but does not prohibit the incurrence of additional
indebtedness by the Company, and the Company expects to incur additional
indebtedness in the future. The Company's leverage could result in adverse
consequences to the holders of the Notes. Such consequences may include, among
other things: (i) a substantial portion of the Company's cash flow will be
dedicated to the payment of the Company's interest expense and may be
insufficient to meet such payment obligations on the Notes, in addition to
paying other indebtedness and obligations of the Company as they become due;
(ii) the Company's ability to obtain any necessary financing in the future for
completion of the DTI network or other purposes may be impaired; (iii) certain
of the future borrowings by the Company may be at variable rates of interest
that could cause the Company to be vulnerable to increases in interest rates;
(iv) the Company may be more leveraged than certain of its competitors, which
may place the Company at a competitive disadvantage; and (v) the Company's
vulnerability to the effects of general economic downturns or to delays in or
increases in the cost of constructing the DTI network may be increased. The
Company's ability to pay the principal of and interest on its indebtedness will
depend upon the Company's future performance, which is subject to a variety of
factors, uncertainties and contingencies, many of which are beyond the Company's
control. There can be no assurance that the Company will generate sufficient
cash flow in the future to enable it to meet its anticipated debt service
requirements, including those with respect to the Notes. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
The Indenture imposes and will impose significant operating and financial
restrictions on the Company, Digital Teleport and any future subsidiaries. These
restrictions affect, and in certain cases significantly limit or prohibit, among
other things, the ability of the Company and its subsidiary to incur certain
indebtedness, pay dividends and make certain other restricted payments, create
liens, permit other restrictions on dividends and other payments by Restricted
Subsidiaries, issue and sell capital stock of Restricted Subsidiaries, guarantee
certain indebtedness, sell assets, enter into transactions with affiliates or
related persons, or consolidate, merge or transfer all or substantially all of
their assets. There can be no assurance that such covenants will not adversely
affect the Company's ability to finance its future operations or capital needs
or to engage in other business activities. Further, there can be no assurance
that the Company will have available, or will be able to
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acquire from alternative sources of financing, funds sufficient to repurchase
the Exchange Notes in the event of a Change of Control. See "Description of the
Notes."
In addition, any future senior indebtedness incurred by the Company is
likely to impose similar restrictions on the Company. Failure by the Company or
its subsidiaries to comply with these restrictions could lead to a default under
the terms of such indebtedness and the Notes notwithstanding the ability of the
Company to meet its debt service obligations. In the event of such a default,
the holders of such indebtedness could elect to declare all such indebtedness to
be due and payable, together with accrued and unpaid interest. In such event, a
significant portion of the Company's indebtedness (including the Notes) may
become immediately due and payable, and there can be no assurance that the
Company would be able to make such payments or borrow sufficient funds from
alternative sources to make any such payment. Even if additional financing could
be obtained, there can be no assurance that it would be on terms that are
acceptable to the Company.
HOLDING COMPANY STRUCTURE; PRIORITY OF SECURED DEBT
The Company is a holding company with no direct operations and no
significant assets other than the stock of Digital Teleport. The Company is
dependent on the cash flow of Digital Teleport to meet its obligations,
including the payment of interest and principal on the Notes. Subject to the
Indenture provisions that limit restrictions on the ability of any of the
Company's Restricted Subsidiaries to pay dividends and make other payments to
the Company, future debt instruments of Digital Teleport may impose significant
restrictions that may affect, among other things, the ability of Digital
Teleport to pay dividends or make loans, advances or other distributions to the
Company. The ability of Digital Teleport to pay dividends and make other
distributions also will be subject to, among other things, applicable state laws
and regulations. There can be no assurance that Digital Teleport will be able to
pay, or will generate sufficient earnings or cash flow to distribute, any cash
dividends or make any loans, advances or other payments of funds to the Company,
the failure of which would have a material adverse effect on the Company's
ability to meet its obligations on the Exchange Notes. See "Description of the
Notes -- Certain Covenants -- Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries."
Digital Teleport is a separate legal entity that has no obligation to pay
any amounts due pursuant to the Notes or to make any funds available therefor,
whether by dividends, loans or other payments. Because Digital Teleport does not
guarantee the payment of the principal or interest on the Notes, any right of
the Company to receive assets of Digital Teleport upon its liquidation or
reorganization (and the consequent right of holders of the Notes to participate
in the distribution or realize proceeds from those assets) are effectively
subordinated to the claims of the creditors of Digital Teleport (including trade
creditors and holders of indebtedness of such subsidiary), except if and to the
extent the Company is itself a creditor of Digital Teleport, in which case the
claims of the Company would still be effectively subordinated to any security
interest in the assets of Digital Teleport held by other creditors. As of March
31, 1998, Digital Teleport had aggregate liabilities of $21.1 million, including
$14.4 million of deferred revenues.
The Notes are unsecured and will be effectively subordinated to any future
secured indebtedness of the Company to the extent of the value of the assets
securing such indebtedness. As of March 31, 1998, the Company had no secured
indebtedness and no indebtedness that ranked pari passu with the Notes. The
Indenture permits the Company or Digital Teleport to incur additional secured
indebtedness, including purchase money indebtedness in unlimited amounts, and
indebtedness pursuant to one or more bank credit facilities of up to $70.0
million and the greater of (i) 80% of DTI's accounts receivable or (ii) $30.0
million. See "Description of the Notes." The Company expects that indebtedness
under any bank credit facility will be secured by a pledge by the Company of
100% of the capital stock of Digital Teleport and present and future
subsidiaries of Digital Teleport and all assets held directly by Digital
Teleport and its subsidiaries, and will be guaranteed by such subsidiaries.
Consequently, in the event of a bankruptcy, liquidation, dissolution,
reorganization or similar proceeding with respect to the Company, such assets
will be available to satisfy obligations of such secured debt before any payment
can be made on the Notes. In addition, to the extent such assets would not
satisfy in full such secured indebtedness, the holders of such indebtedness will
have a claim
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for any shortfall that is pari passu (or effectively senior if the indebtedness
were issued by Digital Teleport) with the Notes. Accordingly, there may only be
a limited amount of assets available to satisfy any claims of the holders of the
Notes upon an acceleration of the Notes.
SUBSTANTIAL CAPITAL REQUIREMENTS
The development of the Company's business and the installation and
expansion of the DTI network have required and will continue to require
substantial capital. In the past, the Company has funded its capital
expenditures through advance payments from certain of its customers prior to
network construction and private debt and equity financing. The Company is
funding its future capital expenditure requirements through the net proceeds of
the Private Offering, advance payments under existing and additional dark fiber
leases and wholesale network capacity agreements, borrowings under bank credit
facilities, additional debt or equity financings and any available cash flow
from operations. The Company estimates that total capital expenditures to
complete the DTI network will be approximately $673.2 million. Of this amount,
the Company had already expended approximately $62.8 million as of March 31,
1998. The Company anticipates total capital expenditures of approximately $16.6
million in the fourth quarter of fiscal 1998 and $410.1 million in fiscal 1999.
The Company's estimated capital requirements primarily include the estimated
cost of (i) completing the DTI network and (ii) network expansion activities,
including the construction of additional local loops in secondary and tertiary
cities as network traffic volume increases. The Company also may require
additional capital in the future to fund operating deficits and net losses and
for potential strategic alliances, joint ventures and acquisitions. These
activities could require significant additional capital not included in the
foregoing estimated capital requirements.
The Company is in various stages of discussions with potential customers
for additional IRUs and wholesale network capacity agreements. There can be no
assurance, however, that the Company will continue to obtain advance payments
from customers prior to commencing construction or that other sources of capital
will be available on a timely basis and on terms that are acceptable to the
Company and within the restrictions under the Company's existing financing
arrangements, or at all. If the Company fails to obtain the capital required to
complete the DTI network build-out, the Company could modify, defer or abandon
building certain portions of the DTI network. The failure of the Company,
however, to raise the substantial capital required to complete the DTI network
construction could have a material adverse effect on the Company. See "-- Risks
Related to Completing the DTI Network; Increasing Traffic Volume" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
The Company's expectation of required future capital is based on the
Company's current estimates. The actual amount and timing of DTI's future
capital requirements may differ materially from these estimates depending on
demand for the Company's services, the Company's ability to implement its
current business strategy and as a result of regulatory, technological and
competitive developments in the telecommunications industry. There can be no
assurance that actual expenditures will not differ significantly from such
estimates. The Company may seek to raise additional capital from public or
private equity or debt sources. There can be no assurance that the Company will
be able to raise such capital on satisfactory terms or at all. If the Company
decides to raise additional capital through the incurrence of debt, the Company
may become subject to additional or more restrictive financial covenants. In the
event that the Company is unable to obtain such additional capital on acceptable
terms or at all, the Company may be required to reduce the scope or pace of
deployment of the DTI network, which could materially adversely affect the
Company's business, results of operations and financial condition and its
ability to compete.
RISKS RELATED TO COMPLETING THE DTI NETWORK; INCREASING TRAFFIC VOLUME
The Company's ability to achieve its strategic objectives will depend in
large part upon the successful, timely and cost-effective completion of the DTI
network, as well as on achieving substantial traffic volumes on the DTI network.
The construction of the DTI network may be affected by a variety of factors,
uncertainties and contingencies, many of which are beyond the Company's control.
There can be no assurance that the DTI
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network will be completed as planned at the cost and in the timeframe currently
estimated, if at all. Although the Company believes that its cost estimates and
build-out schedule are reasonable, there can be no assurance that the actual
construction costs or time required to complete the construction of the DTI
network will not substantially exceed current estimates. In addition, the
Company must substantially increase its current traffic volume in order to
realize expected cash flows, operating efficiencies and cost benefits of the DTI
network. There can be no assurance that the Company will be able to achieve such
increased traffic volume. See "-- Pricing Pressures and Industry Capacity."
The successful and timely construction of the DTI network will depend upon,
among other things, the Company's ability to (i) obtain substantial amounts of
additional capital and financing, at reasonable costs and on satisfactory terms
and conditions, (ii) effectively and efficiently manage the construction of the
DTI network route segments, (iii) access markets and enter into additional
customer contracts to sell or lease high volume capacity on the DTI network and
(iv) obtain additional franchises, permits and rights-of-way to permit it to
complete its planned strategic routing. Successful construction of the DTI
network also will depend upon the timely performance by third-party contractors
of their obligations. Certain of the Company's customer contracts provide for
reduced payments and varying penalties for late delivery of route segments and
allow the customers, after expiration of grace periods, to delete such
non-delivered segment from the system route to be delivered. The Company is
currently not in compliance with construction schedules under contracts with two
of its customers. The Company has received notice from a customer that it
intends to setoff against amounts payable to the Company of approximately
$75,000 (in addition to $400,000 set off against previous payments) as damages
and penalties under the Company's contract with that customer due to the failure
by the Company to meet certain construction deadlines, and such customer
reserved its rights to seek other remedies under the contract. The Company
believes that if such additional setoff were to be made, it would not be
material to the Company's business, financial position or results of operations.
The Company is behind schedule with respect to such contract as a result of such
customer's not obtaining on behalf of the Company certain rights-of-way required
for completion of certain network facilities, and the Company's limitations on
its financial and human resources, particularly prior to the Private Offering.
The Company has obtained alternative rights-of-way and hired additional
construction supervisory personnel to accelerate the completion of such
construction. Upon completion, such customer is contractually required to pay
the Company a lump sum of approximately $4.2 million for the Company's
telecommunications services over its network. The Company is also behind
schedule in the construction of fiber optic facilities for another customer,
which facilities were to have been completed in December 1997, primarily as a
result of a delay in obtaining rights-of-way required for completion of certain
network facilities, and the Company's limitations on its financial and human
resources, particularly prior to the Private Offering. The Company is in what it
believes to be are final negotiations for the needed right-of-way, and as
indicated above has hired additional construction supervisory personnel. Upon
completion, such customer will begin paying the Company $133,000 per month for
the use of such completed facilities. There can be no assurance that such
customers or other customers will not in the future find the Company to have
materially breached its contracts, that such customers will not terminate such
contracts or that such customers will not seek other remedies. There can be no
assurance that the Company will obtain sufficient capital and financing to fund
its currently planned capital expenditures, successfully manage construction,
sell fiber and capacity to additional customers, meet contractual timetables for
future services, or maintain existing and acquire necessary additional
franchises, permits and rights-of-way. Any failure by DTI to accomplish these
objectives may significantly delay or prevent completion of the DTI network,
which would have a material adverse effect on the Company's business, financial
condition and results of operations.
COMPETITION
The telecommunications industry is highly competitive. The Company competes
and, as it expands its network within and outside the Midwest region, expects to
compete with numerous established facilities-based IXCs, ILECs and CLECs. These
competitors have substantially greater financial and technical resources,
long-standing relationships with their customers and the potential to subsidize
competitive services from less competitive service revenues. DTI is aware that
other facilities-based providers of local and long
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distance telecommunications services are planning and constructing additional
networks that, if and when completed, could employ advanced fiber optic
technology similar to the DTI network. Such competing networks may also have
operating capabilities similar to those of the DTI network and be positioned
geographically to compete directly with the DTI network for many of the same
customers along a significant portion of the same routes.
The Company competes primarily on the basis of price, transmission quality,
reliability and customer service and support. The Company's competitors in
carrier's carrier services include many large and small IXCs, including AT&T,
MCI, Sprint, WorldCom, Qwest Communications International Inc. ("Qwest") and
McLeod, Inc. ("McLeod"). The Company competes with both LECs and IXCs in its
end-user business. In the local exchange market, the Company also faces or
expects to face competition from ILECs and other competitive providers,
including non-facilities based providers, and, as the local access markets
become opened to IXCs under the Telecommunications Act of 1996 (the "Telecom
Act"), from long distance providers. AT&T, MCI and Sprint, among other carriers,
have each indicated their intention to begin offering local telecommunications
services in major U.S. markets using their own facilities or by resale of the
ILECs' or other providers' services and either have begun or will likely begin
offering local exchange service in certain states, subject to the certain
restrictions contained in the Telecom Act. See "Business -- Regulatory Matters."
WorldCom, together with its wholly owned subsidiaries MFS Communications
Company, Inc. ("MFS") and Brooks Fiber Properties, Inc. ("Brooks Fiber"),
currently provides both local exchange and long distance telecommunications
services throughout the United States. WorldCom also announced its agreement to
acquire MCI. In addition, AT&T has recently announced its agreement to acquire
Teleport Communications Group, Inc. ("TCG"), a facilities-based CLEC with
networks in operation in 57 markets in the United States, and SBC
Communications, Inc. ("SBC") has announced agreements to acquire Ameritech Corp.
("Ameritech"), one of the original seven Regional Bell Operating Companies
("RBOCs"), and Southern New England Telecommunications Corp. ("SNET"). Further,
Qwest, a communications provider building a 16,000-mile fiber optic network in
the United States, announced its agreement to acquire LCI International Inc., a
retail long distance provider, which acquisition would create the nation's fifth
largest long distance company. The Company also believes that high initial
network cost and low marginal costs of carrying long distance traffic have led
to a trend among non-facilities-based carriers to consolidate in order to
achieve economies of scale. Such consolidation among significant
telecommunications carriers could result in larger, better capitalized
competitors that can offer a "one-stop shopping" combination of long distance
and local switched services in many of DTI's target markets.
Certain companies have recently announced efforts to use Internet
technologies to supply telecommunications services, potentially leading to a
lower cost of supplying these services and therefore increased pressure on IXCs
and other telecommunications companies to reduce their prices. There can be no
assurance that the Company's IXC and other carrier customers will not experience
substantial decreases in call volume or pricing due to competition from
Internet-based telecommunications, which could lead to a decreased need for the
Company's services, or a reduction in the amount these companies are willing or
able to pay for the Company's services. There can also be no assurance that the
Company will be able to offer its telecommunications services to end users at a
price that is competitive with the Internet-based telecommunications services
offered by these new companies. The Company does not currently market to
Internet service providers ("ISPs") and therefore may not realize any revenues
from the Internet-based telecommunications market. If the Company does commence
marketing to ISP's, there can be no assurance that it will be able to do so
successfully, which would have a material adverse effect on the Company's
business, financial condition and results of operations.
In addition to IXCs and LECs, entities potentially capable of offering
switched services in competition with the DTI network include cable television
companies, electric utilities, microwave carriers, wireless telephone system
operators and large subscribers who build private networks. Previous impediments
to certain utility companies entering telecommunications markets under the
Public Utility Holding Company Act of 1935 were also removed by the Telecom Act,
creating a new competitive threat for DTI.
In the future, the Company may be subject to more intense competition due
to the development of new technologies, an increased supply of domestic and
international transmission capacity, the consolidation in the
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industry among local and long distance service providers and the effects of
deregulation resulting from the Telecom Act. The telecommunications industry is
experiencing a period of rapid technological evolution, marked by the
introduction of new product and service offerings and increasing satellite
transmission capacity for services similar to those provided by the Company. For
instance, recent technological advances permit substantial increases in
transmission capacity of both new and existing fiber, and the introduction of
new products or emergence of new technologies may reduce the cost or increase
the supply of certain services similar to those provided by the Company. The
Company cannot predict which of many possible future product and service
offerings will be crucial to maintain its competitive position or what
expenditures will be required to develop profitably and provide such products
and services.
Many of the Company's competitors and potential competitors have financial,
personnel, marketing and other resources significantly greater than those of the
Company, as well as other competitive advantages. A continuing trend toward
business combinations and alliances in the telecommunications industry may
increase the resources available to DTI's competitors, create significant new
competitors and potentially decrease the Company's carrier customer base. The
ability of DTI to compete effectively will depend upon, among other things, its
ability to deploy the DTI network and to maintain high quality services at
prices equal to or below those charged by its competitors. There can be no
assurance that the Company will be able to compete successfully with existing
competitors or new entrants in the markets for carrier's carrier services and
end-user services. Failure of the Company to do so would have a material adverse
effect on the Company. See "Business -- Competition."
NEED TO OBTAIN AND MAINTAIN FRANCHISES, PERMITS AND RIGHTS-OF-WAY
In order to develop its networks, the Company must obtain local franchises
and other permits, as well as rights to utilize underground conduit, pole space
and other rights-of-way from entities such as utilities, state highway
authorities, local governments, ILECs and IXCs. The Telecom Act requires that
local governmental authorities treat telecommunications carriers in a
competitively neutral, non-discriminatory manner, and that most utilities,
including electric companies and most ILECs, afford CLECs access to their
conduits, poles and rights-of-way at reasonable rates and on non-discriminatory
terms and conditions. The Company has entered into long-term agreements with
highway authorities in Missouri and Arkansas and with electric utilities
operating in Missouri and southern Illinois, pursuant to which the Company
generally has access to various rights-of-ways in given localities. There can be
no assurance that the Company will be able to maintain its existing franchises,
permits and rights-of-way or to obtain and maintain the other franchises,
permits and rights-of-way needed to implement its business plan on acceptable
terms and to complete its planned strategic routing. Although the Company does
not believe that any of its existing franchises, permits or rights-of-way will
be terminated or not renewed as needed, termination or non-renewal of certain of
such franchises, permits or rights-of-way relating to a significant portion of
the DTI network could materially adversely affect the Company. See "Business --
The DTI Network -- Highway and Utility Rights-of-Way."
DEPENDENCE ON LIMITED NUMBER OF LARGE CUSTOMERS
The Company has substantial business relationships with a few large
customers. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations." In addition, the Company's business plan assumes that a
large proportion of its future revenues will come from its carrier's carrier
services, which by their nature are marketed to a limited number of
telecommunications carriers. Therefore, dissatisfaction with the Company's
services by a relatively few number of customers could have a material adverse
effect on the Company's business, financial condition and results of operations.
See "-- Risks Related to Completing the DTI Network; Increasing Traffic Volume."
The Company is aware that certain IXCs are constructing or considering
construction of new networks, or buying companies with local networks, which
could reduce their need for the Company's services. See "Risk
Factors -- Competition." In addition, it is possible that as IXCs expand their
product offerings and networks, and the Company expands its product offerings
and the geographic scope of the DTI network, the Company may become a competitor
of one or more of its large customers for certain end-user customers.
Accordingly, there can be no assurance that any of the Company's carrier's
carrier customers will continue to use or increase their use of the Company's
services,
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which would have a material adverse effect on the Company's business, financial
condition and results of operations.
EXPANSION AND MANAGING RAPID GROWTH
The expansion of the DTI network and the Company's services will depend on,
among other things, its ability to enter new markets, design fiber optic network
routes, install facilities and obtain rights-of-way, building access and any
required government authorizations and/or permits, all in a timely manner, at
reasonable costs and on satisfactory terms and conditions. The expansion of the
DTI network and services also will require substantial growth in the Company's
management base, systems and other operations. Implementation of the Company's
current and future expansion plans will also depend on factors such as: (i) the
availability of financing and regulatory approvals; (ii) the existence of
strategic alliances or relationships; (iii) technological, regulatory or other
developments in the Company's business; (iv) changes in the competitive climate
in which the Company operates; and (v) the emergence of future opportunities.
There can be no assurance that the Company will be able to expand its existing
network or services in a cost effective manner.
A key part of the Company's business strategy is to achieve rapid growth by
expanding the DTI network throughout the Midwest region and to the east and west
coasts of the United States and using the DTI network and services to exploit
opportunities expected to arise from regulatory and technological changes and
other industry developments. The Company's ability to manage its expansion
effectively will depend upon, among other things: (i) expansion, training and
management of its employee base, including attracting and retaining highly
skilled personnel; (ii) expansion and improvement of the Company's customer
service and support systems and improvement or cost-effective outsourcing of the
Company's operational and financial systems; (iii) development, introduction and
marketing of new products and services; and (iv) control of the Company's
expenses. The failure of the Company to satisfy these requirements and to
otherwise manage its growth effectively would have a material adverse effect on
the Company.
DEPENDENCE ON KEY PERSONNEL
The Company's future performance depends to a significant degree upon the
continued contributions of a small number of key executives, particularly
Richard D. Weinstein, the Company's founder, Chief Executive Officer and
President. The Company has entered into employment agreements with certain of
these executives. Nonetheless, the loss of these individuals and the inability
of the Company to attract and retain suitable replacements could have a material
adverse effect on the Company's business, financial condition, results of
operations and business prospects. See "Management -- Executive Officers and
Directors" and "Management -- Employment Agreements." The Company's future
success and ability to manage growth will be dependent also upon its ability to
hire additional highly skilled employees for a variety of management,
engineering, technical, and sales and marketing positions. The competition for
such personnel is intense. There can be no assurance that the Company will be
able to attract and retain sufficient qualified personnel. The failure to do so
could have a material adverse effect on the Company.
DEPENDENCE ON SINGLE OR LIMITED SOURCE SUPPLIERS
The Company is dependent upon single or limited source suppliers for a
number of components and parts used in the DTI network. In particular, the
Company is dependent primarily on Pirelli Cable Corporation ("Pirelli") for its
supply of fiber optic cable. The Company's arrangements have provided it with a
supply of fiber optic cable at a stable, attractive price. DTI's network design
strategy also is dependent on obtaining transmission equipment from Fujitsu and
dense wavelength division multiplexing equipment from another supplier, both of
which supply such equipment to other substantially larger customers. There can
be no assurance that the Company's suppliers will be able to meet the Company's
future requirements on a timely basis. The Company believes that there are
alternative suppliers or alternative components for all of the components
contained in the DTI network. However, any extended interruption in the supply
of any of the key components currently obtained from a single or limited source,
disturbance in the pricing arrangements with Pirelli or Fujitsu, or delay in
transitioning a replacement supplier's product into the DTI network, could
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disrupt the Company's operations and have a material adverse effect on the
Company's operating results. There can be no assurance that such interruption,
disturbance or delay will not occur or that the Company will be successful in
obtaining alternative suppliers. Significant delays in the expansion of the DTI
network resulting from interruptions in the supply of any key network components
or other problems with suppliers could have a material adverse effect on the
Company.
PRICING PRESSURES AND INDUSTRY CAPACITY
Although the Company believes that, in the last several years, increasing
demand has corrected the telecommunications capacity supply imbalance and slowed
the decline in prices, the Company anticipates that prices for carrier's carrier
services and end-user services will continue to decline over the next several
years due primarily to (i) installation of additional fiber that provides
substantially more transmission capacity than will be needed over the short or
medium term, (ii) technological advances that permit substantial increases in
the transmission capacity of both new and existing fiber, and (iii) strategic
alliances or similar transactions, such as long distance capacity purchasing
alliances among certain RBOCs, that increase customer purchasing power. Such
price decreases, without offsetting decreases in the Company's cost of services
or increases in demand for the Company's services, could have a material adverse
effect on the Company. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
RAPID TECHNOLOGICAL CHANGES
The telecommunications industry is subject to rapid and significant changes
in technology. For instance, recent technological advances permit substantial
increases in transmission capacity of both new and existing fiber, and the
introduction of new products or the emergence of new technologies may reduce the
cost or increase the supply of certain services similar to those provided by the
Company. While the Company believes that, for the foreseeable future,
technological changes will neither materially affect the continued use of fiber
optic cable nor materially hinder the Company's ability to acquire necessary
technologies, the actual effect of technological changes on the Company's
operations cannot be predicted and could have a material adverse effect on the
Company.
DEVELOPMENT OF ACCOUNTING, BILLING, CUSTOMER SERVICE AND MANAGEMENT INFORMATION
SYSTEMS
Sophisticated information and processing systems are vital to the Company's
operations and growth and its ability to monitor costs, render monthly invoices
for services, process customer orders, provide customer service and achieve
operating efficiencies. The Company intends to install the accounting,
information and processing systems necessary to provide its services efficiently
throughout the Midwest region. However, there can be no assurance that the
Company will be able to successfully install or operate such systems. As the
Company begins to provide local switched services, the need for sophisticated
billing and information systems will also increase significantly and the Company
will have significant additional requirements for data interface with ILECs.
Additionally, any acquisitions would place additional burdens on the Company's
accounting, information and other systems.
While the Company believes that its existing systems and software
applications are, and that any new systems to be installed will be, Year 2000
compliant, there can be no assurance until the year 2000 that all of the
Company's systems then in place will function adequately. The failure of the
Company's systems or software applications to accommodate the year 2000 could
have a material adverse effect on its business, financial condition and results
of operations and its ability to meet its obligations on the Notes. Further, if
the systems or software applications of telecommunications equipment suppliers,
ILECs, IXCs or others on whose services or products the Company depends are not
Year 2000 compliant, any loss of such services or products could have a material
adverse effect on the Company's business, financial condition and results of
operations. The Company intends to continue to monitor the performance of its
accounting, information and processing systems and software applications and
those of its third-party constituents to identify and resolve any Year 2000
issues. To the extent necessary, the Company may need to replace, upgrade or
reprogram certain systems to ensure that all interfacing applications will be
Year 2000 compliant when operating jointly. Based on current information, the
Company does not expect that the costs of such replacements, upgrades and
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reprogramming will be material to its business, financial condition or results
of operations. Most major domestic carriers have announced that they expect to
achieve Year 2000 compliance for their networks and support systems by mid-1999;
however, other domestic and international carriers and other third-party
constituents may not be Year 2000 compliant, and failures on their networks and
systems could adversely affect the operation of the Company's networks and
support systems and have a material adverse effect on the Company's business,
financial condition and results of operations and its ability to meet its
obligations on the Notes.
Unanticipated problems in any of the above areas, or the Company's
inability to implement solutions in a timely manner or to establish or upgrade
systems as necessary, could have a material adverse impact on the ability of the
Company to reach its objectives and on its business, financial condition and
results of operations.
REGULATION RISKS
The Company is required to obtain certain authorizations from the FCC and
state public utility commissions ("PUCs") to offer certain of its
telecommunications services, as well as to file tariffs for many of its
services. To date, the Company has not experienced significant difficulties in
receiving certification, maintaining tariffs, or otherwise complying with its
regulatory obligations. The Company will face new obligations arising out of the
Telecom Act as it begins to enter the local telephone market. It also is likely
that state PUCs will regulate the local telephone services offered by the
Company and other competitive local exchange carriers more heavily than
competitive long distance services have been regulated in the past. Because the
FCC and the states have yet to adopt many of the rules and policies necessary to
implement the Telecom Act, or to respond to other related local telephone
competition issues, it is uncertain how burdensome these requirements will be
for the Company.
The Company's plans to provide local switched services are heavily
dependent upon implementation of provisions of the Telecom Act. The Telecom Act
preempted state and local laws to the extent that they prohibited local
telephone competition, and imposed a variety of new duties on incumbent local
exchange carriers intended to advance such competition, including the duty to
negotiate in good faith with competitors requesting interconnection to the
ILEC's network. However, negotiations with ILECs have sometimes involved
considerable delays and the resulting negotiated agreements may not necessarily
be obtained on terms and conditions that are acceptable to the Company. In such
instances, the Company may petition the proper state regulatory agency to
arbitrate disputed issues. There can be no assurance that the Company will be
able to negotiate acceptable new interconnection agreements with ILECs or that
if state regulatory authorities impose terms and conditions on the parties in
arbitration, such terms will be acceptable to the Company.
On August 8, 1996, the FCC adopted rules and policies implementing the
local competition provisions of the Telecom Act, which rules, in general, are
considered favorable to new competitive entrants, but those rules have not been
fully implemented. On October 15, 1996, the U.S. Court of Appeals for the Eighth
Circuit (the "Eighth Circuit") issued a stay of the implementation of certain of
the FCC's rules, and on July 18, 1997, the Eighth Circuit issued its decision
finding that the FCC lacked statutory authority under the Telecom Act for
certain of its rules. In particular, the Eighth Circuit found that the FCC was
not empowered to establish the pricing standards governing unbundled local
network elements or wholesale local services of the incumbent local exchange
carriers. The Eighth Circuit also struck down other FCC rules, including one
that would have enabled new entrants to "pick and choose" from provisions of
established interconnection agreements between the incumbent local exchange
carriers and other carriers. The Eighth Circuit rejected certain other
objections to the FCC rules brought by the ILECs or the states, including
challenges to the FCC's definition of unbundled elements, and to the FCC's rules
allowing new competitors to create their own networks by combining ILECs network
elements together without adding additional facilities of their own. The overall
impact of the Eighth Circuit's decision is to materially reduce the role of the
FCC in fostering local competition, including its ability to take enforcement
action if the Telecom Act is violated, and to increase the role of state utility
commissions. The Supreme Court recently announced that it will review the Eighth
Circuit's decision. Meanwhile, certain state commissions have asserted that they
will be active in promoting local telephone competition using the authority they
have under the ruling, lessening the significance of the
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reduced FCC role. At this time the impact of the Eighth Circuit's decision
cannot be evaluated, but there can be no assurance that the Eighth Circuit
decision and related developments will not have a material adverse effect on the
Company. Furthermore, other FCC rules related to local telephone competition
remain the subject of legal challenges, and there can be no assurance that
decisions affecting those rules will not be adverse to companies seeking to
enter the local telephone market.
Although the Company believes that the Telecom Act and other state and
federal regulatory initiatives that favor increased competition are advantageous
to the Company, there can be no assurance that changes in current or future
state or federal regulations, including changes that may result from court
review of the FCC's interconnection rules, or increased competitive
opportunities resulting from such changes, will not have a material adverse
effect on the Company.
The Telecom Act also creates the foundation for increased competition in
the long distance market from ILECs, which could affect the successful
implementation of the Company's business plans. For example, certain provisions
eliminate previous prohibitions on the provision of inter-LATA long distance
services (both carrier's carrier and end-user services) by the RBOCs, subject to
compliance by such companies with requirements set forth in the Telecom Act and
implemented by the FCC. On December 31, 1997, the U.S. District Court, Northern
District of Texas (Wichita Falls) ("Court"), in SBC Communications, Inc. v. FCC
and U.S. (the "SBC Communications Case"), overturned as unconstitutional the
provisions of the Telecom Act which prohibited RBOCs from providing inter-LATA
long distance services within their own region without demonstrating that the
local exchange market was opened to local competition. The decision, however,
affects only SBC Communications, Inc. and U.S. West, Inc. Nonetheless, other
RBOCs may use the decision to petition courts in their operating regions to
obtain similar rulings. On January 2, 1998, AT&T, MCI and other intervenors in
the SBC Communications Case filed a petition for stay with the Court. On January
5, 1997, the FCC also filed a petition for stay of the decision in the Court. On
February 11, 1998, the Court temporarily stayed its decision in the SBC
Communications Case, which stay places those provisions of the Telecom Act which
had been found unconstitutional back into effect and forecloses, temporarily,
the RBOCs from providing inter-LATA long distance service within their own
service regions without FCC approval. The Company would be adversely affected if
the RBOCs are allowed to provide wireline inter-LATA long distance services
within their own regions before local competition is established. In a related
development, the FCC is considering proposed new policies and rules that would
grant the ILECs additional flexibility in the pricing of interstate access
services, and states are considering or are expected to consider ILECs' requests
for similar regulatory relief with respect to intrastate services. Such
flexibility is likely to come first for services offered in the business market.
Any pricing flexibility or other significant deregulation of the ILECs could
have a material adverse effect on the Company. See "Business -- Regulatory
Matters."
ORIGINAL ISSUE DISCOUNT CONSEQUENCES
The Private Notes were issued with original issue discount for U.S. federal
income tax purposes. Since the Exchange Notes are treated as a continuation of
the Private Notes for federal income tax purposes, the Exchange Notes will also
be considered to have been issued at a substantial discount. Consequently,
holders of the Exchange Notes generally will be required to include amounts in
gross income for U.S. federal income tax purposes in advance of receipt of the
cash payments to which the income is attributable. In addition, the Exchange
Notes will be subject to the applicable high-yield discount obligation rules,
which will defer and, in part, eliminate the Company's ability to deduct for
U.S. federal income tax purposes the original issue discount attributable to the
Exchange Notes. Accordingly, the Company's after-tax cash flow will be less than
if the original issue discount on the Exchange Notes were deductible when it
accrued. See "Certain United States Federal Income Tax Considerations" for a
more detailed discussion of the U.S. federal income tax consequences to the
Company and the beneficial owners of the Exchange Notes resulting from the
purchase, ownership and disposition of the Private Notes.
Furthermore, if a bankruptcy case is commenced by or against the Company
under the United States Bankruptcy Code after the issuance of the Exchange
Notes, the claim of a holder of Exchange Notes may be limited to an amount equal
to the sum of the issue price as determined by the bankruptcy court and that
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portion of the original issue discount which is deemed to accrue from the issue
date to the date of any such bankruptcy filing.
ABSENCE OF A PUBLIC MARKET FOR THE NOTES
The Private Notes are eligible for trading in the Private Offering Resale
and Trading through Automated Linkages ("PORTAL") market. The Exchange Notes
will be securities for which there is no public market. The Company does not
intend to apply for listing of the Exchange Notes on any securities exchange or
for quotation of the Exchange Notes on the Nasdaq National Market. The Company
has been advised by the Initial Purchasers that they presently intend to make a
market in the Exchange Notes, as permitted by applicable laws and regulations.
The Initial Purchasers are not obligated, however, to make a market in the
Exchange Notes, and any such market making activity may be discontinued at any
time without notice at the sole discretion of each Initial Purchaser. There can
be no assurance as to the liquidity of the public market for the Exchange Notes,
the ability of holders to sell the Exchange Notes, or the price at which holders
would be able to sell the Exchange Notes, or that an active public market for
the Exchange Notes will develop. If an active public market does not develop,
the market price and liquidity of the Exchange Notes may be adversely affected.
See "Plan of Distribution."
Historically, the market for non-investment grade debt has been subject to
disruptions that have caused substantial volatility in the prices of securities
similar to the Exchange Notes. There can be no assurances that any market for
the Exchange Notes will not be subject to similar disruptions.
CONTROL OF THE COMPANY; CONFLICTS OF INTEREST
Each of Mr. Weinstein and KLT beneficially owns approximately 45.9% of the
outstanding voting equity securities of the Company, on a fully diluted basis.
Accordingly, they are and will be able to control the management policy of the
Company and all fundamental corporate actions, including mergers, substantial
acquisitions and dispositions, and election of the Board of Directors of the
Company (the "Board"). In addition, Mr. Weinstein and KLT have entered into a
voting agreement with respect to the election of directors. See "Management --
Executive Officers and Directors" and "Principal Stockholders."
Certain decisions concerning the operations or financial structure of the
Company may present conflicts of interest between the Company's shareholders and
the holders of the Exchange Notes. For example, if the Company encounters
financial difficulties or is unable to pay its debts as they mature, the
interests of the Company's shareholders and holders of the Warrants might
conflict with those of the holders of the Exchange Notes. In addition, the
Company's shareholders and holders of the Warrants may have an interest in
pursuing acquisitions, divestitures, financings, mergers, consolidations or
other transactions that, in their judgment, could enhance their equity
investment, even though such transactions might involve risk to the holders of
the Exchange Notes. Because Mr. Weinstein and KLT are able to control the
management policy of the Company and all fundamental corporate actions, any such
conflict of interest may be resolved in favor of the Company's shareholders and
holders of the Warrants and to the detriment of the holders of the Exchange
Notes.
VARIABILITY OF OPERATING RESULTS
As the Company expands the DTI network, it will incur significant costs
relating principally to fiber, switching and other equipment and construction
costs. See "-- Substantial Capital Requirements." The installation and expansion
of the DTI network has required and will continue to require considerable
expenses in advance of anticipated revenues and may cause substantial
fluctuations in the Company's operating results. The Company expects to incur
substantial and increasing operating losses and negative net cash flow after
capital expenditures for the foreseeable future as it expands its marketing
efforts and installs the DTI network. The losses created by this lag in revenues
are expected to increase until the revenues from the completed DTI network
overtakes the costs associated with its deployment. The Company does not expect
positive cash flow after capital expenditures from its network operations for
several years. See "-- Limited History of Operations; Operating Losses and
Negative Cash Flow" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
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THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Private Notes were sold by the Company on February 23, 1998 to the
Initial Purchasers, who privately placed the Private Notes with institutional
investors. In connection therewith, the Company and the Initial Purchasers
entered into a Notes Registration Rights Agreement (the "Notes Registration
Rights Agreement"), pursuant to which the Company agreed, for the benefit of the
holders of the Private Notes, that the Company would, at its sole expense, (i)
within 50 days following the original issuance of the Private Notes ("Original
Issue Date"), file with the Commission the Exchange Offer Registration Statement
(of which this Prospectus is a part) under the Securities Act with respect to an
issue of a series of Exchange Notes of the Company identical in all material
respects to the series of Private Notes, (ii) use its best efforts to cause such
Exchange Offer Registration Statement to become effective under the Securities
Act within 180 days following the Original Issue Date, and (iii) use its best
effort to consummate the Exchange Offer within 210 days after the Original Issue
Date. Upon the Exchange Offer Registration Statement (of which this Prospectus
is a part) being declared effective, the Company will offer the Exchange Notes
in exchange for the Private Notes. The Company will keep the Exchange Offer open
for not less than 20 business days (or longer if required by applicable law)
after the date notice of the Exchange Offer is mailed to the holders of the
Private Notes. For each Private Note surrendered to the Company, the Holder of
such Private Note will receive an Exchange Note for a like principal amount at
maturity equal to that of the surrendered Private Notes. The term "Holder" with
respect to the Exchange Offer means any person in whose name Private Notes are
registered on the books of the Company or any other person who has obtained a
properly completed bond power from the registered holder.
Under existing interpretations of the staff of the Commission contained in
several no-action letters to third parties, the Exchange Notes would in general
be freely tradeable after the Exchange Offer without further registration under
the Securities Act. However, any holder of Private Notes who is an "affiliate"
of the Company or who intends to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes (i) will not be able to rely on the
interpretations of the staff of the Commission, (ii) will not be able to tender
its Private Notes in the Exchange Offer and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or transfer of the Private Notes unless such sale or
transfer is made pursuant to an exemption from such requirements.
Each holder of the Private Notes (other than certain specified holders) who
wishes to exchange Private Notes for Exchange Notes in the Exchange Offer will
be required to represent that (i) it is not an affiliate of the Company, (ii)
any Exchange Notes to be received by it were acquired in the ordinary course of
its business and (iii) at the time of commencement of the Exchange Offer, it had
no arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. In addition, in connection
with the resale of the Exchange Notes, any broker-dealer (a "Participating
Broker-Dealer") who acquired the Exchange Notes for its own account as a result
of marketmaking or other trading activities must deliver a prospectus meeting
the requirements of the Securities Act. The Commission has taken the position
that Participating Broker-Dealers may fulfill their prospectus delivery
requirements with respect to the Exchange Notes (other than a resale of an
unsold allotment from the original sale of the Notes) with the prospectus
contained in the Exchange Offer Registration Statement. Under the Notes
Registration Rights Agreement, the Company is required to allow Participating
Broker-Dealers and other persons, if any, subject to similar prospectus delivery
requirements to use the prospectus contained in the Exchange Offer Registration
Statement in connection with the resale of the Exchange Notes.
In the event that any changes in law or applicable interpretations of the
staff of the Commission do not permit the Company to effect the Exchange Offer,
or if for any reason the Exchange Offer is not consummated within 210 days
following the Original Issue Date, or if any holder of the Private Notes (other
than the Initial Purchasers) is not eligible to participate in the Exchange
Offer, or upon the request of either Initial Purchaser under certain
circumstances, the Company will, at its cost (a) as promptly as practicable,
file the Shelf Registration Statement covering resales of the Private Notes, (b)
use its best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act by the 210th day after the
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<PAGE> 31
Original Issue Date and (c) use its best efforts to keep effective the Shelf
Registration Statement until two years after its effective date (or until one
year after such effective date if such Shelf Registration Statement is filed at
the request of either Initial Purchaser) or such shorter period which will
terminate when all of the Private Notes covered by the Shelf Registration
Statement have been sold pursuant thereto. The Company will, in the event of the
filing of a Shelf Registration Statement, provide to each holder of the Private
Notes copies of the prospectus which is a part of the Shelf Registration
Statement, notify each such holder when the Shelf Registration Statement for the
Private Notes has become effective and take certain other actions as are
required to generally permit unrestricted resales of the Notes. A holder of the
Private Notes that sells such Notes pursuant to the Shelf Registration Statement
generally will be required to be named as a selling securityholder in the
related prospectus and to deliver a prospectus to purchasers, will be subject to
certain of the civil liability provisions under the Securities Act in connection
with such sales and will be bound by the provisions of the Notes Registration
Rights Agreement which are applicable to such a holder (including certain
indemnification obligations). In addition, each holder of the Private Notes will
be required to deliver information to be used in connection with the Shelf
Registration Statement and to provide comments on the Shelf Registration
Statement within the time periods set forth in the Notes Registration Rights
Agreement in order to have their Private Notes included in the Shelf
Registration Statement and to benefit from the provisions regarding liquidated
damages set forth in the following paragraph.
In the event that (i) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th calendar day following the Original
Issue Date, (ii) the Exchange Offer is not consummated or, if required, a Shelf
Registration Statement with respect to the Private Notes is not declared
effective on or prior to the 210th calendar day following the Original Issue
Date or (iii) the Exchange Offer Registration Statement is declared effective
but thereafter ceases to be effective or usable (each event referred to in
clauses (i) through (iii) above, a "Registration Default"), then the Company
will be required to pay additional interest in cash on each Interest Payment
Date in an amount equal to one-half of one percent (0.5%) per annum of the
principal amount with respect to the first 90-day period following such
Registration Default. The amount of such additional interest will increase by an
additional one-half of one percent (0.5%) to a maximum or one and one-half
percent (1.5%) per annum for each subsequent 90-day period until such
Registration Default has been cured. Upon (x) the effectiveness of the Exchange
Offer Registration Statement after the 180-day period described in clause (ii)
above, (y) the consummation of the Exchange Offer or the effectiveness of a
Shelf Registration Statement, as the case may be, after the 210-day period
described in clause (ii) above, or (z) the cure of any Registration Default
described in clause (iii) above, such additional interest shall cease to accrue
from the date of such filing, effectiveness, consummation or cure, as the case
may be, if the Company is otherwise in compliance with this paragraph; provided,
however, that if, after any such additional interest ceases to accrue, a
different event specified in clause (i), (ii) or (iii) above occurs, such
additional interest will again accrue pursuant to the foregoing provisions.
During any 365-day period, the Company will have the ability to suspend the
availability of such Shelf Registration Statement for up to two periods of up to
45 consecutive days (except for the consecutive 45-day period immediately prior
to maturity of the Private Notes), but no more than an aggregate 60 days during
any 365-day period, if any event shall occur as a result of which it shall be
necessary, in the good faith determination of the Board of Directors, to amend
the Shelf Registration Statement or amend or supplement any prospectus or
prospectus supplement thereunder in order that each such document not include
any untrue statement of fact or omit to state a material fact necessary to make
the statements therein not misleading in light of the circumstances under which
they were made.
The summary herein of certain provisions of the Notes Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provision of the Notes Registration Rights
Agreement, a copy of which is available upon request to the Company. As a result
of the making of this Exchange Offer, and upon acceptance for exchange of all
validly tendered Private Notes pursuant to the terms of this Exchange Offer, the
Company will have fulfilled certain obligations under the terms of the Private
Notes and the Notes Registration Rights Agreement and, accordingly, the holders
of the Private Notes will have no further registration or other rights under the
Notes Registration Rights Agreement, except under certain limited circumstances.
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TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Private
Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time,
on the Expiration Date. The Company will issue $1,000 principal amount at
maturity of Exchange Notes in exchange for each $1,000 principal amount at
maturity of outstanding Private Notes accepted in the Exchange Offer. Holders
may tender some or all of their Private Notes pursuant to the Exchange Offer.
However, Private Notes may be tendered only in integral multiples of $1,000
principal amount at maturity.
The form and terms of the Exchange Notes will be identical in all material
respects to the form and terms of the Private Notes, except that (i) the
Exchange Notes will have been registered under the Securities Act and hence will
not bear legends restricting the transfer thereof and (ii) the holders of the
Exchange Notes will not be entitled to certain rights under the Notes
Registration Rights Agreement, including the terms providing for an increase in
the interest rate on the Private Notes under certain circumstances relating to
the timing of the Exchange Offer, all of which rights will terminate when the
Exchange Offer is consummated. The Exchange Notes will evidence the same debt as
the Private Notes and will be entitled to the benefits of the Indenture under
which the Private Notes were, and the Exchange Notes will be, issued.
As of the date of this Prospectus, $506,000,000 aggregate principal amount
at maturity of the Private Notes was outstanding, all of which is registered in
the name of Cede & Co., as nominee for The Depository Trust Company (the
"Depository"). Only a registered holder of the Private Notes (or such holder's
legal representative or attorney-in-fact) as reflected on the records of the
Trustee under the Indenture may participate in the Exchange Offer. Solely for
reasons of administration, the Company has fixed the close of business on
, 1998 as the record date for the Exchange Offer for purposes of
determining the persons to whom this Prospectus, together with the Letter of
Transmittal, will initially be sent. There will be no fixed record date for
determining registered holders of the Private Notes entitled to participate in
the Exchange Offer.
Holders of Private Notes do not have any appraisal or dissenters' rights
under the Missouri General and Business Corporation Law or the Indenture in
connection with the Exchange Offer. The Company intends to conduct the Exchange
Offer in accordance with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
The Company shall be deemed to have accepted validly tendered Private Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering Holders
for the purpose of receiving the Exchange Notes from the Company.
If any tendered Private Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, certificates for any such unaccepted Private Notes will be returned,
without expense, to the tendering Holder thereof as promptly as practicable
after the Expiration Date.
Holders who tender Private Notes in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of Private
Notes pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes, in connection with the Exchange
Offer. See "-- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
, 1998, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended.
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In order to extend the Exchange Offer, the Company will notify the Exchange
Agent of any extension by oral or written notice and will make a public
announcement thereof prior to 9:00 a.m., New York City time, on the next
business day after each previously scheduled Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Private Notes, to extend the Exchange Offer or, if any of the
conditions set forth below under the caption "Conditions" shall not have been
satisfied, to terminate the Exchange Offer, by giving oral or written notice of
such delay, extension or termination to the Exchange Agent, or (ii) to amend the
terms of the Exchange Offer in any manner. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by a public announcement thereof. If the Exchange Offer is amended in a manner
determined by the Company to constitute a material change, the Company will
promptly disclose such amendment by means of a prospectus supplement that will
be distributed to the registered holders, and the Company will extend the
Exchange Offer for a period of five to ten business days, depending upon the
significance of the amendment and the manner of disclosure to the registered
Holders, if the Exchange Offer would otherwise expire during such five to ten
business day period.
Without limiting the manner in which the Company may choose to make a
public announcement of any delay, extension, termination or amendment of the
Exchange Offer, the Company shall have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than by making a
timely release to the Dow Jones News Service.
INTEREST ON THE EXCHANGE NOTES
No cash interest will accrue or be payable on the Exchange Notes prior to
March 1, 2003. The Exchange Notes offered hereby will accrete original issue
discount at a rate of 12 1/2% per annum from the Original Issue Date until March
1, 2003. Thereafter, the Exchange Notes will bear interest at the rate of
12 1/2% per annum which will be payable in cash semiannually on March 1 and
September 1 of each year, commencing September 1, 2003. Interest on the Private
Notes accepted for exchange will cease to accrete upon issuance of the Exchange
Notes.
PROCEDURES FOR TENDERING
Only a Holder of Private Notes may tender such Private Notes in the
Exchange Offer. A Holder who wishes to tender Private Notes for exchange
pursuant to the Exchange Offer must transmit a properly completed and duly
executed Letter of Transmittal, or a facsimile thereof, including any other
required documents, to the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date. In addition, either (i) certificates for such
Private Notes must be received by the Exchange Agent along with the Letter of
Transmittal or (ii) the Holder must comply with the guaranteed delivery
procedures described below. To be tendered effectively, the Private Notes, the
Letter of Transmittal and other required documents must be received by the
Exchange Agent at the address set forth below under "Exchange Agent" prior to
5:00 p.m., New York City time, on the Expiration Date.
The tender by a Holder will constitute an agreement between such Holder and
the Company in accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal.
The method of delivery of the Private Notes and the Letter of Transmittal
and all other required documents to the Exchange Agent is at the election and
risk of the Holder. Instead of delivery by mail, it is recommended that Holders
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to assure delivery to the Exchange Agent before the Expiration Date.
No Letter of Transmittal or Private Notes should be sent to the Company. Holders
may request their respective brokers, dealers, commercial banks, trust companies
or nominees to effect the above transactions for such Holders.
Any beneficial owner whose Private Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered Holder promptly and instruct such
registered Holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner must,
prior to completing and executing the Letter of Transmittal and delivering such
owner's Private Notes, either make appropriate arrangements to register
ownership of the Private Notes in such owner's name or obtain a properly
completed bond power from
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the registered Holder. The transfer of registered ownership may take
considerable time and may not be able to be completed prior to the Expiration
Date.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined herein)
unless the Private Notes tendered pursuant thereto are tendered (i) by a
registered Holder who has not completed the box entitled "Special Registration
Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or
(ii) for the account of an Eligible Institution. In the event that signatures on
a Letter of Transmittal or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantee must be by a member firm of a
registered national securities exchange or of the NASD, a commercial bank or
trust company having an office or correspondent in the United States or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Exchange Act (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered Holder of any Private Notes listed therein, such Private Notes must
be endorsed or accompanied by a properly completed bond power, signed by such
registered Holder as such registered Holder's name appears on such Private
Notes.
If the Letter of Transmittal or any Private Notes or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Private Notes will be determined
by the Company in its sole and absolute discretion, which determination will be
final and binding. The Company reserves the absolute right to reject any and all
Private Notes not properly tendered or any Private Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Private Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Private Notes must be cured within such time as the
Company shall determine. Although the Company intends to notify Holders of
defects or irregularities with respect to tenders of Private Notes, neither the
Company, the Exchange Agent nor any other person shall incur any liability for
failure to give such notification. Tenders of Private Notes will not be deemed
to have been made until such defects or irregularities have been cured or
waived. Any Private Notes received by the Exchange Agent that are not properly
tendered and as to which the defects or irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering Holders, unless
otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
By tendering, each Holder will represent to the Company, among other
things, that (i) the Exchange Notes to be acquired by the Holder and any
beneficial owners of Private Notes pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the person receiving such
Exchange Notes, (ii) the Holder and each such beneficial owner are not
participating, do not intend to participate and have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes and (iii) neither the Holder nor any such other person is an
"affiliate," as defined under Rule 405 of the Securities Act, of the Company.
Each broker or dealer that receives Exchange Notes for its own account in
exchange for Private Notes, where such Private Notes were acquired by such
broker or dealer as a result of market-making activities or other trading
activities (other than Private Notes acquired directly from the Company), must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution."
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Private Notes at the Depository for purposes of the Exchange Offer within
two business days after the date of this Prospectus, and any financial
institution that is a participant in the Depository's systems may make
book-entry delivery of
33
<PAGE> 35
Private Notes by causing the Depository to transfer such Private Notes into the
Exchange Agent's account at the Depository in accordance with the Depository's
procedures for transfer. However, although delivery of Private Notes may be
effected through book-entry transfer at the Depository, the Letter of
Transmittal or facsimile thereof, with any required signature guarantees and any
other required documents, must, in any case, be transmitted to and received by
the Exchange Agent at the address set forth below under "-- Exchange Agent" on
or prior to the Expiration Date or pursuant to the guaranteed delivery
procedures described below.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Private Notes and (i) whose Private Notes
are not immediately available or (ii) who cannot deliver their Private Notes,
the Letter of Transmittal or any other required documents to the Exchange Agent
prior to the Expiration Date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the Holder, the certificate number(s)
of such Private Notes and the principal amount of Private Notes tendered,
stating that the tender is being made thereby and guaranteeing that, within
three New York Stock Exchange trading days after the Expiration Date, the
Letter of Transmittal (or facsimile thereof) together with the
certificate(s) representing the Private Notes and any other documents
required by the Letter of Transmittal will be deposited by the Eligible
Institution with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or
facsimile thereof), as well as the certificate(s) representing all tendered
Private Notes in proper form for transfer and all other documents required
by the Letter of Transmittal are received by the Exchange Agent within
three New York Stock Exchange trading days after the Expiration Date. Upon
request to the Exchange Agent, a Notice of Guaranteed Delivery will be sent
to Holders who wish to tender their Private Notes according to the
guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Private Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date.
To withdraw a tender of Private Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time, on
the Expiration Date. Any such notice of withdrawal must (i) specify the name of
the person having deposited the Private Notes to be withdrawn (the "Depositor"),
(ii) identify the Private Notes to be withdrawn (including the certificate
number or numbers and principal amount of such Private Notes), (iii) be signed
by the Holder in the same manner as the original signature on the Letter of
Transmittal by which such Private Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the Trustee with respect to the Private Notes register the transfer of such
Private Notes into the name of the person withdrawing the tender and (iv)
specify the name in which any such Private Notes are to be registered, if
different from that of the Depositor. If certificates for Private Notes have
been delivered or otherwise identified to the Exchange Agent, then, prior to the
release of such certificates, the withdrawing Holder must also submit the serial
numbers of the particular certificates to be withdrawn and a signed notice of
withdrawal with signatures guaranteed by an Eligible Institution unless such
Holder is an Eligible Institution. All questions as to the validity, form and
eligibility (including time of receipt) of such notices will be determined by
the Company in its sole discretion, which determination shall be final and
binding on all parties.
Any Private Notes so withdrawn will be deemed not to have been validly
tendered for purposes of the Exchange Offer and no Exchange Notes will be issued
with respect thereto unless the Private Notes so withdrawn are validly
retendered. Properly withdrawn Private Notes may be retendered by following one
of
34
<PAGE> 36
the procedures described above under "-- Procedures for Tendering" at any time
prior to the Expiration Date. Any Private Notes which have been tendered but
which are not accepted for payment due to withdrawal, rejection of tender or
termination of the Exchange Offer will be returned as soon as practicable to the
Holder thereof without cost to such Holder.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall not
be required to accept for exchange, or exchange Exchange Notes for, any Private
Notes, and may terminate the Exchange Offer as provided herein before the
acceptance of such Private Notes, if:
(a) any action or proceeding is instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer
which, in the sole judgment of the Company, might materially impair the
ability of the Company to proceed with the Exchange Offer or materially
impair the contemplated benefits of the Exchange Offer to the Company or
might be material to Holders in deciding whether to accept the Exchange
Offer, or any material adverse development has occurred in any existing
action or proceeding with respect to the Company or any of its
subsidiaries; or
(b) any change, or any development involving a prospective change, in
the business or financial affairs of the Company or any of its subsidiaries
has occurred which, in the sole judgment of the Company, might materially
impair the ability of the Company to proceed with the Exchange Offer or
materially impair the contemplated benefits of the Exchange Offer to the
Company or might be material to Holders in deciding whether to accept the
Exchange Offer; or
(c) any law, statute, rule or regulation is proposed, adopted or
enacted, which, in the sole judgment of the Company, might materially
impair the ability of the Company to proceed with the Exchange Offer or
materially impair the contemplated benefits of the Exchange Offer to the
Company or might be material to Holders in deciding whether to accept the
Exchange Offer; or
(d) any governmental approval has not been obtained, which approval
the Company shall, in its sole discretion, deem necessary for the
consummation of the Exchange Offer as contemplated hereby; or
(e) any of the following has occurred: (i) any general suspension of
or limitation on trading in securities on the New York Stock Exchange or in
the over-the-counter market (whether or not mandatory); (ii) any material
impairment in the general trading market for debt securities; (iii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks by federal or state authorities in the United States
(whether or not mandatory); (iv) a commencement of a war, armed hostilities
or other national or international crisis directly or indirectly relating
to the United States; (v) any limitation (whether or not mandatory) by any
governmental authority on, or other event having a reasonable likelihood of
affecting, the extension of credit by banks or other lending institutions
in the United States; (vi) any material adverse change in the United States
securities or financial markets generally; or (vii) in the case of any of
the foregoing existing at the time of commencement of the Exchange Offer, a
material acceleration or worsening thereof; or
(f) the Trustee has objected in any respect to, or taken any action
that could, in the sole judgment of the Company, adversely affect the
consummation of, the Exchange Offer or has taken any action that challenges
the validity or effectiveness of the procedures used by the Company in
making or completing the Exchange Offer.
If the Company determines in its sole and absolute discretion that any of
the conditions are not satisfied, the Company may (i) refuse to accept any
Private Notes and return all tendered Private Notes to the tendering Holders,
(ii) extend the Exchange Offer and retain all Private Notes tendered prior to
the expiration of the Exchange Offer, subject, however, to the rights of Holders
to withdraw such Private Notes (see "-- Withdrawal of Tenders" above) or (iii)
waive such unsatisfied conditions with respect to the Exchange Offer and accept
all properly tendered Private Notes which have not been withdrawn. If such
waiver constitutes a material change to the Exchange Offer, the Company will
promptly disclose such waiver by means of a prospectus supplement that will be
distributed to the registered Holders, and the Company will
35
<PAGE> 37
extend the Exchange Offer for a period of five to ten business days, depending
upon the significance of the waiver and the manner of disclosure to the
registered Holders, if the Exchange Offer would otherwise expire during such
five to ten business day period.
The Exchange Offer is not conditioned upon any minimum aggregate principal
amount of Private Notes being tendered for exchange.
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Letter of Transmittal and requests for Notices of
Guaranteed Delivery should be directed to the Exchange Agent addressed as
follows:
<TABLE>
<S> <C> <C>
By Registered or Certified (For Eligible Institutions By Hand/Overnight Delivery:
Mail: Only) The Bank of New York
The Bank of New York By Facsimile: One Wall Street -- 27
One Wall Street -- 27 The Bank of New York Corporate Trust & Agency
New York, New York 10286 (212) 571-3080 Services Window
Attn: Reorganization Section Confirm by telephone: Ground Level
(212) 815-2742 New York, New York 10286
Attn: Reorganization Section
</TABLE>
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitations
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company. Such expenses include fees and expenses of the Exchange
Agent and Trustee, accounting and legal fees and printing costs, among others.
The Company will pay all transfer taxes, if any, applicable to the exchange of
Private Notes pursuant to the Exchange Offer. If, however, certificates
representing Exchange Notes or Private Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered Holder of the Private Notes tendered,
or if tendered Private Notes are registered in the name of any person other than
the person signing the Letter of Transmittal, or if a transfer tax is imposed
for any reason other than the exchange of Private Notes pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered Holder or any other persons) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering Holder.
ACCOUNTING TREATMENT
The Exchange Notes will be recorded at the same carrying value as the
Private Notes, which is face value less accrued original issue discount, as
reflected in the Company's accounting records on the date of the exchange.
Accordingly, no gain or loss for accounting purposes will be recognized. The
expenses of the Exchange Offer and the unamortized expenses related to the
issuance of the Private Notes will be amortized over the term of the Exchange
Notes.
36
<PAGE> 38
OTHER
Participation in the Exchange Offer is voluntary and holders of Private
Notes should carefully consider whether to accept the terms and conditions
thereof. Holders of the Private Notes are urged to consult their financial and
tax advisors in making their own decisions on what action to take with respect
to the Exchange Offer.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Private Notes pursuant to the terms of this Exchange Offer, the
Company will have fulfilled certain obligations under the terms of the Private
Notes and the Notes Registration Rights Agreement. Holders of the Private Notes
who do not tender their Private Notes in the Exchange Offer will continue to
hold such Private Notes and will be entitled to all the rights, and limitations
applicable thereto, under the Indenture, except for any such rights under the
Notes Registration Rights Agreement which by their terms terminate or cease to
have further effect as a result of the making of this Exchange Offer. All
untendered Private Notes will continue to be subject to the restrictions on
transfer set forth in the Indenture. To the extent that Private Notes are
tendered and accepted in the Exchange Offer, the trading market, if any, for any
remaining Private Notes could be adversely affected. See "Risk
Factors -- Consequences of Failure to Exchange."
37
<PAGE> 39
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of the Company's
obligations under the Notes Registration Rights Agreement. The Company will not
receive any proceeds from the issuance of the Exchange Notes in the Exchange
Offer. Of the $264.8 million of net proceeds to the Company from the Private
Offering, approximately $19.0 million has been used to construct the DTI
network, $3.0 million was used to repay outstanding indebtedness of the Company
under a former bank credit facility and $1.0 million has been used to fund the
Company's operating expenses to date. The Company currently intends to use the
remaining net proceeds (i) to fund additional capital expenditures required for
the completion of the DTI network, (ii) to expand its management, operations and
sales infrastructure and (iii) for additional working capital and other general
corporate purposes. Pending such utilization, such net proceeds have been
invested in short-term, interest-bearing U.S. government securities and other
short-term, investment grade securities. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources."
CAPITALIZATION
The following table sets forth the actual cash, deferred revenues and
capitalization of the Company as of March 31, 1998. This table should be read in
conjunction with the "Selected Consolidated Financial Data" and the consolidated
financial statements and notes thereto included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
AS OF
MARCH 31, 1998
--------------
<S> <C>
Cash and cash equivalents................................... $263,231,384
============
Deferred revenues(a)........................................ $ 14,037,528
============
Senior Discount Notes(b).................................... $268,856,985
============
Stockholders' equity:
Preferred Stock, $0.01 par value, 20,000 shares
authorized, no shares issued and outstanding........... --
Convertible Series A Preferred Stock, $0.01 par value,
30,000 authorized, issued and outstanding.............. 300
Common Stock, $0.01 par value, 100,000,000 shares
authorized, 30,000,000 issued and outstanding(c)....... 300,000
Additional paid-in capital................................ 44,013,063
Common Stock warrants(c).................................. 10,421,336
Accumulated deficit....................................... (6,198,351)
------------
Total stockholders' equity................................ 48,536,348
------------
Total capitalization........................................ $317,393,333
============
</TABLE>
- -------------------------
(a) Reflects payments received by DTI in advance of the provision of
telecommunications services under dark fiber leases (and wholesale network
capacity agreements), which payments are recognized over the terms of the
leases (or agreements) on a straight-line basis. Does not include current
portion of deferred revenues in the amount of approximately $366,000.
(b) Of the $275.2 million gross proceeds from the issuance of the Units in the
Private Offering, $265.3 million was allocated to the initial Accreted Value
of the Notes and $10.0 million was allocated to the Warrants. No assurance
can be given that the value allocated to the Warrants will be indicative of
the price at which the Warrants may actually trade.
(c) As of the date of this Prospectus, Common Stock outstanding excludes (i)
303,030 shares of Common Stock issuable upon exercise of an outstanding
warrant and (ii) 725,000 shares of Common Stock issuable upon exercise of
options that the Company has granted or is obligated to grant to certain of
its directors and employees under the Company's 1997 Long-Term Incentive
Award Plan. See "Management -- Incentive Award Plan," Notes 6 and 13 of the
notes to the audited consolidated financial statements and Note 5 of the
notes to the unaudited consolidated financial statements.
38
<PAGE> 40
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The selected consolidated financial data presented below for each of the
three years in the period ended June 30, 1997 have been derived from the audited
consolidated financial statements of the Company which have been audited by
Deloitte & Touche LLP, independent auditors. The selected consolidated financial
data as of and for the years ended June 30, 1993 and 1994 and as of and for the
nine-month periods ended March 31, 1997 and 1998 have been derived from the
unaudited consolidated financial statements of the Company, which have been
prepared on the same basis as the audited consolidated financial statements of
the Company and, in the opinion of management, reflect all normal recurring
adjustments necessary for a fair presentation of the financial position and
results of operations as of the end of and for such periods. The results for the
nine months ended March 31, 1998 are not necessarily indicative of the operating
results to be expected for the entire year. The information set forth below
should be read in conjunction with the discussion under "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and "Business"
and the audited and unaudited consolidated financial statements of the Company
and notes thereto appearing elsewhere in the Private Offering Memorandum.
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEAR ENDED JUNE 30, ENDED MARCH 31,
----------------------------------------------------------------------- ---------------------------
1993(A) 1994(A) 1995(A) 1996(A) 1997 1997 1998
------- ------- ------- ------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING STATEMENT DATA:
Revenues:
Telecommunication
services
Carrier's carrier
services............ $ -- $ -- $ -- $ 188,424 $ 807,347 $ 488,931 $ 1,707,914
End-user services..... -- 35,463 199,537 488,377 515,637 380,914 414,660
Other services(b)....... -- -- -- -- 711,006 -- --
-------- -------- ------------ ----------- ------------ ------------ ------------
Total revenue......... -- 35,463 199,537 676,801 2,033,990 869,845 2,122,574
-------- -------- ------------ ----------- ------------ ------------ ------------
Operating expenses:
Telecommunication
services.............. -- -- 165,723 296,912 847,190 563,791 1,024,578
Other services(b)....... -- -- -- -- 364,495 -- --
Selling, general and
administrative........ -- 15,781 240,530 548,613 1,118,809 845,684 2,437,825
Depreciation and
amortization.......... -- -- 70,500 425,841 757,173 521,049 1,385,750
-------- -------- ------------ ----------- ------------ ------------ ------------
Total operating
expenses............ -- 15,781 476,753 1,271,366 3,087,667 1,930,524 4,848,153
-------- -------- ------------ ----------- ------------ ------------ ------------
Income (loss) from
operations.............. -- 19,682 (277,216) (594,565) (1,053,677) (1,060,679) (2,725,579)
Interest income (expense),
net..................... -- (588) (9,516) (191,810) (51,023) (94,534) (2,138,707)
Loan commitment fees...... -- -- -- -- (784,500) (784,500) --
Equity in earnings of
joint venture........... -- -- -- -- 37,436 37,436 --
-------- -------- ------------ ----------- ------------ ------------ ------------
Income (loss) before
income tax benefit...... -- 19,094 (286,732) (786,375) (1,851,764) (1,902,277) (4,864,286)
Income tax benefit........ -- -- -- -- 1,214,331 1,042,000 2,020,000
-------- -------- ------------ ----------- ------------ ------------ ------------
Net income (loss)(c)...... $ -- $ 19,094 $ (286,732) $ (786,375) $ (637,433) $ (860,277) $ (2,844,286)
======== ======== ============ =========== ============ ============ ============
</TABLE>
<TABLE>
<CAPTION>
AS OF JUNE 30, AS OF MARCH 31,
----------------------------------------------------------------------- ---------------------------
1993(A) 1994(A) 1995(A) 1996(A) 1997 1998
------- ------- ------- ------- ---- ----
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash
equivalents............. $ -- $ 10,512 $ 140,220 $ 817,391 $ 4,366,906 $263,231,384
Network and equipment,
net..................... -- 39,032 6,788,582 13,064,169 34,000,634 60,824,950
Total assets.............. 1,000 57,844 11,983,497 15,025,758 39,849,136 338,467,861
Long-term debt............ -- -- -- -- -- 268,856,985
Deferred revenues(d)...... -- 37,750 4,927,228 6,595,948 9,420,224 14,037,528
Redeemable Convertible
Series A Preferred
Stock(e)................ -- -- -- -- 28,889,165 --
Stockholders' equity
(deficit)(e)............ -- 19,094 (237,638) (1,100,703) (4,729,867) 48,536,348
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEAR ENDED JUNE 30, ENDED MARCH 31,
----------------------------------------------------------------------- ---------------------------
1993(A) 1994(A) 1995(A) 1996(A) 1997 1997 1998
------- ------- ------- ------- ---- ---- ----
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
OTHER FINANCIAL DATA:
Cash flows from
operations.............. $ 1,000 $ 49,544 $ 6,903,884 $ 299,710 $ 7,674,272 $ 4,694,799 $ 5,097,421
Cash flows from investing
activities.............. -- (39,032) (11,804,176) (1,122,569) (19,417,073) (10,058,794) (28,210,066)
Cash flows from financing
activities.............. -- -- 5,030,000 1,500,030 15,292,316 10,314,313 281,977,123
EBITDA(f)................. -- 19,682 (206,716) (168,724) (259,068) (502,194) (1,339,829)
Capital expenditures...... -- 39,032 6,804,176 5,663,047 19,876,595 10,518,316 28,210,061
Ratio of earnings to fixed
charges(g).............. -- 33:1 -- -- -- -- --
</TABLE>
39
<PAGE> 41
<TABLE>
<CAPTION>
AS OF
---------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31,
1997 1997 1997 1997 1998
--------- -------- ------------- ------------ ---------
<S> <C> <C> <C> <C> <C>
OTHER OPERATING DATA:
Route miles..................................... 520 732 1,361 1,427 1,538
Fiber miles..................................... 33,269 44,071 84,254 87,498 93,006
POP/Collocation sites(h)........................ 19 24 43 45 45
</TABLE>
- ---------------
(a) From its inception in June 1989 through June 30, 1993, the Company had no
significant operations, assets or liabilities and consisted of nominal
organizational activities. In addition, through June 30, 1996, the Company
was considered a development stage enterprise focused on developing the DTI
network and customer base.
(b) Other services revenues and expenses in the year ended June 30, 1997 reflect
the design, construction and installation of innerduct for another carrier's
fiber optic network.
(c) Net loss attributable to Common Stock, loss per share data and weighted
average number of shares outstanding are not meaningful as there was only
one common shareholder and no class of securities was registered.
(d) Does not include current portion of deferred revenues in the amount of
approximately $101,000, $139,000, $260,000 and $366,000 as of June 30, 1995,
1996 and 1997 and March 31, 1998.
(e) On February 13, 1998, in conjunction with the Private Offering, the Company
amended the terms of the Series A Preferred Stock to provide that it is no
longer mandatorily redeemable, and, as a result, the Series A Preferred
Stock will be classified with stockholders' equity. See "Capitalization."
(f) EBITDA represents net loss before interest income (expense), loan commitment
fees, income tax benefit, depreciation and amortization. EBITDA is included
because the Company understands that such information is commonly used by
investors in the telecommunications industry as an additional basis on which
to evaluate the Company's ability to pay interest, repay debt and make
capital expenditures. Excluded from EBITDA are interest income (expense),
loan commitment fees, income taxes, depreciation and amortization, each of
which can significantly affect the Company's results of operations and
liquidity and should be considered in evaluating the Company's financial
performance. EBITDA is not intended to represent, and should not be
considered more meaningful than, or an alternative to, measures of operating
performance determined in accordance with generally accepted accounting
principles ("GAAP"). Additionally, EBITDA should not be used as a comparison
between companies, as it may not be calculated in a similar manner by all
companies.
(g) For purposes of calculating the ratio of earnings to fixed charges: (i)
earnings consist of loss before income tax benefit, plus fixed charges
excluding capitalized interest; and (ii) fixed charges consist of interest
expenses and capitalized costs, amortization of deferred financing costs,
plus the portion of rentals considered to be representative of the interest
factor (one-third of lease payments). For the ended June 30, 1995, 1996 and
1997, and for the nine months ended March 31, 1997 and 1998, the Company's
earnings were insufficient to cover fixed charges by approximately $296,000,
$2.0 million, $2.4 million, $2.5 million and $4.9 million, respectively.
(h) Consists of interconnections with ILEC access tandems, ILEC central offices,
IXC POPs, and DTI's network control center and POP buildings.
40
<PAGE> 42
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's consolidated financial statements and the notes thereto and the
other financial data appearing elsewhere in this Prospectus.
OVERVIEW
DTI is a facilities-based provider of long-haul and local
telecommunications services primarily to IXCs and other communications entities
on a wholesale basis, as well as directly to business and governmental end
users. DTI intends to expand its network outward from Missouri into an
additional 13 states in the Midwest region. The Company is preparing to offer
local switched services and data transmission services to targeted end-user
customers in Missouri in mid-1998. DTI intends to provide local switched service
capacity to its carrier's carrier customers on a wholesale basis as it deploys
its switches throughout its network.
DTI was incorporated in June 1989. Until 1994, the Company was a
development stage enterprise engaged primarily in developing its business plan,
planning its activities, and bidding for and negotiating the following
agreements with St. John's Hospital in St. Louis, Missouri ("St. John's"), MHTC
and Union Electric. Pursuant to a February 1994 agreement with St. John's, DTI
commenced construction of a fiber optic network to provide data communications
services between St. John's facilities within the St. Louis area. The Company
subsequently established its network control center in suburban St. Louis, which
was then interconnected with the St. John's routes. Following the execution of
agreements with the MHTC in September 1994 and with Union Electric in October
1994, DTI began construction of a long-haul route between St. Louis and
Jefferson City, Missouri. This long-haul route and its local portions enabled
DTI to begin providing long-haul and local carrier's carrier services in 1996 to
certain IXCs, including MCI and WorldCom. During fiscal 1995 and 1996, DTI
continued construction of its network, primarily along the Missouri highway
system to Kansas City and other Missouri locations. DTI also entered into
agreements with St. Louis metropolitan municipalities and other secondary
Missouri cities to obtain rights-of-way and construct local loops in such areas.
In July 1996, pursuant to its joint venture agreement with KLT, a subsidiary of
KCPL, DTI commenced construction of a fiber optic network in the Kansas City
metropolitan area. In June 1997, DTI obtained rights-of-way for the construction
of its network facilities along certain Arkansas highways, which will facilitate
the Company's first network expansion outside the state of Missouri.
REVENUES. The Company derives revenues principally from (i) the sale of
wholesale telecommunications services, primarily through dark fiber leases and
wholesale network capacity agreements, to IXCs, such as the Tier 1 carriers, and
other telecommunications entities and (ii) the sale of telecommunications
services directly to business and governmental end users. For the year ended
June 30, 1997, the Company derived approximately 40% and 25% of its total
revenues from carrier's carrier services and end-user services, respectively.
The remaining 35% of its total revenues in fiscal 1997 were derived from
non-recurring network construction services, which involved the design,
construction and installation of innerduct for the fiber optic network of one of
DTI's carrier customers. Excluding such network construction revenues, carrier's
carrier services and end-user services represented approximately 61% and 39%,
respectively, of the Company's total revenues in fiscal 1997. For the nine
months ended March 31, 1998, DTI derived approximately 80% and 20% of its total
revenues from carrier's carrier services and end-user services, respectively.
During the past several years, market prices for many telecommunications
services have been declining, which is a trend the Company believes will likely
continue. This decline has had and will continue to have a negative effect on
the Company's gross margin, which may not be offset by decreases in the
Company's cost of services. However, the Company believes that such decreases in
prices may be partially offset by increased demand for DTI's telecommunications
services as it expands the DTI network and introduces new services. See
"Industry Overview," "Business -- Business Strategy" and "-- Products and
Services."
Carrier's carrier services are generally high capacity, private line
telecommunications services provided over the Company's owned facilities and, in
locations where the DTI network has not been extended or completed, over leased
line capacity. Carrier's carrier services generally are provided to (i)
facilities-based carriers that require long distance transmission capacity where
they have geographic gaps in their facilities,
41
<PAGE> 43
need additional capacity or require alternative routing and (ii)
non-facilities-based carriers requiring long haul transmission capacity.
Carrier's carrier is a wholesale business characterized by higher net margins
than are typically realized through end-user services primarily because
carrier's carrier services can be established more quickly and at a lower
marketing cost than end-user services.
DTI derives carrier's carrier services revenues from IRUs and wholesale
network capacity agreements. IRUs typically have a term of 10 to 20 years. The
Company provides wholesale network capacity services through service agreements
for terms of one year or longer which typically require customers to pay for
such capacity regardless of level of usage. Both IRUs and wholesale network
capacity agreements generally provide for a fixed monthly payment based on the
capacity and length of circuit provided and frequently require substantial
advance payments. Such advance payments are recorded by the Company as deferred
revenue and are recognized as revenue over the life of the lease or agreement on
a straight-line basis. For the year ended June 30, 1997 and the nine months
ended March 31, 1998, the Company's three largest carrier customers accounted
for an aggregate of 70% and 66%, respectively, of carrier's carrier services
revenues, or 28% and 53%, respectively, of total revenues.
End-user services are telecommunications services provided directly to
businesses and governmental end users. The Company currently provides private
line services to end users to connect certain points on an end user's private
telecommunications network as well as to bypass the applicable ILEC in accessing
such end user's long distance provider. DTI end-user services agreements
generally provide for services for a term of one year or longer and for a fixed
monthly payment based on the capacity and length of circuit provided, regardless
of level of usage. As of March 31, 1998, the Company has received aggregate
advance payments of approximately $15.1 million from certain of its end-user
customers. Revenues from end-user services and carrier's carrier services are
recognized monthly as the services are provided, except with respect to advance
payments, for which revenues are deferred and recognized over the life of the
agreement. Upon expiration, such agreements may be renewed or services may be
provided on a month-to-month basis. For the year ended June 30, 1997 and the
nine months ended March 31, 1998, five customers accounted for all of DTI's
end-user services revenue, or an aggregate of 25.3% and 43.8%, respectively, of
total revenues.
By the end of 1998, the Company plans to offer, through the addition of
high-capacity switches on the DTI network, local switched services to certain
end-user customers. Switched services are expected to be billed to customers
primarily on a minutes-of-use basis. As a provider of local switched services,
the Company would also receive subscriber-paid line access charges, IXC-paid
per-minute access charges for completing IXC connections to end users on the DTI
network, and LEC-paid access charges for terminating LEC local calls to end
users on the DTI network. The Company completed installation of the first of its
Nortel DMS-500 switches in January 1998. Competitive, regulatory and
technological developments in the telecommunications industry may have a
significant effect on the Company's ability to compete in the local switched
services market. See "Risk Factors -- Competition" and "Business --
Competition." Further, the Company believes revenues from local switched
services customers that are billed on a minutes-of-use basis have the potential
to fluctuate significantly based on factors beyond DTI's control, including the
prices charged by its competitors. There can be no assurance that the Company
will have the ability or the necessary resources to successfully develop and
offer local switched services or that such services will achieve market
acceptance or profitability.
In fiscal 1997, at the request of a specific carrier customer, the Company
designed, constructed and installed innerduct for such customer's own fiber
optic network. While the Company does not presently consider the provision of
such services to be part of its business strategy, it will consider such
opportunities as they arise. The Company expects that future revenues, if any,
from network construction services will not be a significant contributor to the
Company's overall revenues or results of operations.
OPERATING EXPENSES. The Company's principal operating expenses consist of
the cost of telecommunications services, selling, general and administrative
("SG&A") expenses, depreciation and amortization, and, in fiscal 1997, costs of
network construction services.
The cost of telecommunications services consists primarily of the cost of
leased line facilities and capacity, and engineering and operating costs in
connection with its owned facilities. Because the Company currently provides
carrier's carrier and end-user services principally over its own network, the
cost of providing
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<PAGE> 44
these services includes a minor amount of leased space (in the form of physical
collocation at ILEC access tandems and IXC POPs) and leased line capacity (to
fill requirements of a customer contract which are otherwise substantially met
on the DTI network and typically where the Company plans to expand the DTI
network) and no ILEC access charges. However, when the Company begins providing
local switched services, leased line capacity costs and access charges are
expected to increase significantly because the Company expects to obtain access
to a greater number of ILEC facilities through leased lines in order to reach
end users that cannot be cost-effectively connected to the DTI network in a
given local market. The Company expects that the addition of local switched
services will have a negative impact on its overall net margin due to the fact
that the net margin of local switched services is generally lower than that of
carrier's carrier services. Engineering and operating costs include, but are not
limited to, costs of designing the DTI network, ordering, testing and installing
fiber optic cable and electronic equipment, and locating installed fiber to
minimize the risk of fiber cuts.
SG&A expenses include the cost of salaries, benefits, occupancy costs,
sales and marketing expenses and administrative expenses. Selling expenses
include commissions for the Company's sales programs, which consist of a
percentage of a customer's initial billing, plus a residual percentage of
ongoing monthly revenues. The Company plans to add sales offices in selected
markets as additional segments of the DTI network become operational. The
Company began developing a sales staff late in fiscal 1997 to concentrate on
sales to end-user customers. However, DTI does not expect to begin to realize
the results of its increased sales efforts until fiscal 1999. Depreciation and
amortization are primarily related to fiber optic cable plant, electronic
terminal equipment and network buildings, and are expected to increase as the
Company incurs substantial capital expenditures to build and acquire the
components of the DTI network and begins to install its own switches. In
general, SG&A expenses have increased significantly as the Company has developed
and expanded the DTI network. The Company expects to incur significant increases
in SG&A expenses to realize the anticipated growth in revenue for carrier's
carrier services and end-user services. In addition, SG&A expenses will increase
as the Company continues to recruit experienced personnel to implement the
Company's business strategy. See "Risk Factors -- Expansion and Managing Rapid
Growth" and "Business -- Sales and Marketing."
OPERATING LOSSES. As a result of development and operating expenses, the
Company has incurred significant operating and net losses to date. Losses from
operations in fiscal 1995, 1996 and 1997 and for the nine months ended March 31,
1998 were $277,000, $595,000, $1.1 million and $2.7 million, respectively. DTI
expects to incur significant and possibly increasing operating losses and to
generate negative net cash flows after capital expenditures during at least the
next two years of the Company's expansion of the DTI network. There can be no
assurance that the Company will achieve or sustain profitability or generate
sufficient positive cash flow to meet its debt service obligations and working
capital requirements. If the Company cannot achieve operating profitability or
positive cash flows from operating activities, it may not be able to service the
Notes or to meet its other debt service or working capital requirements, which
could have a material adverse effect on the Company.
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<PAGE> 45
RESULTS OF OPERATIONS
The table set forth below summarizes the Company's percentage of revenue by
source and operating expenses as a percentage of total revenues:
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEAR ENDED JUNE 30, ENDED MARCH 31,
----------------------------- -----------------
1995 1996 1997 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Revenue:
Carrier's carrier services..................... --% 27.8% 39.7% 56.2% 80.5%
End-user services.............................. 100.0 72.2 25.3 43.8 19.5
----- ----- ----- ----- -----
100.0 100.0 65.0 100.0 100.0
Other services................................. -- -- 35.0 -- --
----- ----- ----- ----- -----
Total revenue............................... 100.0% 100.0% 100.0% 100.0% 100.0%
===== ===== ===== ===== =====
Operating Expenses:
Telecommunications services.................... 83.1% 43.9% 41.7% 64.8% 48.3%
Other services................................. -- -- 17.9 -- --
Selling, general and administrative............ 120.5 81.0 55.0 97.2 114.9
Depreciation and amortization.................. 35.3 62.9 37.2 59.9 65.3
----- ----- ----- ----- -----
Total operating expenses.................... 238.9% 187.8% 151.8% 221.9% 228.5%
===== ===== ===== ===== =====
</TABLE>
REVENUE. Total revenue increased 144.0% from $870,000 in 1997 to $2.1
million in 1998 due to increased revenue from carrier's carrier and end-user
services. Revenue from carrier's carrier services increased 249.3%, from
$489,000 in 1997 to $1.7 million in 1998. This increase resulted principally
from the completion of additional network segments, as well as from adding
traffic on the existing DTI network. End-user revenues increased 8.9% from
$381,000 in 1997 to $415,000 in 1998. This increase was attributable to the
completion and activation of additional sites under a deferred revenue contract,
which caused additional deferred revenues to be recognized.
OPERATING EXPENSES. Operating expenses increased 151.1% from $1.9 million
in 1997 to $4.8 million in 1998, due primarily to increases in
telecommunications services, selling, general and administrative expenses and
depreciation and amortization. Telecommunications services expenses increased
81.7% from $564,000 in 1997 to $1.0 million in 1998 due to increased personnel
to support the expansion of the DTI network, as well as increased costs related
to property taxes and other costs in connection with leasing capacity to support
customers in areas not yet reached by the DTI network. Selling, general and
administrative expenses increased 188.3%, from $846,000 in 1997 to $2.4 million
in 1998, in order to support the expansion of the DTI network, which includes an
increase in administrative and sales personnel and the related expenses of
supporting these personnel, as well as increased legal fees. Depreciation and
amortization increased 166.0%, from $521,000 in 1997 to $1.4 million in 1998 due
to higher amounts of plant and equipment being in service in 1998 versus 1997.
The Company expects that significant additional amounts of plant and equipment
will be placed in service throughout fiscal 1998 and fiscal 1999. As a result,
depreciation and amortization is expected to increase significantly.
INTEREST AND OTHER INCOME (EXPENSE). Net interest and other income
(expense) increased from a net expense of $842,000 in 1997 to net expense of
$2.1 million in 1998. Interest income increased from $58,000 in 1997 to $1.6
million in 1998 due to the investment of the proceeds from the Senior Discount
Notes. Similarly, as a result of the Private Offering, interest expense
increased from $153,000 in 1997 to $3.7 million in 1998. Loan commitment fees
decreased from $785,000 in 1997 to $-0- in 1998. These fees represented a
one-time charge for a loan commitment which was not used.
INCOME TAXES. An income tax benefit of $2,020,000 and $1,042,000 was
recorded in the nine month periods ended March 31, 1998 and 1997, respectively,
as management believes it is more likely than not that the Company will generate
taxable income sufficient to realize the tax benefit associated with future
deductible temporary differences and net operating loss carryforwards prior to
their expiration.
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<PAGE> 46
NET LOSS. Net loss for the nine months ended March 31, 1998 was $2.8
million compared to $860,000 for the nine months ended March 31, 1997.
FISCAL YEAR ENDED JUNE 30, 1996 COMPARED TO FISCAL YEAR ENDED JUNE 30, 1997
REVENUE. Revenue increased 200.5%, from $677,000 in 1996 to $2.0 million in
1997. This increase was due primarily to increased revenue from both carrier's
carrier services and end-user services, as well as significant income from other
services. Revenue from carrier's carrier services increased 328.5%, from
$188,000 in 1996 to $807,000 in 1997. This increase resulted principally from
completion and activation of additional route miles of the DTI network, which
allowed the Company to sell both lighted and dark fiber capacity to several
IXCs. End-user services revenue increased 5.6%, from $488,000 in 1996 to
$516,000 in 1997. Other services revenue of $711,000 in fiscal 1997 represented
a single contract for installation of innerduct for one of the Company's carrier
customers along the Company's right-of-way. The Company recorded $0 in other
service revenues in fiscal 1996, and other services are not expected to be a
recurring source of revenue for the Company in the future. However, the Company
will consider similar opportunities, should they become available in the future,
principally as a means of lowering the cost of expanding its network.
OPERATING EXPENSES. Operating expenses increased 142.9%, from $1.3 million
in 1996 to $3.1 million in 1997, due primarily to increases in
telecommunications services expenses, SG&A expenses, other services expenses,
and depreciation and amortization. Telecommunications services expenses
increased 185.3%, from $297,000 in 1996 to $847,000 in 1997 due to the expansion
of the network and increased revenues from carrier's carrier services. SG&A
expenses increased 103.9%, from $549,000 in 1996 to $1.1 million in 1997 to
support the Company's expansion. Other services expenses of $364,000 in 1997
represent the costs associated with a contract for the installation of innerduct
for one of the Company's carrier customers.
Depreciation and amortization increased 77.8%, from $426,000 in 1996 to
$757,000 in 1997 primarily due to additional plant and equipment being placed
into service. As of June 30, 1997, the Company had gross plant and equipment of
$35.2 million, of which $19.0 million (54%) consisted of construction in
progress that was not subject to depreciation. A substantial portion of this
construction in progress is expected to be placed in service in fiscal 1998. In
addition, the Company plans to construct and place in service significantly
greater amounts of plant and equipment in fiscal 1998 than in prior years. As a
result, depreciation and amortization expense is expected to increase
significantly.
INTEREST AND OTHER INCOME (EXPENSE). Net interest and other expenses
increased $606,000, from $192,000 in 1996 to $798,000 in 1997. This increase was
primarily attributable to loan commitment fees of $785,000 incurred in
connection with a bridge loan commitment made available to the Company but not
utilized as a result of KLT's investment in the Company. Interest income
decreased from $193,000 in 1996 to $102,000 in 1997 because the Company carried
smaller average cash balances. Interest expense decreased from $385,000 in 1996
to $153,000 in 1997, as the Company issued its Series A Preferred Stock to
finance, in part, its network construction. The Company reported equity in
earnings of a joint venture of $37,000 in 1997. This joint venture was formed
and its operations and assets were combined with the Company's during the year
ended June 30, 1997 in connection with the issuance of Series A Preferred Stock
to KLT.
INCOME TAXES. The Company incurred $0 of income taxes from July 1, 1994
through June 30, 1997 as a result of generating net operating losses for tax
purposes. An income tax benefit of $1.2 million was recorded in fiscal 1997, as
the Company believes that it is more likely than not that it will generate
taxable income sufficient to realize the tax benefits associated with future
deductible temporary differences and net operating loss carryforwards prior to
their expiration. This belief is based primarily upon changes in operations over
the last year.
NET LOSS. The Company's net loss decreased 18.9% from $786,000 in 1996 to
$637,000 in 1997.
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<PAGE> 47
FISCAL YEAR ENDED JUNE 30, 1995 COMPARED TO FISCAL YEAR ENDED JUNE 30, 1996
REVENUE. Total revenue increased 239.2%, from $200,000 in 1995 to $677,000
in 1996, due primarily to increased revenue from both carrier's carrier services
and end-user services. Revenue from carrier's carrier services amounted to
$188,000 in 1996 as a result of the completion of additional route miles of the
DTI network, which allowed it to sell capacity to several IXCs. End user
services revenue increased 144.8%, from $200,000 in 1995 to $488,000 in 1996.
This increase was attributable to the expansion of the DTI network.
OPERATING EXPENSES. Operating expenses increased 166.7%, from $477,000 in
1995 to $1.3 million in 1996 due primarily to increases in telecommunications
services expenses, SG&A expenses and depreciation and amortization.
Telecommunications services expenses increased 79.2%, from $166,000 in 1995 to
$297,000 in 1996 due to the expansion of the DTI network and increased levels of
revenue from telecommunications services. SG&A expenses increased 128.1%, from
$241,000 in 1995 to $549,000 in 1996 in order to support the Company's
expansion. Depreciation and amortization increased 504.0%, from $71,000 in 1995
to $426,000 in 1996 due to significant additional amounts of plant and equipment
being placed into service as part of the DTI network's expansion.
INTEREST AND OTHER INCOME (EXPENSE). Net interest and other expenses
increased $182,000, from $10,000 in 1995 to $192,000 in 1996. This increase was
primarily attributable to interest expense incurred in connection with increased
levels of borrowing. Interest income increased 26.0%, from $153,000 in 1995 to
$193,000 in 1996 because the Company carried larger average cash balances.
Interest expense increased 136.4%, from $163,000 in 1995 to $385,000 in 1996 due
to higher average loan balances.
INCOME TAXES. The Company incurred $0 of income taxes from July 1, 1994
through June 30, 1996 as a result of generating net operating losses for tax
purposes.
NET LOSS. The Company's net loss increased 174.3%, from $287,000 in 1995 to
$786,000 in 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company has funded its capital expenditures, working capital and debt
requirements and operating losses through a combination of advance payments for
future telecommunications services received from certain major customers,
private debt and equity financings and external borrowings. In addition to
utilizing the net proceeds of the Private Offering, DTI intends to finance its
capital expenditures, working capital requirements, operating losses and debt
service requirements through advance payments under existing and additional
agreements for IRUs or wholesale capacity, borrowings under bank credit
facilities, additional debt or equity financings, and available cash flow from
operations.
The net cash provided by operating activities for the years ended June 30,
1996 and 1997 totaled $300,000 and $7.7 million, respectively, and for the nine
months ended March 31, 1997 and 1998, net cash provided by operating activities
totaled $4.7 million and $5.1 million, respectively. During the year ended June
30, 1997, cash provided by operating activities came principally from increases
in accounts payable of $3.4 million, deferred revenues of $2.9 million and other
liabilities of $1.5 million. The increase in accounts payable in fiscal 1997
reflects the increase in liabilities under DTI's supply contracts in connection
with the buildout of the DTI network. Deferred revenues in fiscal 1997
principally reflect advance payments received from carrier customers under
agreements for IRUs and wholesale network capacity. During the nine months ended
March 31, 1998, net cash provided by operating activities resulted principally
from an increase in taxes payable (other than income taxes) of $1.9 million and
an increase in deferred revenues of $4.7 million relating to an advance payment
received under wholesale network capacity agreements and end-user agreements. As
of March 31, 1998, advance payments of approximately $21.4 million will become
due over the next five years under existing agreements with certain major
customers upon DTI's meeting its obligations under certain agreements, which
require the Company to provide telecommunications services or dark fiber
capacity.
In January 1998, Digital Teleport entered into a $30.0 million bank credit
facility (the "Credit Facility") with certain commercial lending institutions
and Toronto Dominion (Texas), Inc., as administrative agent for the lenders, to
fund its working capital requirements until consummation of the Private
Offering. Certain covenants under the Credit Facility required that all
outstanding borrowings be repaid upon the consummation of the Private Offering
and effectively precluded any additional borrowings under the Credit Facility
after such
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<PAGE> 48
amounts were so repaid. The Company has repaid all borrowings under and has
terminated the Credit Facility. The Company intends to pursue a long-term bank
credit facility to replace the Credit Facility.
On February 23, 1998 the Company completed the issuance and sale of the
Private Notes, for which the Company received proceeds, net of underwriting
discounts and expenses, totaling approximately $264.8 million. Of the $264.8
million of net proceeds to the Company from the Private Offering, approximately
$19.0 million has been used to construct the DTI network, $3.0 million was used
to repay outstanding indebtedness of the Company under a former bank credit
facility and $1.0 million has been used to fund the Company's operating expenses
to date. The Company currently intends to use the remaining net proceeds (i) to
fund additional capital expenditures required for the expansion of the DTI
network, (ii) to expand its management, operations and sales infrastructure and
(iii) for additional working capital and other general corporate purposes. The
Company expects to incur significant operating losses, to generate negative net
cash flows after capital expenditures and to invest substantial funds to
construct the DTI network during the next several years while the Company
continues to develop and expand its telecommunications services and customer
base. Accordingly, if the Company cannot achieve operating profitability or
positive cash flows from operating activities, it may not be able to service the
Notes or to meet its other debt service or working capital requirements, which
would have a material adverse effect on the Company. See "Description of the
Notes -- Certain Covenants."
At June 30, 1997 the Company had a working capital deficit of $1.7 million,
which represents an improvement of $4.8 million compared to the working capital
deficit of $6.5 million at June 30, 1996. This improvement is primarily
attributable to the receipt of cash payments from, and the retirement of
outstanding obligations to, KLT during fiscal 1997. See "Certain Relationships
and Related Transactions." The fiscal 1996 working capital deficit resulted
primarily from growth experienced by the Company and DTI's substantial
investment in network and equipment. At March 31, 1998, the Company had a
working capital surplus of $256.9 million, which primarily reflects the receipt
of cash proceeds from the Private Offering.
The Company's investing activities used cash of $1.1 million for the year
ended June 30, 1996 and $19.4 million for the year ended June 30, 1997. During
the year ended June 30, 1997, the Company invested $19.9 million in network and
equipment and reduced restricted cash by $460,000 to repay borrowings under
DTI's former credit facility. During the year ended June 30, 1996, the Company
invested $5.7 million in network and equipment and reduced restricted cash by
$4.5 million to repay borrowings under the Company's former credit facility.
During the first nine months of fiscal 1998, the Company's investing activities
used cash of $28.2 million compared to $10.1 million for the first nine months
of fiscal 1997. During the first nine months of fiscal 1998 the Company invested
$28.2 million in network and equipment. During the first nine months of fiscal
1997 the Company invested $10.5 million in network and equipment and reduced
restricted cash by $460,000.
Cash provided by financing activities was $1.5 million for the year ended
June 30, 1996 and $15.3 million for the year ended June 30, 1997. During the
year ended June 30, 1997, the Company borrowed $8.0 million under a loan
agreement with KLT, bringing the total borrowings under that agreement to $14.0
million. These total borrowings were converted into Series A Preferred Stock,
and additional cash proceeds in the amount of $10.5 million were received
pursuant to the KLT Agreement (as defined herein). Cash was used to make
principal payments on a bank loan of $500,000 and to repurchase common stock
warrants for $2.7 million granted to a customer (in connection with a bridge
financing provided by such customer to the Company, which bridge financing was
satisfied and terminated by the Company in April 1996). During the year ended
June 30, 1996, cash was provided by borrowings under notes payable in the amount
of $10.4 million and cash was used to repay notes payable in the amount of $8.9
million. During the first nine months of fiscal 1997 cash provided by financing
activities was $10.3 million compared to $282.0 million for the first nine
months of fiscal 1998. During the first three quarters of fiscal 1998, the
Company received $17.3 million in proceeds from the issuance of Series A
Preferred Stock to KLT and $275.2 million from the issuance and sale of the
Units in the Private Offering. During the first three quarters of fiscal 1997,
the Company borrowed $8.0 million under a loan agreement with KLT, bringing the
Company's total borrowings from KLT to $14.0 million. These borrowings were
subsequently converted to Series A Preferred Stock during the year ended June
30, 1997 and additional cash proceeds in the amount of $5.0 million were
received pursuant to a stock subscription
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<PAGE> 49
agreement. During the nine months ended March 31, 1999, cash was used to
repurchase common stock warrants granted to a customer in the amount of $2.7
million and to repay borrowings of $450,000 under a former bank credit facility,
which borrowings were collateralized by cash equivalents that were maintained at
the lender in the amount of such borrowings and that earned interest at the
lender's money market rate.
To achieve its business plan, DTI will need significant financing to fund
its capital expenditure, working capital and debt service requirements and its
anticipated future operating losses. The Company estimates that total capital
expenditures necessary to complete the DTI network will be approximately $673.2
million. Of this amount, the Company had already expended approximately $62.8
million as of March 31, 1998. The Company anticipates remaining total capital
expenditures for the expansion of the DTI network of approximately $16.6 million
in the fourth quarter of fiscal 1998 and $410.1 million in fiscal 1999.
Estimated total expenditures for fiscal 1999 include existing commitments of
$7.2 million. The Company's estimated capital requirements primarily include the
estimated cost of (i) completing the construction and activation of the DTI
network throughout the Midwest region in accordance with its business strategy,
and (ii) network expansion activities, including the construction of additional
local loops in secondary and tertiary cities as network traffic volume
increases. The Company also may require additional capital in the future to fund
operating deficits and net losses and for potential strategic alliances, joint
ventures and acquisitions. These activities could require significant additional
capital not included in the foregoing estimated capital requirements.
As of March 31, 1998, DTI had $263.2 million of cash and cash equivalents.
Such amount is expected to provide sufficient liquidity to meet the Company's
operating and capital requirements through approximately December 31, 1998.
Subsequent to such date, DTI's operating and capital requirements are expected
to be funded, in large part, out of additional debt or equity financings,
borrowings under bank credit facilities, advance payments under IRUs and
wholesale network capacity agreements, and available cash flow from operations.
The Company is in various stages of discussions with potential customers for
IRUs and wholesale network capacity agreements. There can be no assurance,
however, that the Company will continue to obtain advance payments from
customers prior to commencing construction, that it will be able to obtain
financing under any credit facility or that other sources of capital will be
available on a timely basis or on terms that are acceptable to the Company and
within the restrictions under the Company's existing financing arrangements, or
at all. If the Company fails to obtain the capital required to complete the DTI
network build-out, the Company could modify, defer or abandon building certain
portions of the DTI network. The failure of the Company, however, to raise the
substantial capital required to complete the DTI network construction could have
a material adverse effect on the Company. The actual amount and timing of DTI's
capital requirements may differ materially from those estimates depending on
demand for the Company's services, and the Company's ability to implement its
current business strategy as a result of regulatory, technological and
competitive developments (including market developments and new opportunities)
in the telecommunications industry. See "Risk Factors -- Substantial Capital
Requirements," "-- High Leverage; Ability to Service Indebtedness; Restrictive
Covenants," "-- Risks Related to Completing the DTI Network; Increasing Traffic
Volume" and "-- Competition."
Subject to the Indenture provisions that limit restrictions on the ability
of any of the Company's Restricted Subsidiaries to pay dividends and make other
payments to the Company, future debt instruments of Digital Teleport may impose
significant restrictions that may affect, among other things, the ability of
Digital Teleport to pay dividends or make loans, advances or other distributions
to the Company. The ability of Digital Teleport to pay dividends and make other
distributions also will be subject to, among other things, applicable state laws
and regulations. There can be no assurance that Digital Teleport will be able to
pay, or will generate sufficient earnings or cash flow to distribute, any cash
dividends or make any loans, advances or other payments of funds to the Company,
the failure of which would have a material adverse effect on the Company's
ability to meet its obligations on the Exchange Notes. See "Risk Factors --
Holding Company Structure; Priority of Secured Debt" and "Description of the
Notes -- Certain Covenants -- Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries." Further, there can be no
assurance that the Company will have available, or will be able to acquire from
alternative sources of
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<PAGE> 50
financing, funds sufficient to repurchase the Exchange Notes in the event of a
Change of Control. See "Description of the Notes -- Certain Covenants --
Purchase of Notes Upon a Change of Control."
In February 1998, the Company received notice from a customer that it
intends to setoff against amounts payable to the Company of approximately
$75,000 as damages and penalties under the Company's contract with that customer
due to the failure by the Company to meet certain construction deadlines and
such customer reserved its rights to seek other remedies under the contract. The
Company believes that if such setoff were to be made, it would not be material
to the Company's business, financial position and results of operations.
INFLATION
The Company does not believe that inflation has had a significant impact on
the Company's consolidated results of operations.
YEAR 2000
While the Company believes that its existing systems and software
applications are Year 2000 compliant, there can be no assurance until the year
2000 that all of the Company's systems and software applications then in place
will function adequately. The failure of the Company's systems or software
applications to accommodate the year 2000 could have a material adverse effect
on its business, financial condition and results of operations and its ability
to meet its obligations on the Notes. Further, if the systems or software
applications of telecommunications equipment suppliers, ILECs, IXCs or others on
whose services or products the Company depends or with whom the Company's
systems must interface are not Year 2000 compliant, it could have a material
adverse effect on the Company's business, financial condition and results of
operations and its ability to meet its obligations on the Notes. The Company
intends to continue to monitor the performance of its accounting, information
and processing systems and software applications and those of its third-party
constituents to identify and resolve any Year 2000 issues. To the extent
necessary, the Company may need to replace, upgrade or reprogram certain systems
to ensure that all interfacing applications will be Year 2000 compliant when
operating jointly. Based on current information, the Company does not expect
that the costs of such replacements, upgrades and reprogramming will be material
to its business, financial condition or results of operations. Most major
domestic carriers have announced that they expect to achieve Year 2000
compliance for their networks and support systems by mid-1999; however, other
domestic and international carriers and other third-party constituents may not
be Year 2000 compliant, and failures on their networks and systems could
adversely affect the operation of the Company's networks and support systems and
have a material adverse effect on the Company's business, financial condition
and results of operations and its ability to meets its obligations on the Notes.
NEW ACCOUNTING STANDARDS
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 130, "Reporting Comprehensive Income,"
and SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information." These statements, which are effective for fiscal years beginning
after December 15, 1997, expand or modify disclosures and, the Company believes,
will have no impact on the Company's consolidated financial position, results of
operations or cash flows.
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INDUSTRY OVERVIEW
GENERAL
The Telecom Act and several state regulatory initiatives have substantially
increased the competitive nature of the telecommunications regulatory
environment in the United States. These developments have removed significant
legal barriers to entry by IXCs and other carriers into the local
telecommunications market and required the RBOCs to allow competing
telecommunications companies to connect their facilities with their network.
IXCs and other carriers have also been guaranteed access to and a right to
resell local telecommunications and network services on an unbundled basis. The
Telecom Act also has created the foundation for increased competition from ILECs
in the long distance telecommunications market. Due to these regulatory changes,
telecommunications companies are now permitted, upon regulatory approval, to
offer an array of interstate and intrastate telephone services, including long
distance and other private line services as well as local telephone service.
The telecommunications market consists of long distance and local services.
Long distance services include retail and wholesale services. Retail long
distance services include traditional switched and dedicated long distance,
"800" and "888" calling, calling card and operator services, ATM, frame relay
and high capacity broadband private line services, as well as Internet, Intranet
and Web page hosting and development services. The dominant national retail long
distance providers include AT&T, Sprint, MCI and WorldCom (the "Tier 1
carriers") and a number of regional retail long distance service providers.
Wholesale long distance and local access service is known as the "carrier's
carrier" business. This business encompasses providing line capacity and
switched services over proprietary network facilities to the carrier's carrier
target market and interconnection within those markets. The primary customers
for companies in the carrier's carrier business are the Tier 1 carriers and the
RBOCs, followed by regional long distance carriers, ISPs, CLECs and other
telecommunications providers.
Local services include switch-based and non-switch-based local exchange
services. Local service providers primarily consist of ILECs, which include the
RBOCs, and CLECs. CLECs can penetrate a local market by (i) reselling ILEC
services by entering into interconnection agreements with the ILECs with respect
to a particular target market or (ii) installing network infrastructure to
support local services in those markets.
LONG DISTANCE AND LOCAL CALL ROUTING
A typical local telephone call placed by an end user is routed to a central
office, which is generally less than three miles from the end user, where the
call is switched. The call is then sent to an "access tandem" which connects
several central offices. The call is then transmitted to the access tandem
serving the central office of the call recipient, then to the central office
serving the call recipient and on to the call recipient. A typical long distance
call follows the same routing as a local call, from the caller to the caller's
central office and then to the access tandem. However, a long distance call is
transmitted from the caller's access tandem to the POP of the caller's long
distance carrier. The long distance carrier then transmits the call to its POP
at the call recipient's location, then to the access tandem and central office
serving the call recipient and on to the call recipient.
The following diagram illustrates the general structure of an IXC long
distance network.
IXC Long Distance Network Chart
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MARKET OPPORTUNITY
The Company believes demand from IXCs and other communications entities and
from business and governmental end-users for advanced, high bandwidth voice,
data and video transmission capacity will increase over the next several years
due to regulatory and technological changes and other industry developments.
These anticipated changes and developments include: (i) continued growth in
demand for existing long distance and local exchange services, (ii) continued
growth in the capacity requirements of the Internet, data transmission and other
new technologies and applications, (iii) requirements of the Tier 1 carriers to
replace or augment portions of their older system and (iv) entry into long
distance and local exchange markets of new communications providers.
BASE GROWTH OF EXISTING PROVIDERS. Toll service revenues of long distance
carriers in the U.S. were approximately $82 billion in 1996, according to the
FCC. Based on FCC data, toll service revenues of long distance carriers grew at
a compound annual rate of approximately 8.5% during the period 1991 through
1996, while the toll service revenues of all non-Tier 1 long distance carriers,
many of which lease network capacity from facilities-based carriers such as the
Company, grew in the aggregate at a compound annual rate of over 23% during the
same period. The revenue increases were achieved against a backdrop of declining
unit prices for most telecommunications services, which suggests that the demand
for telecommunications bandwidth has increased at an even higher rate. The
Company believes that these growth trends generally will continue and that
non-facilities-based companies will need to either invest in network facilities
or lease high bandwidth network capacity in order to remain competitive.
According to the FCC, the 1996 aggregate revenues of all reporting LECs in
the U.S. approximated $101 billion. Based on FCC data, revenues of all reporting
LECs in the U.S. increased at a compound annual rate of approximately 3.3%
during the period 1991 through 1996. Until recently, there was virtually no
competition in local exchange markets. Several factors have served to promote
recent competition in the local market, including: (i) rapidly growing customer
demand for an alternative to the ILECs, spurred partly by the development of
competition in the long distance market; (ii) advances in the technology for
transmission of data and video, which require significant bandwidth capacity and
reliability; (iii) the development of fiber optics and digital electronic
technology, which reduced network construction costs while increasing
transmission speeds, bandwidth capacity and reliability as compared to
copper-based networks; (iv) the significant access charges IXCs are required to
pay to access the ILECs' networks; and (v) a willingness on the part of
legislators to enact, and regulators to enforce, legislation and regulations
permitting and promoting competition in the local exchange market. In
particular, the Telecom Act requires all major ILECs to "unbundle" their local
network offerings and allow other providers of telecommunications services to
interconnect with their facilities and equipment. Most significantly, ILECs are
required to complete local calls originated by a competitor's customers and
switched by the competitor and to deliver inbound local calls to the competitor
for termination to its customers, assuring customers of unimpaired local calling
capability.
ACCOMMODATION OF THE INTERNET AND OTHER NEW APPLICATIONS. The Company
believes additional network transmission capacity and faster response times will
be required to accommodate multimedia (voice, data and video) and other
potential high-bandwidth applications, such as increasing use of the Internet by
commercial enterprises, the deployment of corporate intranets and the use of
telecommunications infrastructure for providing cable television and other
entertainment services. The Company believes this growth will result in
increased demand for high-bandwidth dedicated circuits and other data
communications services the Company plans to offer (such as Frame Relay and
ATM).
AUGMENTATION OF OLDER SYSTEMS. Although AT&T, Sprint and MCI have begun to
upgrade their systems, the coast-to-coast fiber optic networks currently
operated by such carriers were constructed for the most part prior to 1990,
using asynchronous, non-SONET ring architecture. Most of these systems were
buried directly in the ground without protective conduit. The conversion of
these older systems to the use of SONET ring architecture requires more
bandwidth over additional route miles. Accordingly, the Company believes that
the Tier 1 carriers will generally need to replace or augment parts of their
networks to add more capacity, route diversity and redundancy to their systems
and to lower their overall operating costs. The Company believes that the older
systems operated by certain of the Tier 1 carriers generally face other
disadvantages when
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compared to newer networks, such as those being constructed by Qwest
Communications International, Inc., IXC Carrier and DTI, including: (i) lower
transmission speeds, lower overall capacity and shorter distances between
regeneration/amplifier facilities; (ii) more costly maintenance requirements;
(iii) greater susceptibility to system interruption from physical damage to the
network infrastructure; and (iv) greater difficulty in upgrading to higher
quality fiber.
CAPACITY REQUIRED BY NEW ENTRANTS. Competition and deregulation are
bringing new entrants into the long distance and local telecommunications
markets. The Company anticipates that this trend will accelerate as a result of
the Telecom Act. Upon meeting certain competitive conditions under the Telecom
Act, the RBOCs will be able to enter the long distance business and thus
position themselves as providers of single source service. The Telecom Act
similarly is eliminating barriers to entry in the local exchange market and also
enables other entities, including entities affiliated with power utilities and
ventures between ILECs and cable television companies, to provide an expanded
range of telecommunications services. As these entities emerge as long distance
and local exchange competitors, the Company believes they will need their own
facilities and additional high-bandwidth capacity to compete effectively with
facilities-based providers.
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BUSINESS
OVERVIEW
DTI is a facilities-based provider of long-haul and local
telecommunications services primarily to IXCs and other communications entities
on a wholesale basis ("carrier's carrier services"), as well as directly to
business and governmental end users ("end-user services"). The Company is
building out the DTI network through the creation of regional rings by
interconnecting long haul routes among primary, secondary and tertiary cities in
the Midwest region because it believes that substantial unmet demand for
additional IXC capacity exists in secondary and tertiary markets located between
the primary markets. The Company has plans to expand its fiber optic
telecommunications network outward from the Midwest region to other similarly
underserved markets in the United States. The Company will strive to position
itself as a low-cost provider of telecommunications services, and believes it
will be able to offer regional ring transport to carrier customers on a more
economical basis than is currently available to such customers, particularly
among secondary and tertiary cities.
DTI initially will focus on carrier's carrier services because it believes
that (i) the scope and flexibility of its ringed network design will be
attractive to carrier customers, (ii) revenues from carrier's carrier services
can be achieved more rapidly than from end-user services, and (iii) net margins
from the Company's carrier's carrier services are higher than the Company could
typically achieve from the Company's end-user services. DTI currently provides
carrier's carrier services under long-term contracts with AT&T, Sprint, MCI and
IXC Carrier, Inc., and private line long-haul and local access services to
targeted business and governmental end-user customers ("end-user customers") in
Missouri.
DTI has completed construction of approximately 1,800 route miles of a
planned 2,000 route mile fiber optic network in the state of Missouri, including
an aggregate of approximately 500 local route miles in St. Louis, Kansas City
and four other population centers in Missouri with populations of over 70,000
people. DTI currently provides services over 750 route miles of its network. The
Company is expanding the DTI network to cover a 14-state Midwest region which is
expected to consist of approximately 7,700 route miles of fiber optic cable and
Nortel DMS-500 switches. DTI is also pursuing the expansion of the DTI network
to the east and west coasts of the United States, as well as additional network
in the Midwest region to facilitate such national expansion. (See the DTI
network map located on the inside front cover page of this Prospectus). The
Company's preliminary plans provide for a total national network of
approximately 15,000 route miles and 20 Nortel DMS-500 switches. The Company
expects to construct approximately half of such network and to obtain
indefeasible rights to use fiber optic facilities of other carriers for the
other half. As a part of this national expansion of the DTI network, the Company
has recently entered into a preliminary agreement for a long term indefeasible
right to use fiber optic strands and related facilities along a route from
Washington, D.C. to Texas.
DTI intends to interconnect its long haul routes to form regional rings
among the primary, secondary and tertiary cities located along such routes. The
Company also intends to interconnect the DTI network to major IXC POPs and ILEC
access tandems along its regional rings. The Company will offer its carrier
customers with transmission capacity through individual wavelength-specific
circuits of OC-48 capacity, or optical windows, on dense wavelength division
multiplexing ("DWDM") equipment deployed throughout the regional rings. DTI also
intends to provide local switched service capacity to its carrier customers on a
wholesale basis as it deploys its switches. The Company believes these services
will provide each of its carrier customers with a high quality, ring redundant
means to efficiently deliver its calls to a significant number of end-users
along these rings and aggregate, for further long haul transport, the outgoing
calls of a carrier's customers along such rings to a single regional point of
interconnection between the carrier's network and DTI's network. The Company
will also offer use of its optical windows to its carrier customers as a means
to transport point-to-point dedicated data and voice circuit communications
along its network. The Company believes that its regional rings will offer its
carrier customers greater reliability and accountability and less administrative
burden than their typical current transport methods. Through strategic routing
and switch placement, DTI believes it can also leverage its regional rings and
long-haul capacity to permit the Company to cost-effectively construct local
loops and pursue other revenue-generating opportunities.
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The Company's existing business consists primarily of the provision of
carrier's carrier services through dedicated bandwidth agreements and
indefeasible rights to use dark fibers ("IRUs"). DTI provides these services to
both facilities-based and non-facilities-based carriers requiring long-haul
transmission capacity, local access, or both, to carry their own customers' long
distance traffic. DTI also currently offers private line services, which
generally include the transport of communications between points on its end-user
customers' own networks or to the facilities of a long distance carrier.
The DTI network's self-healing, SONET ring architecture provides virtually
instantaneous rerouting in the event of a cut in a fiber ring. DTI expects that
more than 90% of the DTI network will be installed underground, providing
protection from weather and other environmental hazards affecting the
reliability of communication connections. The DTI network will have both
high-bandwidth capacity and flexibility as a result of, (i) high speed
transmission electronics equipment from Fujitsu, (ii) high capacity DWDM
equipment, (iii) the selective installation on Company-built routes of between
48 and 288 strands of fiber optic cable, incorporating Corning glass, and (iv)
extra conduits along selected long-haul routes that the Company constructs. (On
routes that the Company does not build, the Company expects to typically obtain
IRUs ranging from two to 12 optical fibers). The Company believes the use of
Fujitsu fiber optic terminal equipment will provide DTI's customers the ability
to monitor, in their own network control centers, the portions of the DTI
network that they utilize. The Fujitsu equipment should also permit DTI's
customers to utilize their own network control centers to add and remove
services on those portions of the DTI network they have a right to use. The use
of DWDM equipment will give the DTI network an open architecture, providing
compatibility with the broad range of transmission speeds and signal formats
used by the existing transmission systems of its carrier customers. The DWDM
equipment also will enable DTI to offer its carrier customers high capacity,
ring redundant, dedicated optical windows of a particular wavelength through
which its carrier customers can deliver telecommunications services on a
regional basis. The installation of high-fiber-count cables and extra conduits
on selected Company-built routes will provide DTI with the ability to expand the
capacity of its network and to sell dark fibers to its customers along certain
routes.
The Company has installed its first Nortel DMS-500 switch in St. Louis. By
the end of 1998, the Company expects to have substantially completed
construction in Missouri. The Company is currently constructing fiber optic
facilities in Arkansas. In the next 12 to 18 months, the Company expects to have
commenced construction of fiber optic facilities on those routes along which it
will construct its facilities and to have reached agreement or commenced
negotiations for IRUs for the rest of the planned DTI network. The Company has
entered into a preliminary agreement for a long term IRU for fiber optic strands
and related facilities along a route from Washington, D.C. to Texas.
BUSINESS STRATEGY
The Company's objective is to become a leading facilities-based provider of
communication services to other communications entities and end-user customers
in the Midwest region and selected other regions in the United States. To
achieve this objective, the Company intends to:
LEVERAGE INTEGRATED LONG-HAUL ROUTES, REGIONAL RINGS AND LOCAL NETWORK
DESIGN. The Company believes that the strategic design of the DTI network will
allow it to offer reliable, high-capacity, long-haul and local switched services
on a region-by-region basis to carrier and end-user customers who seek a
competitive alternative to incumbent providers of such services. The regional
rings in the DTI network will interconnect primary, secondary and tertiary
markets and major IXC POPs and ILEC access tandems and, on most routes, will use
high-capacity, DWDM equipment. Local network rings will be constructed in
selected metropolitan areas near identified potential end-user customers, ILEC
access tandems and major IXC POPs. This integrated design will permit the
Company to provide its carrier customers with dedicated, high quality, ring
redundant OC-48 capacity optical windows, which can (i) efficiently deliver the
carrier's calls to a significant number of end-users along these rings and (ii)
aggregate, for further long haul transport, the outgoing calls of that carrier's
customers along such rings to a single regional point of interconnection between
the carrier's network and DTI's network. The DTI network design will also permit
the Company to offer its carriers customers with optical windows as a means to
transport point-to-point dedicated data and voice circuit
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communications along its network. The Company believes that a carrier's use of
the DTI network with provide that carrier with greater reliability and
accountability and less administrative burden than their current transport
methods, which typically utilize two or more other carriers' networks.
STRATEGICALLY LOCATE AND EXPAND ITS NETWORK THROUGH REGIONAL RINGS. The
Company is building out the DTI network through the creation of regional rings
by interconnecting long haul routes connecting primary, secondary and tertiary
cities in the Midwest region because it believes that substantial unmet demand
for additional IXC capacity exists in secondary and tertiary markets located
between the primary markets. The Company plans to expand its fiber optic
telecommunications network outward from the Midwest region to offer services to
other underserved markets in the United States. In general, new network
facilities will first be constructed or acquired along long-haul, point-to-point
routes. The Company will then construct or acquire other long-haul facilities to
create regional rings. Building the DTI network in this manner will help the
Company to (i) offer reliable connectivity on a regional basis and (ii) offer
high quality services cost-effectively to secondary and tertiary markets along
the Company's regional rings where the Company believes it is less likely to
face significant competition from ILECs and other competitive local exchange
carriers ("CLECs"). To complete the DTI network buildout, the Company expects
to: (i) purchase, for cash, indefeasible rights to use fiber optic facilities of
other telecommunications companies and (ii) exchange indefeasible rights to use
the Company's fiber optic facilities for the indefeasible right to use the fiber
optic facilities of other telecommunications companies. In this manner, the
Company believes that it would be able to establish telecommunications
facilities along the DTI network routes more quickly than by constructing all of
its own facilities.
POSITION ITSELF AS A LOW-COST PROVIDER OF TELECOMMUNICATIONS SERVICES. The
Company will strive to position itself as a low-cost provider of
telecommunications services by (i) taking advantage of the potential cost
efficiencies of the DTI network design, (ii) continuing to deploy advanced fiber
optic network technology, which the Company believes lowers construction,
operating and maintenance costs, and (iii) realizing cost efficiencies through
existing and additional fiber optic facility long term IRU and swap agreements
with other telecommunications companies and rights-of-way agreements with
governmental authorities. The Company believes that its network design and the
deployment of DWDM will allow it to offer carrier customers regional ring
transport on a more economical basis than is currently available to such
customers.
PURSUE LOCAL SWITCHED SERVICES OPPORTUNITIES. DTI believes its network
design will allow it to cost-effectively pursue local switched services
opportunities by creating regional and local fiber optic rings along its
long-haul routes and by leveraging the technical capabilities and high-bandwidth
capacity of the DTI network. The Company intends to provide local switched
service capacity to its carrier customers and to other facilities-based and
non-facilities-based telecommunications companies on a wholesale basis. The DTI
network's design will also provide the Company with sufficient long-haul
capacity to offer local switched services to targeted end-user customers in
primary, secondary and tertiary cities on the Company's regional rings. DTI will
also have the capacity to offer a wide range of local switched services,
including Caller ID, Voice Mail and Centrex services, and advanced data
transmission services, such as ATM and Frame Relay, as it expands its customer
base and increases network traffic volume.
LEVERAGE EXPERIENCED MANAGEMENT TEAM. The Company's management team
includes individuals with significant experience in the deployment and marketing
of telecommunications services. Prior to founding DTI in 1989, Mr. Richard D.
Weinstein, President and Chief Executive Officer of DTI, owned and managed
Digital Teleresources, Inc., a firm which designed, engineered and installed
telecommunications systems for large telecommunications companies, including SBC
and other Fortune 500 companies. H.P. Scott, the Company's Senior Vice
President, has over 35 years of telecommunications industry experience, having
spent eighteen years with MCI Telecommunications Corporation and IXC Carrier,
Inc., where he held positions of senior responsibility for the design and
construction of their coast-to-coast fiber optic telecommunications networks.
Prior to joining DTI as Chief Financial Officer, Gary W. Douglass was the
Executive Vice President and Chief Financial Officer of publicly held Roosevelt
Financial Group, Inc., which was acquired by Mercantile Bancorporation in 1997,
and had previously spent 23 years at Deloitte & Touche LLP. Jerry W. Murphy, the
Company's Vice President -- Network Operations, spent 18 years with MCI, having
spent the
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last 11 years in senior position in engineering, network implementation and
network operations positions. Jerome W. Sheehy, DTI's Vice President,
Regulatory-Industry Affairs, has over 42 years' experience in the
telecommunications industry, including 20 years at GTE.
THE DTI NETWORK
GENERAL. The DTI network is an exclusively fiber optic cable communications
system substantially all of which employs self-healing, SONET ring architecture
to minimize downtime in the event of a cut in a fiber ring. The Company has
installed its first switch on the DTI network and expects that it will be fully
operational by the end of 1998. DTI expects that more than 90% of the fiber in
the DTI network will be installed underground, typically 36 to 48 inches under
the surface, providing protection from weather and other environmental hazards
affecting reliability of communication connections. The Company expects to
construct approximately half of the DTI network, and to obtain indefeasible
rights to use fiber optic facilities of other carriers for the other half. On
routes which the Company constructs, and on most routes which it acquires from
other carriers, the Company will employ SMF-28A fiber optic cable composed of
Corning glass fiber. All routes in the DTI network constructed by DTI are
comprised of at least 48 strands. In addition, in St. Louis and Kansas City, DTI
is installing 216 and 288 fiber strands, respectively. On routes that the
Company does not build, the Company expects to obtain IRUs for between 2 and 24
optical fibers. On certain strategic routes which it constructs, the DTI network
will also include one or two empty innerducts for maintenance and future growth
purposes. As part of its design, the Company typically retains 50% or more of
the capacity on each DTI network route for its own use.
The Company currently has approximately 1,800 route miles of fiber optic
cable in place in Missouri and Arkansas, of which approximately 1,300 route
miles represent long-haul segments, and approximately 500 route miles represent
local loop networks in the St. Louis and Kansas City metropolitan areas, as well
as in Jefferson City, Columbia, Mexico and Fulton, Missouri. DTI currently
provides services over 750 route miles of its network.
The following diagram illustrates how the DTI network connects to the
facilities of ILECs and IXCs, as well as to end-user customers.
DIAGRAM OF ILEC NETWORK
NETWORK ELECTRONICS. Long-haul routes on the DTI network will generally
utilize DWDM equipment. DWDM equipment provides individual wavelength-specific
circuits of OC-48 capacity optical windows. All
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DTI network DWDM equipment will initially be equipped to enable the Company to
provide the equivalent of eight dedicated, ring redundant, optical windows. Such
equipment will have the ability to be expanded to offer additional optical
windows as the need for capacity on the DTI network increases. The DWDM
equipment will permit the Company to offer to its carrier customers optical
windows on regional rings providing a dedicated, virtual circuit that can
interconnect any two points on that regional ring. The DWDM equipment, with the
accompanying optical add/drop multiplexing ("OADM") equipment, also will permit
the Company to efficiently provide high capacity telecommunications services to
secondary and tertiary markets that the Company believes are currently
underserved. The Company's use of open architecture, DWDM equipment conforming
to SONET standards on its regional rings and long-haul routes will also give the
DTI network the ability to interoperate with its carrier customers' existing
fiber optic transmission systems, which have a broad range of transmission
speeds and signal formats, without the addition of expensive conversion
equipment by those carriers.
On all routes throughout the DTI network, whether constructed by DTI or
purchased or swapped from another carrier, the Company will install Fujitsu
high-bit-rate transmission electronics. The Company believes the use of Fujitsu
fiber optical terminal equipment will provide DTI's customers the ability to
monitor, in their own network control centers, the optical windows on the
regional rings that they utilize. The Fujitsu equipment should also permit DTI's
customers to utilize their own network control centers to add and remove
services on the optical windows serving that carrier. The DTI network design
will permit carriers to utilize the DTI network as a means to efficiently expand
their networks to areas not previously served, to provide redundancy to their
networks or to upgrade the technology in areas already served by such networks.
The DTI network will also be capable of providing services to carriers and
end-users in increments of less than a full OC-48 optical window, from OC-12s to
DS-3s.
The Company believes that the DTI network design standards give it
sufficient transmission capacity to meet anticipated future increases in call
volume and the development of more bandwidth-intensive voice, data and video
telecommunication uses. The DTI network's capacity also will allow the Company
to deploy fewer high cost switches by facilitating the transport of rural
switched calls to and from distant centralized switching facilities. All network
operations are currently controlled from a single network control center in
suburban St. Louis, Missouri. The Company is currently constructing a second
control center in Kansas City, Missouri that can serve as a backup network
control center for the DTI network.
NETWORK DESIGN. The DTI network is designed to include high-capacity (i)
long-haul routes between large metropolitan areas, (ii) regional rings
connecting primary, secondary and tertiary metropolitan areas to one another and
(iii) local rings in selected metropolitan areas along the regional rings. The
long-haul route portions of the DTI network will generally be located to allow
the Company to more easily interconnect with major IXC POPs and ILEC access
tandems in a region. Any major ILEC access tandem along a regional ring not
physically interconnected through DTI-owned facilities will be interconnected
through leased lines until there are sufficient customers to make construction
of a DTI-owned route to these access tandems economically feasible. Local
network portions of the DTI network in metropolitan areas are generally routed
near major business telecommunications users, metropolitan ILEC access tandems
and major central offices. DTI believes the different elements of the DTI
network complement each other and will create certain construction, operating
and maintenance synergies. DTI also believes its integrated long-haul route,
regional ring and local ring design will allow the Company to offer its carrier
and end-user customers private line and local switched services at a lower cost
by reducing the Company's use of ILEC and IXC facilities to provide services to
its customers.
SWITCHING CAPACITY. The Company intends to install Nortel DMS-500
high-capacity switches in strategically located, geographically diverse
metropolitan areas to balance the expected traffic throughout the DTI network.
When coupled with its integrated network design, this switch placement will give
DTI the ability to offer local switched service and long-haul service to many
end-user customers along its regional rings. By using the expected excess
capacity on the DTI network, calls from diverse geographic regions in the DTI
network can be routed long distances from the originating point to one of the
Company's switches and on to their destination, reducing the number of switches
required and decreasing the cost and complexity of constructing, operating and
maintaining the DTI network. In addition, the strategic deployment of switches
is
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expected to enable the Company to: (i) allow the Company to offer switched
services on a more economical basis, (ii) offer custom calling features and
billing enhancements to all of its customers without involving the ILEC, and
(iii) allow the Company to sell its local switched service capacity to other
carriers on a wholesale basis. The Company's first switch has been installed in
St. Louis, and the Company expects that it will be fully operational by the end
of 1998.
HIGHWAY AND UTILITY RIGHTS-OF-WAY. Much of the currently completed DTI
network is located in rights-of-way obtained by DTI through strategic
relationships with utilities, state transportation departments and other
governmental authorities. The Company currently has built or has rights-of-way
to build approximately 2,250 route miles of the planned 15,000 total route miles
that will make up the DTI network. To build the long-haul portions of the DTI
network between population centers in Missouri, the Company has generally used
rights-of-way in the median of and along the interstate highway system. The
Company will seek to obtain the rights-of-way that it needs for the expansion of
its network in areas where it will construct network rather than purchase or
swap fiber optic strands by entering into agreements with other state highway
departments, utilities or pipeline companies and it may enter into joint
ventures or other "in-kind" transfers in order to obtain such rights. In
addition, DTI may use available public rights-of-way.
BUILD-OUT PLAN. The Company plans to construct a 33-state fiber optic
network that will consist of approximately 15,000 route miles of fiber optic
cable, Fujitsu and DWDM signal transmission equipment, and Nortel DMS-500
switches strategically located in larger metropolitan areas. The Company expects
to construct approximately half of such network and to obtain indefeasible
rights to use fiber optic facilities of other carriers for the other half. As a
part of this national expansion of the DTI network, the Company recently entered
into a preliminary agreement for a long term indefeasible right to use fiber
optic strands and related facilities along a route from Washington, D.C. to
Texas.
The following chart sets forth the planned fiber route miles within the
Midwest region (excluding any additional routes that the Company may build or
acquire to facilitate its expansion to the east and west coasts):
<TABLE>
<CAPTION>
PLANNED
STATE ROUTE MILES
- ----- -----------
<S> <C>
Missouri................................................. 2,000
Kansas................................................... 260
Oklahoma................................................. 350
Arkansas................................................. 480
Tennessee................................................ 290
Kentucky................................................. 250
Illinois................................................. 1,080
Iowa..................................................... 800
Nebraska................................................. 125
Indiana.................................................. 330
Ohio..................................................... 160
Michigan................................................. 480
Wisconsin................................................ 380
Minnesota................................................ 60
Customer drop routes..................................... 655
-----
Total.................................................... 7,700
</TABLE>
To complete the DTI network buildout, the Company expects to (i) purchase,
for cash, indefeasible rights to use fiber optic facilities of other
telecommunications companies and (ii) exchange indefeasible rights to use the
Company's fiber optic facilities for the indefeasible right to use the fiber
optic facilities of other telecommunications companies. In this manner, the
Company believes that it would be able to establish telecommunications
facilities along the DTI network routes more quickly than by constructing all of
its own facilities.
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The Company has entered into certain agreements that require it to
construct network facilities. The MHTC Agreement requires the Company to build
approximately 1,200 miles of fiber optic network along Missouri's interstate
highway system prior to or by the end of 1998. The Company did not meet an
intermediate construction deadline for the construction of approximately 30
miles but expects to complete such construction by October 1998 and the
remainder of its construction requirements by the end of 1998. The Company must
complete construction on an additional 800 miles by the end of 1999 to maintain
its rights to such routes. An agreement between the Company and Union Electric
requires it to construct a fiber optic network linking Union Electric's 80-plus
sites throughout the states of Missouri and Illinois. As of June 30, 1998, the
Company had completed approximately 85% of the sites required for Union Electric
and expects completion of all such construction by the end of 1998. See "Risk
Factors -- Risks Related to Completing the DTI Network; Increasing Traffic
Volume."
The Company estimates that total capital expenditures to complete the DTI
network will be approximately $673.2 million. Of this amount, the Company had
already expended approximately $62.8 million as of March 31, 1998. The Company
anticipates total capital expenditures for the expansion at the DTI network of
approximately $16.6 million in the remaining quarter of fiscal 1998 and $410.1
million in fiscal 1999. DTI's contract with Nortel requires the Company to
purchase five DMS-500 switches by October 1998 and an additional five DMS-500
switches by October 1999. Estimated total expenditures for fiscal 1999 include
existing commitments of $7.2 million, including expenditures for the purchase of
electronic equipment.
PRODUCTS AND SERVICES
CARRIER'S CARRIER SERVICES
"Carrier's carrier services" are generally the high capacity transmission
services used by IXCs, ILECs and CLECs to transmit telecommunications traffic.
Customers using carrier's carrier services include (i) facilities-based carriers
that require transmission capacity where they have geographic gaps in their
facilities, need additional capacity or require alternative routing and (ii)
non-facilities-based carriers requiring transmission capacity to carry their
customers' telecommunications traffic. Carrier's carrier service is a wholesale
pricing business characterized by net margins that are higher than the Company
could typically achieve through end-user services. This is primarily because
these services can be marketed more quickly and at a lower cost than is
generally necessary with end-user services. The Company currently has IRUs and
wholesale network capacity agreements. The Company's present and planned
carrier's carrier services are set forth below.
Optical Windows. DTI plans to offer its carrier customers dedicated,
virtual circuits through the exclusive use of an OC-48 capacity, ring redundant
wavelength of light, or optical window, on the regional rings in the DTI
network. DTI intends to supply all fiber optic electronic equipment necessary to
transmit telecommunications traffic along the regional ring. The Company plans
to enter into agreements for the provision of optical windows for a term of
years with fixed monthly payments over the term of the agreement, regardless of
the level of usage. Uses of optical windows by an IXC can include
point-to-point, dedicated data and voice circuit communications connections, as
well as redundancy and overflow capacity for existing facilities of the IXC.
Possible uses of optical windows by ILECs include connection of its central
offices to other central offices or access tandems. An ILEC may also use such
agreements as a cost effective way to upgrade its network facilities. A CLEC may
use optical window agreements as a way of "filling out" its network.
The Company also will offer its carrier customers the use of an OC-48
optical window to create a high quality, ring redundant means to efficiently
deliver its calls to a significant number of end-users along these rings and
aggregate, for further long haul transport, the outgoing calls of that carrier's
customers along such rings to a single regional point of interconnection between
the carrier's network and DTI's network. DTI will be able to offer this service
because (i) its network will be physically interconnected with all major IXC
POPs in a region, (ii) the DTI network will typically be interconnected through
its own or leased facilities to every major ILEC access tandem in a region, and
(iii) the DTI network will integrate high capacity DMS-500
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switches. Currently, IXCs have to provide for the transport between each of
their POPs and from each of those POPs to each of the access tandems in the
areas adjacent to such POPs, which can involve the use of multiple networks and
carriers. DTI believes that its method of transporting an IXC's traffic directly
to access tandems would be attractive to an IXC because it should (i) reduce the
administrative burden on the IXC of terminating such calls, because the IXC will
have to contract with only one carrier to reach the ILEC access tandems, (ii)
result in greater reliability, because the calls are transported over a newer
system, with fewer potential points of failure and (iii) result in greater
accountability, because fewer telecommunications companies may be involved in
the delivery of such traffic. The Company expects that it would charge the IXC
for its call transport services on a per-call, per-minute basis, with the
per-minute fee dependent on the distance the call is transported by DTI.
Dedicated Bandwidth Services. Through its other wholesale network capacity
agreements, also referred to as dedicated bandwidth agreements, the Company
provides carriers with bandwidth capacity on the DTI network in increments of
less than a full OC-48 optical window, such as a DS-3. The carrier customer in a
dedicated bandwidth agreement does not have exclusive use of any particular
strand of fiber or wavelength, but instead has the right to transmit a certain
amount of bandwidth between two points along the DTI network. The carrier
customer provides a telecommunications signal to DTI, and DTI provides all fiber
and electronic equipment necessary to transmit the signal to the end point. This
capacity may or may not be along a DTI regional ring providing redundancy.
Dedicated bandwidth agreements typically have terms ranging from five to 20
years, require the customer to pay for such capacity regardless of the level of
usage, and require fixed monthly payments or a combination of advance payments
and subsequent monthly payments over the term of the agreement. Dedicated
bandwidth agreements are marketed to ILECs, CLECs and IXCs for the same uses as
optical windows but offer an alternative for customers who (i) do not want or
need the capacity of one or more OC-48 optical windows, and (ii) do not wish to
provide and maintain the fiber optic transmission equipment necessary for the
operation of dark fibers. DTI offers some customers the right to switch their
service from dedicated bandwidth agreements to IRUs. DTI customers with
dedicated bandwidth agreements include AT&T, MCI, WorldCom and Ameritech
Cellular.
IRUs. Through IRUs, the Company provides carrier customers specified
strands of optical fiber (which are used exclusively by the carrier customer),
while the carrier customers are responsible for providing the electronic
equipment necessary to transmit communications along the fiber. IRUs typically
have terms of 20 years and require substantial advance payments and additional
fixed annual maintenance payments over the term of the lease. Uses of IRUs by an
IXC are the same as those for optical windows or dedicated bandwidth agreements,
but permit a customer to use its own electronic equipment to light up the fibers
at any level of capacity it chooses. DTI's IRU customers include IXC carrier,
United Telephone and MCI.
Carrier Branded Offerings. DTI plans to offer in the future any of its
services to other carriers for resale under that carrier's own name as branded
offerings, without identification of DTI as a service provider. For example, a
private line could be leased to an IXC to transmit the traffic of its large
business customers which are located on or near the DTI network from the
premises of such customers to the IXC's POPs, using the DTI network exclusively.
Currently, when an IXC offers long distance service to a major customer, it
generally uses the ILEC network facilities to transmit calls from the customer's
premises to the ILEC access tandem, for which the ILEC charges the IXC an access
fee, and then uses the ILEC network facilities or other leased facilities to
transmit the call to the IXC's local POP. For such major customers, the IXC
generally does not charge separately for the access charges or other payments
necessary to transport such call to the IXC's POP, and instead offers such
transport as part of the IXC's branded long distance service. For the IXC's
customers who are on or near the DTI network, DTI will be able to offer the IXC
an alternative mode of transport to the IXC's POP, using DTI network facilities
exclusively. This service is expected to be offered to IXCs on a contract for a
term of years, on a take or pay basis, and providing for fixed monthly payments.
The Company believes its network design and cost structure will allow it to
compete effectively with ILECs for this service.
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END-USER SERVICES
End-user services are telecommunications services provided to business and
governmental end users. The Company currently provides private line services
connecting certain points on a given end user's private telecommunications
network and in the past has established connections between such private network
and the facilities of that end user's long distance service provider.
Private Line Services. A private line is an unswitched, generally
non-exclusive, lighted telecommunications transmission circuit used to transport
data, voice and video communications. The customer may use a private line for
communications between otherwise unconnected points on its internal network or
to connect its facilities to a switched IXC. Private line calls are generally
routed by a customer through the customer's Private Branch Exchange ("PBX")
facilities to a receiving terminal on DTI's network. DTI then transmits the
signals over the DTI network to the customer's terminal in the call recipient's
area or to the POP for the customer's long distance provider. For example, the
Company has established private line bypass services for a major retailer and a
major hospital in the St. Louis metropolitan area. The Company's current private
line service agreements have terms ranging from three to seven years and
typically require a one-time installation charge as well as fixed monthly
payments throughout the term of the agreement regardless of level of usage.
Local Switched Services. Through the addition of high-capacity switches at
strategic points on the DTI network, the Company in the future will have the
capacity to provide local switched services connecting its customers with other
end users either on the DTI network or on the networks of other local service
providers, and to long distance providers serving the call recipient. As a part
of providing local switched services, the Company intends to offer a wide range
of services and features including Caller ID, Voice Mail and Centrex services.
All long-haul and local telecommunications services provided by DTI would be
charged to the customer on one consolidated bill. As a provider of local
switched service, the Company expects to receive subscriber-paid service charges
based on a flat-rate or per-minute-of-use basis, or both, and would be based on
either a month-to-month or minimum term of years, based on the cost incurred by
the Company in establishing the services. The Company would also receive
IXC-paid per-minute access charges for completing the IXC's connection to users
on the DTI network, and the LEC-paid access charges for terminating the
competing LEC's local calls to users on the DTI network. The Company completed
installation of the first switch in January 1998, expects to begin offering
services on that switch in late 1998, and estimates that the remaining 19 will
be in place and operational by the end of 1999.
Data Transmission Services. The Company anticipates installing the
equipment and transmission capacity necessary to offer high speed data
transmission services to its customers. These services would include ATM and
Frame-Relay transmission methods that provide high-speed transmission of data.
The Company will offer these services to end users as well as to carriers for
resale to end users, with pricing on a flat-rate or measured basis over terms
ranging from month-to-month to one to three years. The Company believes that the
DTI network's current and planned system architecture, with minor additions or
modifications, will accommodate emerging Internet Protocol ("IP") technologies.
SALES AND MARKETING
The Company's sales and marketing staff is currently organized into two
groups: carrier's carrier services and end-user services. DTI currently has one
person focusing solely on carrier's carrier services and five direct sales and
marketing personnel pursuing sales of end-user services. Sales personnel are
compensated through a combination of salary and commissions. The Company plans
to significantly expand its sales and marketing activities. By mid-1999, DTI
intends to hire an additional 13 and 38 persons to focus on sales to carrier and
end-user customers, respectively. The Company currently has a sales office in
St. Louis and Springfield, Missouri and expects to open sales locations in
Kansas City and in Illinois by mid-1999. DTI also plans to hire additional
personnel (not including additional carrier's carrier and end-user sales
personnel) to form a separate marketing force to implement its marketing
strategies, including those relating to its carrier branded offerings, IXC call
transport services, local switched services and data transmission services.
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CARRIER'S CARRIER SERVICES. DTI's carrier's carrier services are marketed
and sold to facilities-based and nonfacilities-based carriers that require
capacity in the form of dark fiber leases and wholesale network capacity
agreements to provide added capacity in markets they currently serve, bridge
geographic gaps in their facilities or require geographically different routing
of their long distance or local traffic. The Company relies on direct selling to
other carriers on a wholesale basis. DTI's sales efforts also emphasize
providing continued customer support services to its existing customers. The
Company intends to distinguish itself in the carrier's carrier market on the
basis of pricing, quality, availability of capacity and flexibility and range of
services.
The Company's current focus in its carrier's carrier business is on selling
private line services to ILECs, CLECs and IXCs, including those sold as part of
a carrier branded offering. Upon commencement of the provision of switched
services, which DTI expects will occur in Missouri by the end of 1998, the
Company will expand its sales and marketing efforts to include IXC call
transport services. The Company also intends to provide local switched service
capacity to its carrier's carrier customers on a wholesale basis as it deploys
switches throughout the Midwest region. DTI does not currently anticipate
offering switched long distance services under a Company brand.
END-USER SERVICES. Through its direct sales personnel, DTI markets and
sells its end-user services to business and governmental end users that require
private line services to transport an end user's private telecommunications
network among multiple office sites or data centers and between the end user's
private network and its long distance provider. End-user sales generally are
project-driven and typically involve sales cycles of two to six months. In
direct sales to end users, DTI sales personnel call on prospective customers
and, as the Company expands its end-user service offerings, existing customers
whose premises are located on or near the DTI network. For customers that are
not located on the local rings of the DTI network, the Company will consider
leasing circuits from the local ILEC or other telecommunications company or, if
necessary, build out its network directly to such customers.
The Company intends to distinguish itself to end-users on the basis of
pricing, customer responsiveness and creative product implementation. In
addition to hiring additional personnel and opening two new sales offices, DTI
plans to organize its direct sales force by state and, as the DTI network and
the Company's addressable target market expand, by region. Senior sales
management intends to pursue large business customers as reference accounts in
each market served by the DTI network, often offering a deeper discount than
that available to smaller users. Once a reference account in a market is
established, the Company's sales staff will pursue other large and small
end-users, using the visible reference account to add credibility and generate
additional end-user sales. As the Company enters into more interconnection
agreements with the ILECs, it will consider using the ILECs' unbundled local
loops to expand its small business customer base.
COMPETITION
The telecommunications industry is highly competitive. The Company competes
and, as it expands its network within and outside the Midwest region, expects to
compete with numerous established facilities-based IXCs, ILECs and CLECs. These
competitors have substantially greater financial and technical resources,
long-standing relationships with their customers and the potential to subsidize
competitive services from less competitive service revenues. DTI is aware that
other facilities-based providers of local and long distance telecommunications
services are planning and constructing additional networks that, if and when
completed, could employ advanced fiber optic technology similar to the DTI
network. Such competing networks may also have similar operating capability to
that of the DTI network and be positioned geographically to compete directly
with the DTI network for many of the same customers along a significant portion
of the same routes. Unlike certain of the Company's competitors, who are
constructing or have announced plans to construct nationwide fiber optic
networks, DTI is deploying a network design that it believes will allow it to
address secondary and tertiary markets located along the DTI network's regional
rings, which markets the Company believes are underserved by existing carriers
and are not expected to be the primary targets of such newly constructed long
distance networks.
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The Company competes primarily on the basis of price, transmission quality,
reliability and customer service and support. The Company's competitors in
carrier's carrier services include many large and small IXCs including AT&T,
MCI, Sprint, WorldCom, Qwest and McLeod. In the carrier's carrier services
market, the Company's principal competitors in Missouri are IXC Carrier and
WorldCom. The Company competes with both LECs and IXCs in its end-user business.
In the end-user private line services market, the Company's principal
competitors in Missouri are SBC, GTE and United Telephone. In the local exchange
market, the Company faces or expects to face competition from ILECs and other
competitive providers, including non-facilities based providers, and, as the
local access markets become opened to IXCs under the Telecom Act, from long
distance providers. AT&T, MCI and Sprint, among other carriers, have each
indicated their intention to begin offering local telecommunications services in
major U.S. markets using their own facilities or by resale of the ILECs' or
other providers' services. In fact, certain competitors, including MCI, Sprint
and AT&T, have entered into interconnection agreements with Ameritech with
respect to the States of Illinois and Michigan. These competitors either have
begun or will likely begin offering local exchange service in those states,
subject to certain restrictions contained in the Telecom Act. See "-- Regulatory
Matters."
Some major long distance and local telecommunications service providers
have also recently indicated a willingness to consolidate their operations to
offer a joint long distance and local package of telecommunications services.
WorldCom, together with its wholly owned subsidiaries MFS and Brooks Fiber,
currently provides both local exchange and long distance telecommunications
services throughout the United States. Unlike WorldCom, however, DTI's network
is designed to reach secondary and tertiary markets, which are substantially
bypassed by WorldCom's long-haul and local exchange networks. WorldCom has also
announced its agreement to acquire MCI. In addition, AT&T announced its
agreement to acquire TCG, a facilities-based CLEC with networks in operation in
57 markets in the United States, and SBC has announced agreements to acquire
Ameritech, one of the original seven RBOCs, and SNET. Further, Qwest, a
communications provider building a 16,000-mile fiber optic network in the United
States, announced its agreement to acquire LCI International Inc., a retail long
distance provider, which acquisition would create the nation's fifth largest
long distance company. The Company also believes that high initial network cost
and low marginal costs of carrying long distance traffic have led to a trend
among non-facilities-based carriers to consolidate in order to achieve economies
of scale. Such consolidation among significant telecommunications carriers could
result in larger, better capitalized competitors that can offer a "one-stop
shopping" combination of long distance and local switched services in many of
DTI's target markets.
Certain companies have recently announced efforts to use Internet
technologies to supply telecommunications services, potentially leading to a
lower cost of supplying these services and therefore increased pressure on IXCs
and other telecommunications companies to reduce their prices. There can be no
assurance that the Company's IXC and other carrier customers will not experience
substantial decreases in call volume or pricing due to competition from
Internet-based telecommunications, which could lead to a decreased need for the
Company's services, or a reduction in the amount these companies are willing or
able to pay for the Company's services. There can also be no assurance that the
Company will be able to offer its telecommunications services to end users at a
price that is competitive with the Internet-based telecommunications services
offered by these companies. The Company does not currently market to ISP's and
therefore may not realize any revenues from the Internet-based
telecommunications market. If the Company does commence marketing to ISP's,
there can be no assurance that it will be able to do so successfully, which
would have a material adverse effect on the Company's business, financial
condition and results of operations.
In addition to IXCs and LECs, entities potentially capable of offering
local switched services in competition with the DTI network include cable
television companies, electric utilities, microwave carriers, wireless telephone
system operators and large subscribers who build private networks. Previous
impediments to certain utility companies entering telecommunications markets
under the Public Utility Holding Company Act of 1935 were also removed by the
Telecom Act, at the same time creating both a new competitive threat and a
source of strategic business and customer relationships for DTI.
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In the future, the Company may be subject to more intense competition due
to the development of new technologies, an increased supply of domestic and
international transmission capacity, the consolidation in the industry among
local and long distance service providers, and the effects of deregulation
resulting from the Telecom Act. The telecommunications industry is experiencing
a period of rapid technological evolution, marked by the introduction of new
product and service offerings and increasing satellite transmission capacity for
services similar to those provided by the Company. For instance, recent
technological advances permit substantial increases in transmission capacity of
both new and existing fiber, and the introduction of new products or the
emergence of new technologies may reduce the cost or increase the supply of
certain services similar to those provided by the Company. The Company cannot
predict which of many possible future product and service offerings will be
crucial to maintaining its competitive position or what expenditures will be
required to profitably develop and provide such products and services.
The Company believes its existing and planned rights-of-way along
interstate highway systems and public utility infrastructures have played and
could continue to play a significant role in achieving its business objectives.
However, there can be no assurance that competitors will not obtain rights to
use the same or similar rights-of-way for expansion of their communications
networks.
Many of the Company's competitors and potential competitors have financial,
personnel, marketing and other resources significantly greater than those of the
Company, as well as other competitive advantages. A continuing trend toward
business combinations and alliances in the telecommunications industry may
increase the resources available to DTI's competitors and create significant new
competitors. The ability of DTI to compete effectively will depend upon, among
other things, its ability to deploy and enhance the DTI network throughout the
Midwest region and to maintain high quality services at prices equal to or below
those charged by its competitors. There can be no assurance that the Company
will be able to compete successfully with existing competitors or new entrants
in the markets for carrier's carrier and end-user services and any of the other
services DTI plans to offer in the future. Failure of the Company to do so would
have a material adverse effect on the Company's business, financial condition,
results of operations and business prospects. See "Risk Factors -- Competition."
REGULATORY MATTERS
GENERAL REGULATORY ENVIRONMENT. The Company's operations are subject to
extensive Federal and state regulation. Carrier's carrier and end-user services
are subject to the provisions of the Communications Act of 1934, as amended,
including the Telecom Act, and the FCC regulations thereunder, as well as the
applicable laws and regulations of the various states, including regulation by
public utility commissions and other state agencies. Federal laws and FCC
regulations apply to interstate telecommunications, while state regulatory
authorities have jurisdiction over telecommunications both originating and
terminating within the state. The regulation of the telecommunications industry
is changing rapidly, and the regulatory environment varies substantially from
state to state. Moreover, as deregulation at the Federal level occurs, some
states are reassessing the level and scope of regulation that may be applicable
to telecommunications service providers, such as the Company. All of the
Company's operations are also subject to a variety of environmental, safety,
health and other governmental regulations. There can be no assurance that future
regulatory, judicial or legislative activities will not have a material adverse
effect on the Company, or that domestic regulators or third parties will not
raise material issues with regard to the Company's compliance or noncompliance
with applicable regulations.
A recent Federal legislative change, the Telecom Act, may have potentially
significant effects on the operations of the Company. The Telecom Act, among
other things, allows the RBOCs to enter the long distance business after meeting
certain competitive market conditions, and enables other entities, including
entities affiliated with power utilities and ventures between ILECs and cable
television companies, to provide an expanded range of telecommunications
services. The General Telephone Operating Companies may enter the long distance
markets without meeting these FCC criteria. Entry of such companies into the
long distance business would result in substantial competition for carrier's
carrier service customers, and may have a material adverse effect on the Company
and such customers. However, the Company believes the RBOCs'
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and other companies' participation in the market will provide opportunities for
the Company to lease dark fiber or sell wholesale network capacity.
Under the Telecom Act, the RBOCs may immediately provide long distance
service outside those states in which they provide local exchange service
("out-of-region" service), and long distance service within the regions in which
they provide local exchange service ("in-region" service) upon meeting certain
conditions. The General Telephone Operating Companies may enter the long
distance market without regard to limitations by region. The Telecom Act does,
however, impose certain restrictions on, among others, the RBOCs and General
Telephone Operating Companies in connection with their provision of long
distance services. Out-of-region services by RBOCs are subject to receipt of any
necessary state and/or Federal regulatory approvals that are otherwise
applicable to the provision of intrastate and/or interstate long distance
service. In-region services by RBOCs are subject to specific FCC approval and
satisfaction of other conditions, including a checklist of pro-competitive
requirements. On December 31, 1997, the U.S. District Court, Northern District
of Texas (Wichita Falls) ("Court"), in SBC Communications, Inc., v. FCC and U.S.
("SBC Communications Case"), overturned as unconstitutional the provisions of
the Telecom Act which prohibited RBOCs from providing inter-LATA long distance
services within their own region without demonstrating that the local exchange
market was opened to local competition. The decision, however, affects only SBC
Communications, Inc. and U.S. West, Inc. Nonetheless, other RBOCs may use the
decision to petition courts in their operating regions to obtain similar
rulings. On January 2, 1998, AT&T, MCI and other intervenors in SBC
Communications Case filed a petition for stay with the Court. On January 5,
1997, the FCC also filed a petition for stay of the decision in the Court. On
February, 11, 1998, the Court temporarily stayed the decision in the SBC
Communications Case, which places those provisions of the Telecom Act which had
been found unconstitutional back into effect and forecloses, temporarily, the
RBOCs from providing inter-LATA long distance service within their own service
regions without FCC approval. The RBOCs may provide in-region long distance
services only through separate subsidiaries with separate books and records,
financing, management and employees, and all affiliate transactions must be
conducted on an arm's length and nondiscriminatory basis. The RBOCs are also
prohibited from jointly marketing local and long distance services, equipment
and certain information services unless competitors are permitted to offer
similar packages of local and long distance services in their market. Further,
the RBOCs must obtain in-region long distance authority before jointly marketing
local and long distance services in a particular state. Additionally, AT&T and
other major carriers serving more than 5% of presubscribed long distance access
lines in the United States are also restricted from packaging other long
distance services and local services provided over RBOC facilities. The General
Telephone Operating Companies are subject to the provisions of the Telecom Act
that impose interconnection and other requirements on ILECs. General Telephone
Operating Companies providing long distance services must obtain regulatory
approvals otherwise applicable to the provision of long distance services.
FEDERAL REGULATION. The FCC classifies the Company as a non-dominant
carrier. Generally, the FCC has chosen not to exercise its statutory power to
closely regulate the charges, practices or classifications of non-dominant
carriers. However, the FCC has the power to impose more stringent regulation
requirements on the Company and to change its regulatory classification. In the
current regulatory atmosphere, the Company believes the FCC is unlikely to do so
with respect to the Company's service offerings.
The FCC regulates many of the charges, practices and classifications of
dominant carriers to a greater degree than non-dominant carriers. Among domestic
carriers, large ILECs and the RBOCs are currently considered dominant carriers
for the provision of interstate access services, while all other interstate
service providers are considered non-dominant carriers. On April 18, 1997, the
FCC ordered that the RBOCs and independent CLECs offering domestic interstate
inter-LATA services, in-region or out-of-region, be regulated as non-dominant
carriers. However, such services offered in-region must be offered in compliance
with the structural separation requirements mentioned above. AT&T was classified
as a dominant carrier, but AT&T successfully petitioned the FCC for non-dominant
status in the domestic interstate interexchange market in October 1995 and in
the international market in May 1996. Therefore, certain pricing restrictions
that once
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applied to AT&T have been eliminated. A number of parties have, however, sought
the FCC's reconsideration of AT&T's status. The Company is unable to predict the
outcome of these proceedings on its operations.
As a non-dominant carrier, the Company may install and operate wireline
facilities for the transmission of domestic interstate communications without
prior FCC authorization, but must obtain all necessary authorizations from the
FCC for use of any radio frequencies. Non-dominant carriers are required to
obtain prior FCC authorization to provide international telecommunications;
however the Company currently does not and has no intent to provide
international services. The FCC also must provide prior approval of certain
transfers of control and assignments of operating authorizations. Non-dominant
carriers are required to file periodic reports with the FCC concerning their
interstate circuits and deployment of network facilities. The Company is
required to offer its interstate services on a nondiscriminatory basis, at just
and reasonable rates, and is subject to FCC complaint procedures. While the FCC
generally has chosen not to exercise direct oversight over cost justification or
levels of charges for services of non-dominant carriers, the FCC acts upon
complaints against such carriers for failure to comply with statutory
obligations or with the FCC's rules, regulations and policies. The Company could
be subject to legal actions seeking damages, assessment of monetary forfeitures
and/or injunctive relief filed by any party claiming to have been injured by the
Company's practices. The Company cannot predict either the likelihood of the
filing of any such complaints or the results if filed.
Under existing regulations, non-dominant carriers are required to file with
the FCC tariffs listing the rates, terms and conditions of both interstate and
international services provided by the carrier. On October 29, 1996, the FCC
adopted an order in which it eliminated, as of September 1997, the requirement
that non-dominant interstate carriers such as the Company maintain tariffs on
file with the FCC for domestic interstate services, and in fact prohibited the
filing of such tariffs. Such carriers were given the option to cease filing
tariffs during a nine-month transition period that concludes on September 22,
1997. The FCC's order was issued pursuant to authority granted to the FCC in the
Telecom Act to "forbear" from regulating any telecommunications service provider
if the FCC determines that the public interest will be served. However, on
February 19, 1997, the United States Court of Appeals for the District of
Columbia Circuit suspended the FCC's order pending further expedited judicial
review and/or FCC reconsideration. In August 1997, the FCC issued an order on
reconsideration in which it affirmed its decision to impose complete or
mandatory detariffing, although it decided to allow optional or permissive
tariffing in certain limited circumstances (including interstate, domestic,
interexchange dial-around services, which end users access by dialing a
carrier's 10XXX access code). This order also remains subject to the Court of
Appeals' stay pending further judicial review. The Company cannot predict the
ultimate outcome of this or other proceedings on its service offerings or
operations. The Company has filed a tariff with the FCC.
On May 8, 1997, the FCC released an order intended to reform its system of
interstate access charges to make that regime compatible with the
pro-competitive deregulatory framework of the Telecom Act. Access service is the
use of local exchange facilities for the origination and termination of
interexchange communications. The FCC's historic access charge rules were
formulated largely in anticipation of the 1984 divestiture of AT&T and the
emergence of long distance competition, and were designated to replace piecemeal
arrangements for compensating ILECs for use of their networks for access, to
ensure that all long distance companies would be able to originate and terminate
long distance traffic at just, reasonable, and non-discriminatory rates, and to
ensure that access charge revenues would be sufficient to provide certain levels
of subsidy to local exchange service. While there has been pressure on the FCC
historically to revisit its access pricing rules, the Telecom Act has made
access reform timely. The FCC's recent access reform order adopts various
changes to its rules and policies governing interstate access service pricing
designed to move access charges, over time, to more economically efficient
levels and rate structures. Among other things, the FCC modified rate structures
for certain non-traffic sensitive access rate elements, moving some costs from a
per-minute-of-use basis to flat-rate recovery, including one new flat rate
element; changed its structure for interstate transport services; and affirmed
that ISPs may not be assessed interstate access charges. In response to claims
that existing access charge levels are excessive, the FCC stated that it would
rely on market forces first to drive prices for interstate access to levels that
would be achieved through competition but that a "prescriptive" approach,
specifying the nature and timing of changes to existing access rate levels,
might be adopted in the absence of competition. Though the Company believes that
access reform through lowering and/or eliminating excessive
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access services charges will have a positive effect on its services offerings
and operations, it cannot predict how or when such benefits may present
themselves, or the outcome of the pending judicial appeals or petitions for FCC
reconsideration.
On October 15, 1996, the U.S. Court of Appeals for the Eighth Circuit
issued a stay of the implementation of certain of the FCC's rules and on July
18, 1997, the Court issued its decision finding that the FCC lacked statutory
authority under the Telecom Act for certain of its rules. In particular, the
Court found that the FCC was not empowered to establish the pricing standards
governing unbundled local network elements or wholesale local services of the
ILECs. The Court also struck down other FCC rules, including one that would have
enabled new entrants to "pick and choose" from provisions of established
interconnection agreements between the ILECs and other carriers. The Court
rejected certain other objections to the FCC rules brought by the ILECs or the
states, including challenges to the FCC's definition of unbundled elements, and
to the FCC's rules allowing new competitors to create their own networks by
combining ILEC network elements together without adding additional facilities of
their own. On October 14, 1997, the Eighth Circuit ruled in favor of those ILECs
and substantially modified its July 18, 1997 decision. The Eighth Circuit ruled
that ILECs cannot be compelled to "combine" two or more unbundled elements into
"platforms" or combinations, finding that IXCs must either combine the elements
themselves, or purchase entire retail services at the applicable wholesale
discounts if they wish to offer local services to their customers. The latter
omission was the subject of petitions for reconsideration filed with the Eighth
Circuit by ILECs.
The overall impact of the Eighth Circuit's decision is to materially reduce
the role of the FCC in fostering local competition, including its ability to
take enforcement action if the Telecom Act is violated, and increase the role of
state utility commissions. The Supreme Court recently announced that it would
review the Eighth Circuit's decision. Meanwhile, certain state commissions have
asserted that they will be active in promoting local telephone competition using
the authority they have under the ruling, lessening the significance of the
reduced FCC role. At this time the impact of the Eighth Circuit's decision
cannot be evaluated, but there can be no assurance that the Eighth Circuit's
decision and related developments will not have a material adverse effect on the
Company. Furthermore, other FCC rules related to local telephone competition
remain the subject of legal challenges, and there can be no assurance that
decisions affecting those rules will not be adverse to companies seeking to
enter the local telephone market.
The FCC also released a companion order on universal service reform on May
8, 1997. The universal availability of basic telecommunications service at
affordable prices has been a fundamental element of U.S. telecommunications
policy since enactment of the Communications Act of 1934. The current system of
universal service is based on the indirect subsidization of ILEC pricing, funded
as part of a system of direct charges on some ILEC customers, including IXCs
such as the Company, and above-cost charges for certain ILEC services such as
local business rates and access charges. In accordance with the Telecom Act, the
FCC adopted plans to implement the recommendations of a Federal-State Joint
Board to preserve universal service, including a definition of services to be
supported, and defining carriers eligible for contributing to and receiving from
universal service subsidies. The FCC ruled, among other things, that:
contributions to universal service funding be based on all IXCs' gross revenues
from both interstate and international telecommunications services; only common
carriers providing a full complement of defined local services be eligible for
support; and up to $2.3 billion in new annual subsidies for discounted
telecommunications services used by schools, libraries, and rural health care
providers be funded by an assessment on total interstate and intrastate revenues
of all IXCs. The FCC stated that it intends to study the mechanism for continued
support of universal service in high cost areas in a subsequent proceeding. The
Company is unable to predict the outcome of these proceedings or of any judicial
appeal or petition for FCC reconsideration on its operations.
On April 11, 1997, the FCC released an order requiring that all carriers
transition from three-digit to four-digit Carrier Identification Codes ("CICs")
by January 1, 1998. CICs are the suffix of a carrier's Carrier Access Code
("CAC"), and the transition will expand CACs from five (10XXX) to seven digit
(101XXXX). These codes permit customers to reach their carrier of choice from
any telephone. In response to petitions for reconsideration of this design,
arguing in part that this short transition (following the FCC's proposal for a
six year transition) does not permit carriers sufficient time to make necessary
hardware and
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software upgrades or to educate their customers regarding the need to dial
additional digits to reach their carrier of choice, on October 20, 1997 the FCC
modified its decision. The FCC has created a "two step" end to the transaction
in which three and four digit Feature Group D CICs co-exist. By January 1, 1998,
all LECs that provide equal access must have completed switch changes to
recognize four digit CICs (First Phase). The second phase ends June 30, 1998 on
which date only four digit CICs and seven digit CACs will be recognized.
STATE REGULATION. The Company is also subject to various state laws and
regulations. Most public utilities commissions require providers such as the
Company to obtain authority from the commission prior to the initiation of
service. In most states, including the 14 states in the Midwest region, the
Company also is required to file tariffs setting forth the terms, conditions and
prices for services that are classified as intrastate. The Company also is
required to update or amend its tariffs when it adjusts its rates or adds new
products, and is subject to various reporting and record-keeping requirements.
Many states also require prior approval for transfers of control of
certified carriers, corporate reorganizations, acquisitions of
telecommunications operations, assignment of carrier assets, carrier stock
offerings and incurrence by carriers of significant debt obligations.
Certificates of authority can generally be conditioned, modified, canceled,
terminated or revoked by state regulatory authorities for failure to comply with
state law and/or the rules, regulations and policies of state regulatory
authorities. Fines or other penalties also may be imposed for such violations.
There can be no assurance that state utilities commissions or third parties will
not raise issues with regard to the Company's compliance with applicable laws or
regulations.
The Company has all necessary authority to offer local and interstate and
intrastate long-haul services in Missouri. The Company is authorized to provide
intrastate long-haul service in Illinois. The Company will seek authority in
other states as and when needed as a result of its network build-out.
Many issues remain open regarding how new local telephone carriers will be
regulated at the state level. For example, although the Telecom Act preempts the
ability of states to forbid local service competition, the Telecom Act preserves
the ability of states to impose reasonable terms and conditions of service and
other regulatory requirements. However, these statutes and related questions
arising from the Telecom Act will be elaborated through rules and policy
decisions made by PUCs in the process of addressing local service competition
issues.
The Company also will be heavily affected by state PUC decisions related to
the ILECs. For example, PUCs have significant responsibility under the Telecom
Act to oversee relationships between ILEC's and their new competitors with
respect to such competitors' use of the ILEC's network elements and wholesale
local services. PUCs arbitrate interconnection agreements between the ILECs and
new competitors such as the Company when necessary. PUCs are considering ILEC
pricing issues in major proceedings now underway. PUCs will also determine how
competitors can take advantage of the terms and conditions of interconnection
agreements that ILECs reach with other carriers. It is too early to evaluate how
these matters will be resolved, or their impact on the ability of the Company to
pursue its business plan.
States also regulate the intrastate carrier's carrier services of the
ILECs. The Company is required to pay such access charges to originate and
terminate its intrastate long distance traffic. The Company could be adversely
affected by high access charges, particularly to the extent that the ILECs do
not incur the same level of costs with respect to their own intrastate long
distance services. A related issue is use by certain ILECs, with the approval of
PUCs, of extended local area calling that converts otherwise competitive
intrastate toll service to local service. States also are or will be addressing
various intraLATA dialing parity issues that may affect competition. It is
unclear whether state utility commissions will adopt changes in their rules
governing intrastate access charges similar to those recently approved by the
FCC for interstate access or whether the outcome of currently pending litigation
will give PUCs the power to set such access charges. The Company's business
could be adversely affected by such changes.
The Company also will be affected by how states regulate the retail prices
of the ILECs with which it competes. The Company believes that, as the degree of
intrastate competition increases, the states will offer
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the ILECs increasing pricing flexibility. This flexibility may present the ILECs
with an opportunity to subsidize services that compete with the Company's
services with revenues generated from non-competitive services, thereby allowing
ILECs to offer competitive services at lower prices than they otherwise could.
The Company cannot predict the extent to which this may occur or its impact on
the Company's business.
Those states that permit the offering of intrastate/intra-LATA service by
IXCs generally require that end users desiring to use such services dial special
access codes. Regulatory agencies in a number of states have issued decisions
that would permit the Company and other IXCs to provide intra-LATA calling on a
1 + basis. Further, the Telecom Act requires in most cases that the RBOCs
provide such dialing parity coincident to their providing in-region inter-LATA
services. The Company expects to benefit from the ability to offer 1 +
intra-LATA services in states that allow this type of dialing parity.
LOCAL REGULATION. The Company is occasionally required to obtain street use
and construction permits and licenses and/or franchises to install and expand
its fiber optic network using municipal rights-of-way. Termination of the
existing license agreements prior to their expiration dates or a failure to
renew the license agreements and a requirement that the Company remove its
facilities or abandon its network in place could have a material adverse effect
on the Company. In some municipalities where the Company has installed or
anticipates constructing networks, it will be required to pay license fees based
on a percentage of gross revenue or on a per linear foot basis. There can be no
assurance that, following the expiration of existing licenses, fees will remain
at their current levels. In addition, the Company could be at a competitive
disadvantage if its competitors do not pay the same level of fees as the
Company. However, the Telecom Act requires municipalities to manage public
rights-of-way in a competitively neutral and nondiscriminatory manner.
PROPERTIES
The Company's network in progress and its fiber optic cable, transmission
equipment and other component assets are the principal properties owned by the
Company. The Company's installed fiber optic cable is laid under the various
rights-of-way held by the Company. Other fixed assets are located at various
leased locations in geographic areas served by the Company. The Company believes
that its existing properties are adequate to meet its anticipated needs in the
markets in which it has deployed or begun to deploy the DTI network and that
additional facilities are and will be available to meet its development and
expansion needs in existing and planned markets for the foreseeable future.
The Company's executive, administrative and sales offices and its Network
Management Center are located at its principal office at 11111 Dorsett Road,
Maryland Heights, Missouri 63043, and its telephone number is (314) 253-6600.
The Company leases this space from Mr. Weinstein at market rates under an
agreement that expires on December 31, 1998. See "Certain Relationships and
Related Transactions."
EMPLOYEES
At March 31, 1998, the Company had full-time employees. None of the
Company's employees is represented by a union or covered by a collective
bargaining agreement. The Company believes its relations with its employees are
good. In connection with the construction and maintenance of its fiber optic
network, the Company uses third-party contractors, some of whose employees may
be represented by unions or covered by collective bargaining agreements.
LEGAL PROCEEDINGS
On June 20, 1995, the Company and Mr. Weinstein were named as defendants in
a suit brought in the Circuit Court of St. Louis County, Missouri, in a matter
styled Alfred H. Frank v. Richard D. Weinstein and Digital Teleport, Inc. The
plaintiff alleges that (i) he entered into an oral contract with the defendants
pursuant to which he was to receive 40% of the Common Stock, (ii) he provided
services to DTI, for which he was not and should be compensated, and (iii) the
defendants misrepresented certain facts to the plaintiff in order to induce him
to loan money and provide services to the defendants. Based on these
allegations, the plaintiff is suing for breach of contract, quantum meruit and
fraud and is seeking actual monetary damages,
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punitive damages and a percentage of the common stock of the Company. The
Company and Mr. Weinstein believe the plaintiff's claims are without merit and
intend to defend themselves vigorously.
It is not possible to determine what impact, if any, an unfavorable outcome
in the Frank litigation would have on the financial condition, results of
operations or cash flows of the Company. Mr. Weinstein has agreed personally to
indemnify DTI against any and all losses resulting from any judgments and awards
rendered against the Company in this litigation. Mr. Weinstein has also agreed
personally to indemnify KLT against any and all losses resulting from any
judgments and awards rendered against the Company in this litigation and has
pledged his Common Stock in the Company in favor of KLT to secure such
obligation. See "Certain Relationships and Related Transactions."
From time to time, the Company is named as a defendant in routine lawsuits
incidental to its business. Based on the information currently available, the
Company believes that none of such current proceedings, individually or in the
aggregate, will have a material adverse effect on the Company.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information concerning directors and
executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION(S) WITH THE COMPANY
---- --- ----------------------------
<S> <C> <C>
Richard D. Weinstein(1)........... 45 President, Chief Executive Officer and Secretary; Director
Gary W. Douglass.................. 47 Senior Vice President and Chief Financial Officer
H.P. Scott........................ 61 Senior Vice President
Jerry W. Murphy................... 40 Vice President, Network Operations
Jerome W. Sheehy.................. 66 Vice President, Regulatory -- Industry Affairs; Director
Ronald G. Wasson(1)............... 53 Director
Bernard J. Beaudoin............... 57 Director
James V. O'Donnell................ 47 Director
Kenneth V. Hager.................. 46 Director
</TABLE>
- -------------------------
(1) Member of Compensation Committee
RICHARD D. WEINSTEIN is President, Chief Executive Officer and Secretary of
the Company, which he founded in 1989. Prior to 1989, Mr. Weinstein owned and
managed Digital Teleresources, Inc., a firm which consulted, designed,
engineered and installed telecommunications systems. That company focused on
providing private microwave networks for ILEC bypass purposes to Fortune 500
companies such as General Dynamics, May Department Stores and Boatmen's
Bancshares (now NationsBank), as well as various cellular and health care firms.
In this capacity, Mr. Weinstein worked closely with SBC's deregulated marketing
subsidiary. Prior to 1984, Mr. Weinstein's consulting efforts were focused on
early wireless services, particularly paging and mobile telephone providers and
end users. Mr. Weinstein also owned and operated a distributor of Motorola
microwave equipment from 1986 to 1991.
GARY W. DOUGLASS became the Chief Financial Officer and Senior Vice
President of DTI in July 1998. From March 1995 to December 1997, Mr. Douglass
was Executive Vice President and Chief Financial Officer of Roosevelt Financial
Group, Inc., a banking corporation that merged with Mercantile Bancorporation
Inc. in July 1997. Prior to joining Roosevelt Financial, Mr. Douglass was a
partner with Deloitte & Touche LLP, a "Big Six" international accounting firm
where he was in charge of the accounting and auditing function and financial
institution practice of the firm's St. Louis office.
H.P. SCOTT joined the Company May 1998 as Senior Vice President. From May
1997 to May 1998, Mr. Scott was Vice President of Business Development of IXC
Carrier, Inc. ("IXC Carrier") of Austin, Texas. From May 1996 to May 1997, Mr.
Scott was Vice President of Engineering and Construction of IXC Carrier, and
from June 1993 to November 1995, Mr. Scott was Vice President of Engineering and
Construction with MCI, with which Mr. Scott had spent over 15 years in positions
of senior responsibility for the design and construction of MCI's coast-to-coast
fiber optic telecommunications networks. Prior to joining MCI, Mr. Scott spent
20 years with Collins Radio and Microwave Associates.
JERRY W. MURPHY, became Vice President, Network Operations, in June 1998.
From October 1996 to December 1997, Mr. Murphy was the Director of Construction
Support of MCImetro Access Transmission Services, Inc., a wholly owned
subsidiary of MCI ("MCImetro"). Mr. Murphy was MCImetro's Director of
Engineering and Construction from January 1995 to October 1996, and was Vice
President of Engineering and Construction of Advanced Transmissions Systems,
Inc., a wholly owned subsidiary of MCI, from January 1990 to January 1995. Prior
to such time, Mr. Murphy spent over 10 years with MCI in various engineering,
network implementation and network operations positions.
JEROME W. SHEEHY has been the Company's Vice President,
Regulatory -- Industry Affairs, since November 1997 and Vice President,
Inter-Carrier Support, from February 1997 to November 1997. Mr. Sheehy has also
been a director of DTI since September 1997. Prior to joining DTI, Mr. Sheehy
was
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employed in the telecommunications industry for 42 years, of which 20 years were
spent with GTE in many capacities including installation, sales, public
relations, manager of carrier markets support.
RONALD G. WASSON has been a director of DTI since March 1997. He is
currently President and Director of KLT Inc., a wholly owned subsidiary of
Kansas City Power & Light Company. He is also President of KLT Gas and KLT
Telecom Inc., and serves as director of KLT Power and KLT Energy Services, all
of which are subsidiaries of KLT Inc. Mr. Wasson joined KCPL in 1966 as Power
Sales Engineer and held various positions in marketing, engineering, corporate
planning and economic controls until 1977. After working briefly for R.W. Beck
and Associates as a Principal Engineer, he rejoined KCPL in 1979 in the
Operational Analysis and Development Department as a Management Analyst. In
1980, he was appointed Manager of Fossil Fuels, became Vice President of
Purchasing in 1983, Vice President of Administrative Services in 1986 and Senior
Vice President of Administration and Technical Services in 1991. Effective
January 1995, he transferred to KLT Inc. as Executive Vice President until he
was named to his current position as President in November 1996. Mr. Wasson also
serves on the Board of Directors of Junior Achievement of Mid-America and the
Board of Governors for the American Royal Association in Kansas City, Missouri.
BERNARD J. BEAUDOIN has been a director of DTI since October 1997. He is
currently the Executive Vice President and Chief Financial Officer of KCPL. KLT
is an indirect wholly owned subsidiary of KCPL. Mr. Beaudoin joined KCPL in 1980
as Manager of Corporate Planning. Previously he was with the New England
Electric System, where he was Director of Economic Planning. At KCPL, he was
named director of Corporate Planning and Finance in 1983 and promoted to Vice
President of Finance in 1984. He became Chief Financial Officer in 1989, Senior
Vice President in 1991 and Senior Vice President -- Finance and Business
Development in 1994. Effective January 1995, he transferred to full-time KLT
Inc. employment as President. He was named to his current position with KCPL in
1996. Mr. Beaudoin also serves as Chairman of the Board of Directors of
Carondelet Health, a holding company for a variety of health provider services.
JAMES V. O'DONNELL has been a director of DTI since November 1997. Since
1988, he has been the President of Bush-O'Donnell & Co., Inc., a funds
management and investment banking firm. Prior to 1988, Mr. O'Donnell served as a
Vice President of Goldman, Sachs & Co. Mr. O'Donnell serves as Chairman of the
Board of The Benjamin Ansehl Company of St. Louis and as President of National
Automobile and Casualty Insurance Company of Pasadena, California. He is also a
director of certain privately held companies and serves on the Board of Trustees
of Washington University in St. Louis.
KENNETH V. HAGER has been a director of DTI since November 1997. Mr. Hager
has been employed by DST Systems, Inc. since 1988 and is currently its Vice
President, Chief Financial Officer and Treasurer. DST Systems, Inc. is a
provider of information processing and computer software services and products,
primarily to mutual funds, insurance companies, banks and other financial
services organizations. Since 1980, Mr. Hager has been a member of the Board of
Directors of the American Cancer Society -- Kansas City Unit, and is the current
Chairman of the Society's Metropolitan Kansas City Coordinating Council. Mr.
Hager also serves on the Board of Directors of the Greater Kansas City Sports
Commission and is a member of the Accounting and Information Systems Advisory
Council for the University of Kansas School of Business.
Officers are elected by and serve at the discretion of the Board of
Directors. There are no family relationships among the directors and executive
officers of the Company.
The Board of Directors has a Compensation Committee comprised of Messrs.
Wasson (Chairman) and Weinstein.
A Shareholders' Agreement, as amended (the "Shareholders' Agreement"),
dated as of March 12, 1997 among the Company, Mr. Weinstein and KLT, provides
for a Board of Directors consisting of six directors, at least two of whom must
not be affiliated with either the Company or KLT, and Mr. Weinstein and KLT will
each have the right to designate three directors. At the present time there are
no vacancies. Mr. Weinstein has served as a director since the formation of the
Company in June 1989. Messrs. Wasson and Sheehy have served as directors since
March 1997 and September, 1997, respectively. Mr. Beaudoin has served as a
director since October 1997. Messrs. O'Donnell and Hager have served as
directors since November 1997.
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The current directors have been elected to serve until the expiration of the
term to which he has been elected and until their respective successors are
elected and qualified or until the earlier of their death, resignation or
removal.
Pursuant to the Shareholders' Agreement, Messrs. O'Donnell and Hager, as
directors who are not affiliates (as defined in the Shareholders' Agreement and
as set forth in the Glossary included as Annex A hereto) of either Mr.
Weinstein, the Company or KLT are paid a $20,000 annual retainer fee payable in
quarterly installments. All directors are reimbursed for expenses incurred in
connection with attending Board and committee meetings. The Company has also
granted options to purchase 150,000 shares under the Plan to each of Messrs.
O'Donnell and Hager, its non-affiliated directors.
EXECUTIVE COMPENSATION
The following table sets forth certain summary information for the fiscal
years ended June 30, 1997 and 1996 concerning the compensation earned by the
Chief Executive Officer during such fiscal years for services in all capacities.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
------------
ANNUAL COMPENSATION OTHER ANNUAL SECURITIES ALL OTHER
NAME AND -------------------- COMPENSATION UNDERLYING COMPENSATION
PRINCIPAL POSITION YEAR SALARY($) BONUS($) ($) OPTIONS(#) ($)
------------------ ---- --------- -------- ------------ ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Richard D. Weinstein,............ 1997 $69,231 -- -- -- --
President, Chief Executive 1996 -- -- -- -- --
Officer and Secretary 1995 -- -- -- -- --
</TABLE>
EMPLOYMENT AND CONSULTING AGREEMENTS
Weinstein Employment Agreement. As a condition of the KLT Investment, the
Company and Mr. Weinstein entered into an employment agreement (the "Weinstein
Employment Agreement"), which provides that Mr. Weinstein will serve as the
Company's President and Chief Executive Officer and in such other capacities as
the Board may determine through January 1, 2000. For the duration of the lease
of the Company's headquarters entered into as of December 31, 1996 by and among
Mr. Weinstein, his wife and the Company (as amended, the "Lease Agreement"), Mr.
Weinstein will be compensated at the rate of $150,000 per year (which is in
addition to payments made to Mr. Weinstein under the Lease Agreement), and
$200,000 per year after the termination of such Lease Agreement, in addition to
group health or other benefits generally provided to other Company employees.
The Weinstein Employment Agreement may be terminated in connection with the
disability of Mr. Weinstein, for "cause" as defined therein or by either party
upon 90 days prior written notice; provided that if the Weinstein Employment
Agreement is terminated by the Company upon 90 days notice to Mr. Weinstein, Mr.
Weinstein shall thereafter receive his annual base salary for the remainder of
the employment period (but no Company-paid medical or other benefits), offset by
any compensation received by Mr. Weinstein if and when he obtains subsequent
employment. During its term and for two years thereafter, the Weinstein
Employment Agreement restricts the ability of Mr. Weinstein to compete with the
Company as an employee of or investor in another company in the Midwest region.
The Weinstein Employment Agreement also imposes on Mr. Weinstein certain
non-solicitation restrictions with respect to Company employees, customers and
clients. Unless extended by mutual agreement of the parties thereto, the Lease
Agreement will terminate on December 31, 1998.
Scott Consulting Agreement. In May 1998, the Company and Mr. H.P. Scott
entered into a consulting agreement (the "Scott Agreement"), which provides that
Mr. Scott will serve as a Senior Vice President of the Company for a term of one
year, providing such consulting services as the Company requests, in the areas
of carrier's carrier sales, fiber swaps and any other services as mutually
agreed. For the duration of the Scott Agreement, Mr. Scott will be compensated
at a rate of $800 per day for such consulting services, and currently the
Company and Mr. Scott expect that he will spend approximately 15 days per month
providing such services, though neither he nor the Company is obligated by such
expectation.
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Mr. Scott also will receive a commission equal to the following: (i) 1% of
any cash payments received for sales of dark fiber to telecommunications
companies, which payments are within five (5) years of the completion of the
term of the Scott Agreement (ii) $200 per route mile of dark fiber received by
the Company pursuant to a swap for dark fiber owned by the Company; (iii) 1% of
any cash payments received by the Company from sales of lighted bandwidth
capacity at a rate of DS-3 or above to telecommunications companies, which
payments are within five (5) years of the completion of such term; and (iv) 1%
of the value of any bandwidth received by the Company in exchange for bandwidth
capacity at a rate of DS-3 or above of the Company, which commission shall be
paid for up to five years following the completion of such term, reduced on a
pro rata basis by any cash paid by the Company pursuant to such exchange. Mr.
Scott may elect, in his sole discretion, to receive up to 50% of any such
commission in the form of Common Stock at fair market value. Upon execution of
the Scott Agreement, the Company paid Mr. Scott $100,000, and he is eligible for
reimbursement of certain expenses.
The Scott Agreement restricts the ability of Mr. Scott to compete with the
Company during the term thereof and for up to one year thereafter as a
principal, employee, partner or consultant in any region in which the Company
does business at such time. The Scott Agreement also imposes on Mr. Scott
certain confidentiality obligations and proprietary and non-solicitation
restrictions with respect to Company employees, customers and clients.
INCENTIVE AWARD PLAN
The Company's 1997 Long-Term Incentive Award Plan (the "Plan") was adopted
by the Company's Board of Directors in December 1997. A total of 3,000,000
shares of Common Stock of the Company have been reserved for issuance under the
Plan. The Company has granted or is obligated to grant options to purchase an
aggregate of 425,000 shares of Common Stock to certain of its key employees at
an exercise price equal to the fair market value of the Common Stock on the
applicable date of grant. The Company also has granted options to purchase
150,000 shares of Common Stock to each of the Company's non-affiliated directors
(i.e., Messrs. O'Donnell and Hager) at an exercise price equal to the fair
market value of the Common Stock on the date of grant. No other options or other
awards are outstanding under the Plan. The Plan will terminate in December 2007,
unless sooner terminated by the Board of Directors.
The Plan provides for grants of "incentive stock options," within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended, to
employees (including employee directors) and grants of nonqualified options to
employees and directors. The Plan also allows for the grant of stock
appreciation rights, restricted shares and performance shares to employees. The
Plan is administered by a committee designated by the Board of Directors.
Messrs. Wasson and Weinstein comprise the current committee. The exercise price
of incentive stock options granted under the Plan must not be less than the fair
market value of the Common Stock on the date of grant. With respect to any
optionee who owns stock representing more than 10% of the voting power of all
classes of the Company's outstanding capital stock, the exercise price of any
incentive stock option must be equal to at least 110% of the fair market value
of the Common Stock on the date of grant, and the term of the option must not
exceed five years. The terms of all other options may not exceed ten years. To
the extent that the aggregate fair market value of Common Stock (determined as
of the date of the option grant) for options which would otherwise be incentive
stock options may for the first time become exercisable by any individual in any
calendar year exceeds $100,000, such options shall be non-qualified stock
options.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On December 31, 1996, Mr. Weinstein, Mr. Weinstein's wife and the Company
formalized a lease with respect to the principal executive offices of the
Company (the "Lease Agreement"). The lease pertains to 10,000 of the 14,400
square feet available in such building and provides for monthly lease payments
of $6,250, terminating on December 31, 1998. The Company believes that the terms
of the current Lease Agreement are comparable to those which would be available
to an unaffiliated entity on the basis of an arm's-length negotiation. The
Shareholders' Agreement also requires that if Mr. Weinstein proposes to build or
obtain ownership of a new building to house the operations of the Company, Mr.
Weinstein will first offer to the Company the opportunity to build or own such
building. If the Company declines to exercise this right, then the rent the
Company would pay for occupying such building would be 80% of the market
appraised rate for such space.
Effective July 1996, the Company formed a joint venture with KLT to
develop, construct and operate a network in the Kansas City metropolitan area,
using in part the electrical duct system and certain other real estate owned by
KCPL and licensed to the joint venture. In March 1997, KLT became a strategic
investor in DTI when it entered into an agreement with DTI (the "KLT Agreement")
pursuant to which KLT committed to make an equity investment of up to $45.0
million in preferred stock of the Company. On March 12, 1997, pursuant to the
KLT Agreement, the Company issued 15,100 shares of Series A Preferred Stock to
KLT in exchange for the retirement of the then-outstanding indebtedness of the
Company to KLT, KLT's interest in the joint venture and cash, which
consideration was valued in the aggregate at approximately $21.9 million, net of
transactions costs. In June 1997, DTI issued an additional 3,400 shares of
Series A Preferred Stock to KLT for a cash payment of $5.1 million. In September
and October 1997, DTI issued the remaining 11,500 shares of Series A Preferred
Stock to KLT for aggregate cash payments of approximately $17.3 million. See
Note 13 of the notes to the consolidated financial statements and Note 7 of the
notes to the unaudited consolidated financial statements. Each share of Series A
Preferred Stock of the Company is entitled to the number of votes equal to the
number of shares into which such share of Series A Preferred Stock is
convertible with respect to any and all matters presented to the stockholders of
the Company for their action or consideration. Except for any amendments
affecting the rights and obligations of holders of Series A Preferred Stock,
with respect to which such holders vote separately as a class, or as otherwise
provided by law, holders of Series A Preferred Stock vote together with the
holders of the Common Stock as a single class. Pursuant to the KLT Agreement,
KLT has the right of first offer concerning energy services rights and contracts
involving DTI. In connection with the issuance of the Series A Preferred Stock,
Mr. Weinstein has guaranteed to KLT the performance by the Company of its
obligations under the KLT Agreement, including without limitation,
representations and warranties under such agreement. Mr. Weinstein has pledged
his Common Stock to secure such guarantee. Such obligations to KLT are
subordinated to Mr. Weinstein's obligations to hold the Company and KLT harmless
for any losses resulting from judgments and awards rendered against Digital
Teleport or the Company in the matter of Alfred H. Frank v. Richard D. Weinstein
and Digital Teleport, Inc. See "Business -- Legal Proceedings." Mr. Weinstein
has pledged his shares of Common Stock to KLT, which has agreed to reimburse the
Company and Digital Teleport for losses incurred by them in connection with the
Frank litigation to the extent of any proceeds KLT receives from Weinstein
pursuant to such pledge, less KLT's costs in pursuing such claim against
Weinstein. KLT has also agreed to bear one-half of any such losses. After such
claims related to the Frank litigation are resolved, KLT may exercise on the
pledge of Weinstein's shares to fulfill any amounts owing to KLT pursuant to
Weinstein's guarantee of the Company's obligations under the KLT Agreement. Mr.
Beaudoin is the Executive Vice President and Chief Financial Officer of KCPL.
Mr. Wasson is the President and a director of KLT Inc., a wholly owned
subsidiary of KCPL and parent corporation of KLT.
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<PAGE> 77
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the outstanding Common Stock of DTI as of March 31, 1998 by each
person or entity who is known by the Company to beneficially own 5% or more of
the Common Stock, which includes the Company's President and Chief Executive
Officer, each of the Company's directors and all of the Company's directors and
executive officers as a group.
<TABLE>
<CAPTION>
NUMBER OF SHARES PERCENT OF
BENEFICIALLY COMMON STOCK
NAME OF BENEFICIAL OWNER OWNED OUTSTANDING(A)
------------------------ ---------------- --------------
<S> <C> <C>
Richard D. Weinstein........................................ 30,000,000 50.0%
11111 Dorsett Road
Maryland Heights, Missouri 63043
KLT Telecom Inc............................................. 30,000,000 50.0%
1201 Walnut Avenue
Kansas City, Missouri 64141
Ronald G. Wasson(b)......................................... 30,000,000 50.0%
Bernard J. Beaudoin(b)...................................... 30,000,000 50.0%
James V. O'Donnell.......................................... -- --
Jerome W. Sheehy............................................ -- --
Kenneth V. Hager............................................ -- --
Directors and executive officers as a group (8 persons)..... 60,000,000 100.0%
</TABLE>
- -------------------------
(a) Reflects Common Stock outstanding after giving effect to the conversion of
all outstanding shares of the Series A Preferred Stock into Common Stock.
KLT owns 30,000 shares of the Series A Preferred Stock, which constitutes
100% of such stock. Each such share of Series A Preferred Stock is
convertible into 1,000 shares of Common Stock of the Company.
(b) All of the shares shown as owned by each of Messrs. Wasson and Beaudoin are
the shares of Series A Preferred Stock owned by KLT. Each of Messrs. Wasson
and Beaudoin disclaims beneficial ownership of such shares held by KLT.
KLT owns 100% of the Series A Preferred Stock. Except for any amendment
affecting the rights and obligations of holders of Series A Preferred Stock or
as otherwise provided by law, holders of Series A Preferred Stock vote together
with the holders of Common Stock as a single class. The holders of the Series A
Preferred Stock vote separately as a class with respect to any amendment
affecting the rights and obligations of holders of Series A Preferred Stock and
as otherwise required by law.
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<PAGE> 78
DESCRIPTION OF THE NOTES
The Private Notes were, and the Exchange Notes will be, issued under the
Indenture dated as of February 23, 1998 between the Company, as issuer, and The
Bank of New York, as trustee (the "Trustee"). Upon the issuance of the Exchange
Notes, the Indenture will be subject to the Trust Indenture Act of 1939, as
amended (the "TIA"). The following summary of certain provisions of the Exchange
Notes and the Indenture does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the provisions of the Exchange Notes
and the Indenture, including the definitions of certain terms contained therein
and those terms made part of the Indenture through the incorporation by
reference of the TIA. The Indenture has been filed as an exhibit to the
Registration Statement, of which this Prospectus is a part, and copies of the
Indenture are available upon request from the Company or the Trustee. For
definitions of certain capitalized terms used in this summary, see "-- Certain
Definitions" below.
GENERAL
The Exchange Notes will be general unsecured obligations of the Company,
limited to $506,000,000 aggregate principal amount at maturity, and will mature
on March 1, 2008. The Exchange Notes will be issued only in fully registered
form, without coupons, in denominations of $1,000 principal amount at maturity
and integral multiples thereof. The issue price of the Private Notes (for
purposes of calculating Accreted Value) was $543.92 per $1,000 principal amount
at maturity of the Private Notes. Payments in respect of the Exchange Notes will
be made, and the Exchange Notes will be transferable, at the office or agency of
the Company in The City of New York maintained for such purposes (which
initially will be the office of the Trustee located at 101 Barclay Street, New
York, New York 10286). See "Book-Entry: Delivery and Form." No service charge
will be made for any transfer, exchange or redemption of Exchange Notes, except
in certain circumstances for any tax or other governmental charge that may be
imposed in connection therewith. (Sections 202 and 305)
INTEREST
The Exchange Notes will be issued at a substantial discount from their
principal amount at maturity. Although for federal income tax purposes a
significant amount of original interest discount, taxable as ordinary income,
will be recognized by a holder as such discount accrues from the date of the
Indenture, no cash interest will accrue or be payable on the Exchange Notes
prior to March 1, 2003. Thereafter, cash interest on the Exchange Notes will
accrue at the rate of 12 1/2% per annum and will be payable in cash semiannually
in arrears on March 1 and September 1 of each year (each an "Interest Payment
Date"), commencing September 1, 2003, to holders of record of Exchange Notes on
the February 15 and August 15 immediately preceding such Interest Payment Date.
The cash interest payable on each Interest Payment Date will be calculated from
the most recent Interest Payment Date to which cash interest has been paid or
duly provided for or, if no cash interest has been paid or duly provided for,
from March 1, 2003. Based on the foregoing, the yield to maturity of each
Exchange Note will be 12 1/2% (computed on a semiannual bond equivalent basis,
without giving effect to any allocation of net proceeds of the Private Offering
to the Warrants). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. If the Company defaults on any payment of
principal, whether at maturity, redemption or otherwise, interest will continue
to accrue and, to the extent permitted by law, cash interest will accrue on
overdue installments of interest at the rate of interest borne by the Notes.
(Sections 301, 307 and 310)
The circumstances under which the Company may be required to pay additional
interest in cash on the Private Notes are described above under "The Exchange
Offer -- Purpose and Effect of the Exchange Offer."
RANKING
The Indebtedness evidenced by the Exchange Notes will rank pari passu in
right of payment with all other future unsecured senior indebtedness of the
Company and senior in right of payment to all existing and future obligations of
the Company expressly subordinated in right of payment to the Exchange Notes. As
of March 31, 1998, the Company had approximately $268.9 million of indebtedness
outstanding, all of which was
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<PAGE> 79
represented by the Private Notes. Subject to certain limitations, the Company
and its Restricted Subsidiaries may incur additional Indebtedness in the future,
including secured Indebtedness. See "Risk Factors -- High Leverage; Ability to
Service Indebtedness; Restrictive Covenants" and "-- Holding Company Structure;
Priority of Secured Debt."
The Company is a holding company with no direct operations and no
significant assets other than the stock of Digital Teleport. The Company will be
dependent on the cash flow of Digital Teleport to meet its obligations,
including the payment of interest and principal on the Exchange Notes. Subject
to the Indenture provisions that limit restrictions on the ability of any of the
Company's Restricted Subsidiaries to pay dividends and make other payments to
the Company, future debt instruments of Digital Teleport may impose significant
restrictions that may affect, among other things, the ability of Digital
Teleport to pay dividends or make loans, advances or other distributions to the
Company. The ability of Digital Teleport to pay dividends and make other
distributions also will be subject to, among other things, applicable state laws
and regulations. There can be no assurance that Digital Teleport will be able to
pay, or will generate sufficient earnings or cash flow to distribute, any cash
dividends or make any loans, advances or other payments of funds to the Company,
the failure of which would have a material adverse effect on the Company's
ability to meet its obligations on the Exchange Notes. See "-- Certain Covenants
- -- Limitations on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries."
Digital Teleport is a separate legal entity that has no obligation to pay
any amounts due pursuant to the Notes or to make any funds available therefor,
whether by dividends, loans or other payments. Because Digital Teleport will not
guarantee the payment of the principal or interest on the Exchange Notes, any
right of the Company to receive assets of Digital Teleport upon its liquidation
or reorganization (and the consequent right of holders of the Exchange Notes to
participate in the distribution or realize proceeds from those assets) will be
effectively subordinated to the claims of the creditors of Digital Teleport
(including trade creditors and holders of indebtedness of such subsidiary),
except if and to the extent the Company is itself a creditor of Digital
Teleport, in which case the claims of the Company would still be effectively
subordinated to any security interest in the assets of Digital Teleport held by
other creditors. As of March 31, 1998, Digital Teleport had aggregate
liabilities of approximately $21.1 million, including approximately $14.4
million of deferred revenues. Subject to certain limitations, the Company and
its Restricted Subsidiaries may incur additional Indebtedness in the future. For
a discussion of certain adverse consequences of the Company being a holding
company and of the terms and certain existing and potential future indebtedness
of the Company and its subsidiaries, see "Risk Factors -- Holding Company
Structure; Priority of Secured Debt."
SINKING FUND
The Exchange Notes will not be entitled to the benefit of any sinking fund.
REDEMPTION
The Exchange Notes will be redeemable, at the option of the Company, as a
whole or from time to time in part, at any time on or after March 1, 2003 on not
less than 30 nor more than 60 days' prior notice at the redemption prices
(expressed as percentages of principal amount at maturity) set forth below,
together with accrued interest, if any, to the redemption date, if redeemed
during the 12-month period beginning on March 1 of the years indicated below
(subject to the right of holders of record on relevant record dates to receive
interest due on a relevant Interest Payment Date):
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- ---- ----------
<S> <C>
2003........................................................ 106.25%
2004........................................................ 104.17
2005........................................................ 102.08
2006 and thereafter......................................... 100.00
</TABLE>
(Sections 1101, 1102)
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<PAGE> 80
At any time or from time to time on or prior to March 1, 2001 the Company
may redeem within 60 days of one or more Public Equity Offerings up to 33 1/3%
of the aggregate principal amount at maturity of the originally issued Notes
with the net proceeds of such offering at a redemption price equal to 112.5% of
the Accreted Value (determined at the redemption date); provided that
immediately after giving effect to any such redemption, at least 66 2/3% of the
aggregate principal amount at maturity of the originally issued Notes remains
outstanding. (Section 1102)
If less than all the Notes are to be redeemed, the particular Notes to be
redeemed will be selected not more than 60 days prior to the redemption date by
the Trustee by such method as the Trustee will deem fair and appropriate;
provided, however, that no such partial redemption will reduce the principal
amount at maturity of a Note not redeemed to less than $1,000. Notice of
redemption will be mailed, first-class postage prepaid, at least 30 but not more
than 60 days before the redemption date to each holder of Notes to be redeemed
at its registered address. On and after the redemption date, original issue
discount, on or prior to March 1, 2003, and cash interest, after March 1, 2003,
will cease to accrue on Notes or portions thereof called for redemption and
accepted for payment. (Sections 1103, 1104, 1106 and 1107)
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants:
Limitation on Indebtedness. (a) The Company will not, and will not permit
any Restricted Subsidiary to, incur any Indebtedness (including any Acquired
Indebtedness) other than Permitted Indebtedness; provided that the Company may
Incur Indebtedness if and at the time of such incurrence (i) the Consolidated
Indebtedness to Consolidated Operating Cash Flow Ratio would have been less than
or equal to 5.5 to 1.0, for Indebtedness incurred on or prior to December 31,
2000, or less than or equal to 5.0 to 1.0, for Indebtedness incurred thereafter
and (ii) no Default or Event of Default shall have occurred and be continuing or
occurs as a consequence of the actions set forth in this covenant. (Section
1008)
In making the foregoing calculation, (A) pro forma effect will be given to:
(i) the incurrence or repayment of any Indebtedness to be incurred or repaid on
the date of the incurrence of such Indebtedness and (ii) the acquisition
(whether by purchase, merger or otherwise) or disposition (whether by sale,
merger or otherwise) of any company, entity or business acquired or disposed of
by the Company or its Restricted Subsidiaries, as the case may be, since the
beginning of the Four Quarter Period (as defined under the "Consolidated
Indebtedness to Consolidated Operating Cash Flow Ratio" definition) through the
date of the incurrence of such Indebtedness (the "Reference Period"), as if it
had occurred on the first day of such Reference Period and (B) the aggregate
amount of Indebtedness outstanding as of the end of the Reference Period will be
deemed to include an amount of funds equal to the average daily balance of
Indebtedness outstanding during the Reference Period under any revolving credit
or similar facilities of the Company and its Restricted Subsidiaries. (Section
1008)
For the purposes of determining compliance with this covenant, in the event
that an item of Indebtedness or any portion thereof meets the criteria of more
than one of the types of Indebtedness the Company and the Restricted
Subsidiaries are permitted to incur, the Company will have the right, in its
sole discretion, to classify such item of Indebtedness or portion thereof at the
time of its incurrence and will only be required to include the amount and type
of such Indebtedness or portion thereof under the clause permitting the
Indebtedness as so classified.
Limitation on Restricted Payments. (a) The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, take any of the
following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of its Capital Stock (other than dividends or
distributions payable solely in shares of its Qualified Capital Stock or in
options, warrants or other rights to acquire such shares of Qualified
Capital Stock);
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<PAGE> 81
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of its Capital Stock or any Capital
Stock of any of its Affiliates (other than Capital Stock of any Wholly
Owned Restricted Subsidiary) or any options, warrants or other rights to
acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Indebtedness;
(iv) make any Investment (other than any Permitted Investment); or
(v) declare or pay any dividend or distribution on any Capital Stock
of any Restricted Subsidiary to any Person (other than any of its Wholly
Owned Restricted Subsidiaries) other than pro rata dividends or
distributions on a class of Voting Stock of any Restricted Subsidiary, the
majority of which is owned by the Company or a Wholly Owned Restricted
Subsidiary; provided that no Restricted Subsidiary shall declare or pay
such pro rata dividends or distributions on its Voting Stock to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary) at a time
when it has outstanding Indebtedness owed to the Company or another
Restricted Subsidiary;
(such payments or other actions described in (but not excluded from) clauses (i)
through (v) are collectively referred to as "Restricted Payments"), unless at
the time of, and immediately after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution), (1) no Default or Event of Default shall
have occurred and be continuing, (2) the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"Limitation on Indebtedness" covenant and (3) the aggregate amount of all
Restricted Payments declared or made after the date of the Indenture shall not
exceed the sum of:
(A) the remainder of (x) cumulative Consolidated Operating Cash Flow
of the Company during the period (taken as a single accounting period)
beginning on the first day of the fiscal quarter of the Company beginning
after the date of the Indenture and ending on the last day of the last full
fiscal quarter immediately preceding the date of such Restricted Payment
for which quarterly or annual consolidated financial statements of the
Company are available minus (y) the product of 1.5 times cumulative
Consolidated Interest Expense of the Company during such period; plus
(B) the aggregate Net Cash Proceeds and fair market value of
Telecommunications Assets or Voting Stock of a Person that becomes a
Restricted Subsidiary the assets of which consist primarily of
Telecommunications Assets received by the Company after the date of the
Indenture as capital contributions or from the issuance or sale (other than
to any Subsidiary) of shares of Qualified Capital Stock of the Company
(including upon the exercise of options, warrants or rights) or warrants,
options or rights to purchase shares of Qualified Capital Stock of the
Company; plus
(C) the aggregate Net Cash Proceeds and fair market value of
Telecommunications Assets or Voting Stock of a Person that becomes a
Restricted Subsidiary the assets of which consist primarily of
Telecommunications Assets received by the Company after the date of the
Indenture from the issuance or sale (other than to any Subsidiary) of debt
securities or Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock of the Company, together with the
aggregate Net Cash Proceeds and fair market value of Telecommunications
Assets or Voting Stock of a Person that becomes a Restricted Subsidiary the
assets of which consist primarily of Telecommunications Assets received by
the Company at the time of such conversion or exchange; plus
(D) to the extent not otherwise included in the Consolidated Operating
Cash Flow of the Company, an amount equal to the sum of (i) the net
reduction in Investments in any Person (other than Permitted Investments)
resulting from the payment in cash of dividends, repayments of loans or
advances or other transfers of assets, in each case to the Company or any
Restricted Subsidiary after the date of the Indenture from such Person and
(ii) the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any Unrestricted
Subsidiary at the time such
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<PAGE> 82
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that in the case of (i) or (ii) above the foregoing sum shall not
exceed the amount of Investments previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
(b) Notwithstanding paragraph (a) above, the Company and any Restricted
Subsidiary may take the following actions so long as (with respect to clauses
(ii), (iii), (iv) and (v) below) no Default or Event of Default shall have
occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such dividend would
have complied with the provisions of paragraph (a) above and such payment
will be deemed to have been paid on such date of declaration for purposes
of the calculation required by paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company, in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of, shares of Qualified
Capital Stock of the Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of shares of Qualified Capital
Stock of the Company;
(iv) the purchase of any Subordinated Indebtedness at a purchase price
not greater than 101% of the principal amount thereof in the event of a
Change of Control in accordance with provisions similar to the "Purchase of
Notes upon a Change of Control" covenant; provided that prior to such
purchase the Company has made the Change of Control Offer as provided in
such covenant with respect to the Notes and has purchased all Notes validly
tendered for payment in connection with such Change of Control Offer;
(v) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or out
of the net cash proceeds of a substantially concurrent incurrence (other
than to a Subsidiary) of, new Subordinated Indebtedness so long as (A) the
principal amount of such new Subordinated Indebtedness does not exceed the
principal amount (or, if such Subordinated Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as
of the date of determination) of the Subordinated Indebtedness being so
purchased, redeemed, defeased, acquired or retired, plus the amount of any
premium required to be paid in connection with such refinancing pursuant to
the terms of such Subordinated Indebtedness being refinanced or the amount
of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus, in either case, the amount of expenses
of the Company incurred in connection with such refinancing; (B) such new
Subordinated Indebtedness is subordinated to the Notes to the same extent
as such Subordinated Indebtedness so purchased, redeemed, defeased,
acquired or retired; and (C) such new Subordinated Indebtedness has an
Average Life longer than the Average Life of the Notes and a final Stated
Maturity of principal later than the final Stated Maturity of principal of
the Notes; and
(vi) the payment of cash in lieu of fractional shares of Common Stock
pursuant to the Warrant Agreement.
The actions described in clauses (i), (ii), (iii), (iv) and (vi) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) but shall reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of paragraph (a)
and the actions described in clause (v) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (b) and shall not reduce the amount that would otherwise be available
for Restricted Payments under clause (3) of paragraph (a) above. (Section 1009)
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<PAGE> 83
Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries. The Company will not, and will not permit any Restricted
Subsidiary to, issue or sell any Capital Stock of a Restricted Subsidiary (other
than to the Company or a Wholly Owned Restricted Subsidiary); provided, however,
that this covenant shall not prohibit (i) the ownership by directors of
director's qualifying shares or the ownership by foreign nationals of Capital
Stock of any Restricted Subsidiary, to the extent mandated by applicable law;
(ii) issuances or sales of Capital Stock of a Restricted Subsidiary, if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer be a Restricted Subsidiary and any Investment in such
Person remaining after giving effect to such issuance or sale would have been
permitted to be made under the "Limitation on Restricted Payments" covenant if
made on the date of such issuance and sale or (iii) the issuance and sale of
all, but not less than all, of the issued and outstanding Capital Stock of any
Restricted Subsidiary owned by the Company and the Restricted Subsidiaries in
compliance with the "Limitation on Sale of Assets" covenant. (Section 1010)
Limitation on Transactions with Affiliates. The Company will not, and will
not permit any Restricted Subsidiary to, enter into or suffer to exist, directly
or indirectly, any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or
services) with, or for the benefit of, any Affiliate of the Company or any
Restricted Subsidiary unless (i) such transaction or series of related
transactions are on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's length transaction with unrelated third parties who are not
Affiliates, (ii) with respect to any transaction or series of related
transactions involving aggregate consideration equal to or greater than $5.0
million (or, to the extent not denominated in United States dollars, the United
States Dollar Equivalent thereof), the Company will deliver an officers'
certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and (iii) with respect to any
transaction or series of related transactions involving aggregate consideration
in excess of $10.0 million (or, to the extent not denominated in United States
dollars, the United States Dollar Equivalent thereof), the Company shall deliver
the officers' certificate described in clause (ii) above which shall also
certify that such transaction or series of related transactions has been
approved by a majority of the Disinterested Directors of the Board of Directors,
or that the Company has obtained a written opinion from a nationally recognized
U.S. investment banking firm certifying that such transaction or series of
related transactions is fair to the Company or such Restricted Subsidiary, as
the case may be, from a financial point of view; provided, however, that this
provision will not restrict (1) any transaction or series of related
transactions among the Company and Wholly Owned Restricted Subsidiaries or among
Wholly Owned Restricted Subsidiaries, (2) Investments in Qualified Capital Stock
of the Company by any Person, including an Affiliate of the Company, (3) the
Company from paying reasonable and customary regular compensation and fees to
directors of the Company or any Restricted Subsidiary who are not employees of
the Company or any Restricted Subsidiary, (4) the making of any Restricted
Payment not prohibited by the "Limitation on Restricted Payments" covenant or
(5) any transaction or series of transactions in an aggregate amount of up to
$1.5 million. (Section 1011)
Limitation on Liens. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien (other than Permitted Liens) on or with respect to any
of its property or assets, including any shares of stock or Indebtedness of any
Restricted Subsidiary, whether owned at the date of the Indenture or thereafter
acquired, or any income, profits or proceeds therefrom, or assign or otherwise
convey any right to receive income thereon, unless (x) in the case of any Lien
securing Subordinated Indebtedness, the Notes are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Lien and (y) in
the case of any other Lien, the Notes are equally and ratably secured with the
obligation or liability secured by such Lien. (Section 1012)
Limitation on Issuances of Guarantees of Indebtedness by Restricted
Subsidiaries. (a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to guarantee, assume or in any other manner become
liable with respect to any Indebtedness of the Company (the "Guaranteed
Indebtedness") unless (i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for the guarantee (a "Subsidiary
Guarantee") of payment of the Notes by such Restricted Subsidiary; provided that
this paragraph (a) shall not be applicable to (x) any guarantee of any
Restricted Subsidiary that existed
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at the time such Person became a Restricted Subsidiary and was not incurred in
connection with or in contemplation of such Person becoming a Restricted
Subsidiary or (y) any guarantee of any Restricted Subsidiary of Indebtedness
incurred pursuant to clause (j) under the "Permitted Indebtedness" definition.
If the Guaranteed Indebtedness is (A) pari passu in right of payment with the
Notes, then the guarantee of such Guaranteed Indebtedness shall be pari passu in
right of payment with, or subordinated in right of payment to, the Subsidiary
Guarantee or (B) subordinated in right of payment to the Notes, then the
guarantee of such Guaranteed Indebtedness shall be subordinated in right of
payment to the Subsidiary Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated in right of payment to the Notes.
(b) Notwithstanding the foregoing, any Subsidiary Guarantee created
pursuant to the provisions described in the foregoing paragraph (a) will provide
by its terms that it will be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer, to any Person who is not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by the Indenture) or (ii) the release by
the holders of the Indebtedness of the Company described in the preceding
paragraph of their guarantee by such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness, except
by or as a result of payment under such guarantee), at a time when (A) no other
Indebtedness of the Company has been guaranteed by such Restricted Subsidiary or
(B) the holders of all such other Indebtedness which is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted Subsidiary
(including any deemed released upon payment in full of all obligations under
such Indebtedness). (Section 1013)
Purchase of Notes upon a Change of Control. If a Change of Control shall
occur at any time, then the Company shall offer to purchase (the "Change of
Control Offer") from each holder of Notes all of such holder's Notes, in whole
or in part and in integral multiples of $1,000, at a purchase price (the "Change
of Control Purchase Price") in cash in an amount equal to (a) 101% of the
Accreted Value of the Notes as of the date of purchase (the "Change of Control
Purchase Date"), if such date is on or before March 1, 2003, and (b) 101% of the
principal amount at maturity of the Notes, plus accrued and unpaid cash
interest, if any, to the Change of Control Purchase Date, if such date is after
March 1, 2003 pursuant to the procedures described below and the other
procedures set forth in the Indenture.
Within 15 days following any Change of Control, the Company shall notify
the Trustee thereof and give written notice of such Change of Control to each
holder of Notes by first-class mail, postage prepaid, at the address appearing
in the security register, stating, among other things, (i) the purchase price
and the purchase date, which shall be a Business Day no earlier than 30 days nor
later than 60 days from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act or any applicable
securities laws or regulations; (ii) that any Note not tendered will continue to
accrete original issue discount and/or accrue interest, as the case may be;
(iii) that, unless the Company defaults in the payment of the purchase price,
any Notes accepted for payment pursuant to the Change of Control Offer shall
cease to accrete original issue discount and/or accrue interest, as the case may
be, after the Change of Control Purchase Date; and (iv) certain other procedures
that a holder of Notes must follow to accept a Change of Control Offer or to
withdraw such acceptance.
If a Change of Control Offer is made, there can be no assurance that the
Company will have available funds sufficient to pay the Change of Control
Purchase Price for all of the Notes that might be delivered by holders of the
Notes seeking to accept the Change of Control Offer. The failure of the Company
to make or consummate the Change of Control Offer would result in an Event of
Default and would give the Trustee and the holders of the Notes the rights
described under "-- Events of Default."
One of the events which constitutes a Change of Control under the Indenture
is the disposition of "all or substantially all" of the Company's assets. This
term has not been interpreted under New York law (which is the governing law of
the Indenture) to represent a specific quantitative test. As a consequence, in
the event holders of the Notes elect to require the Company to purchase the
Notes and the Company elects to contest such election, there can be no assurance
as to how a court interpreting New York law would interpret the phrase.
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The existence of a holder's right to require the Company to purchase such
holder's Notes upon a Change of Control may deter a third party from acquiring
the Company in a transaction which constitutes a Change of Control.
The definition of "Change of Control" in the Indenture is limited in scope.
The provisions of the Indenture may not afford holders of Notes the right to
require the Company to purchase such Notes in the event of a highly leveraged
transaction or certain transactions with Company's management or its Affiliates,
including a reorganization, restructuring, merger or similar transaction
involving the Company (including, in certain circumstances, an acquisition of
the Company by management or its Affiliates) that may adversely affect holders
of the Notes, if such transaction is not a transaction defined as a Change of
Control. See "-- Certain Definitions" for the definition of "Change of Control."
A transaction involving the Company's management or its Affiliates, or a
transaction involving a recapitalization of the Company, would result in a
Change of Control if it is the type of transaction specified by such definition.
The Company will comply with the applicable tender offer rules, including
Rule 14e-l under the Exchange Act, and any other applicable securities laws and
regulations in connection with a Change of Control Offer.
The Company will not, and will not permit any Subsidiary to, create or
permit to exist or become effective any restriction (other than restrictions
existing under Indebtedness as in effect on the date of the Indenture) that
would materially impair its ability to make a Change of Control Offer to
purchase the Notes or, if such Change of Control Offer is made, to pay for the
Notes tendered for purchase. (Section 1014)
Limitation on Sale of Assets. (a) The Company will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, engage in any Asset Sale
unless (i) the consideration received by the Company or such Restricted
Subsidiary for such Asset Sale is not less than the fair market value of the
shares or assets sold (as determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution) and (ii)
the consideration received by the Company or the relevant Restricted Subsidiary
in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company may use the Net Cash Proceeds thereof, within 12 months after such
Asset Sale, to (i) permanently repay or prepay any then outstanding senior
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary or (ii)
invest (or enter into a legally binding agreement to invest) in properties and
assets to replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses of the
Company or a Restricted Subsidiary, as the case may be, existing on the Original
Issue Date. If any such legally binding agreement to invest such Net Cash
Proceeds is terminated, then the Company may, within 60 days of such termination
or within 12 months of such Asset Sale, whichever is later, apply or invest such
Net Cash Proceeds as provided in clause (i) or (ii) (without regard to the
parenthetical contained in such clause (ii)) above. The amount of such Net Cash
Proceeds not so used as set forth above in this paragraph (b) constitutes
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10.0 million (or,
to the extent not denominated in United States dollars, the United States Dollar
Equivalent thereof), the Company will, within 15 business days, make an offer to
purchase (an "Excess Proceeds Offer") from all holders of Notes, on a pro rata
basis, in accordance with the procedures set forth below, the maximum principal
amount at maturity of Notes (expressed as a multiple of $1,000) that may be
purchased with the Excess Proceeds. The offer price as to each Note (the "Excess
Proceeds Offer Price") will be payable in cash in an amount equal to (a) 100% of
the Accreted Value of the Notes as of the purchase date, if such purchase date
is on or before March 1, 2003, and (b) 100% of the principal amount at maturity
of the Note, plus accrued and unpaid cash interest, if any, to the date of
purchase, if such purchase date is after March 1, 2003. To the extent that the
aggregate Excess Proceeds Offer Price of Notes tendered pursuant to an Excess
Proceeds Offer is less than the Excess Proceeds, the Company may use such
deficiency for general corporate purposes. If the aggregate Excess Proceeds
Offer Price of Notes validly tendered and not withdrawn by holders thereof
exceeds the Excess Proceeds, Notes to be purchased will be selected on a pro
rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset to zero. (Section 1015)
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Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries. The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock, (b) pay
any Indebtedness owed to the Company or any other Restricted Subsidiary, (c)
make Investments in the Company or any other Restricted Subsidiary, (d) transfer
any of its properties or assets to the Company or any other Restricted
Subsidiary or (e) guarantee any Indebtedness of the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reason of (i) any agreement in effect on the date of the Indenture,
(ii) applicable law, (iii) customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any Restricted Subsidiary, (iv)
any agreement or other instrument of a Person acquired by the Company or any
Restricted Subsidiary in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired, (v) the
refinancing of Indebtedness incurred under agreements existing on the date of
the Indenture, so long as such encumbrances or restrictions are no less
favorable in any material respect to the Company or any Restricted Subsidiary
than those contained in the respective agreement as in effect on the date of the
Indenture, (vi) restrictions contained in any security agreement (including a
capital lease obligation) securing Indebtedness of the Company or a Restricted
Subsidiary otherwise permitted under the Indenture, (vii) customary
nonassignment provisions entered into in the ordinary course of business in
leases and other agreements, (viii) any restriction with respect to a Restricted
Subsidiary of the Company entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Restricted Subsidiary
made in accordance with the "Limitation on Sales of Assets" covenant, (ix)
pursuant to the Indenture and the Notes or (x) any agreement or instrument
governing or relating to Indebtedness under any senior commercial bank facility
(each, a "Bank Facility") if such encumbrance or restriction applies only to (A)
amounts which at any point in time (other than during such periods as are
described in the following clause (B)) (1) exceed amounts due and payable (or
which are to become due and payable within 30 days) in respect of the Notes or
the Indenture for interest, premium and principal or (2) if paid, would result
in an event described in the following clause (B) of this sentence, or (B)
during the pendency of any event that causes, permits or, after notice or lapse
of time, would cause or permit the holder(s) of Indebtedness governed by such
Bank Facility to declare such Indebtedness to be immediately due and payable or
to require cash collateralization or cash cover for such Indebtedness for so
long as such cash collateralization or cash cover has not been provided.
(Section 1016)
Limitation on Investments in Unrestricted Subsidiaries. The Company will
not, and will not permit any of its Restricted Subsidiaries to, make any
Investments in Unrestricted Subsidiaries if, at the time of such Investment, the
aggregate amount of such Investments would exceed the amount of Restricted
Payments then permitted to be made pursuant to the "Limitation on Restricted
Payments" covenant. Any Investment in an Unrestricted Subsidiary permitted to be
made pursuant to this covenant (i) will be treated as a Restricted Payment in
calculating the amount of Restricted Payments made by the Company or any
Restricted Subsidiary, without duplication, under the provisions of clause (iv)
of paragraph (a) of the "Limitation on Restricted Payments" covenant and (ii)
may be made in cash or property (if made in property, the fair market value
thereof as determined by the Company, whose determination will be conclusive)
and will be deemed to be the amount of such Investment for the purpose of clause
(i) of this covenant. (Section 1017)
Limitation on Sale-Leaseback Transactions. The Company will not, and will
not permit any Restricted Subsidiary to, enter into any sale-leaseback
transaction involving any of its assets or properties whether now owned or
hereafter acquired, whereby the Company or a Restricted Subsidiary sells or
transfers such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties which the
Company or such Restricted Subsidiary, as the case may be, intends to use for
substantially the same purpose or purposes as the assets or properties sold or
transferred.
The foregoing restriction does not apply to any sale-leaseback transaction
if (i) the lease is for a period, including renewal rights, of not in excess of
three years; (ii) the lease secures or relates to industrial revenue or
pollution control bonds; (iii) the transaction is solely between the Company and
any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted
Subsidiaries; or (iv) the Company or such
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Restricted Subsidiary, within 12 months after the sale or transfer of any assets
or properties is completed, applies an amount not less than the net proceeds
received from such sale in accordance with the "Limitation on Sale of Assets"
covenant. (Section 1018)
Business of the Company. The Company will not, and will not permit any of
its Restricted Subsidiaries to, engage in any business activity other than (i)
the delivery of telephony or other telecommunications or data transmission
services in North America, (ii) telecommunications network construction services
and (iii) any business or activity reasonably related thereto, including,
without limitation, any business conducted by any Restricted Subsidiary on the
date of the Indenture and the acquisition, holding or exploitation of any
telecommunications licenses, permits, franchises or rights of way related to the
delivery of the services described in clause (i) above. (Section 1019)
Provision of Financial Statements and Reports. After the consummation of
this Exchange Offer or the effectiveness of a Shelf Registration Statement, the
Company will file on a timely basis with the Commission, to the extent such
filings are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to file
if it were subject to Section 13 or 15(d) of the Exchange Act. The Company will
also be required (i) to file with the Trustee, copies of such reports and
documents within 15 days after the date on which such reports and documents are
filed with the Commission or the date on which the Company would be required to
file such reports and documents if the Company were so required, and (ii)
provide to each holder of Notes, without cost to such holder, copies of such
reports and documents within 15 days after the filing thereof with the Trustee.
(Section 1020)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets substantially as an entirety to any other Person or
Persons or permit any Subsidiary to enter into any such transaction or series of
related transactions, if such transaction or series of related transactions, in
the aggregate, would result in the sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis substantially as an
entirety to any Person or Persons, unless at the time and immediately after
giving effect thereto: (i) either (a) the Company will be the continuing
corporation or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company or such Subsidiary is merged or the
Person which acquires by sale, conveyance, transfer, lease or other disposition,
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis substantially as an entirety, as the case
may be (the "Surviving Entity"), (1) will be a corporation organized and validly
existing under the laws of the United States of America, any state thereof or
the District of Columbia and (2) will expressly assume, by a supplemental
indenture to the Indenture in form satisfactory to the Trustee, the Company's
obligation pursuant to the Notes for the due and punctual payment of the
principal (including accretion of original issue discount) of, premium, if any,
on and interest on all the Notes and the performance and observance of every
covenant of the Indenture on the part of the Company to be performed or
observed; (ii) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (and treating any obligation of the
Company or any Subsidiary incurred in connection with or as a result of such
transaction or series of transactions as having been incurred at the time of
such transaction), no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction or series
of transactions on a pro forma basis (on the assumption that the transaction or
series of transactions occurred on the first day of the latest fiscal quarter
for which consolidated financial statements of the Company are available
immediately prior to the consummation of such transaction or series of
transactions with the appropriate adjustments with respect to the transaction or
series of transactions being included in such pro forma calculation), the
Company (or the Surviving Entity if the Company is not the continuing obligor
under the Indenture) could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the provisions of the "Limitation on
Indebtedness" covenant; and (iv) if any of the property or assets of the Company
or any of its Subsidiaries would thereupon
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become subject to any Lien, the provisions of the "Limitation on Liens" covenant
are complied with. (Section 801)
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, the Company or the Surviving
Entity shall have delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an officers' certificate and an opinion of counsel,
each stating that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition, and if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with the requirements of the Indenture and that all conditions precedent
therein provided for relating to such transaction have been complied with.
(Section 801)
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all of substantially all of the properties and
assets of the Company in accordance with the immediately preceding paragraphs in
which the Company is not the continuing obligor under the Indenture, the
Surviving Entity shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture with the same effect
as if such successor had been named as the Company therein. When a successor
assumes all the obligations of its predecessor under the Indenture, the
predecessor shall be released from those obligations; provided that in the case
of a transfer by lease, the predecessor shall not be released from the payment
of principal of, premium, if any, and interest on the Notes. (Section 802)
EVENTS OF DEFAULT
The following are "Events of Default" under the Indenture:
(i) default in the payment of any interest on any Note when it becomes
due and payable and continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of or premium, if any, on
any Note at its Maturity (upon acceleration, required purchase or
otherwise);
(iii) (A) default in the performance, or breach, of any covenant or
agreement of the Company contained in the Indenture (other than a default
in the performance, or breach, of a covenant or agreement which is
specifically dealt with in the immediately preceding clauses (i) and (ii)
or in clauses (B), (C) or (D) of this clause (iii)) and continuance of such
default or breach for a period of 30 days after written notice shall have
been given to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount at maturity of
the Notes then outstanding; (B) default in the performance or breach of the
provisions of the "Limitation on Sale of Assets" covenant; (C) default in
the performance or breach of the provisions of "-- Consolidation, Merger
and Sale of Assets"; and (D) failure to make or consummate a Change of
Control Offer in accordance with the provisions of the "Purchase of Notes
upon a Change of Control" covenant;
(iv) (A) one or more defaults in the payment of principal of or
premium, if any, or interest on Indebtedness of the Company or any
Significant Subsidiary aggregating $7.5 million or more (or, to the extent
not denominated in United States dollars, the United States Dollar
Equivalent thereof), when the same becomes due and payable at the stated
maturity thereof, and such default or defaults shall have continued after
any applicable grace period and shall not have been cured or waived or (B)
Indebtedness of the Company or any Significant Subsidiary aggregating $7.5
million or more (or, to the extent not denominated in United States
dollars, the United States Dollar Equivalent thereof) shall have been
accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required
prepayment), prior to the Stated Maturity thereof;
(v) one or more final judgments, orders or decrees of any court or
regulatory agency shall be rendered against the Company or any Significant
Subsidiary or their respective properties for the payment of money, either
individually or in an aggregate amount, in excess of $7.5 million (or, to
the extent not denominated in United States dollars, the United States
Dollar Equivalent thereof) and either (A) an enforcement proceeding shall
have been commenced by any creditor upon such judgment or
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order or (B) there shall have been a period of 30 days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, was not in effect; or
(vi) the occurrence of certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant Subsidiary.
If an Event of Default (other than an Event of Default arising from an
event of bankruptcy, insolvency or reorganization with respect to the Company or
any Significant Subsidiary) occurs and is continuing, the Trustee or the holders
of not less than 25% in aggregate principal amount at maturity of the Notes then
outstanding, by written notice to the Company (and to the Trustee if such notice
is given by the holders), may, and the Trustee upon the written request of such
holders shall, declare the Accreted Value of, premium, if any, and accrued
interest on all outstanding Notes immediately due and payable, and upon any such
declaration all such amounts payable in respect of the Notes shall become
immediately due and payable. If an Event of Default specified in clause (vi)
above occurs and is continuing, then the Accreted Value of, premium, if any, and
accrued interest on all of the outstanding Notes will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any holder of Notes. (Section 502)
At any time after a declaration of acceleration under the Indenture, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the holders of a majority in aggregate principal amount at Maturity
of the outstanding Notes, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if (a) the Company has paid or
deposited with the Trustee a sum sufficient to pay (i) all overdue interest on
all outstanding Notes, (ii) the Accreted Value of and premium, if any, on any
outstanding Notes that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes, (iii) to the
extent that payment of such interest is lawful, interest upon overdue interest
and overdue principal at the rate borne by the Notes, and (iv) all sums paid or
advanced by the Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
(b) all Events of Default, other than the non-payment of amounts of principal
of, premium, if any, or interest on the Notes that have become due solely by
such declaration of acceleration, have been cured or waived. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Notes because of an Event of Default specified in
subparagraph (iv)(A) or (iv)(B) above has occurred and is continuing, such Event
of Default and all consequences thereof (including, without limitation, any
acceleration or resulting payment default) will be automatically annulled,
waived and rescinded if the Indebtedness that is the subject of such Event of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness or the default that
is the basis for such Event of Default has been cured and no other Event of
Default has occurred and has not been cured or waived.
The holders of not less than a majority in aggregate principal amount at
maturity of the outstanding Notes may, on behalf of the holders of all the
Notes, waive any past defaults under the Indenture, except a default in the
payment of the principal of, premium, if any, or interest on any Note or in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each Note outstanding.
If a Default or an Event of Default occurs and is continuing and is known
to the Trustee, the Trustee will mail to each holder of the Notes notice of the
Default or Event of Default within 30 days after the occurrence thereof. Except
in the case of a Default or an Event of Default in payment of principal of, or
premium, if any, or interest on any Notes, the Trustee may withhold the notice
to the holders of the Notes if a committee of its trust officers in good faith
determines that withholding such notice is in the interests of the holders of
the Notes.
The Company is required to furnish to the Trustee annual statements as to
the performance by the Company of its obligations under the Indenture and as to
any default in such performance. The Company is also required to notify the
Trustee within five days of the occurrence of any Default.
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DEFEASANCE OR COVENANT DEFEASANCE OF THE INDENTURE
The Company may, at its option and at any time, elect to have the
obligations of the Company upon the Notes discharged with respect to the
outstanding Notes ("defeasance"). Such defeasance means that the Company will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and to have satisfied all of other obligations under the Notes
and the Indenture insofar as such Notes are concerned except for (i) the rights
of holders of outstanding Notes to receive payments in respect of the principal
of, premium, if any, and interest on the Notes when such payments are due, (ii)
the Company's obligations to issue temporary Notes, register the transfer or
exchange of any such Notes, replace mutilated, destroyed, lost or stolen Notes,
maintain an office or agency for payments in respect of such Notes and segregate
and hold such payments in trust, (iii) the rights, powers, trusts, duties and
immunities of the Trustee and (iv) the defeasance provisions of the Indenture.
In addition, the Company may, at its option and at any time, elect to have the
obligations of the Company released with respect to certain covenants set forth
in the Indenture, and any omission to comply with such obligations shall not
constitute a Default or an Event of Default with respect to the Notes ("covenant
defeasance").
In order to exercise either defeasance or covenant defeasance: (i) the
Company must irrevocably deposit or cause to be deposited with the Trustee, as
trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Notes, cash in United States dollars, U.S.
Government Obligations (as defined in the Indenture), or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants or a nationally recognized investment
banking firm, to pay and discharge the Accreted Value of, premium, if any, and
interest on the outstanding Notes on the Stated Maturity (or upon redemption, if
applicable); (ii) no Default or Event of Default with respect to the Notes will
have occurred and be continuing on the date of such deposit or, insofar as an
event of bankruptcy under clause (vi) of "-- Events of Default" above is
concerned, at any time during the period ending on the 91st day after the date
of such deposit; (iii) such defeasance or covenant defeasance will not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than the Indenture) to which the Company is a party or by
which it is bound; (iv) in the case of defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or since the date of the Private Offering Memorandum, there has been a
change in applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred; (v) in the case
of covenant defeasance, the Company shall have delivered to Trustee an Opinion
of Counsel to the effect that the holders of the Notes outstanding will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such covenant defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and (vi) the Company
shall have delivered to the Trustee an officers' certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to
either the defeasance or the covenant defeasance, as the case may be, have been
complied with. (Sections 1301, 1302 and 1303)
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of the Notes as expressly
provided for in the Indenture), and the Trustee, at the expense of the Company,
will execute proper instruments acknowledging satisfaction and discharge of the
Indenture when (i) either (a) all the respective Notes theretofore authenticated
and delivered (other than destroyed, lost or stolen Notes which have been
replaced or paid) have been delivered to the Trustee for cancellation or (b) all
the Notes not theretofore delivered to the Trustee for cancellation (x) have
become due and payable, (y) will become due and payable at Stated Maturity
within one year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company
has irrevocably deposited or caused to be
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deposited with the Trustee trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for the Accreted Value
of, premium, if any, and interest on the Notes to the date of such deposit (in
the case of Notes which have become due and payable) or to the Stated Maturity
or redemption date, as the case may be; (ii) the Company has paid or caused to
be paid all other sums payable under the Indenture by the Company; and (iii) the
Company has delivered to the Trustee an officers' certificate and an Opinion of
Counsel, each stating that all conditions precedent provided in the Indenture
relating to the satisfaction and discharge of the Indenture have been complied
with. (Section 401)
MODIFICATIONS AND AMENDMENTS
Modifications and amendments of the Indenture may be made by a supplemental
indenture entered into by the Company and the Trustee with the consent of the
holders of a majority in aggregate outstanding principal amount at maturity of
the Notes; provided, however, that no such modification or amendment may,
without the consent of the holder of each outstanding Note affected thereby, (i)
change the Stated Maturity of the principal of, or any installment of interest
on, any Note or reduce the Accreted Value thereof or premium, if any, or the
rate of interest thereon, alter any redemption provision with respect to the
timing or amount of payment thereof, or change the coin or currency in which the
Accreted Value of any Note or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment after
the Stated Maturity thereof (or, in the case of redemption, on or after the
redemption date); (ii) amend, change or modify the obligation of the Company to
make and consummate an Excess Proceeds Offer with respect to any Asset Sale in
accordance with the "Limitation on Sale of Assets" covenant or the obligation of
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with the "Purchase of Notes upon a Change of
Control" covenant, including, in each case, amending, changing or modifying any
definition relating thereto; (iii) reduce the percentage in principal amount at
maturity of outstanding Notes the consent of whose holders is required for any
waiver of compliance with certain provisions of the Indenture; (iv) modify any
of the provisions relating to supplemental indentures requiring the consent of
holders or relating to the waiver of past defaults or relating to the waiver of
certain covenants, except to increase the percentage of outstanding Notes
required for such actions or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the holder of each
Note affected thereby; or (v) except as otherwise permitted under "--
Consolidation, Merger and Sale of Assets," consent to the assignment or transfer
by the Company of any of their respective rights or obligations under the
Indenture. (Sections 901 and 902)
Notwithstanding the foregoing, without the consent of any holder of the
Notes the Company and the Trustee may modify or amend the Indenture: (a) to
evidence the succession of another Person to the Company or any other obligor on
the Notes, and the assumption by any such successor of the covenants of the
Company or such obligor in the Indenture and in the Notes in accordance with "--
Consolidation, Merger, Sale of Assets"; (b) to add to the covenants of the
Company or any other obligor upon the Notes for the benefit of the holders of
such Notes or to surrender any right or power conferred upon the Company or any
other obligor upon such Notes, as applicable, in the Indenture or in such Notes;
(c) to cure any ambiguity, or to correct or supplement any provision in the
Indenture or the Notes or make any other provisions with respect to matters or
questions arising under the Indenture or the Notes; provided that, in each case,
such provisions shall not adversely affect the interest of the holders of such
Notes; (d) to comply with the requirements of the Commission in order to effect
or maintain the qualification, if any, of the Indenture under the TIA; (e) to
evidence and provide the acceptance of the appointment of a successor Trustee
under the Indenture; or (f) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the holders of the Notes as
additional security for the payment and performance of the Company's obligations
under the Indenture, in any property, or assets, including any of which are
required to be mortgaged, pledged or hypothecated, or in which a security
interest is required to be granted to the Trustee pursuant to the Indenture or
otherwise. (Section 901)
The holders of a majority in aggregate principal amount at maturity of the
Notes outstanding may waive compliance with certain restrictive covenants and
provisions of the Indenture. (Section 1021)
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THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. If an Event of Default has occurred and is continuing, the
Trustee will exercise such rights and powers vested in it under the Indenture
and use the same degree of care and skill in its exercise as a prudent Person
would exercise under the circumstances in the conduct of such Person's own
affairs.
The Indenture and provisions of the TIA incorporated by reference therein
contain limitations on the rights of the Trustee thereunder should it become a
creditor of the Company, to obtain payment of claims in certain cases or to
realize on certain property received by it in respect of any such claims, as
security or otherwise. The Trustee is permitted to engage in other transactions;
provided, however, that if it acquires any conflicting interest (as defined) it
must eliminate such conflict or resign as Trustee.
GOVERNING LAW
The Indenture, the Notes and the Notes Registration Rights Agreement are
governed by, and construed in accordance with, the laws of the State of New
York.
CERTAIN DEFINITIONS
Set forth below is a summary of certain defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any other capitalized terms used herein for which no
definition is provided.
"Accreted Value" is defined to mean, for any specified date, the amount
calculated pursuant to clause (i), (ii), (iii) or (iv) below with respect to
each $1,000 principal amount at Maturity of Notes:
(i) if the specified date occurs on one or more of the following dates
(each a "Semiannual Accrual Date"), the Accreted Value will equal $543.92
on the Original Issue Date, and for any Semiannual Accrual Date thereafter,
the amount set forth below:
<TABLE>
<CAPTION>
ACCRETED
SEMIANNUAL ACCRUAL DATE VALUE
----------------------- ---------
<S> <C>
September 1, 1998........................................... $ 579.48
March 1, 1999............................................... $ 615.70
September 1, 1999........................................... $ 654.18
March 1, 2000............................................... $ 695.07
September 1, 2000........................................... $ 738.51
March 1, 2001............................................... $ 784.66
September 1, 2001........................................... $ 833.71
March 1, 2002............................................... $ 885.81
September 1, 2002........................................... $ 941.18
March 1, 2003............................................... $1,000.00
</TABLE>
(ii) if the specified date occurs before the first Semiannual Accrual
Date, the Accreted Value will equal the sum of (a) the original issue price
and (b) an amount equal to the product of (1) the Accreted Value for the
first Semiannual Accrual Date less the original issue price multiplied by
(2) a fraction, the numerator of which is the number of days from the date
of the Indenture to the specified date, using a 360-day year of twelve
30-day months, and the denominator of which is the number of days elapsed
from the date of the Indenture to the first Semiannual Accrual Date, using
a 360-day year of twelve 30-day months;
(iii) if the specified date occurs between two Semiannual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value for
the Semiannual Accrual Date immediately preceding such specified date and
(b) an amount equal to the product of (1) the Accreted Value for the
immediately following Semiannual Accrual Date less the Accreted Value for
the immediately preceding Semiannual Accrual Date, and (2) a fraction, the
numerator of which equals the number of days from the
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immediately preceding Semiannual Accrual Date to the specified date, using
a 360-day year of twelve 30-day months, and the denominator of which is
180; or
(iv) if the specified date occurs on or after the last Semiannual
Accrual Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person becomes a Restricted Subsidiary or (b) assumed in connection
with the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition; provided that, for purposes of the
"Limitation on Indebtedness" covenant, such Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Restricted Subsidiary.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Voting Stock
or any executive officer or director of any such specified Person or other
Person or, with respect to any natural Person, any Person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
sale and leaseback transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) any Capital Stock
of any Subsidiary; (ii) all or substantially all of the properties and assets of
the Company or its Subsidiaries; or (iii) any other properties or assets of the
Company or any Subsidiary, other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (A) that is governed by the provisions of the
Indenture described under "-- Consolidation, Merger, Sale of Assets," (B) of the
Company to any Restricted Subsidiary, or of any Restricted Subsidiary to the
Company or any Restricted Subsidiary in accordance with the terms of the
Indenture, (C) having a fair market value of less than $500,000 (or, to the
extent not denominated in United States dollars, the United States Dollar
Equivalent thereof) in any given fiscal year, (D) in any Permitted
Telecommunications Asset Sale, or (E) by the Company or a Restricted Subsidiary
to a Person who is not an Affiliate of the Company in exchange for
Telecommunications Assets (or not less than 66 2/3% of the outstanding Voting
Stock of a Person that becomes a Restricted Subsidiary the assets of which
consist primarily of Telecommunications Assets) or related telecommunications
services where in the good faith judgment of the Company the fair market value
of the Telecommunications Assets (or such Voting Stock) or services so received
is at least equal to the fair market value of the properties or assets disposed
of or, if less, the difference is received by the Company in cash in an amount
at least equal to such difference.
"Attributable Value" means, with respect to any lease at the time of
determination, the present value (discounted at the interest rate implicit in
the lease or, if not known, at the Company's incremental borrowing rate) of the
obligations of the lessee of the property subject to such lease for rental
payments during the remaining term of the lease included in such transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended, or until the earliest date on which the
lessee may terminate such lease without penalty or upon payment of penalty (in
which case the rental payments shall include such penalty), after excluding from
such rental payments all amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water utilities and similar charges.
"Average Life" means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (a) the sum of the products of
(i) the number of years from the date of determination to the date or dates of
each successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness multiplied by (ii) the amount of
each such principal payment by (b) the sum of all such principal payments.
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"Board of Directors" means the board of directors of the Company.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other equivalents
(however designated and whether voting or non-voting) of such Person's capital
stock, and any rights (other than debt securities convertible into capital
stock), warrants or options exchangeable for or convertible into such capital
stock, whether now outstanding or issued after the date of the Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required to
be classified and accounted for as a capital lease obligation under GAAP and,
for the purposes of the Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with a maturity
of 180 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (ii) certificates of deposit or acceptances with a maturity of 180
days or less of any financial institution that is a member of the Federal
Reserve System, in each case having combined capital and surplus and undivided
profits of not less than $500 million; (iii) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
and is organized under the laws of any state of the United States or the
District of Columbia and rated at least A-1 by S&P or at least P-l by Moody's;
and (iv) money market funds which invest substantially all of their assets in
securities of the type described in the preceding clauses (i) through (iii).
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total outstanding Voting Stock of the
Company; (b) the Company consolidates with, or merges with or into another
Person or conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with
or merges with or into the Company, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction (i) where the outstanding Voting Stock of the Company is not
converted or exchanged at all (except to the extent necessary to reflect a
change in the jurisdiction of incorporation of the Company) or is converted into
or exchanged for (A) Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation or (B) Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation and cash, securities
and other property in an amount that could be paid by the Company as a
Restricted Payment as described under the "Limitation on Restricted Payments"
covenant and (ii) immediately after such transaction, no "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total outstanding
Voting Stock of the surviving or transferee corporation; (c) during any
consecutive two-year period, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors whose
election to such Board of Directors, or whose nomination for election by the
stockholders of the Company, was approved by a vote of 66 2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then in
office; (d) the Company is liquidated or dissolved or a special resolution is
passed by the shareholders of the Company approving the plan of liquidation or
dissolution other than in a transaction which complies with the provisions
described under "-- Consolidation, Merger and Sales of Assets"; or (e) a
Permitted Holder holds (i) less than 15% of the outstanding Common Stock at any
time prior to an Initial Public Equity Offering or (ii) more than 65% of the
outstanding Common Stock at any time after an Initial Public Equity Offering.
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"Consolidated Adjusted Net Income" means, for any period, the consolidated
net income (or loss) of the Company and all Restricted Subsidiaries for such
period as determined in accordance with GAAP, adjusted by excluding, without
duplication, (a) any net after-tax extraordinary gains or losses (less all fees
and expenses relating thereto), (b) any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to asset dispositions other
than in the ordinary course of business, (c) the portion of net income (or loss)
of any Person (other than the Company or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which the Company or any Restricted Subsidiary has
an ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any Restricted Subsidiary in cash
dividends or distributions during such period, (d) net income (but not loss) of
any Person combined with the Company or any Restricted Subsidiary on a "pooling
of interests" basis attributable to any period prior to the date of combination,
(e) the net income of any Restricted Subsidiary, to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary or its stockholders and (f) any gain or
loss, net of taxes, realized upon the termination of any employee benefit plan.
"Consolidated Indebtedness to Consolidated Operating Cash Flow Ratio"
means, at any date of determination, the ratio of (i) the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries outstanding at the
date of determination as determined on a consolidated basis in accordance with
GAAP to (ii) the aggregate amount of Consolidated Operating Cash Flow for the
then most recent four full fiscal quarters for which consolidated financial
statements of the Company are available preceding the date of the transaction
giving rise to the need to calculate the Consolidated Indebtedness to
Consolidated Operating Cash Flow Ratio (such four fiscal quarter period being
referred to as the "Four Quarter Period").
"Consolidated Interest Expense" of the Company means, for any period,
without duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest, (v) the consolidated amount
of any interest capitalized by the Company and (vi) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, excluding, however, any amount of such
interest of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Consolidated Adjusted Net Income
pursuant to clause (e) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Consolidated Adjusted Net Income pursuant to clause (e) of the
definition thereof); provided that the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a pro forma basis and
(A) bearing a floating interest rate shall be computed as if the rate in effect
on the date of computation had been the applicable rate for the entire period
and (B) which was not outstanding during the period for which the computation is
being made but which bears, at the option of the Company, a fixed or floating
rate of interest, shall be computed by applying, at the option of the Company,
either the fixed or the floating rate.
"Consolidated Operating Cash Flow" means, with respect to any period, the
Consolidated Adjusted Net Income for such period (a) increased by (to the extent
included in computing Consolidated Adjusted Net Income) the sum of (i) the
Consolidated Tax Expense for such period (other than taxes attributable to
extraordinary, unusual or non-recurring gains or losses); (ii) Consolidated
Interest Expense for such period; (iii) depreciation of the Company and the
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; (iv) amortization of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; and (v) any other non-cash charges that were deducted in computing
Consolidated Adjusted Net Income (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period) of the Company and
its Restricted Subsidiaries for such period in accordance with GAAP and (b)
decreased by any non-cash gains that were included in computing Consolidated
Adjusted Net Income.
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"Consolidated Tax Expense" means, for any period, the provision for
federal, state, provincial, local and foreign income taxes of the Company and
all Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Currency Agreements" means any spot or forward foreign exchange agreements
and currency swap, currency option or other similar financial agreements or
arrangements entered into by the Company or any of its Restricted Subsidiaries
designed solely to protect against or manage exposure to fluctuations in
currency exchange rates.
"Default" means any event that after notice or passage of time or both
would be an Event of Default.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under the Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Subsidiaries" means Digital Teleport, Inc.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States on the date of the
Indenture.
"Guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Incur" or "incur" means, with respect to any Indebtedness, to create,
issue, assume, guarantee or in any manner become directly or indirectly liable
for the payment of, or otherwise incur such Indebtedness; provided that neither
the accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all liabilities, contingent or otherwise, of such Person: (i) for borrowed money
(including overdrafts), (ii) in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (iii) evidenced by bonds, notes, debentures or other
similar instruments, (iv) for the deferred purchase price of property or
services or created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, or (v) for
Capitalized Lease Obligations; (b) all obligations of such Person under or in
respect of Interest Rate Agreements or Currency Agreements; (c) all indebtedness
referred to in (but not excluded from) the preceding clauses of other Persons
and all dividends of other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of the obligation so
secured); (d) all guarantees by such Person of Indebtedness referred to in this
definition of any other Person; and (e) all Redeemable Capital Stock of such
Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends. The amount of Indebtedness
of any Person at any date shall be the outstanding balance at such date (or, in
the case of a revolving credit or other similar facility, the total amount of
funds outstanding and/or available on the date of determination) of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation; provided that the amount outstanding at any time of any
Indebtedness issued with original issue discount equals the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount with respect to such Indebtedness at such time as determined in
conformity with
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GAAP. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock. Notwithstanding the
foregoing, trade accounts and accrued liabilities arising in the ordinary course
of business and any liability for federal, state or local taxes or other taxes
owed by such Person will not be considered Indebtedness for purposes of this
definition.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements or arrangements (including,
without limitation, interest rate swaps, caps, floors, collars and other similar
agreements) designed solely to protect the Company or any Restricted Subsidiary
against fluctuations in interest rates in respect of Indebtedness of the Company
or any Restricted Subsidiary.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase, acquisition or
ownership by such Person of any Capital Stock, bonds, notes, debentures or other
securities or evidences of Indebtedness issued or owned by, any other Person and
all other items that would be classified as investments on a balance sheet
prepared in accordance with GAAP. In addition, the fair market value of the net
assets of any Subsidiary at the time that such Subsidiary is designated an
Unrestricted Subsidiary shall be deemed to be an "Investment" made by the
Company in such Unrestricted Subsidiary at such time. "Investments" shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices and any loans, advances or extensions of
credit to an employee of the Company or any Subsidiaries made in the ordinary
course of business; provided that such loans, advances or extensions of credit
shall not have an aggregate principal amount in excess of $1.0 million at any
one time outstanding.
"Original Issue Date" means the date of the Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any property
of any kind, real or personal, movable or immovable, now owned or hereafter
acquired. A Person shall be deemed to own subject to a Lien any property which
such Person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity" means, with respect to any Note, the date on which any principal
of such Note becomes due and payable as provided therein or in the Indenture,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of, or stock or other
assets when disposed for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary), net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties which are the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
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environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as reflected in an officers' certificate
delivered to the Trustee and (b) with respect to any issuance or sale of Capital
Stock or options, warrants or rights to purchase Capital Stock, or debt
securities or Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock, as referred to under the "Limitation on
Restricted Payments" covenant, the proceeds of such issuance or sale in the form
of cash or Cash Equivalents, including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
for, cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Subsidiary of the Company),
net of attorney's fees, accountant's fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Participant" is defined to mean, with respect to DTC, Persons who have
accounts with DTC.
"Permitted Holder" means either of (a) (i) collectively, Richard Weinstein,
his spouse, issues or other members of his immediate family (collectively, the
"Weinstein Family") (ii) trusts or other entities created for the benefit of any
member of the Weinstein Family, (iii) entities controlled by any of the
Weinstein Family and (iv) in the event of the death of any members of the
Weinstein Family, the heirs or testamentary legatees of such member of the
Weinstein Family, or (b) collectively, KLT and any of its controlled Affiliates
(as defined under Rules 13d-3 and 13d-5 under the Exchange Act).
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company pursuant to the Notes;
(b) Indebtedness of the Company owing to any Restricted Subsidiary
(but only so long as such Indebtedness is held by such Restricted
Subsidiary); provided that any Indebtedness of the Company owing to any
such Restricted Subsidiary is subordinated in right of payment from and
after such time as the Notes shall become due and payable (whether at
Stated Maturity, by acceleration or otherwise) to the payment and
performance of the Company's obligations under the Notes; provided further
that any transaction pursuant to which any Restricted Subsidiary to which
such Indebtedness is owed, ceases to be a Restricted Subsidiary shall be
deemed to be an incurrence of such Indebtedness by such Restricted
Subsidiary that is not permitted by this clause (b);
(c) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of purchase
price adjustments in connection with one or more commercial bank facilities
permitted under clause (j) of the "Permitted Indebtedness" definition or in
connection with the acquisition of or disposition of assets, including,
without limitation, shares of Capital Stock;
(d) Indebtedness of the Company or any Restricted Subsidiary under
letter of credit facilities that are used to finance trade payables in the
ordinary course of business and under which recourse to the Company or any
Restricted Subsidiary is limited to the cash securing such letters of
credit;
(e) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements and Interest Rate Agreements entered into in the
ordinary course of business, provided that such agreements do not increase
the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuations in foreign currency exchange rates or interest rates
or by reason of fees, indemnities and compensation payable thereunder;
(f) Indebtedness of the Company or any Restricted Subsidiary in
addition to that permitted to be incurred pursuant to clauses (a) through
(e) above in an aggregate principal amount not in excess of $25.0 million
(or, to the extent not denominated in United States dollars, the United
States Dollar Equivalent thereof) at any one time outstanding;
(g) Purchase Money Indebtedness;
(h) Indebtedness of any Restricted Subsidiary to the Company;
(i) Prior to December 31, 2000, Indebtedness of the Company or any
Restricted Subsidiary not to exceed, at any one time outstanding, two times
(A) the Net Cash Proceeds received by the Company
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after the date of the Indenture as a capital contribution or from the
issuance and sale of its Qualified Capital Stock to a Person that is not a
Subsidiary of the Company, to the extent such Net Cash Proceeds have not
been used pursuant to clause (a)(3)(B) or clauses (b)(ii) and (iii) of the
"Limitation on Restricted Payments" covenant to make a Restricted Payment
and (B) 80% of the fair market value of property (other than cash and Cash
Equivalents) received by the Company after the date of the Indenture as a
contribution of capital or from the sale of its Qualified Capital Stock to
a person that is not a Subsidiary of the Company, to the extent such
capital contribution or sale of Qualified Capital Stock has not been used
pursuant to clause (a)(3)(B) of the "Limitation on Restricted Payments"
covenant to make a Restricted Payment; provided that such Indebtedness does
not mature prior to the Stated Maturity of the Notes and has an Average
Life longer than the Notes;
(j) Indebtedness of the Company or any Restricted Subsidiary under one
or more commercial bank facilities outstanding at any time in an aggregate
principal amount not to exceed $70.0 million plus the greater of (x) 80% of
the accounts receivable of the Company or (y) $30.0 million; and
(k) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing") of any
Indebtedness of the Company (including all or any part of the Notes) or any
Restricted Subsidiary by the Company, or any refinancing of any
Indebtedness of any Restricted Subsidiary by such Restricted Subsidiary,
other than Indebtedness incurred pursuant to clauses (b) through (f) and
(h) through (j) of this definition, including any successive refinancings,
so long as (i) any such new Indebtedness shall be in a principal amount
that does not exceed the principal amount (or, if such Indebtedness being
refinanced provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) so refinanced, plus the amount of
any premium reasonably determined as necessary to accomplish such
refinancing and the amount of expenses of the Company incurred in
connection with such refinancing, (ii) in the case of any refinancing of
Subordinated Indebtedness, such new Indebtedness is made subordinate to the
Notes at least to the same extent as the Indebtedness being refinanced,
(iii) in the case of any refinancing of Indebtedness that is pari passu in
right of payment with the Notes, such new Indebtedness is made pari passu
in right of payment with, or subordinate in right of payment to, the Notes
and (iv) (A) if such indebtedness being refinanced has an Average Life
longer than the Average Life of the Notes, such new Indebtedness has an
Average Life longer than the Average Life of the Notes and a final Stated
Maturity later than the final Stated Maturity of the Notes and (B) if such
Indebtedness being refinanced has an Average Life shorter than the Average
Life of the Notes, such Indebtedness has an Average Life longer than, and a
Final Stated Maturity Date later than, such Indebtedness being so
refinanced.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) Investments by the Company or any Restricted Subsidiary in another
Person, if as a result of such Investment (i) such other Person becomes a
Restricted Subsidiary and the Company or another Restricted Subsidiary owns
at least 66 2/3% of the outstanding Voting Stock of such other Person or
(ii) such other Person is merged or consolidated with or into, or transfers
or conveys all or substantially all of its assets to, the Company or a
Restricted Subsidiary;
(d) Investments by the Company or any Restricted Subsidiary in any
Person engaged in the delivery of telephony or other telecommunications or
data transmission services in North America, the sum of which does not
exceed $20.0 million at any one time outstanding; or
(e) Investments in existence on the date of the Indenture.
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"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of the issuance of the Notes;
(b) Liens on any property or assets of a Subsidiary granted in favor
of the Company or any Restricted Subsidiary;
(c) Liens securing the Notes;
(d) any interest or title of a lessor under any Capitalized Lease
Obligation or of a seller under any Purchase Money Indebtedness permitted
by the Indenture;
(e) Liens securing Indebtedness incurred under clause (j) of the
definition of "Permitted Indebtedness";
(f) statutory Liens or landlord's and carrier's, warehouseman's,
mechanic's, supplier's, materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate proceeding,
if a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor;
(h) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like
nature (including, without limitation, indefeasible rights to use) incurred
in the ordinary course of business (other than contracts for the payment of
money);
(i) easements, servitudes, rights-of-way, restrictions (including,
without limitation, zoning restrictions) and other similar charges or
encumbrances not interfering in any material respect with the business of
the Company or any Subsidiary incurred in the ordinary course of business;
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(k) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or any Subsidiary; provided that such Lien does not extend
to any property or assets of the Company or any Subsidiary other than the
assets acquired in connection with the incurrence of such Acquired
Indebtedness;
(l) Liens securing Interest Rate Agreements or Currency Agreements
permitted to be incurred pursuant to clause (e) of the definition of
"Permitted Indebtedness" or any collateral for the Indebtedness to which
such Interest Rate Agreements or Currency Agreements relate;
(m) Liens arising from purchase money mortgages and purchase money
security interests; provided that (i) the related Indebtedness shall not be
secured by any property or assets of the Company or any Subsidiary other
than the property and assets so acquired and (ii) the Lien securing such
Indebtedness shall be created within 60 days of such acquisition;
(n) Liens with respect to assets of a Restricted Subsidiary granted by
such Restricted Subsidiary to the Company or a Restricted Subsidiary to
secure Indebtedness owing to the Company or such Restricted Subsidiary;
(o) pledges and deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of statutory obligations; and
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(p) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (o); provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Permitted Telecommunications Asset Sale" means any transfer, conveyance,
sale, lease or other disposition of a capital asset that is a Telecommunications
Asset, the proceeds of which are treated as revenues (including deferred
revenues) by the Company in accordance with GAAP.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated) of such
Person's preferred or preference stock whether now outstanding, or issued after
the Original Issue Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiaries incurred at any time within 270 days of, and for the
purpose of financing all or any part of the cost of, the construction,
expansion, installation, acquisition or improvement by the Company or any
Restricted Subsidiary of the Company of any new Telecommunications Assets or not
less than 66 2/3 percent of the outstanding Voting Stock of a Person that
becomes a Restricted Subsidiary the assets of which consist primarily of
Telecommunications Assets constructed, expanded, installed, acquired or improved
after the date of the Indenture; provided that the proceeds of such Indebtedness
are expended for such purposes within such 270-day period; and provided,
further, that the Net Cash Proceeds from the issuance of such Indebtedness does
not exceed, as of the date of incurrence of such Indebtedness, 100% of the
lesser of cost or fair market value of such Telecommunication Assets.
"Public Equity Offering" means an underwritten public offering or flotation
of Common Stock of the Company which has been registered under the Securities
Act.
"Qualified Capital Stock" of any person means any and all Capital Stock of
such person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the Notes or is redeemable at the option of the holder
thereof at any time prior to such final Stated Maturity, or is convertible into
or exchangeable for debt securities at any time prior to such final Stated
Maturity; provided that any Capital Stock that would not constitute Redeemable
Capital Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes shall not constitute Redeemable Capital Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable in any material respect to the holders of such
Capital Stock than the provisions contained in "Limitation on Asset Sales" and
"Repurchase of Notes upon a Change of Control" covenants are to the holders of
the Notes, and such Capital Stock specifically provides that such Person will
not repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant to
the "Limitation on Asset Sales" and "Repurchase of Notes upon a Change of
Control" covenants.
"Restricted Subsidiary" means the Existing Subsidiaries and any Subsidiary
that is not designated an Unrestricted Subsidiary by the Board of Directors.
"S&P" means Standard and Poor's Ratings Services, a division of
McGraw-Hill, Inc., and its successors.
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"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its subsidiaries, (i) for the most
recent fiscal year of the Company accounted for more than 10% of the
consolidated revenues of the Company and the Restricted Subsidiaries, (ii) as of
the end of such fiscal year, was the owner of more than 10% of the consolidated
assets of the Company and the Restricted Subsidiaries, in each case as set forth
on the most recently available consolidated financial statements of the Company
and the Restricted Subsidiaries for such fiscal year, or (iii) owns one or more
licenses or concessions to provide telecommunications or data transmission
services in the United States.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means any Person a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by the Company or
by one or more other Subsidiaries or by the Company and one or more other
Subsidiaries.
"Tax" is defined to mean any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" is defined to mean any government or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"Telecommunications Assets" means, with respect to any Person, all assets,
rights (contractual or otherwise) and properties, whether tangible or
intangible, used or intended for use in connection with a Telecommunications
Business; provided that such assets are accounted for as "property, plant and
equipment" on the Company's consolidated balance sheet in accordance with GAAP.
"Telecommunications Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, (ii) constructing, creating, developing
or marketing communications related network equipment, software and other
devices for use in a telecommunications business or (iii) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in clause (i) or (ii) above; provided that the
determination of what constitutes a Telecommunications Business shall be made in
good faith by the board of directors of the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended.
"U.S. Government Securities" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency of instrumentality of the United States of
America (x) the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or (y) that are rated at
least "Aaa" (or the then equivalent grade) by Moody's or "AAA" (or the then
equivalent grade) by S&P.
"United States Dollar Equivalent" means, with respect to any monetary
amount in a currency other than the United States dollar, at any time for the
determination thereof, the amount of United States dollars obtained by
converting such foreign currency involved in such computation into United States
dollars at the spot rate for the purchase of United States dollars with the
applicable foreign currency as quoted by Reuters at approximately 11:00 a.m.
(New York City time) on the date not more than two business days prior to such
determination. For purposes of determining whether any Indebtedness can be
incurred (including Permitted Indebtedness), any Investment can be made and any
transaction described in the "Limitation on Transactions with Affiliates"
covenant can be undertaken (a "Tested Transaction"), the "United States Dollar
Equivalent" of such Indebtedness, Investment or transaction described in the
"Limitation on Transactions with Affiliates"
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covenant will be determined on the date incurred, made or undertaken and no
subsequent change in the United States Dollar Equivalent shall cause such Tested
Transaction to have been incurred, made or undertaken in violation of the
Indenture.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors, as provided below) and (b) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither the Company nor any other Subsidiary is directly or
indirectly liable for or provides credit support for or guarantees any
Indebtedness of such Subsidiary, (ii) no default with respect to any
Indebtedness of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Indebtedness of the Company or any other
Subsidiary to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity, (iii) any
Investment in such Subsidiary made as result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of the "Limitation on
Investments in Unrestricted Subsidiaries" covenant, (iv) neither the Company nor
any other Subsidiary has a contract, agreement, arrangement, understanding or
obligation of any kind, whether written or oral, with such Subsidiary other than
those that might be obtained at the time from persons who are not Affiliates of
the Company and (v) neither the Company nor any other Subsidiary has any
obligation (1) to subscribe for additional shares of Capital Stock or other
equity interest in such Subsidiary or (2) to maintain or preserve such
Subsidiary's financial condition or to cause such Subsidiary to achieve certain
levels of operating results. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing a board resolution with the Trustee
giving effect to such designation. The Board of Directors may designate any
Unrestricted Subsidiary as a Restricted Subsidiary if, immediately after giving
effect to such designation, there would be no Default or Event of Default under
the Indenture and the Company could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the "Limitation on Indebtedness"
covenant. In no event shall the Existing Subsidiaries be designated as
Unrestricted Subsidiaries.
"Voting Stock" means, with respect to any Person, any class or classes of
Capital Stock pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not,
at the time, stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency).
"Wholly Owned" means, with respect to any Subsidiary, such Subsidiary if
all the outstanding Capital Stock of such Subsidiary (other than any directors'
qualifying shares) is owned directly by the Company or by the Company and one or
more Wholly Owned Restricted Subsidiaries.
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DESCRIPTION OF THE WARRANTS
In connection with the Private Offering, the Company issued Warrants to
purchase 3,926,560 shares of Common Stock. Upon the effectiveness of the
Registration Statement of which this Prospectus is a part, the Notes and the
Warrants will be separately transferable, in accordance with any applicable
restrictions on transferability thereof as provided by the respective terms
thereof. The following is a description of the Warrants.
GENERAL
The Warrants were issued under a Warrant Agreement dated as of February 23,
1998 (the "Warrant Agreement") between the Company, as issuer, and The Bank of
New York, as Warrant Agent (the "Warrant Agent"). The following summary of
certain provisions of the Warrants and the Warrant Agreement does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
all the provisions of the Warrants and the Warrant Agreement, including the
definitions of certain terms contained therein. The Warrant Agreement has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part, and copies of such Agreement are available upon request from the Company
or the Warrant Agent. For definitions of certain capitalized terms used in this
summary, see "-- Certain Definitions" below.
Each Warrant entitles the registered holder thereof, subject to and upon
compliance with the provisions thereof and of the Warrant Agreement, at such
holder's option, after the Exercisability Date and prior to 5:00 P.M., New York
City time, on March 1, 2008 (the "Expiration Date") to purchase from the Company
1.552 shares of Common Stock at an exercise price (the "Exercise Price") of
$0.01 per share of Common Stock issuable upon exercise of the Warrants (the
"Warrant Shares") (both the Exercise Price and securities issuable upon exercise
of the Warrants being subject to adjustments as provided in the Warrant
Agreement). Each Warrant may be exercised on any business day on or after the
Exercisability Date and on or prior to the Expiration Date. Any Warrant not
exercised before the close of business on the Expiration Date shall become void,
and all rights of the holder under the Warrant Certificate evidencing such
Warrant and under the Warrant Agreement shall cease.
EXERCISE
Warrants may be exercised by surrendering the Warrant Certificate
evidencing such Warrants with the form of election to purchase shares of Common
Stock set forth on the reverse side thereof duly completed and executed by the
holder thereof and by paying in full the Exercise Price for such Warrants at the
office or agency in The City of New York maintained for such purposes (which
will initially be the corporate trust office of the Warrant Agent located at 101
Barclay Street, New York, New York 10286).
Each Warrant may only be exercised in whole and the Exercise Price may be
paid in full, at the option of the holder (i) in cash or by certified or
official bank check, (ii) by a Cashless Exercise or (iii) by any combination of
(i) and (ii). For purposes of the Warrant Agreement, a "Cashless Exercise" will
mean an exercise of a Warrant in accordance with the immediately following two
sentences. To effect a Cashless Exercise, the holder may exercise a Warrant or
Warrants without payment of the Exercise Price in cash by surrendering such
Warrant or Warrants (represented by one or more Warrant Certificates) and, in
exchange therefor, receiving such number of shares of Common Stock equal to the
product of (1) the number of shares of Common Stock for which such Warrant or
Warrants are exercisable and which would be issuable in the event of an exercise
with payment in cash of the Exercise Price and (2) the Cashless Exercise Ratio
(as defined below). For purposes of the Warrant Agreement, the "Cashless
Exercise Ratio" will equal a fraction, the numerator of which is the excess of
the Current Market Value (calculated as set forth in the Warrant Agreement) per
share of Common Stock on the date of exercise over the Exercise Price per share
of Common Stock as of the date of exercise, and the denominator of which is the
Current Market Value per share of the Common Stock on the date of exercise. Upon
surrender of a Warrant Certificate representing more than one Warrant in
connection with a holder's option to elect a Cashless Exercise, such holder must
specify the number of Warrants for which such Warrant Certificate is to be
exercised (without giving effect to such Cashless Exercise). All provisions of
the Warrant Agreement shall be applicable with respect to a Cashless
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Exercise of a Warrant Certificate for less than the full number of Warrants
represented thereby. No payment or adjustment shall be made on account of any
dividends on the Common Stock issued upon exercise of a Warrant.
If the Company has not effected the registration under the Securities Act
of the offer and sale of the Warrant Shares by the Company to the holders of the
Warrants on or prior to the Exercise Date (as defined below), the Company may
elect to require that holders of the Warrants effect the exercise of the
Warrants solely pursuant to the Cashless Exercise option and may also amend the
Warrants to eliminate the requirement for payment of the Exercise Price with
respect to such Cashless Exercise option.
The Company will, as soon as practicable after the occurrence of an
Exercise Event (as defined below), send to each holder of Warrants and to each
beneficial owner of the Warrants to the extent that the Warrants are held of
record by a depository or other agent, by first-class mail, at the addresses
appearing on the Warrant Register, a notice of the Exercise Event which has
occurred, which notice shall describe the type of Exercise Event, the date of
the occurrence thereof and the date of expiration of the right to exercise the
Warrants prominently set forth on the face of such notice.
Subject to the terms of the Warrant Agreement, the Warrant Certificates
evidencing the Warrants may be surrendered for exercise or exchange, and the
transfer of Warrant Certificates will be registerable, at the office or agency
of the Company maintained for such purpose, which initially will be the
corporate trust office of the Warrant Agent in New York, New York. The Warrant
Certificates will be issued either in global form or in registered form as
definitive Warrant Certificates. No service charge will be made for any
exercise, exchange or registration of transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
DISTRIBUTION RIGHTS; ADJUSTMENT TO EXERCISE RATE; MERGER OR CONSOLIDATION
In general, holders of Warrants are not entitled, by virtue of being such
holders, to receive notice of any meetings of shareholders or otherwise have any
right of shareholders of the Company. However, if at any time after the
Exercisability Date, the Company grants, issues or sells options, convertible
securities, or rights to purchase stock, warrants or other securities pro rata
to the record holders of Common Stock ("Distribution Rights") or, without
duplication, makes any dividend or otherwise makes any distribution, including
(subject to applicable law) pursuant to any plan of liquidation
("Distribution"), on the Common Stock (whether in cash, property, evidences of
indebtedness or otherwise), then the Company shall grant, issue, sell or make to
each registered holder of Warrants then outstanding the aggregate Distribution
Rights or Distribution, as the case may be, which such holder would have
acquired if such holder had held the maximum number of shares of Common Stock
acquirable upon complete exercise of such holder's Warrants (regardless of
whether the Warrants are then exercisable and without giving effect to the
Cashless Exercise option) immediately before the record date for the grant,
issuance or sale of such Distribution Rights or Distribution, as the case may
be, or, if there is no such record date, the date as of which the record holders
of shares of Common Stock are to be determined for the grant, issue or sale of
such Distribution Rights or Distribution, as the case may be.
The number of Warrant Shares issuable upon exercise of a Warrant (the
"Exercise Rate") is subject to adjustment from time to time upon the occurrence
of certain events occurring after the Original Issue Date of the Notes,
including (a) certain dividends or distributions on shares of Common Stock
payable in shares of Common Stock or certain other Capital Stock of the Company,
(b) subdivisions, combinations or certain reclassifications of shares of Common
Stock and (c) sales by the Company of shares of Common Stock or of securities
convertible into or exchangeable or exercisable for shares of Common Stock to an
Affiliate (other than a wholly owned subsidiary) of the Company at a price below
the then Current Market Value (other than (1) pursuant to the exercise of the
Warrants, (2) pursuant to any security convertible into, or exchangeable or
exercisable for, shares of Common Stock outstanding as of the Original Issue
Date, (3) upon the conversion, exchange or exercise of any convertible,
exchangeable or exercisable security as to which the issuance thereof has
previously been the subject of any required adjustment pursuant to the Warrant
Agreement and (4) upon the conversion, exchange or exercise of convertible,
exchangeable or exercisable securities of the Company outstanding on the
Original Issue Date (to the extent in accordance with the terms of such
securities as in
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effect on such date)). Notwithstanding the foregoing, no adjustment in the
Exercise Rate will be required upon the conversion, exchange or exercise of
options to acquire shares of Common Stock by officers, directors or employees of
the Company; provided that the exercise price of such options, at the time of
issuance thereof, is at least equal to the then Current Market Value of the
Common Stock underlying such options.
If the Company, in a single transaction or through a series of related
transactions, consolidates with or merges with or into any other person or
sells, assigns, transfers, leases, conveys or otherwise disposes of all or
substantially all of its properties and assets to another person or group of
affiliated persons or is a party to a merger or binding share exchange which
reclassifies or changes its outstanding Common Stock (a "Fundamental
Transaction"), as a condition to consummating any such transaction the person
formed by or surviving any such consolidation or merger if other than the
Company or the person to whom such transfer has been made (the "Surviving
Person") shall enter into a supplemental warrant agreement. The supplemental
warrant agreement shall provide (a) that the holder of a Warrant then
outstanding may exercise it for the kind and amount of securities, cash or other
assets which such holder would have received immediately after the Fundamental
Transaction if such holder had exercised the Warrant immediately before the
effective date of the transaction (regardless of whether the Warrants were then
exercisable and without giving effect to the Cashless Exercise option), assuming
(to the extent applicable) that such holder (i) was not a constituent person or
an affiliate of a constituent person to such transaction, (ii) made no election
with respect thereto and (iii) was treated alike with the plurality of
non-electing holders, and (b) that the Surviving Person shall succeed to and be
substituted for every right and obligation of the Company in respect of the
Warrant Agreement and the Warrants. The Surviving Person shall mail to holders
of Warrants at the addresses appearing on the Warrant Register a notice briefly
describing the supplemental warrant agreement. If the issuer of securities
deliverable upon exercise of Warrants is an affiliate of the Surviving Person,
that issuer shall join in the supplemental warrant agreement.
Notwithstanding the foregoing, if the Company enters into a Fundamental
Transaction with another person (other than a subsidiary of the Company) and
consideration is payable to holders of the shares of Capital Stock (or other
securities or property) issuable or deliverable upon exercise of the Warrants
that are exercisable in exchange for such shares in connection with such
Fundamental Transaction which consists solely of cash, then the holders of
Warrants shall be entitled to receive distributions on the date of such event on
an equal basis with holders of such shares (or other securities issuable upon
exercise of the Warrants) as if the Warrants had been exercised immediately
prior to such event, less the Exercise Price therefor. Upon receipt of such
payment, if any, the rights of a holder of a Warrant shall terminate and cease
and such holder's Warrants shall expire.
In the event of a taxable distribution to holders of Common Stock which
results in an adjustment to the number of shares of Common Stock or other
consideration for which such a Warrant may be exercised, the holders of the
Warrants may, in certain circumstances, be deemed to have received a
distribution subject to United States federal income tax as a dividend. See
"Certain Federal Income Tax Considerations."
Fractional shares of Common Stock are not required to be issued upon
exercise of Warrants, but in lieu thereof the Company will pay a cash
adjustment, except in limited circumstances.
The Warrant Agreement permits, with certain exceptions, the amendment
thereof and the terms of the Warrants and the modification of rights and
obligations of the Company and the rights of the holders of Warrant Certificates
under the Warrant Agreement at any time by the Company and the Warrant Agent
with the consent of the Requisite Warrant Holders (as defined below).
CERTAIN COVENANTS
The Company has agreed not to make an Initial Public Equity Offering of any
class of Capital Stock (other than the class of Capital Stock into which the
Warrants are exercisable) without adopting any amendments to the terms of the
Company's Articles of Incorporation that may be necessary to provide that the
Warrant Shares are convertible into such class of Capital Stock on a
share-for-share or other equitable basis and that the rights, conditions and
privileges attaching to such class of Capital Stock are not adverse to holders
of the Warrant Shares.
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The Company has also agreed to comply with all applicable laws, including
the Securities Act and any applicable state securities laws, in connection with
the offer and sale of Common Stock (and other securities and property
deliverable) upon exercise of the Warrants.
CERTAIN DEFINITIONS
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other equivalents
(however designated and whether voting or non-voting) of, such person's capital
stock, and any rights (other than debt securities convertible into capital
stock), warrants or options exchangeable for or convertible into such capital
stock whether outstanding on the Original Issue Date or issued after the
Original Issue Date.
"Common Stock" is defined in the Warrant Agreement to include the Company's
Common Stock, par value $0.01 per share, and any other class or series of common
equity equivalent shares of the Company hereafter created.
"Convertible Preferred Stock" means any securities convertible or
exercisable or exchangeable into Common Stock, whether outstanding on the
Closing Date or thereafter issued.
"Current Market Value" per share of Common Stock or any other security at
any date means (i) if the security is not registered under the Exchange Act, (a)
the value of the security, determined in good faith by the Board of Directors of
the Company and certified in a board resolution, based on the most recently
completed arms-length transaction between the Company and a person other than an
Affiliate of the Company and the closing of which occurs on such date or shall
have occurred within the six-month period preceding such date, or (b) if no such
transaction shall have occurred on such date or within such six-month period,
the fair market value of the security as determined by a nationally or
regionally recognized independent financial expert (provided that, in the case
of the calculation of Current Market Value for determining the cash value of
fractional shares, any such determination within six months that is, in the good
faith judgment of the Board, a reasonable determination of value, may be
utilized) or (ii) (a) if the security is registered under the Exchange Act, the
average of the daily closing sales prices of the securities for the 20
consecutive trading days immediately preceding such date, or (b) if the security
has been registered under the Exchange Act for less than 20 consecutive trading
days before such date, then the average of the daily closing sales prices for
all of the trading days before such date for which closing sales prices are
available, in the case of each of (ii)(a) and (ii)(b), as certified to the
Warrant Agent by the President, any Vice President or the Chief Financial
Officer of the Company. The closing sales price for each such trading day shall
be: (A) in the case of a security listed or admitted to trading on any United
States national securities exchange or quotation system, the closing sales
price, regular way, on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, (B) in the case of a
security not then listed or admitted to trading on any national securities
exchange or quotation system, the last reported sale price on such day, or if no
sale takes place on such day, the average of the closing bid and asked prices on
such day, as reported by a reputable quotation source designated by the Company,
(C) in the case of a security not then listed or admitted to trading on any
national securities exchange or quotation system and as to which no such
reported sale price or bid and asked prices are available, the average of the
reported high bid and low asked prices on such day, as reported by a reputable
quotation service, or a newspaper of general circulation in the Borough of
Manhattan, The City and State of New York, customarily published on each
business day, designated by the Company, or, if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as so
reported, on the most recent day (not more than 30 days prior to the date in
question) for which prices have been so reported and (D) if there are not bid
and asked prices reported during the 30 days prior to the date in question, the
Current Market Value shall be determined as if the securities were not
registered under the Exchange Act.
"Exercisability Date" is defined in the Warrant Agreement as the first day
on or after the Separability Date on which there shall have occurred an Exercise
Event.
"Exercise Date" means the date when the Warrant Certificate evidencing
Warrants to be exercised and payment in full of the aggregate Exercise Price are
received by the Warrant Agent at or prior to 11:00 a.m. (5:00 p.m. in the event
of exercise on the Expiration Date), New York City time, on a Business Day.
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"Exercise Event" means the date of the occurrence of the earliest of: (i)
the time immediately prior to the occurrence of a Change of Control (as defined
in the Indenture; see "Description of the Notes -- Certain Definitions"),
(ii)(a) the 180th day (or such earlier date as determined by the Company in its
sole discretion) following, the closing of an Initial Public Equity Offering (as
defined) or (b) upon the closing of an Initial Public Equity Offering but only
in respect of Warrants, if any, required to be exercised to permit the holders
thereof to sell Warrant Shares pursuant to their respective registration rights,
(iii) a class of equity securities of the Company is listed on a national
securities exchange or authorized for quotation on the Nasdaq National Market or
is otherwise subject to registration under the Exchange Act, or (iv) September
1, 1999.
"Initial Public Equity Offering" means a primary public offering (whether
or not underwritten, but excluding any offering pursuant to Form S-8 under the
Securities Act or any other publicly registered offering pursuant to the
Securities Act pertaining to an issuance of Common Stock or securities
exercisable therefor under any benefit plan, employee compensation plan, or
employee or director stock purchase plan) of Common Stock pursuant to an
effective registration statement under the Securities Act.
"Registrable Securities" means any of (i) the Common Stock issued and
issuable upon exercise of the Warrants and (ii) any other securities issued or
issuable with respect to the Warrants or Warrant Shares by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the offering of such
securities by the holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of by such holder
pursuant to such registration statement, (b) such securities have been sold to
the public pursuant to, or are eligible for sale to the public without volume or
manner of sale restrictions under, Rule 144(k) (or any similar provision then in
force, but not Rule 144A) promulgated under the Securities Act, (c) such
securities shall have been otherwise transferred and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent and subsequent disposition of
such securities shall not require registration or qualification under the
Securities Act or any similar state law then in force, or (d) such securities
shall have ceased to be outstanding.
"Requisite Warrant Holders" means (i) in the case of any amendment,
modification, supplement or waiver affecting only Warrant Holders as such,
holders of a majority in number of the outstanding Warrants, voting separately
as a class, or (ii) in the case of any amendment, modification, supplement or
waiver affecting Warrant Holders, a majority in number of Warrant Shares
represented by the Warrants that would be issuable assuming exercise thereof at
the time such amendment, modification, supplement or waiver is voted upon.
"Triggering Date" means the date of the consummation of a bona fide
underwritten public offering of Common Stock, as a result of which at least 20%
of the outstanding shares of Common Stock are listed on a United States national
securities exchange or the Nasdaq National Market.
REGISTRATION AND OTHER RIGHTS RELATING TO THE WARRANT SHARES
The Company, the Initial Purchasers and, to the limited extent set forth
therein, the Permitted Holders entered into the Warrant Registration Rights
Agreement, which provides that the holders of Warrants and Registrable
Securities have registration rights and other rights and obligations with
respect to the Warrants and Registrable Securities. The following summary of the
material provisions of the Warrant Registration Rights Agreement does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Warrant Registration Rights
Agreement. The Warrant Registration Rights Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part, and
copies of such Agreement are available upon request from the Company or the
Warrant Agent.
Registration Rights. After the occurrence of an Exercise Event, the
holders of a number of Warrants, Warrant Shares and Registrable Securities (the
"Subject Equity") equivalent to at least a majority of the outstanding Subject
Equity will be entitled to require the Company to effect two registrations
(each, a "Demand Registration") under the Securities Act of the Subject Equity,
subject to certain limitations. Within 20 days after the receipt of such demand,
the Company will (a) notify the holders of all Subject Equity that a
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demand registration has been requested, (b) prepare, file and use its best
efforts to cause to become effective under the Securities Act within 150 days of
such demand a registration statement in respect of all of the Subject Equity
which holders request, no later than 30 days after the date of such notice, to
have included therein (the "Included Securities"); provided that if such demand
occurs during the "lock up" or "black out" period (not to exceed 180 days)
imposed on the Company pursuant to or in connection with any underwriting or
purchase agreement relating to an underwritten Rule 144A or registered public
offering of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock, the Company shall not be required to so notify
holders of Subject Equity and file such demand registration statement prior to
the end of such "lock up" or "black out" period, in which event the Company will
use its best efforts to cause such Demand Registration statement to become
effective no later than the later of (i) 150 days after such demand or (ii) 30
days after the end of such "lock up" or "black out" period, and (c) keep such
registration statement continuously effective for the shorter of (i) 60 days
(the "Effectiveness Period") and (ii) such period of time as all of the Subject
Equity included in such registration statement shall have been sold thereunder;
provided further that the Company may postpone the filing of, or suspend the
effectiveness of, any registration statement or amendment thereto, suspend the
use of any prospectus and shall not be required to amend or supplement the
registration statement, any related prospectus or any document incorporated
therein by reference (other than an effective registration statement being used
for an underwritten offering) in the event that and for a period (a "Suspension
Period") not to exceed an aggregate of 90 days with respect to any Demand
Registration if (i) an event or circumstance occurs and is continuing as a
result of which the registration statement, any related prospectus or any
document incorporated therein by reference as then amended or supplemented or
proposed to be filed would, in the Company's good faith judgement, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (ii)(A) the Company determines in its
good faith judgement that the disclosure of such an event at such time would
have a material adverse effect on the business, operations or prospects of the
Company or (B) the disclosure otherwise relates to a material business
transaction which has not yet been publicly disclosed; provided further that if,
after a Demand Registration has become effective, the offering of Subject Equity
pursuant thereto is or becomes the subject of any stop order, injunction or
other order or requirement of the Commission or similar governmental, judicial
or administrative order or requirement, and such Demand Registration has not
become effective within a reasonable time period thereafter, such Demand
Registration will be deemed not to have been effected; provided further that the
Effectiveness Period shall be extended by the number of days in any Suspension
Period. In the event of any "lock up" or "black out" period in any underwriting
or purchase agreement, the Company will so notify the holders of Registrable
Securities. Under the Warrant Registration Rights Agreement, a Warrant holder is
obligated to keep confidential the existence of a Suspension Period or any
confidential information communicated by the Company to the Warrant holder with
respect thereto. Notwithstanding the foregoing, in lieu of filing and causing to
become effective a Demand Registration, the Company may satisfy its obligation
with respect to such Demand Registration by making and consummating (or having
its designee make and consummate) an offer to purchase all Subject Equity at a
price at least equal to Current Market Value (as defined in the Warrant
Agreement, but without the inclusion of clause (i)(a) thereof) less any
applicable Exercise Price.
Holders of Registrable Securities also have the right to include such
Registrable Securities in any registration statement under the Securities Act
filed by the Company for its own account or for the account of any of its
securityholders covering the sale of Common Stock (other than (a) a registration
statement on Form S-4 or S-8 or (b) a registration statement filed in connection
with an offer of securities solely to existing securityholders or (c) a Demand
Registration) for sale on the same terms and conditions as the securities of the
Company or any other selling securityholder included therein (a "Piggy-Back
Registration"). In the case of a Piggy-Back Registration, the number of
Registrable Securities requested to be included therein is subject to pro rata
reduction to the extent that the Company is advised by the managing underwriter,
if any, therefor that the total number or type of Registrable Securities and
other securities proposed to be included therein pursuant to similar piggyback
registration rights of other holders is such as to materially and adversely
affect the success of the offering; provided that securities included pursuant
to other holders' demand registration rights are not to be included in any such
reduction. The provisions in the preceding paragraph relating to the
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effect of a Suspension Period and the imposition of any "lock-up" or "black-out"
period on a related registration statement will also apply to such holder upon
exercise of Piggy-Back Registration Rights.
If the Company has complied with all its obligations under the Warrant
Registration Rights Agreement with respect to a Demand Registration or a
Piggy-Back Registration relating to an underwritten public offering, all holders
of Warrants and Registrable Securities, upon request of the lead managing
underwriter with respect to such underwritten public offering, will be required
to not sell or otherwise dispose of any Warrant or Registrable Security owned by
them for a period not to exceed 30 days prior to or 180 days after the
consummation of such underwritten public offering.
The Warrant Registration Rights Agreement includes customary covenants on
the part of the Company and will provide that the Company will indemnify the
holders of Registrable Securities included in any registration statement and any
underwriter with respect thereto against certain liabilities, including
liabilities under the Securities Act.
Each holder of Warrants that sells such Warrants or Registrable Securities
pursuant to a Demand Registration generally may be required to be named as a
selling securityholder in the related prospectus and to deliver a prospectus to
the purchaser, will be subject to certain of the civil liability provisions
under the Securities Act in connection with such sales and will be bound by
certain provisions of the Warrant Registration Rights Agreement which are
applicable to such holder (including certain indemnification obligations). In
addition, each holder of Warrants will be required to deliver information to be
used in connection with any such registration in order to have its Warrants or
Registrable Securities included in such registration.
Tag-Along Rights. Prior to the Triggering Date, each of the holders of
Subject Equity shall have the right (the "Tag-Along Right") to require the
proposed purchaser (as defined below) to purchase from each of them all Subject
Equity owned by such holder in the event of any proposed direct or indirect sale
or other disposition (collectively, a "Transfer") of Common Stock or Convertible
Preferred Stock (whether now or hereafter issued) to any person or persons (such
other person or persons being hereinafter referred to as the "proposed
purchaser") by any Permitted Holders or any of their Affiliates in any
transaction or a series of related transactions resulting in a Change of
Control. Any Subject Equity purchased from the holders pursuant to such
provisions shall be paid for in the same type of consideration and at the same
price per share of Common Stock and upon the same terms and conditions of such
proposed transfer of Common Stock by any Permitted Holders or any of their
Affiliates; except that the price per Warrant to be paid by the proposed
purchaser shall be less the exercise price of such Warrant per share. If the
Subject Equity to be purchased includes securities or property other than Common
Stock, the price to be paid for such securities or property shall be the same
price per share or other denomination paid by the proposed purchaser for like
securities purchased from any Permitted Holder or any of its Affiliates or, if
like securities are not purchased from any Permitted Holder or any of its
Affiliates, the fair market value of such securities determined by a nationally
or regionally recognized investment banking firm selected by the Company.
Each Permitted Holder shall notify, or cause to be notified, each holder of
Subject Equity and in writing of each such proposed Transfer at least 30 days
prior to the date thereof. Such notice shall set forth: (a) the name and address
of the proposed purchaser and the number of shares of Common Stock and other
securities, if any, proposed to be transferred, (b) the proposed amount of
consideration and terms and conditions of payment offered by such proposed
purchaser (if the proposed consideration is not cash, the notice shall describe
the terms of the proposed consideration) and (c) that either the proposed
purchaser has been informed of the Tag-Along Right and has agreed to purchase
Subject Equity in accordance with the terms of the Warrant Registration Rights
Agreement or that the Permitted Holder or any of its Affiliates will make such
purchase. The Tag-Along Right may be exercised by any holder of Subject Equity
by delivery of a written notice to the Company (the "Tag-Along Notice"), within
10 days following such holder's receipt of the notice specified in the preceding
sentence. The Tag-Along Notice shall state the amount of Subject Equity that
such holder proposes to include in such transfer to the proposed purchaser
determined as aforesaid. Failure to provide a Tag-Along Notice within the 10 day
notice period shall be deemed to constitute an election by such holder not to
exercise its Tag-Along Rights.
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In the event that the proposed purchaser does not purchase Subject Equity
entitled to be transferred as described above on the same terms and conditions
as purchased from the Permitted Holders or any of their Affiliates, then the
Permitted Holders or their Affiliates shall purchase such Subject Equity if the
Transfer occurs. If any Subject Equity is being sold by a Warrant Holder
pursuant to the Tag-Along Right under the Warrant Registration Rights Agreement,
upon the occurrence of a Change of Control triggered by the sale of Common Stock
by a Permitted Holder, the other Permitted Holder will have the right to
purchase up to 50% of such Subject Equity.
Drag-Along Rights. If at any time prior to an Initial Public Equity
Offering, any Permitted Holders or any of their respective Affiliates determines
to sell all of the Capital Stock of the Company owned by them to a person other
than a Permitted Holder or its Affiliate in a transaction resulting in a Change
of Control, the transferring Permitted Holder (whether directly or through an
Affiliate) shall have the right (the "Drag-Along Right") to require the holders
of Subject Equity to sell such Subject Equity to such transferee; provided that
(a) the consideration to be received by the holders of Subject Equity shall be
the same type of consideration received by the Permitted Holders and their
Affiliates and, in any event, shall be cash or freely transferable marketable
securities, and (b) after giving effect to such transaction, the Permitted
Holder making the transfers and its Affiliates shall not own, directly or
indirectly, any capital stock or rights to purchase capital stock of the
Company. Any Warrants and/or Registrable Securities purchased from the holders
thereof pursuant to such provision shall be paid for at the same price per share
of Common Stock and upon the same terms and conditions of such proposed transfer
of Common Stock by the Permitted Holders and their Affiliates. The price per
Warrant to be paid by the proposed purchaser shall be less the exercise price of
such Warrant per share. If the Subject Equity to be purchased includes
securities other than Common Stock, the price to be paid for such securities
shall be the same price per share or other denomination paid by the proposed
purchaser for like securities purchased from the Permitted Holders and their
Affiliates or, if like securities are not purchased from the Permitted Holders
and their Affiliates, the fair market value of such securities determined by a
nationally or regionally recognized investment banking firm selected by the
Company.
If any Subject Equity is being sold by a Warrant Holder pursuant to the
Drag-Along Right under the Warrant Registration Rights Agreement, upon the
occurrence of a Change of Control triggered by the sale of Common Stock by a
Permitted Holder, the other Permitted Holder will have the right to purchase up
to 50% of such Subject Equity.
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the Exchange Notes will be issued in fully
registered form without interest coupons. Exchange Notes issued in exchange for
Private Notes sold in offshore transactions in reliance on Regulation S under
the Securities Act will be represented by one or more global Notes in
definitive, fully registered form without interest coupons (each a "Regulation S
Global Note").
Exchange Notes issued in exchange for Private Notes sold in reliance on
Rule 144A will be represented by one or more permanent global Notes (each a
"Registered Global Note" and, together with the Regulation S Global Note, the
"Global Notes") in definitive, fully registered form and, without interest
coupons and will be deposited with the Trustee or as custodian for The
Depository Trust Company (the "Depositary"), and registered in the name of the
Depositary or of a nominee of the Depositary.
Upon issuance of the Global Note, the Depositary will credit, on its
internal system, the respective amounts of the individual beneficial interests
in the Global Note as applicable, to persons who have accounts with the
Depositary ("Participants"). Such accounts initially will be designated by or on
behalf of the Initial Purchasers. Ownership of beneficial interests in the
Global Note will be shown on, and the transfer of such beneficial interests will
be effected only through, records maintained by the Depositary or its nominee
(with respect to interests of Participants) and the records of Participants
(with respect to interests of persons other than Participants). Qualified
Institutional Buyers may hold their interests in the Global Note directly
through the Depositary if they are Participants, or indirectly through
organizations which are Participants.
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Investors may hold their interests in a Regulation S Global Note directly
through Cedel Bank or Euroclear, if they are participants in such systems, or
indirectly through organizations that are participants in such system. Investors
may also hold such interests through organizations other than Cedel Bank or
Euroclear that are participants in the DTC system. Cedel Bank and Euroclear will
hold interests in the Regulation S Global Note on behalf of their participants
through DTC.
So long as the Depositary, or its nominee, is the registered owner or
holder of the Global Note, the Depositary or such nominee, as the case may be,
will be considered the sole owner and holder of the Notes represented by such
Global Note for all purposes under the Indenture and the Notes. Accordingly,
beneficial owners of an interest in the Global Note must rely on the procedures
of the Depositary and, if such person is not a Participant, on the procedures of
the Participant through which such person owns its interest, to exercise any
rights and fulfill any obligations of a holder under the Indenture. No
beneficial owner of an interest in the Global Note will be able to transfer such
interest except in accordance with the Depositary's procedures, in addition to
those provided for under the Indenture.
Payments of the principal of or premium, if any, and interest on the Global
Notes will be made to the Depositary or its nominee, as the case may be, as the
registered owner thereof. None of the Company, the Trustee, or any paying agent
under the Indenture will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in the Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary or its nominee, upon receipt of any
payment of the principal of, premium and interest on (or additional interest in
respect of) the Global Note will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount at maturity of such Global Note as shown on the records of the Depositary
or its nominee. The Company also expects that payments by Participants to owners
of beneficial interests in the Global Note held through such Participants will
be governed by standing instructions and customary practice as is now the case
with securities held for the accounts of customers registered in the names of
nominees for such customers. Such payments will be the responsibility of such
Participants.
Transfers between Participants in the Depositary will be effected in the
ordinary way through the Depositary's same-day funds system in accordance with
the Depositary rules and will be settled in federal funds. Transfers between
participants in Euroclear and Cedel Bank will be effected in the ordinary way in
accordance with their respective rules and operating procedures. If a holder
requires physical delivery of a Certificated Security for any reason, including
to sell Notes to persons in states which require physical delivery of the Notes
or to pledge such securities, such holder must transfer its interest in the
Global Note in accordance with the normal procedures of the Depositary and with
the procedures set forth in the Indenture.
The Depositary has advised the Company that the Depositary will take any
action permitted to be taken by a holder of Notes (including the presentation of
Notes for exchange as described below) only at the direction of one or more
Participants to whose account the Depositary interests in the applicable Global
Securities are credited and only in respect of such portion of the aggregate
principal amount at maturity of Notes as to which such Participant or
Participants has or have given such direction. However, if there is an Event of
Default under the Indenture, the Depositary will exchange the Global
Certificates for the applicable Certificated Securities, which it will
distribute to its Participants.
The Depositary has advised the Company as follows: the Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of New York Banking Law, a member of
the Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depositary was created to
hold securities for its Participants and facilitate the clearance and settlement
of securities transactions between Participants through electronic book-entry
changes in accounts of its Participants, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations and certain other
organizations. Indirect access to the DTC system is available to others such as
banks, brokers,
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dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("Indirect
Participants").
Although DTC and its Participants have agreed to the foregoing procedures
in order to facilitate transfers of interests in the Global Note among
Participants and participants of Euroclear and Cedel Bank, they are under no
obligation to perform such procedures, and such procedures may be discontinued
at any time. Neither the Company nor the Trustee, or any paying agent will have
any responsibility for the performance by the Depositary, Euroclear or Cedel
Bank or their respective participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Except as set forth below, each of the Exchange Notes will be issued in the
form of one or more Global Notes. Owners of beneficial interests in the Global
Note will be entitled to receive Notes in definitive form ("Definitive Notes")
if the Depositary is at any time unwilling or unable to continue as, or ceases
to be, a "Clearing Agency" registered under Section 17A of the Exchange Act, and
a successor to the Depositary registered as a "Clearing Agency" under Section
17A of the Exchange Act is not appointed by the Company within 90 days. Any
Definitive Notes issued in exchange for beneficial interests in the Global Note
will be registered in such name or names as the Depositary shall instruct the
Trustee. It is expected that such instructions will be based upon directions
received by the Depositary from Participants with respect to ownership of
beneficial interests in the Global Note.
In addition to the foregoing, on or after the occurrence of an Event of
Default under the Indenture, owners of beneficial interests in the Global Note
will be entitled to request and receive Definitive Notes. Such Definitive Notes
will be registered in such name or names as the Depositary shall instruct the
Trustee.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion describes the material United States federal
income tax consequences of an exchange of Private Notes for Exchange Notes and
the ownership of Private Notes, as well as certain potential federal income tax
consequences to the Company with respect to the Notes. This summary is based on
current provisions of the U.S. Internal Revenue Code of 1986, as amended (the
"Code"), applicable final, temporary and proposed Treasury Regulations
("Treasury Regulations"), judicial authority, and current administrative rulings
and pronouncements of the Internal Revenue Service (the "Service") and upon the
facts concerning the Company as of the date hereof. There can be no assurance
that the Service will not take a contrary view, and no ruling from the Service
has been or will be sought by the Company. Legislative, judicial, or
administrative changes or interpretations may be forthcoming that could alter or
modify the statements and conclusions set forth herein. Any such changes or
interpretations may or may not be retroactive and could affect the tax
consequences to holders.
This summary does not purport to deal with all aspects of taxation that may
be relevant to particular holders of the Notes in light of their personal
investment or tax circumstances, or to certain types of investors (including
individual retirement accounts and other tax deferred accounts, insurance
companies, financial institutions, broker-dealers or tax-exempt organizations)
subject to special treatment under the U.S. federal income tax laws. This
discussion does not deal with special tax situations, such as the holding of the
Notes as part of a straddle with other investments, or situations in which the
functional currency of a holder is not the U.S. dollar. In addition, this
discussion deals only with Notes held by initial purchasers that hold such Notes
as capital assets within the meaning of Section 1221 of the Code.
For purposes of this discussion, the term "U.S. Holder" means a citizen or
resident of the U.S., a corporation, limited liability company or partnership
created or organized in the U.S. or under the law of the U.S. or any state
thereof (including the District of Columbia), an estate the income of which is
includible in gross income for U.S. federal income tax purposes regardless of
its source, or a trust if a court within the U.S. is able to exercise primary
supervision over the administration of the trust and one or more U.S. persons
have the authority to control all substantial decisions of the trust (or, under
certain circumstances, a trust the income of which is includible in gross income
for U.S. federal income tax purposes regardless of its source). The term
"Non-U.S. Holder" means any person other than a U.S. Holder.
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THE FOLLOWING DISCUSSION IS FOR GENERAL INFORMATION ONLY. THE TAX TREATMENT MAY
VARY DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT
THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF
PURCHASING, HOLDING AND DISPOSING OF THE NOTES INCLUDING THE APPLICABILITY AND
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF PRIVATE NOTES
There will be no federal income tax consequences to holders exchanging
Private Notes for Exchange Notes pursuant to the Exchange Offer since the
Exchange Offer will be by operation of the original terms of the Private Notes,
pursuant to a unilateral act by the Company, and will not result in any material
alteration in the terms of the Private Notes. Each exchanging holder will have
the same adjusted tax basis and holding period in the Exchange Notes as it had
in the Private Notes immediately before the exchange.
THE NOTES
Under applicable authorities, the Notes should be treated as indebtedness
for U.S. federal income tax purposes. In the unlikely event the Notes are
treated as equity, the amount of any actual or constructive distributions on any
such Note would first be taxable to the holder as dividend income to the extent
of the issuer's current and accumulated earnings and profits, and next would be
treated as a return of capital to the extent of the holder's tax basis in the
Note, with any remaining amount treated as gain from the sale of a Note.
Further, payments on the Notes treated as equity to Non-U.S. Holders would not
be eligible for the portfolio interest exception from U.S. withholding tax, and
dividends thereon would be subject to U.S. withholding tax at a flat rate of 30%
(or lower applicable treaty rate) and gain from their sale or other taxable
disposition might also be subject to U.S. tax. See "-- Non-U.S. Holders." In
addition, in the event of equity treatment, the Company would not be entitled to
deduct interest on the Notes for U.S. federal income tax purposes. The remainder
of this discussion assumes that the Notes will constitute indebtedness of the
Company for such tax purposes.
ORIGINAL ISSUE DISCOUNT
General. The Notes will be issued with original issue discount ("OID"), and
each U.S. Holder will be required to include in income (regardless of whether
such U.S. Holder is a cash or accrual basis taxpayer) in each taxable year, in
advance of the receipt of corresponding cash payments on such Notes, that
portion of the OID, computed on a constant yield basis, attributable to each day
during such year on which the U.S. Holder held the Notes. See " -- Taxation of
Original Issue Discount."
The amount of OID with respect to each Note will be equal to the excess of
(i) its "stated redemption price at maturity" over (ii) its issue price. Under
the OID Regulations, the "stated redemption price at maturity" of each Note will
include all payments to be made in respect thereof, including any stated
interest payments, other than "qualified stated interest." Payments of qualified
stated interest are payments of interest which are unconditionally payable in
cash or property (other than debt instruments of the issuer) at least annually
at a qualifying rate, including a single fixed rate. Since no actual cash
payments will be made in respect of the Notes until March 1, 2003, no interest
payments on the Notes will constitute "qualified stated interest."
Taxation of Original Issue Discount. A U.S. Holder of a debt instrument
issued with OID is required to include in gross income for U.S. federal income
tax purposes an amount equal to the sum of the "daily portions" of such OID for
all days during the taxable year on which the holder holds the debt instrument.
The daily portions of OID required to be included in a holder's gross income in
a taxable year will be determined upon a constant-yield basis by allocating to
each day during the taxable year on which the holder holds the debt instrument a
pro-rata portion of the OID on such debt instrument which is attributable to the
"accrual period" in which such day is included. Accrual periods with respect to
a Note may be of any length and may vary in length over the term of the Note as
long as (i) no accrual period is longer than one year and (ii) each scheduled
payment of interest or principal on the Note occurs on either the final or first
day of an accrual
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period. The amount of the OID attributable to each "accrual period" will be the
product of the "adjusted issue price" at the beginning of such accrual period
and the "yield to maturity" of the debt instrument (stated in a manner
appropriately taking into account the length of the accrual period). The "yield
to maturity" is the discount rate that, when used in computing the present value
of all payments to be made under the Notes, produces an amount equal to the
issue price of the Notes. The "adjusted issue price" of a debt instrument at the
beginning of an accrual period is defined generally as the issue price of the
debt instrument plus the aggregate amount of OID that accrued in all prior
accrual periods, less any cash payments on the debt instrument. Accordingly, a
U.S. Holder of a Note will be required to include OID in gross income for U.S.
federal income tax purposes in advance of the receipt of cash in respect of such
income. The amount of OID allocable to an initial short accrual period may be
computed using any reasonable method if all other accrual periods, other than a
final short accrual period, are of equal length. The amount of OID allocable to
the final accrual period at maturity of the Note is the difference between (x)
the amount payable at the maturity of the Note, and (y) the Note's adjusted
issue price as of the beginning of the final accrual period.
Effect of Mandatory and Optional Redemptions on OID. In the event of a
Change of Control, the Company will be required to offer to redeem all of the
Notes at redemption prices specified elsewhere herein. In the event that the
Company receives net proceeds from one or more Equity Offerings, the Company
may, at any time prior to March 1, 2001, use all or a portion of such net
proceeds to redeem the Notes in amounts and at redemption prices specified
elsewhere herein. Under the OID Regulations, computation of yield and maturity
of the Notes is not affected by such redemption rights and obligations if, based
on all the facts and circumstances as of the issue date, the potential
occurrence of such contingencies is remote. The Company has determined that,
based on all of the facts and circumstances that are expected to exist as of the
issue date, the possibility that a Change of Control or an optional redemption
by the Company will occur is remote and, as a result, the stated payment
schedule of the Notes must not be adjusted for such contingencies.
The Company may redeem the Notes, in whole or in part, at any time on or
after March 1, 2003, at redemption prices specified elsewhere herein, plus
accrued and unpaid interest to the date of redemption. The OID Regulations
contain rules for determining the "maturity date" and the stated redemption
price at maturity of an instrument that may be redeemed prior to its stated
maturity date at the option of the issuer. Under the OID Regulations, solely for
purposes of the accrual of OID, it is assumed that the issuer will exercise any
option to redeem a debt instrument if such exercise will lower the
yield-to-maturity of the debt instrument. The Company anticipates that it will
not be presumed to redeem the Notes prior to their stated maturity under the
foregoing rules because the exercise of such option would not lower the
yield-to-maturity of the Notes.
APPLICABLE HIGH YIELD DISCOUNT OBLIGATIONS
The Notes are "applicable high yield discount obligations" ("AHYDOs"), as
defined in the Code, and the following rules will apply. Under the rules
applicable to AHYDOs, a portion of the OID that accrues on the Notes will not be
deductible by the Company at any time. The non-deductible portion of the OID
will be an amount that bears the same ratio to such OID as (i) the excess of the
yield to maturity of the Notes over the applicable federal rate in effect under
Section 1274(d) of the Code plus six percentage points bears to (ii) the yield
to maturity of the Notes. To the extent that the non-deductible portion of OID
would have been treated as a dividend if it had been distributed with respect to
the Company's stock, it will be treated as a dividend to holders of the Notes
for purposes of the rules relating to the dividends received deduction for
corporate holders. Any remaining OID on the Notes will not be deductible by the
Company until such OID is paid.
MARKET DISCOUNT, ACQUISITION PREMIUM
If a U.S. Holder acquires a Note for an amount that is less than its
revised issue price (generally, adjusted issue price at the time of
acquisition), the amount of the difference will be treated as "market discount,"
unless such difference is less than a specified de minimis amount. Under the
market discount rules of the Code, a U.S. Holder will be required to treat any
principal payment on, or any gain on the sale,
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exchange, retirement or other disposition (including a gift) of, a Note as
ordinary income to the extent of any accrued market discount that has not
previously been included in income. Market discount generally accrues on a
straight-line basis over the remaining term of the Note, unless the U.S. Holder
elects to accrue market discount on a constant interest method. A U.S. Holder
may not be allowed to deduct immediately all or a portion of the interest
expense on any indebtedness incurred or continued to purchase or to carry such
Note.
A U.S. Holder may elect to include market discount in income currently as
it accrues (either on a straight-line basis or, if the U.S. Holder so elects, on
a constant-yield basis), in which case the interest deferral rule set forth in
the preceding paragraph will not apply. Such an election will apply to all bonds
acquired by the U.S. Holder on or after the first day of the first taxable year
to which such election applies and may be revoked only with the consent of the
Service.
A U.S. Holder that acquires a Note for an amount that is greater than the
adjusted issue price of such Note but equal to or less than the sum of all
amounts payable on such Note after the purchase date will be considered to have
purchased such Note at an "acquisition premium." Under the acquisition premium
rules of the Code and the OID Regulations, the daily portion of OID which such
holder must include in its gross income with respect to such Note for any
taxable year will be reduced by an amount equal to the OID multiplied by a
fraction, the numerator of which is the amount of such acquisition premium and
the denominator of which is the OID remaining from the date the Note was
purchased to its maturity date.
SALE OR OTHER DISPOSITION
In general, upon the sale, exchange or redemption of a Note, a U.S. Holder
will recognize taxable gain or loss equal to the difference between (i) the
amount of cash proceeds and the fair market value of any property received on
the sale, exchange or redemption (not including any amount attributable to
accrued but unpaid interest) and (ii) the U.S. Holder's adjusted tax basis in
the Note. A U.S. Holder's adjusted tax basis in a Note generally will be equal
to the portion of the Unit purchase price allocable to such Note, increased by
the amount of any market discount or OID previously taken into income by the
U.S. Holder and reduced by the amount of any principal received by the U.S.
Holder.
Subject to the discussion of market discount above, gain or loss realized
on the sale, exchange or redemption of a Note will be capital gain or loss.
Capital gain recognized by individual U.S. Holders generally will be subject to
a maximum federal income tax rate of (i) 39.6% if the U.S. Holder held the Note
for not more than one year, (ii) 28% if the U.S. Holder held the Note for more
than one year but not more than eighteen months, and (iii) 20% if the U.S.
Holder held the Note for more than eighteen months (pending legislation, if
enacted, will eliminate the 18-month holding period, thereby applying the 20%
rate to the taxable sale of the Notes held for more than one year, effective for
taxable years ending after December 31, 1997). The distinction between capital
gain or loss and ordinary income or loss is also relevant for purposes of, among
other things, limitations with respect to the deductibility of capital losses.
An exchange of Notes pursuant to the Exchange Offer and the associated
redemption of the Notes by the Company in exchange for the Exchange Notes should
not be considered a taxable event.
NON-U.S. HOLDERS
In general, subject to the discussion below concerning backup withholding:
(a) payments of principal or interest (including OID) on the Notes by the
Company or any paying agent to a beneficial owner of a Note that is a Non-U.S.
Holder will not be subject to U.S. withholding tax, provided that, in the case
of interest or accrued OID, (i) such Non-U.S. Holder does not own, actually or
constructively, 10% or more of the total combined voting power of all classes of
stock of the Company entitled to vote, within the meaning of Section 871(h)(3)
of the Code, (ii) such Non-U.S. Holder is not a "controlled foreign corporation"
(within the meaning of the Code) that is related, directly or indirectly, to the
Company through stock ownership, (iii) such Non-U.S. Holder is not a bank
receiving interest described in Section 881(c)(3)(A) of the Code, and (iv) the
certification requirements under Section 871(h) or Section 881(c) of the Code
and Treasury Regulations thereunder (summarized below) are satisfied;
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(b) A Non-U.S. Holder of a Note will not be subject to U.S. income tax on
gains realized on the sale, exchange or other disposition of such Note, unless
(i) such Non-U.S. Holder is an individual who is present in the U.S. for 183
days or more in the taxable year of sale, exchange or other disposition, and
certain other conditions are met, (ii) such gain is effectively connected with
the conduct by the Non-U.S. Holder of a trade or business in the U.S. and, if
certain tax treaties apply, is attributable to a U.S. permanent establishment
maintained by the Non-U.S. Holder, or (iii) the Non-U.S. Holder is subject to
Code provisions applicable to certain U.S. expatriates;
(c) a Note held by an individual who is not a citizen or resident of the
U.S. at the time of his death will not be subject to U.S. estate tax as a result
of such individual's death, provided that, at the time of such individual's
death, the individual does not own, actually or constructively, 10% or more of
the total combined voting power of all classes of stock of the Company entitled
to vote and payments with respect to such Note would not have been effectively
connected with the conduct by such individual of a trade or business in the
U.S.; and
To satisfy the certification requirements referred to in (a)(iv) above,
Sections 871(h) and 881(c) of the Code and currently effective Treasury
Regulations thereunder require that either (i) the beneficial owner of a Note
must certify, under penalties of perjury, to the Company or its paying agent, as
the case may be, that such owner is a Non-U.S. Holder and must provide such
owner's name and address, and U.S. taxpayer identification number ("TIN"), if
any, or (ii) a securities clearing organization, bank or other financial
institution that holds customers securities in the ordinary course of its trade
or business (a "Financial Institution") and holds the Note on behalf of the
beneficial owner thereof must certify, under penalties of perjury, to the
Company or its paying agent, as the case may be, that such certificate has been
received from the beneficial owner and must furnish the payor with a copy
thereof. A certificate described in this paragraph is effective only with
respect to payments of interest made to the certifying Non-U.S. Holder after
delivery of the certificate in the calendar year of its delivery and the two
immediately succeeding calendar years. Under temporary Treasury Regulations,
such requirement will be fulfilled if the beneficial owner of a Note certifies
on IRS Form W-8, under penalties of perjury, that it is a Non-U.S. Holder and
provides its name and address, and any Financial Institution holding the Note on
behalf of the beneficial owner files a statement with the withholding agent to
the effect that it has received such a statement from the beneficial owner (and
furnishes the withholding agent with a copy thereof).
Treasury Regulations released on October 6, 1997 as modified by Notice
98-16 dated March 27, 1998 (the "New Regulations") and effective for payments
made after December 31, 1999, subject to certain transition rules, provide
alternative methods for satisfying the certification requirements described
above. The New Regulations require, in the case of Notes held by a foreign
partnership, that (i) the certification be provided by the partners rather than
by the foreign partnership and (ii) the partnership provide certain information,
including a U.S. taxpayer identification number. A look-through rule would apply
in the case of tiered partnerships.
If a Non-U.S. Holder of a Note is engaged in a trade or business in the
U.S. and if interest (including OID) on the Note, or gain realized on the sale,
exchange or other disposition of the Note, is effectively connected with the
conduct of such trade or business and, if certain tax treaties apply, is
attributable to a U.S. permanent establishment maintained by the Non-U.S. Holder
in the U.S., the Non-U.S. Holder, although exempt from U.S. withholding tax
(provided that the certification requirements discussed in the next sentence are
met), will generally be subject to regular U.S. income tax on such interest or
gain in the same manner as if it were a U.S. Holder. In lieu of the certificate
described above, such a Non-U.S. Holder will be required, under currently
effective Treasury Regulations, to provide the Company with a properly executed
IRS Form 4224 in order to claim an exemption from U.S. withholding tax. In
addition, if such Non-U.S. Holder is a foreign corporation, it may be subject to
a branch profits tax equal to 30% (or such lower rate provided by an applicable
treaty) of its effectively connected earnings and profits for the taxable year,
subject to certain adjustments. For purposes of the branch profits tax, interest
(including OID) on a Note and any gain recognized on the sale, exchange or other
disposition of a Note will be included in the earnings and profits of such
Non-U.S. Holder if such interest or gain is effectively connected with the
conduct by a Non-U.S. Holder of a trade or business in the U.S. The New
Regulations alter certain of the withholding reporting and
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certification requirements described above, effective for payments made after
December 31, 1999, subject to certain transition rules. In general, for payments
made after December 31, 1999, a Non-U.S. Holder with effectively connected
income must provide to the Company, either directly or through an intermediary,
a valid IRS Form W-8 to claim an exemption from withholding.
Dividends, if any, paid on Common Stock to a Non-U.S. Holder generally will
be subject to a 30% United States federal withholding tax, subject to reduction
for Non-U.S. Holders eligible for the benefits of certain income tax treaties,
or that qualify as being engaged in a trade or business in the U.S. and if any
dividends received are effectively connected with such trade or business (as
discussed above in connection with the treatment of a Non-U.S. Holder's receipt
of interest on the Notes). For purposes of determining whether tax is to be
withheld at a 30% rate or at a reduced rate as specified by an income tax
treaty, the Company ordinarily will presume that dividends paid to an address in
a foreign country are paid to a resident of such country absent knowledge that
such presumption is not warranted. For dividend payments after December 31,
1999, under the New Treasury Regulations, Non-U.S. Holders are required to
provide a valid Form W-8 to the Company in order to receive the benefit of a
reduced treaty rate. Common Stock owned or treated as owned by an individual who
is not a citizen or resident of the U.S. (as specially defined for United States
federal estate tax purposes) will be included in such individual's estate for
U.S. federal estate tax purposes unless an applicable estate tax treaty
otherwise applies.
In the unlikely event the Notes were treated as equity, the periodic
distributions received by a Non-U.S. Holder on the Notes would not qualify for
the portfolio interest exemption from United States federal income tax and would
instead be treated as dividends as described above.
Non-U.S. Holders should consult with their tax advisors regarding U.S. and
foreign tax consequences with respect to the Notes.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Backup withholding of U.S. federal income tax at a rate of 31% may apply to
payments made in respect of a Note to a holder that is not an "exempt recipient"
and that fails to provide certain identifying information (such as the holder's
TIN) in the manner required. Generally, individuals are not exempt recipients,
whereas corporations and certain other entities are exempt recipients. Payments
made in respect of a Note must be reported to the Service, unless the holder is
an exempt recipient or otherwise establishes an exemption.
In the case of payments of interest on a Note to a Non-U.S. Holder,
Treasury Regulations provide that backup withholding and information reporting
will not apply to payments with respect to which either requisite certification
has been received or an exemption has otherwise been established (provided that
neither the Company nor a paying agent has actual knowledge that the holder is a
U.S. Holder or that the conditions of any other exemption are not in fact
satisfied).
Payments of the proceeds of the sale of a Note to or through a foreign
office of a broker that is a U.S. person, a "controlled foreign corporation"
(within the meaning of the Code), or a foreign person, 50% or more of whose
gross income from all sources for the three-year period ending with the close of
its taxable year preceding the payment was effectively connected with the
conduct of a trade or business within the U.S., or (pursuant to the New
Regulations, for payments made after December 31, 1999) a foreign partnership
with certain U.S. connections, are currently subject to certain information
reporting requirements, unless the payee is an exempt recipient or such broker
has evidence in its records that the payee is a Non-U.S. Holder and has no
actual knowledge that such evidence is false and certain other conditions are
met. Temporary Treasury Regulations indicate that such payments are not
currently subject to backup withholding. Under current Treasury Regulations,
payments of the proceeds of a sale of a Note to or through the U.S. office of a
broker will be subject to information reporting and backup withholding unless
the payee certifies under penalties of perjury as to his or her status as a
Non-U.S. Holder and satisfies certain other qualifications (and no agent or
broker who is responsible for receiving or reviewing such statement has actual
knowledge that it is incorrect) and provides his or her name and address or the
payee otherwise establishes an exemption.
117
<PAGE> 119
Any amounts withheld under the backup withholding rules from a payment to a
holder of a Note generally will be allowed as a refund or credit against such
holder's U.S. federal income tax, provided that the required information is
timely furnished to the Service.
In general, the New Regulations do not significantly alter the current
substantive withholding and information reporting requirements but unify current
certification procedures and forms and clarify reliance standards. Under the New
Regulations, special rules apply which permit the shifting of primary
responsibility for withholding to certain financial intermediaries acting on
behalf of beneficial owners. A holder of a Note should consult with its tax
advisor regarding the application of the backup withholding rules to its
particular situation, the availability of an exemption therefrom, the procedure
for obtaining such an exemption, if available, and the impact of the New
Regulations on payments made with respect to Notes after December 31, 1999.
THE FOREGOING SUMMARY DOES NOT DISCUSS ALL ASPECTS OF UNITED STATES FEDERAL
INCOME TAXATION THAT MAY BE RELEVANT TO A PARTICULAR HOLDER OF NOTES IN LIGHT OF
ITS PARTICULAR CIRCUMSTANCES AND INCOME TAX SITUATION. PROSPECTIVE HOLDERS
SHOULD CONSULT THEIR OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF NOTES, INCLUDING THE APPLICATION
AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS
OF CHANGES IN UNITED STATES OR OTHER TAX LAWS.
118
<PAGE> 120
PLAN OF DISTRIBUTION
Based on interpretations by the staff of the Commission set forth in
no-action letters issued to third parties, the Company believes that the
Exchange Notes issued pursuant to the Exchange Offer in exchange for Private
Notes may be offered for resale, resold and otherwise transferred by any Holder
thereof (other than any such Holder which is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act), without compliance
with the registration and prospectus delivery provisions of the Securities Act,
provided that such Exchange Notes are acquired in the ordinary course of such
Holder's business and such Holder has no arrangement with any person to
participate in the distribution of such Exchange Notes. Accordingly, any Holder
using the Exchange Offer to participate in a distribution of the Exchange Notes
will not be able to rely on such no-action letters. Notwithstanding the
foregoing, each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with any resale of Exchange Notes received in
exchange for Private Notes where such Private Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that for a period of 120 days from the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will
deliver, and by delivering, a prospectus as required, a broker-dealer will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
For a period of 120 days from the Expiration Date, the Company will send a
reasonable number of additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company will pay all the expenses incident to
the Exchange Offer (which shall not include the expenses of any Holder in
connection with resales of the Exchange Notes). The Company has agreed to
indemnify the Initial Purchasers and any broker-dealers participating in the
Exchange Offer against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The validity of the Exchange Notes will be passed upon for the Company by
Bryan Cave LLP, St. Louis, Missouri.
EXPERTS
The consolidated financial statements of the Company as of June 30, 1996
and 1997 and for each of the three years in the period ended June 30, 1997
included in this Prospectus have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report appearing herein, and are
included in reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
119
<PAGE> 121
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
DTI HOLDINGS, INC. AND SUBSIDIARY
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report................................ F-2
Consolidated Balance Sheets as of June 30, 1996 and 1997.... F-3
Consolidated Statements of Operations for the years ended
June 30, 1995, 1996 and 1997.............................. F-4
Consolidated Statements of Stockholders' Deficit for the
years ended
June 30, 1995, 1996 and 1997.............................. F-5
Consolidated Statements of Cash Flows for the years ended
June 30, 1995, 1996 and 1997.............................. F-6
Notes to Consolidated Financial Statements.................. F-7
Consolidated Balance Sheet as of March 31, 1998
(unaudited)............................................... F-17
Consolidated Statements of Operations for the nine months
ended March 31, 1997 and 1998 (unaudited)................. F-18
Consolidated Statements of Cash Flows for the nine months
ended March 31, 1997 and 1998 (unaudited)................. F-19
Notes to Unaudited Consolidated Financial Statements........ F-20
</TABLE>
F-1
<PAGE> 122
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of DTI Holdings, Inc.:
We have audited the accompanying consolidated balance sheets of DTI
Holdings, Inc., and subsidiary (the "Company") as of June 30, 1996 and 1997 and
the related consolidated statements of operations, stockholders' deficit, and
cash flows for each of the three years in the period ended June 30, 1997. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of the Company as of June 30, 1996
and 1997 and the results of its operations and its cash flows for each of the
three years in the period ended June 30, 1997 in conformity with generally
accepted accounting principles.
Deloitte & Touche LLP
St. Louis, Missouri
September 10, 1997
(July 13, 1998
as to Notes 13 and 14)
F-2
<PAGE> 123
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
JUNE 30, 1996 AND 1997
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 817,391 $ 4,366,906
Restricted cash (Note 4).................................. 459,522 --
Accounts receivable, less allowance for doubtful accounts
of $-0- and $48,000.................................... 77,990 159,268
Prepayment of suppliers................................... 554,261 --
Prepaid and other current assets.......................... 25,725 23,764
----------- -----------
Total current assets................................. 1,934,889 4,549,938
Network and equipment, at cost less accumulated depreciation
of $479,467 and $1,235,640 (Note 3)....................... 13,064,169 34,000,634
Deferred tax asset.......................................... -- 1,214,331
Other assets................................................ 26,700 84,233
----------- -----------
Total................................................ $15,025,758 $39,849,136
=========== ===========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable.......................................... $ 1,658,836 $ 5,086,830
Notes payable (Note 4).................................... 6,500,000 --
Deferred revenues -- current portion (Note 7)............. 138,780 259,680
Interest payable (Note 4)................................. 118,796 --
Taxes payable (other than income taxes)................... -- 923,104
----------- -----------
Total current liabilities............................ 8,416,412 6,269,614
Deferred revenues (Note 7).................................. 6,595,948 9,420,224
----------- -----------
Total liabilities.................................... 15,012,360 15,689,838
Commitments and contingencies (Notes 10, 11, 12 and 13)
Redeemable Convertible Series A Preferred Stock -- $0.01 par
value, 30,000 shares authorized, 0 and 18,500 shares
issued and outstanding (Notes 5, 8, 13 and 14)............ -- 28,889,165
Common stock warrants (Note 4).............................. 1,114,101 --
Stockholders' deficit:
Preferred stock, $0.01 par value, 20,000,000 shares
authorized, no shares issued and outstanding (Note 5
and 14)................................................ -- --
Common stock, $0.01 par value, 50,000,000 and 100,000,000
shares authorized, 30,000,000 shares issued and
outstanding (Notes 6, 13 and 14)....................... 300,000 300,000
Common stock warrants (Note 6)............................ 450,000
Accumulated deficit....................................... (1,400,703) (5,479,867)
----------- -----------
Total stockholders' deficit.......................... (1,100,703) (4,729,867)
----------- -----------
Total....................................................... $15,025,758 $39,849,136
=========== ===========
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE> 124
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED JUNE 30, 1995, 1996 AND 1997
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
REVENUES:
Telecommunications services
Carrier's carrier services............................. -- $ 188,424 $ 807,347
End-user services...................................... $ 199,537 488,377 515,637
--------- ---------- -----------
199,537 676,801 1,322,984
Other services........................................... -- -- 711,006
--------- ---------- -----------
Total revenues...................................... 199,537 676,801 2,033,990
--------- ---------- -----------
OPERATING EXPENSES:
Telecommunications services............................ 165,723 296,912 847,190
Other services......................................... -- -- 364,495
Selling, general and administrative.................... 240,530 548,613 1,118,809
Depreciation and amortization.......................... 70,500 425,841 757,173
--------- ---------- -----------
Total operating expenses............................ 476,753 1,271,366 3,087,667
--------- ---------- -----------
Loss from operations................................ (277,216) (594,565) (1,053,677)
OTHER INCOME (EXPENSES):
Interest income........................................ 153,261 193,049 101,914
Interest expense....................................... (162,777) (384,859) (152,937)
Loan commitment fees (Note 6).......................... -- -- (784,500)
Equity in earnings of joint venture (Note 8)........... -- -- 37,436
--------- ---------- -----------
Loss before income tax benefit...................... (286,732) (786,375) (1,851,764)
--------- ---------- -----------
INCOME TAX BENEFIT (Note 9).............................. -- -- 1,214,331
--------- ---------- -----------
NET LOSS................................................. $(286,732) $ (786,375) $ (637,433)
========= ========== ===========
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE> 125
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF
STOCKHOLDERS' DEFICIT
YEARS ENDED JUNE 30, 1995, 1996 AND 1997
<TABLE>
<CAPTION>
RETAINED TOTAL
ADDITIONAL COMMON EARNINGS/ STOCKHOLDERS'
PREFERRED COMMON PAID-IN STOCK (ACCUMULATED EQUITY
STOCK STOCK CAPITAL WARRANTS DEFICIT) (DEFICIT)
--------- ------ ---------- -------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE, JULY 1, 1994....... $ -- $ -- $ -- $ -- $ 19,094 $ 19,094
Capital contribution (Note
6)..................... -- -- 30,000 -- 30,000
Net loss for the year..... -- -- -- -- (286,732) (286,732)
-------- -------- -------- -------- ----------- -----------
BALANCE, JUNE 30, 1995...... -- -- 30,000 -- (267,638) (237,638)
Issuance of common stock
(Notes 6 and 13)....... -- 300,000 (30,000) -- (269,970) 30
Accretion to put value of
common stock warrants
(Note 4)............... -- -- -- -- (76,720) (76,720)
Net loss for the year..... -- -- -- -- (786,375) (786,375)
-------- -------- -------- -------- ----------- -----------
BALANCE, JUNE 30, 1996...... -- 300,000 -- -- (1,400,703) (1,100,703)
Accretion/repurchase of
common stock warrants
(Note 4)............... -- -- -- -- (1,585,899) (1,585,899)
Accretion of redeemable
convertible preferred
stock to redemption
price (Note 5, 13 and
14).................... -- -- -- -- (1,855,832) (1,855,832)
Common stock warrants
(Note 6)............... -- -- -- 450,000 -- 450,000
Net loss for the year..... -- -- -- -- (637,433) (637,433)
-------- -------- -------- -------- ----------- -----------
BALANCE, JUNE 30, 1997...... $ -- $300,000 $ -- $450,000 $(5,479,867) $(4,729,867)
======== ======== ======== ======== =========== ===========
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE> 126
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED JUNE 30, 1995, 1996 AND 1997
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.......................................... $ (286,732) $ (786,375) $ (637,433)
Adjustments to reconcile net loss to cash provided
by operating activities
Depreciation and amortization................ 70,500 425,841 757,173
Deferred income taxes........................ -- -- (1,214,331)
Loan commitment fees related to common stock
warrants.................................. -- -- 450,000
Changes in assets and liabilities:
Accounts receivable....................... (17,250) (60,740) (81,278)
Prepayments to suppliers.................. (554,261) 554,261
Other assets.............................. (46,019) (15,980) (56,572)
Accounts payable.......................... 2,174,887 (516,051) 3,427,994
Other liabilities......................... 18,285 100,511 1,529,282
Deferred revenues......................... 4,990,213 1,706,765 2,945,176
------------ ----------- ------------
Net cash flows provided by operating activities..... 6,903,884 299,710 7,674,272
------------ ----------- ------------
Cash flows from investing activities:
Increase in network and equipment................. (6,804,176) (5,663,047) (19,876,595)
Change in restricted cash......................... (5,000,000) 4,540,478 459,522
------------ ----------- ------------
Net cash used in investing activities.......... (11,804,176) (1,122,569) (19,417,073)
------------ ----------- ------------
Cash flows from financing activities:
Proceeds from issuance of redeemable convertible
preferred stock; including cash from
contributed joint venture of $2,253,045........ -- -- 10,492,316
Proceeds from borrowings under notes payable...... 5,000,000 10,403,305 8,000,000
Principal payments on notes payable............... -- (8,903,305) (500,000)
Repurchase of common stock warrants granted to a
customer....................................... -- -- (2,700,000)
Proceeds from issuance of common stock............ -- 30 --
Capital contribution.............................. 30,000 -- --
------------ ----------- ------------
Net cash provided by financing activities...... 5,030,000 1,500,030 15,292,316
------------ ----------- ------------
Net increase in cash and cash equivalents........... 129,708 677,171 3,549,515
Cash and cash equivalents, beginning of period...... 10,512 140,220 817,391
------------ ----------- ------------
Cash and cash equivalents, end of period............ $ 140,220 $ 817,391 $ 4,366,906
============ =========== ============
Supplemental cash flow disclosures:
Cash paid for interest, net of amounts
capitalized.................................... $ 135,076 $ 474,017 $ 271,732
============ =========== ============
Supplemental disclosure of significant non-cash
activities
Consideration for issuance of redeemable
convertible preferred stock (Notes 5 and 8):
Outstanding principal of KLT Loan.............. $ -- $ -- $ 14,000,000
Accrued interest payable on KLT Loan........... -- -- 794,062
Assets of contributed joint venture............ -- -- 1,816,043
Liabilities assumed of contributed joint
venture...................................... -- -- 69,088
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE> 127
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED JUNE 30, 1995, 1996 AND 1997
1. DESCRIPTION OF BUSINESS
DTI Holdings, Inc. (the "Company" or "DTI") was incorporated in December
1997 as part of the reorganization of Digital Teleport, Inc., a wholly-owned
subsidiary of DTI ("Digital Teleport"). See Note 14. Digital Teleport was
incorporated in June 1989, and was certified as a telecommunications company in
Missouri by the Missouri Public Service Commission in 1992. DTI commenced
construction of its long-haul network in fiscal year 1995, following an
agreement with the Missouri Highway and Transportation Commission ("MHTC"),
which granted to DTI the exclusive right to build in the interstate highway
systems in Missouri. DTI is a facilities-based provider of non-switched
interexchange and local network telecommunications services to interexchange
carriers ("IXCs"), and business and governmental end users in Missouri. DTI's
network is designed to include high-capacity (i) interexchange long-haul routes
between the larger metropolitan areas in the region, (ii) local networks in such
larger metropolitan areas, and (iii) local networks in secondary and tertiary
markets located along the long-haul routes.
At June 30, 1997, activities were primarily located in the State of
Missouri providing interexchange end-user and carrier's carrier services.
Carrier's carrier services are provided through wholesale network capacity
agreements and IRU agreements. Wholesale network capacity agreements provide
carriers with virtual circuits or bandwidth capacity on DTI's network. The
carrier customer in a wholesale network capacity agreement does not have
exclusive use of any particular strand of fiber, but instead has the right to
transmit along a virtual circuit or a certain amount of bandwidth along DTI's
network. In an IRU agreement the Company grants indefeasable rights to use
specified strands of optical fiber (which are used exclusively by the carrier
customer), while the carrier customer is responsible for providing the
electronic equipment necessary to transmit communications along the fiber.
Prior to July 1, 1996, the Company was considered to be a development stage
enterprise focusing on developing its digital optic telecommunications network
and customer base. All of the Company's operations are subject to extensive
federal and state regulation.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION -- The consolidated financial statements as of
and for the year ended June 30, 1997 include the accounts of DTI and its wholly
owned subsidiary, Digital Teleport. In addition, the financial statements
include an entity acquired during the year ended June 30, 1997. The Company
previously held a 50% interest in this entity which was accounted for under the
equity method. The acquisition of the remaining 50% interest was accounted for
as a purchase. Accordingly, the purchase consideration was allocated to the
assets and liabilities acquired based on their fair values as of the date of
acquisition. All significant intercompany transactions and balances have been
eliminated.
CONCENTRATIONS OF RISK -- The Company currently operates in the
telecommunications industry within the State of Missouri. See Note 7 regarding
concentration of credit risk associated with deferred revenues and revenues.
Additionally, the Company is dependent upon single or limited source suppliers
for its source of fiber optic cable for a number of components and parts used in
its network.
MANAGEMENT ESTIMATES -- The preparation of financial statements in
conformity with generally accepted accounting principles requires that
management make certain estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements. The reported amounts of
revenues and expenses during the reporting period may also be affected by the
estimates and assumptions management is required to make. Actual results may
differ from those estimates.
REVENUES -- The Company recognizes revenue on telecommunication services in
the month such services are provided. Payments received in advance of services
under wholesale network capacity agreements are
F-7
<PAGE> 128
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
recorded as deferred revenue and recognized over the life of the service
contract as services are provided. Payments received in advance pursuant to IRU
agreements are recorded as deferred revenue and recognized over the terms of the
related agreements beginning upon completion of specific route segments. See
also Note 7. Other services revenue consists of work related to the design and
installation of innerduct for customers who are constructing fiber optic cable
facilities and is recognized under the completed contract method of accounting.
CASH AND CASH EQUIVALENTS -- The Company considers all highly liquid
investments with original maturities of three months or less to be cash
equivalents.
NETWORK AND EQUIPMENT -- Network and equipment are stated at cost. Costs of
construction are capitalized, including interest costs on funds borrowed to
finance the construction. Maintenance and repairs are charged to operations as
incurred. Depreciation is provided using the straight-line method over the
estimated useful lives of the assets as follows:
<TABLE>
<S> <C>
Fiber optical cable plant................................... 25 years
Fiber optic network buildings............................... 15 years
Leasehold improvements...................................... 15 years
Fiber optic terminal equipment.............................. 8 years
Furniture, office equipment and other....................... 5 years
</TABLE>
The carrying value of long-lived assets is periodically evaluated by
management for impairment. Upon indication of an impairment, the Company will
record a loss on its long-lived assets if the discounted cash flows estimated to
be generated by those assets are less than the related carrying amount of the
assets.
NEW ACCOUNTING STANDARDS -- In 1997, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards (SFAS) No. 130,
"Reporting Comprehensive Income," and SFAS No. 131, "Disclosures About Segments
of an Enterprise and Related Information." These statements, which are effective
for fiscal years beginning after December 15, 1997, expand or modify disclosures
and, the Company believes, will have no impact on the Company's consolidated
financial position, results of operations or cash flows.
INCOME TAXES -- The Company accounts for income taxes utilizing the
asset/liability method, and deferred taxes are determined based on the estimated
future tax effects of differences between the financial statement and tax bases
of assets and liabilities given the provisions of the enacted tax laws.
3. NETWORK AND EQUIPMENT
Network and equipment consists of the following as of June 30:
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Fiber optic cable plant............................. $11,058,172 $28,498,465
Fiber optic terminal equipment...................... 2,115,177 5,757,270
Fiber optic network buildings....................... 289,557 757,680
Leasehold improvements.............................. 5,651 131,611
Furniture, office equipment and other............... 75,079 91,248
----------- -----------
13,543,636 35,236,274
Less -- accumulated depreciation.................... 479,467 1,235,640
----------- -----------
$13,064,169 $34,000,634
=========== ===========
</TABLE>
At June 30, 1996 and 1997, fiber optic cable plant, fiber optic terminal
equipment and fiber optic network buildings include $6,421,234 and $19,027,585
of construction in progress, respectively, that was not in service
F-8
<PAGE> 129
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
and, accordingly, has not been depreciated. Also, during the years ended June
30, 1995, 1996 and 1997 $9,516, $1,227,149 and $562,750 of interest costs were
capitalized.
4. BORROWING ARRANGEMENTS
Effective April 30, 1996, and as subsequently amended, the Company entered
into a loan agreement with KLT Telecom Inc. ("KLT"), a wholly-owned subsidiary
of Kansas City Power and Light Company ("KCPL"), to provide borrowings for the
expansion of the Company's network not to exceed $14,000,000 bearing interest at
3% above the prime interest rate (the "KLT Loan"). At June 30, 1996, a total of
$6,000,000 had been borrowed under this facility. During 1997, an additional
$8,000,000 was borrowed, bringing the total amount of the KLT Loan to
$14,000,000. The outstanding principal of the KLT Loan, plus accrued interest,
was contributed as consideration under the Stock Purchase Agreement referred to
in Note 5.
In connection with the issuance of a $3,200,000 note payable to a major
customer effective February 20, 1996, approximately $1,037,000 of the proceeds
was allocated to a warrant which was also granted to the customer. The warrant
represented the right to purchase 5% of the common stock of the Company for a
nominal amount. The Company also received an amendment to the contract with the
major customer to provide an additional $1,200,000 in telecommunication services
and modify certain completion dates in the original contract. The note was paid
in full in April 1996. The carrying amount of the warrants was being accreted
from the date of issuance until February 1997, the initial date at which the
Company could have been required to repurchase the warrants for $1,250,000. In
February 1998, the Company, repurchased the warrant from the holder for the
amount of $2,700,000 which was stipulated in a repurchase right included in the
customer contract and available to the Company for the period from note issuance
through February 19, 1997.
During 1995, the Company entered into a Commercial Loan Revolving
Promissory Note Agreement (the "Agreement") with a lender to provide financing
for the acquisition and construction of fiber optic network, the purchase of
equipment related to the construction and operation of the network, and working
capital. At June 30, 1996, the Company had borrowings of $500,000 under the
Agreement which accrued interest at the lender's prime rate. The note was paid
in full in May 1997. Borrowings under this Agreement were collateralized by cash
equivalents that were maintained at the lender ("restricted cash") in the amount
of such borrowings and that earned interest at the lender's money market rate.
5. REDEEMABLE CONVERTIBLE SERIES A PREFERRED STOCK
During 1997, the Company amended its Articles of Incorporation to provide
for 50,000 authorized shares of preferred stock, $0.01 par value. On December
31, 1996, the Company entered into a Stock Purchase Agreement (the "Stock
Purchase Agreement") with KLT to sell 30,000 shares of redeemable convertible
preferred stock (designated "Series A Preferred Stock") for $45,000,000. At the
closing date of the Stock Purchase Agreement on March 12, 1997, 15,100 shares of
Series A Preferred Stock were issued to KLT with the remaining 14,900 shares of
Series A Preferred Stock to be issued as additional capital as required by the
Company upon twenty days notice by DTI to KLT and verification by DTI as to the
use of the monies pursuant to the terms of the Stock Purchase Agreement. The
consideration for the 15,100 shares of Series A Preferred Stock was calculated
as follows:
<TABLE>
<S> <C>
Outstanding principal of KLT Loan........................... $14,000,000
Accrued interest on the KLT Loan at March 11, 1997.......... 794,062
KLT investment in KCDT LLC (Note 8)......................... 4,000,000
Cash........................................................ 3,855,938
-----------
Total consideration for 15,100 shares of Series A
preferred stock...................................... 22,650,000
Less: transaction costs..................................... 716,667
-----------
Net consideration for 15,100 shares of Series A
preferred stock...................................... $21,933,333
===========
</TABLE>
F-9
<PAGE> 130
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Series A Preferred Stock shareholders are entitled to one common vote for
each share of common stock that would be issuable upon conversion of the Series
A Preferred Stock. Each share of Series A Preferred Stock is convertible into
one-thousand shares (after giving effect to the stock splits discussed in Note
13 and the Reorganization discussed in Note 14) of common stock (the "Conversion
Shares") under the terms of the Stock Purchase Agreement and is entitled to the
number of votes equal to the number of Conversion Shares into which such share
of Series A Preferred Stock is convertible with respect to any and all matters
presented to the shareholders of the Company for their action or consideration.
The Series A Preferred Stock shares will automatically convert into common stock
upon the sale of shares of common stock or debt securities of the Company in a
"qualified public offering" within the meaning of the Company's Articles of
Incorporation and subject to the satisfaction of certain net proceed dollar
thresholds. See also note 13. Series A Preferred Stock shareholders rank senior
to common shareholders in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company. Series A Preferred Stock shareholders
are entitled to receive such dividends as would be declared and paid on each
share of common stock. Each additional share of Series A Preferred Stock issued
will result in $150,000 of contributed capital.
Additionally, under the terms of the Certificate of Designation
establishing and governing the Series A Preferred Stock there are two different
redemption features. The first feature provides that commencing July 1, 1999, if
the Company has not met certain financial ratios, the Series A Preferred Stock
shareholders will have the option to require the Company to redeem all of the
shares of Series A Preferred Stock outstanding at the redemption price which is
calculated as a 25% internal rate of return on all amounts paid for the Series A
Preferred Stock. Accordingly, the Series A Preferred Stock is being accreted to
its redemption price. The second feature provides that from and after April 1,
1999, the Company will have the option to require the Series A Preferred Stock
shareholders to sell to the Company all of the shares of Series A Preferred
Stock outstanding at the redemption price as calculated above.
On June 27, 1997, an additional 3,400 shares of Series A Preferred Stock
were issued for a cash payment of $5,100,000. At June 30, 1997, Series A
Preferred Stock issued and outstanding was as follows:
<TABLE>
<S> <C>
Series A Preferred Stock, $0.01 par value, 30,000 shares
designated, 18,500 shares issued and outstanding.......... $ 185
Additional paid-in capital.................................. 27,033,148
Accumulated accretion to redemption price................... 1,855,832
-----------
Total carrying value................................... $28,889,165
===========
</TABLE>
In conjunction with the Stock Purchase Agreement, the Company entered into
a Shareholders' Agreement whereby the Series A Preferred Stock shareholders will
designate two of the four directors of the Company's Board of Directors.
See also Notes 13 and 14.
6. EQUITY TRANSACTIONS
As of June 30, 1995, the Company had authorized 30,000,000 shares of common
stock, par value $1.00 per share, and obtained contributed capital of $30,000.
In April 1996, the Company authorized 20,000,000 additional shares of common
stock, and changed the par value of the common stock to $.01 par value per
share. At such time the Company made its initial share issuance of 30,000,000
shares of common stock as "founder's shares" to the founder, President and Chief
Executive Officer of the Company. These shares were attributable to the initial
contributed services of the founder and his capital contribution of $30,000 in
1995. In February 1997, the Company authorized 50,000,000 additional shares of
common stock.
In connection with a loan commitment from a strategic third party lender
which became effective December 24, 1996, the Company agreed to issue a warrant
representing the right to purchase 1% of the common stock of the Company for
$0.01 per share. Effective December 31, 1996, the Company reached an agreement
with respect to the sale of its Series A Preferred Stock (see Note 5), and, as a
result, the
F-10
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DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
commitment from the strategic third party lender was terminated in January 1997.
Although the warrant had not been issued as of June 30, 1997, the consolidated
financial statements reflect the terms as determined by the Company.
Accordingly, the Company has recorded the fair value of this warrant as an
equity instrument and the related loan commitment fee as an expense. The fair
value of the warrant was determined based upon an independent valuation
utilizing the Black-Scholes method. The warrant is exercisable at the option of
the holder and expires in the year 2007. Also in connection with this
transaction, cash expenses consisting of legal and other fees of $334,500 were
incurred by the Company.
See also Note 13.
7. CUSTOMER CONTRACTS
The Company enters into telecommunication services and fiber usage
agreements with unrelated third parties whereby the Company will provide either
telecommunication services or indefeasible rights to use (IRUs) in multiple
fibers along certain routes for a minimum purchase price paid up front or over
the life of the contract. These amounts are then recognized over the terms of
the related agreements which range from 10 to 40 years on a straight line basis.
The Company has various contracts related to telecommunications services and
fiber usage comprising the following at June 30:
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Total contract amounts...................................... $16,445,250 $35,563,380
Less: future payments due under contracts................... 9,600,000 25,465,205
----------- -----------
Total amounts collected..................................... 6,845,250 10,098,175
Less: total amounts recognized as revenues.................. 110,522 418,271
----------- -----------
Deferred revenue............................................ 6,734,728 9,679,904
Less: current maturities.................................... 138,780 259,680
----------- -----------
$ 6,595,948 $ 9,420,224
=========== ===========
</TABLE>
The Company has substantial business relationships with several large
customers. Four customers accounted for 59%, 21%, 17% and 2% of deferred
revenues at June 30, 1997. Additionally, these four customers accounted for 21%,
10%, 13% and 56%, respectively, of amounts to be received per the customer
contracts.
During fiscal year 1997, the Company's three largest customers accounted
for 18%, 18% and 16% of telecommunications services revenue. During fiscal year
1996, the Company's three largest customers accounted for 47%, 21% and 10% of
telecommunications services revenue. During fiscal year 1995, one customer
accounted for 99% of end-user services revenue. The Company's contracts provide
for reduced payments and varying penalties for late delivery of route segments,
and allow the customers, after expiration of grace periods, to delete such
non-delivered segment from the system route to be delivered. A significant
reduction in the level of services the Company provides for any of these
customers could have a material adverse effect on the Company's results of
operations or financial condition. In addition, the Company's business plan
assumes increased revenue from its carrier's carrier services operations to fund
the expansion of the DTI network. Many of the Company's customer arrangements
are subject to termination and do not provide the Company with guarantees that
service quantities will be maintained at current levels. The Company is aware
that certain interexchange carriers are constructing or considering new
networks. Accordingly, there can be no assurance that any of the Company's
carrier's carrier services customers will increase their use of the Company's
services, or will not reduce or cease their use of the Company's services,
either of which could have a material adverse effect on the Company's ability to
fund the expansion of the DTI network.
F-11
<PAGE> 132
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. INVESTMENT IN JOINT VENTURE
Effective July 1996, the Company entered into an agreement with KLT to form
KCDT LLC ("KCDT") as a limited liability company for the purpose of financing,
establishing, constructing and maintaining a fiber-optic network communications
system ("System") within the Kansas City, Missouri metropolitan area. The
Company received a 50% interest in KCDT for its contribution of an indefeasible
right to use (IRU) the signal transmission capacity of certain optic fiber
strands within the System. KLT received a 50% interest in KCDT for its
contribution of access rights of utility right-of-ways in Kansas City and a
capital contribution not to exceed $5,000,000 in cash, as needed, for the
construction of the System or operations of KCDT.
As part of the Stock Purchase Agreement, which closed March 12, 1997 (Note
5), KLT contributed to the Company its ownership interest in KCDT which amounted
to $4,000,000. Assets and liabilities of the joint venture at the date of
contribution consisted of $2,253,045 in cash, $1,816,043 in network and
equipment and $69,088 in other liabilities, all of which assets and liabilities
were determined to approximate fair market value. This transaction was accounted
for as a purchase by the Company. Additionally, as of March 12, 1997, KCDT had
no operations in service. The only income earned by KCDT consisted of interest
income earned on bank deposits.
Prior to receipt of KLT's interest in KCDT, the Company accounted for its
investment in KCDT using the equity method. Equity in earnings of joint venture
represents the Company's 50% interest in the operations of KCDT under the equity
method. Upon receipt of KLT's interest in KCDT, operations of KCDT have been
consolidated with the Company's operations.
9. INCOME TAXES
The actual income tax expense for the years ended June 30, 1997, 1996 and
1995 differs from the "expected" income tax expense, computed by applying the
U.S. Federal corporate tax rate of 35% to income before income taxes as follows:
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Computed "expected" income tax benefit.................... $ 100,356 $ 275,231 $ 648,117
Change in valuation allowance............................. (103,368) (321,596) 424,964
Other -- net.............................................. 3,012 46,365 141,250
---------- --------- ----------
Income tax benefit................................... $ -- $ -- $1,214,331
========== ========= ==========
</TABLE>
Temporary differences which give rise to long-term deferred taxes as
reported on the balance sheet are as follows at June 30:
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Deferred tax assets:
Deferred revenues......................................... $ 346,672 $ 571,711
Net operating loss carryforward........................... 326,139 1,175,712
---------- ----------
Total deferred tax assets.............................. 672,811 1,747,423
Deferred tax liabilities -- accelerated depreciation........ (247,847) (533,092)
Valuation allowance......................................... (424,964)
---------- ----------
Net deferred tax assets................................ $ -- $1,214,331
========== ==========
</TABLE>
Even though the Company has incurred tax losses, management believes that
it is more likely than not that it will generate taxable income sufficient to
realize the tax benefit associated with future deductible temporary differences
and net operating loss carryforwards prior to their expiration. This belief is
based
F-12
<PAGE> 133
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
primarily upon changes in operations over the last year. As a result, the
Company reversed into income its valuation allowance of $424,964 which was
recorded at June 30, 1996. Tax net operating losses of approximately $3 million
expire in years 2010-2012 if not utilized in future income tax returns. The
availability of the loss carryforwards may be limited in the event of a
significant change in the ownership of the Company or its subsidiary.
10. OPERATING LEASES
The Company has operating leases for equipment and for office space. The
Company's headquarters is leased from the Company's President and Chief
Executive Officer in an amount of $75,000 per year for the term January 1, 1997
to December 31, 1997. Rent expense related to the headquarters for fiscal years
1995, 1996 and 1997 was $33,400, $15,405 and $49,897, respectively.
Additionally, equipment space is leased from various office buildings throughout
the Company's service areas. Minimum rental commitments under the above leases,
some of which contain renewal options and escalation clauses, are as follows:
<TABLE>
<S> <C>
Year ending June 30:
1998...................................................... $51,629
1999...................................................... 6,436
2000...................................................... 1,629
-------
Total................................................ $59,694
=======
</TABLE>
11. COMMITMENTS
HIGHWAY AND UTILITY RIGHTS-OF-WAY -- In July 1994, the Company entered into
an agreement with MHTC to install and maintain a buried fiber optic network
within the cable corridor along the federal interstate highway system in
Missouri. Under the terms of this agreement, MHTC will receive certain dedicated
dark and lighted fiber optic strands in the statewide system and the necessary
connections thereto and the Company, in turn, receives exclusive easements
within certain of MHTC's airspace for a forty year period. Pursuant to this
contract DTI is obligated to complete by December 31, 1998 construction of 1,200
miles of fiber cable along the Missouri interstate and state highway system. DTI
anticipates meeting this obligation and completing substantially all of its
currently planned network in Missouri by such date. The Company must complete
construction on an additional 800 miles by the end of 1999 to maintain its
exclusive rights to such routes. Additionally, the Company was required to post
a $250,000 performance and payment bond under the terms of this Agreement. In
August 1994, the sole stockholder of the Company entered into a letter of credit
with a lender in the amount of $250,000, in connection with this Agreement. The
Company's May 1997 agreement with the Department of Transportation of the State
of Arkansas grants to DTI the right, without obligation, to install its network
along 250 miles of the interstate and state highway systems in Arkansas, as well
as the right to expand its network onto additional routes in the future. DTI has
submitted a proposal to the Department of Transportation of the State of Kansas
to enter into an agreement providing for rights-of-way throughout the highway
system in metropolitan Kansas City in exchange for fiber. DTI also has a license
from KCPL granting it the right to use conduits, poles, ducts, manholes and
rights-of-way owned by KCPL to construct the DTI network in the Kansas City
metropolitan area. The Company will seek to obtain the rights-of-way that it
needs for the expansion of its network in areas where it will construct network
rather than purchase or swap fiber optic strands by entering into agreements
with other state highway departments and other governmental authorities,
utilities or pipeline companies and it may enter into joint ventures or other
"in-kind" transfers in order to obtain such rights. In addition, DTI may use
available public rights-of-way.
LICENSING AGREEMENTS -- The Company has entered into various licensing
agreements with municipalities throughout Missouri. Under the terms of these
agreements, the Company maintains certain performance bonds, totaling $350,000
in the aggregate, and minimum insurance levels. Such agreements generally have
F-13
<PAGE> 134
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
terms from 10 to 15 years and grant to the Company a non-exclusive license to
construct, operate, maintain and replace communications transmission lines for
its fiber optic cable system and other necessary appurtenances on public roads,
rights-of-way and easements within the municipality. In exchange for such
licenses, the Company generally provides to the municipality in-kind rights and
services (such as the right to use certain dedicated strands of optic fiber in
the DTI network within the municipality, interconnection services to the DTI
network within the municipality, and maintenance of the municipality's fibers),
or, less frequently, a nominal percentage of the gross revenues of the Company
for services provided within the municipality. In one instance, the Company is
obligated to make nominal annual cash payments for such rights based on linear
footage.
EMPLOYMENT AGREEMENTS -- DTI has employment agreements entered into during
fiscal year 1997 with certain senior management personnel. These agreements are
effective for various periods through December 31, 1999, unless terminated
earlier by the executive or DTI, and provide for annual salaries, cost-of-living
adjustments, additional compensation in the form of bonuses based on performance
of the executive, and participation in the various benefit plans of DTI. The
agreements contain certain benefits to the executive if DTI terminates the
executive's employment without cause or if the executive terminates his
employment as a result of change in ownership of DTI. DTI's remaining aggregate
commitments for salaries under such agreements at June 30, 1997 is approximately
$819,000. See also Note 13 regarding the Company's Long-Term Incentive Award
Plan and additional employment agreements.
SUPPLIER AGREEMENTS -- DTI's supplier agreements are with its major network
construction contractor and an equipment supplier.
PURCHASE COMMITMENTS -- DTI's remaining aggregate purchase commitment for
construction and equipment at June 30, 1997 is approximately $7,220,000.
12. CONTINGENCIES
On June 20, 1995, the Company and its President were named as defendants in
a suit which the plaintiff alleges that (i) the plaintiff entered into an oral
contract with the defendants pursuant to which the plaintiff was to receive a
percentage of the Company's common stock, (ii) the plaintiff provided services
to the Company for which the plaintiff was not and should be compensated, and
(iii) the defendants misrepresented certain facts to the plaintiff in order to
induce him to loan money and provide services to the defendants. Based on these
allegations, the plaintiff is suing for breach of contract and fraud and is
seeking actual monetary damages, punitive damages and a percentage of the common
stock of the Company. Management believes the plaintiff's claims are without
merit and intends to vigorously defend the claims. It is not possible to
determine what impact, if any, the outcome of this litigation might have on the
financial condition, results of operations or cash flows of the Company at this
time. The President has agreed personally to indemnify the Company against any
and all losses and damages resulting from any judgments and awards rendered
against the Company in this litigation. However, no guarantee can be made as to
the ability to satisfy all such amounts. The President has also agreed to
indemnify the holder of redeemable convertible preferred stock from such losses
and damages, and has pledged his stock ownership in the Company to secure such
obligation.
The Company is involved in a dispute with a customer related to delays in
providing telecommunications services to the customer. In February 1998, the
Company received notice from a customer that it intends to setoff against
amounts payable to the Company approximately $400,000 as damages and penalties.
Management contends that the delays resulted from the customer's inability to
provide access and does not believe that ultimate settlement of this dispute
will have a material effect on the Company's financial position, results of
operations or cash flows.
F-14
<PAGE> 135
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
From time to time the Company is named as a defendant in routine lawsuits
incidental to its business. The Company believes that none of such current
proceedings, individually or in the aggregate, will have a material adverse
effect on the Company's financial position, results of operations or cash flows.
13. SUBSEQUENT EVENTS
During the six months ended December 31, 1997, an additional 11,500 shares
of Series A Preferred Stock were issued for cash payments of $17,250,000.
On August 22, 1997 and on February 17, 1998, the Company approved stock
splits in the form of stock dividends of 99 shares and 999 shares, respectively,
of common stock for each one share of common stock outstanding. Effective
October 17, 1997 and February 18, 1998, the Company's Articles of Incorporation
were amended to increase the number of authorized shares of common stock to
100,000 and 100,000,000, respectively, and the stock dividends were issued to
the Company's stockholders. All share information included in the accompanying
financial statements has been retroactively adjusted to give effect to the stock
splits. In order to effect the 999 for 1 stock split on February 17, 1998,
$269,970 was charged to accumulated deficit. The Company will record an entry in
the third quarter of fiscal 1998 to reclassify this amount from accumulated
deficit to additional paid-in capital recorded in conjunction with the
reclassification of Series A Preferred Stock on February 13, 1998 as discussed
below.
On August 22, 1997, the Company adopted a Long-Term Incentive Award Plan
(the "Plan"). A total of 3,000,000 shares of common stock of the Company have
been reserved for issuance under the Plan. As of July 13, 1998 the Company has
granted or is obligated to grant to certain employees and directors of the
Company options to purchase an aggregate of 725,000 shares of common stock under
the Plan. The employees' options vest 100% after five years from the date of
grant or, in the event the Company completes an initial public offering of its
common stock, 25% per year beginning one year from the date of grant. The
directors' options vest 25% per year beginning one year from the date of grant.
The exercise prices per share of such options range from $2.60 to $6.66 as
determined by the Board of Directors.
On September 23, 1997, DTI's Board of Directors and stockholders approved
the merger of KCDT with and into the Company, which merger became effective on
October 17, 1997.
In January 1998, Digital Teleport entered into a $30.0 million bank credit
facility (the "Credit Facility") with certain commercial lending institutions
and Toronto Dominion (Texas), Inc., as administrative agent for the lenders ("TD
(Texas)"), to fund its working capital requirements. Borrowings under the Credit
Facility bear interest at an adjustable rate based on (i) a base rate (either
the prime rate adopted by TD (Texas) or an adjusted Federal Funds rate) plus
1.75% or LIBOR plus 3.50% when the borrowing base ratio (total debt to property,
plant and equipment) is less than 30% and (ii) the base rate plus 1.20% or LIBOR
plus 3.00% when the borrowing base ratio is greater than 30%. At February 23,
1998, Digital Teleport had drawn $3.0 million principal amount under the Credit
Facility which was repaid with the net proceeds of the Senior Discount Notes due
2008 discussed below.
On February 13, 1998, in connection the Company's offering of Senior
Discount Notes, the Company amended its Articles of Incorporation amending the
terms of the Series A Preferred Stock such that the Series A Preferred Stock is
no longer redeemable. The Series A Preferred Stock, as a result of such
amendment, will be classified with stockholders' equity subsequent to such date.
On February 23, 1998, the Company completed the issuance and sale of
506,000 Units consisting of $506.0 million aggregate principal amount at
maturity of Senior Discount Notes due 2008 and warrants to purchase 3,926,560
shares of Common Stock, for which the Company received proceeds, net of
underwriting discounts and expenses, of approximately $264.8 million. Of the
$275.2 million gross proceeds from the issuance of the Units, $265.3 million
will be allocated to the initial accreted value of the Senior Discount
F-15
<PAGE> 136
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Notes and $10.0 million will be allocated to warrants included in stockholders'
equity, based on the fair market value of the warrants as determined by the
Company and the initial purchasers of the Units. The Senior Discount Notes are
senior unsecured obligations of the Company and may be redeemed at the option of
the Company, in whole or in part, on or after March 1, 2003 at a premium
declining to zero in 2006. At any time and from time to time on or prior to
March 1, 2001, the Company may redeem an aggregate of up to 33 1/3% of the
aggregate principal amount at maturity of the originally issued Senior Discount
Notes within 60 days of one or more public equity offerings with the net
proceeds of such offering, at a redemption price of 112.5% of the accreted value
(determined at the redemption date). In the event of a "Change of Control" (as
defined in the Indenture pursuant to which the Senior Discount Notes were
issued), holders of the Senior Discount Notes may require the Company to offer
to repurchase all outstanding Senior Discount Notes at a price equal to 101% of
the accreted value thereof, plus accrued interest, if any, to the date of
redemption. The Senior Discount Notes also contain certain covenants that
restrict the ability of the Company and its Restricted Subsidiaries (as defined
in the Indenture) to incur certain indebtedness, pay dividends and make certain
other restricted payments, create liens, permit other restrictions on dividends
and other payments by Restricted Subsidiaries, issue and sell capital stock of
its Restricted Subsidiaries, guarantee certain indebtedness, sell assets, enter
into transactions with affiliates, merge, consolidate or transfer substantially
all of the assets of the Company and make any investments in any Unrestricted
Subsidiary (as defined in the Indenture). The issuance of the Senior Discount
Notes does not constitute a "qualified public offering" within the meaning of
the Company's Articles of Incorporation and, therefore, will not effect the
conversion of the Series A Preferred Stock into common stock.
On April 14, 1998, the Company filed a Registration Statement on Form S-4
relating to an offer to exchange the Company's Series B Senior Discount Notes
due 2008 for its outstanding Senior Discount Notes (the "Exchange Offer"). The
Exchange Offer does not constitute a "qualified public offering" within the
meaning of the Company's Articles of Incorporation and, therefore, will not
effect the conversion of the Series A Preferred Stock into common stock.
14. REORGANIZATION
On December 23, 1997, the Company completed a corporate reorganization (the
"Reorganization"), pursuant to which DTI was formed as the parent holding
company of Digital Teleport, Inc., which became a wholly-owned subsidiary of
DTI. Pursuant to the Reorganization, the outstanding shares of common and
preferred stock of Digital Teleport were exchanged for the number of shares of
common and preferred stock of DTI having the same relative rights and
preferences as such exchanged shares. The Reorganization was required in
connection with the establishment of the Credit Facility. The business
operations, name, charter, by-laws and board of directors of the Company are
identical in all material respects to those of Digital Teleport, which did not
change as a result of the Reorganization. Accordingly, the consolidated
financial statements have been presented as if Digital Teleport had always been
a wholly owned subsidiary of DTI. DTI is a holding company and, as such, has no
operations other than its ownership interest in Digital Teleport, its wholly
owned subsidiary, and maintains only nominal other assets ($100 in
organizational costs).
* * * * * *
F-16
<PAGE> 137
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
MARCH 31, 1998 (UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31,
1998
---------
<S> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $263,231,384
Accounts receivable, less allowance for doubtful accounts
of $167,000............................................ 708,477
Prepaid and other current assets.......................... 34,769
------------
Total current assets................................. 263,974,628
Network and equipment, at cost less accumulated depreciation
of $2,620,640 (Note 2).................................... 60,824,950
Deferred financing costs, net of amortization of $106,110... 10,390,287
Deferred tax asset.......................................... 3,234,331
Other assets................................................ 43,665
------------
Total................................................ $338,467,861
============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 4,555,642
Deferred revenues -- current portion...................... 366,000
Taxes payable (other than income taxes)................... 2,115,358
------------
Total current liabilities............................ 7,037,000
Deferred revenues........................................... 14,037,528
Senior discount notes, net (Note 7)......................... 268,856,985
------------
Total liabilities.................................... 289,931,513
Commitments and contingencies (Notes 5, 6 and 7)............ --
Stockholders' equity:
Preferred stock, $.01 par value, 20,000,000 shares
authorized, no shares issued and outstanding........... --
Convertible series A preferred stock, $.01 par value,
30,000 shares authorized, 30,000 and -0- issued and
outstanding............................................ 300
Common stock, $.01 par value, 100,000,000 shares
authorized, 30,000,000 shares issued and outstanding
(Notes 4 and 7)........................................ 300,000
Additional paid-in capital................................ 44,013,063
Common stock warrant...................................... 10,421,336
Accumulated deficit....................................... (6,198,351)
------------
Total stockholders' equity........................... 48,536,348
------------
Total....................................................... $338,467,861
============
</TABLE>
See notes to unaudited consolidated financial statements.
F-17
<PAGE> 138
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
NINE MONTHS ENDED MARCH 31, 1997 AND 1998 (UNAUDITED)
<TABLE>
<CAPTION>
1997 1998
---- ----
<S> <C> <C>
TELECOMMUNICATIONS SERVICES REVENUES:
Carrier's carrier services................................ $ 488,931 $ 1,707,914
End-user services......................................... 380,914 414,660
----------- -----------
Total revenues....................................... 869,845 2,122,574
----------- -----------
OPERATING EXPENSES:
Telecommunications services............................... 563,791 1,024,578
Selling, general and administrative....................... 845,684 2,437,825
Depreciation and amortization............................. 521,049 1,385,750
----------- -----------
Total operating expenses............................. 1,930,524 4,848,153
Loss from operations................................. (1,060,679) (2,725,579)
OTHER INCOME (EXPENSES):
Interest income........................................... 58,403 1,558,898
Interest expense.......................................... (152,937) (3,697,605)
Loan commitment fees...................................... (784,500) --
Equity in earnings of joint venture....................... 37,436 --
----------- -----------
Loss before income tax benefit....................... (1,902,277) (4,864,286)
Income tax benefit.......................................... 1,042,000 2,020,000
----------- -----------
Net loss.................................................... $ (860,277) $(2,844,286)
</TABLE>
See notes to unaudited consolidated financial statements.
F-18
<PAGE> 139
DTI HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED MARCH 31, 1997 AND 1998 (UNAUDITED)
<TABLE>
<CAPTION>
1997 1998
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $ (860,277) $ (2,844,286)
Adjustments to reconcile net loss to cash provided by
operating activities:
Depreciation and amortization.......................... 521,049 1,491,860
Accretion of discount on senior discount notes......... -- 3,604,801
Deferred income taxes.................................. (1,042,000) (2,020,000)
Loan commitment fees related to common stock
warrants............................................. 450,000 --
Changes in assets and liabilities:
Accounts receivable.................................. (1,491,397) (549,209)
Prepaid and other current assets..................... 543,300 (11,003)
Other assets......................................... (36,945) 40,568
Accounts payable..................................... 1,872,548 (531,188)
Other liabilities.................................... 606,178
Taxes payable (other than income taxes).............. 543,000 1,192,254
Deferred revenues.................................... 3,589,343 4,723,624
------------ ------------
Net cash flows provided by operating activities... 4,694,799 5,097,421
------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Increase in network and equipment......................... (10,518,316) (28,210,066)
Change in restricted cash................................. 459,522 --
------------ ------------
Net cash used in investing activities............. (10,058,794) (28,210,066)
------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of senior discount notes and
attached warrants...................................... -- 275,233,520
Proceeds from issuance of redeemable convertible preferred
stock including cash from contributed joint venture of
$0 and $2,253,045...................................... 5,464,313 17,250,000
Repurchase of common stock warrants granted to a
customer............................................... (2,700,000) --
Deferred financing costs.................................. -- (10,496,397)
Proceeds from notes payable............................... 8,000,000 --
Payment of notes payable.................................. (450,000) --
Proceeds from credit facility............................. -- 3,000,000
Principal payments on credit facility..................... -- (3,000,000)
------------ ------------
Net cash provided by financing activities......... 10,314,313 281,977,123
------------ ------------
Net increase in cash and cash equivalents................... 4,950,318 258,864,478
Cash and cash equivalents, beginning of period.............. 817,391 4,366,906
------------ ------------
Cash and cash equivalents, end of period.................... $ 5,767,709 $263,231,384
============ ============
Supplemental disclosure of significant non-cash activities:
Consideration for issuance of redeemable convertible
preferred stock:
Outstanding principal of KLT Loan...................... $ 14,000,000 $ --
Accrued interest payable on KLT Loan................... 794,062 --
Assets of contributed joint venture.................... 1,816,043 --
Liabilities assumed of contributed joint venture....... 69,088 --
</TABLE>
See notes to unaudited consolidated financial statements.
F-19
<PAGE> 140
DTI HOLDINGS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NINE MONTHS ENDED MARCH 31, 1997 AND 1998 (UNAUDITED)
1. PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions of Article 10 of Regulation S-X.
Accordingly, the interim financial statements do not include all of the
information and footnotes required by generally accepted accounting principles
for annual financial statements.
In the opinion of the management of DTI Holdings, Inc. (the "Company" or
"DTI") the accompanying unaudited consolidated financial statements contain all
adjustments (consisting of only normal recurring adjustments) necessary to
present fairly the financial information for the interim periods presented and
have been prepared in accordance with generally accepted accounting principles.
The interim results of operations are not necessarily indicative of results that
may be expected for any other interim period or for the full year.
The financial statements should be read in conjunction with the
consolidated financial statements and notes thereto for the year ended June 30,
1997 included elsewhere in this document. The accounting policies used in
preparing these financial statements are the same as those described in the June
30, 1997 consolidated financial statements. Accordingly, footnote disclosures
which would substantially duplicate the disclosures in the audited financial
statements have been omitted.
On September 23, 1997, DTI's Board of Directors and stockholders approved
the merger of KCDT with and into the Company, which merger became effective on
October 17, 1997.
On December 23, 1997, the Company completed a corporate reorganization (the
"Reorganization"), pursuant to which DTI was formed as the parent holding
company of Digital Teleport, Inc., which became a wholly-owned subsidiary of
DTI. Pursuant to the Reorganization, the outstanding shares of common and
preferred stock of Digital Teleport were exchanged for the number of shares of
common and preferred stock of DTI having the same relative rights and
preferences as such shares. The Reorganization was required in connection with
the establishment of the Credit Facility. The business operations, name,
charter, by-laws and board of directors of the Company are identical in all
material respects to those of Digital Teleport, which did not change as a result
of the Reorganization. Accordingly, the consolidated financial statements have
been presented as if Digital Teleport had always been a wholly owned subsidiary
of DTI.
2. NETWORK AND EQUIPMENT
Network and equipment consists of the following as of March 31, 1998:
<TABLE>
<S> <C>
Fiber optic cable plant..................................... $49,141,905
Fiber optic terminal equipment.............................. 11,646,390
Fiber optic network buildings............................... 2,050,973
Leasehold improvements...................................... 292,951
Furniture, office equipment and other....................... 313,371
-----------
63,445,590
Less -- accumulated depreciation............................ 2,620,640
-----------
$60,824,950
===========
</TABLE>
At March 31, 1998, fiber optic cable plant, fiber optic terminal equipment
and fiber optic network buildings include $19,581,920 of construction in
progress that was not in service and, accordingly, has not been depreciated.
Also, during the nine months ended March 31, 1998, $182,000 of interest costs
were capitalized.
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<PAGE> 141
3. SERIES A PREFERRED STOCK
During the six months ended December 31, 1997, an additional 11,500 shares
of Series A Preferred Stock were issued for cash payments of $17,250,000. The
accretion towards redemption value of Series A Preferred Stock for the six month
period ending December 31, 1997 amounted to $4,985,442 which was recorded as a
charge to accumulated deficit. On February 13, 1998, the Company amended its
Articles of Incorporation amending the terms of the Series A Preferred Stock
such that the Series A Preferred Stock is no longer redeemable. The Series A
Preferred Stock, as a result of such an amendment made in conjunction with the
offering of Senior Discount Notes by the Company, has been classified with
stockholders' equity subsequent to such date.
4. STOCKHOLDERS DEFICIT
On August 22, 1997 and on February 17, 1998, the Company approved stock
splits in the form of stock dividends of 99 shares and 999 shares, respectively,
of common stock for each one share of common stock outstanding. Effective
October 17, 1997 and February 18, 1998, the Company's Restated Articles of
Incorporation were amended to increase the number of authorized shares of common
stock of DTI to 100,000 and 100,000,000, respectively, and the stock dividends
were issued to the Company's stockholders. All share information included in the
accompanying financial statements has been retroactively adjusted to give effect
to the stock splits. In order to effect the 1,000 for 1 stock split of February
17, 1998, $269,970 was charged to accumulated deficit. The Company recorded an
entry in the third quarter of fiscal 1998 to reclassify this amount from
additional paid-in capital recorded in conjunction with the reclassification of
Series A Preferred Stock on February 13, 1998 as discussed in Note 7.
5. COMMITMENTS
INCENTIVE PLAN -- On August 22, 1997, the Company adopted a Long-Term
Incentive Award Plan (the "Plan"). A total of 3,000,000 shares of common stock
of the Company have been reserved for issuance under the Plan. As of July 13,
1998, the Company has granted or is obligated to grant to certain employees and
directors of the Company options to purchase an aggregate of 725,000 shares of
common stock under the Plan. The employees' options vest 100% after five years
from the date of grant or, in the event the Company completes an initial public
offering of its common stock, 25% per year beginning one year from the date of
grant. The directors' options vest 25% per year beginning one year from the date
of grant. The exercise prices per share of such options range from $2.60 to
$6.66 as determined by the Board of Directors. No compensation expense is
required to be recorded with respect to such options.
The Company accounts for its incentive plan in accordance with the
provisions of Accounting Principles Board (APB) Option No. 25, Accounting for
Stock Issued to Employees, and related interpretations. As such, compensation
expense is recorded on the date of grant only if the current market price of the
underlying stock exceeded the exercise price. The Company has also adopted SFAS
123, Accounting for Stock-Based Compensation, which permits entities to
recognize as expense over the vesting period the fair value of all stock-based
awards on the date of grant. Alternatively, SFAS 123 allows entities to apply
the provisions of APB Opinion No. 25 and provide pro forma net income for
employee stock option grants made in 1996 and future years as if the
fair-value-based method defined in SFAS 123 had been applied. The Company has
elected to apply the provisions of APB Opinion No. 25.
PURCHASE COMMITMENTS -- DTI's remaining aggregate commitments for
construction and equipment under these agreements at March 31, 1998 is
approximately $20.1 million.
6. CONTINGENCIES
On June 20, 1995, the Company and its President were named as defendants in
a suit which the plaintiff alleges that (i) the plaintiff entered into an oral
contract with the defendants pursuant to which the plaintiff was to receive a
percentage of the Company's common stock, (ii) the plaintiff provided services
to the Company for which the plaintiff was not and should be compensated, and
(iii) the defendants misrepresented certain facts to the plaintiff in order to
induce him to loan money and provide services to the defendants. Based
F-21
<PAGE> 142
on these allegations, the plaintiff is suing for breach of contract and fraud
and is seeking actual monetary damages, punitive damages and a percentage of the
common stock of the Company. Management believes the plaintiff's claims are
without merit and intends to vigorously defend the claims. It is not possible to
determine what impact, if any, the outcome of this litigation might have on the
financial condition, results of operations or cash flows of the Company at this
time. The President has agreed personally to indemnify the Company against any
and all losses and damages resulting from any judgments and awards rendered
against the Company in this litigation. However, no guarantee can be made as to
the ability to satisfy all such amounts. The President has also agreed to
indemnify the holder of redeemable convertible preferred stock from such losses
and damages, and has pledged his stock ownership in the Company to secure such
obligation.
The Company is involved in a dispute with a customer related to delays in
providing telecommunication services to the customer. In February 1998, the
Company received notice from a customer that it intends to setoff against
amounts payable to the Company approximately $400,000 as damages and penalties.
Management contends that the delays resulted from the customer's inability to
provide access and does not believe that ultimate settlement of this dispute
will have a material effect on the Company's financial position, results of
operations or cash flows.
From time to time the Company is named as a defendant in routine lawsuits
incidental to its business. The Company believes that none of such current
proceedings, individually or in the aggregate, will have a material adverse
effect on the Company's financial position, results of operations or cash flows.
7. FINANCING ARRANGEMENTS
In January 1998, Digital Teleport entered into a $30.0 million bank credit
facility (the "Credit Facility") with certain commercial lending institutions
and Toronto Dominion (Texas), Inc., as administrative agent for the lenders ("TD
(Texas)"), to fund its working capital requirements. Borrowings under the Credit
Facility bear interest at an adjustable rate based on (i) a base rate (either
the prime rate adopted by TD (Texas) or an adjusted Federal Funds rate) plus
1.75% or LIBOR plus 3.50% when the borrowing base ratio (total debt to property,
plant and equipment) is less than 30% and (ii) the base rate plus 1.20% or LIBOR
plus 3.00% when the borrowing base ratio is greater than 30%. In January 1998,
$3.0 million was borrowed under the Credit Facility. All amounts borrowed were
repaid in February 1998 using the proceeds of the Senior Discount Notes due 2008
discussed below. The Credit Facility was then cancelled.
On February 23, 1998, the Company completed the issuance and sale of the
506,000 Units consisting of $506.0 million aggregate principal amount at
maturity of Senior Discount Notes due 2008 and warrants to purchase 3,926,560
shares of Common Stock, for which the Company received proceeds, net of
underwriting discounts and expenses, of approximately $264.8 million. No cash
payments of interest are required under the Notes prior to September 1, 2003.
Commencing at such time, the Company will be required to make semi-annual
interest payments on the Notes. The issuance of the Senior Discount Notes does
not constitute a "qualified public offering" within the meaning of the Company's
Articles of Incorporation and, therefore, will not effect the conversion of the
Series A Preferred Stock into common stock.
8. SUBSEQUENT EVENTS
On April 14, 1998, the Company filed a Registration Statement on Form S-4
relating to an offer to exchange the Company's Series B Senior Discount Notes
due 2008 for its outstanding Senior Discount Notes (the "Exchange Offer"). The
Exchange Offer does not constitute a "qualified" offering within the meaning of
the Company's Articles of Incorporation and, therefore, will not effect the
conversion of the Series A Preferred Stock into common stock.
On June 18, 1998, the Company entered into a preliminary agreement for a
long-term IRU for fiber optic strands and related facilities along a route from
Washington, D.C. to Texas.
F-22
<PAGE> 143
ANNEX A
GLOSSARY
Access charges..........The fees paid by long distance carriers to LECs for
originating and terminating long distance calls on the
LECs' local networks.
Access tandem...........An interconnection point on an ILEC local network where
calls from central offices are aggregated for
transmission to other central offices and IXC
facilities.
Affiliate...............As defined in and for purposes of the Shareholders'
Agreement, an "affiliate" of KLT or the Company means
any person that directly, or indirectly though one or
more intermediaries, controls, or is controlled by, or
is under common control with KLT or the Company, as the
case may be, including without limitation, any director,
officer or employee of KLT or the Company, as the case
may be, and an "affiliate" of Mr. Weinstein means (i)
any director, officer, shareholder, member, partner,
trustee or owner of any corporation, organization or
other entity of which Mr. Weinstein is, directly or
indirectly, the beneficial owner of 5% or more of any
class of equity securities; and (ii) Mr. Weinstein's
spouse, parents, children, siblings, mothers and
fathers-in-law, sons and daughters-in-law, and brothers
and sisters-in-law.
ATM (Asynchronous
Transfer Mode)..........An information transfer standard that is one of a
general class of packet technologies that relay traffic
by way of an address contained within the first five
bytes of a standard fifty-three-byte-long packet or
cell. The ATM format can be used by many different
information systems, including area networks, to deliver
traffic at varying rates, permitting a mix of voice,
data and video (multimedia).
AT&T....................AT&T Corp.
Bandwidth...............The relative range of analog frequencies or digital
signals that can be passed through a transmission
medium, such as glass fibers, without distortion. The
greater the bandwidth, the greater the information
carrying capacity. Bandwidth is measured in Hertz
(analog) or Bits Per Second (digital).
Broadband...............Data streams of at least 1.544 megabits per second.
Broadband communications systems can transmit large
quantities of voice, data and video by way of digital or
analog signals. Examples of broadband communications
systems include DS-3 systems, which can transmit 672
simultaneous voice conversations, or a broadcast
television station signal that transmits high resolution
audio and video signals into the home. Broadband
connectivity is an essential element for interactive
multimedia applications.
Capacity................Refers to transmission.
Carrier.................A provider of communications transmission services by
fiber, wire or radio.
Central offices.........The switching centers or central switching facilities of
the ILECs.
Centrex.................Centrex is a service that offers features similar to
those of a Private Branch Exchange (PBX), except the
equipment is located at the carrier's premises and not
at the premises of the customer. These features include
direct dialing within a given phone system, direct
dialing of incoming calls, and automatic identification
of outbound calls. This is a value-added service that
carriers can
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<PAGE> 144
provide to a wide range of customers who don't have the
size or the funds to support their own on-site PBX.
CLEC (Competitive Local
Exchange Carrier).......A company that competes with ILECs in local services
markets.
Collocation.............The ability of a CLEC such as the Company to connect its
network to the ILEC's central offices. Physical
collocation occurs when a CLEC places its network
connection equipment inside the ILEC's central offices.
Virtual colocation is an alternative to physical
collocation pursuant to which the ILEC permits a CLEC to
connect its network to the ILEC's central offices on
comparable terms, even though the CLEC's network
connection equipment is not physically located inside
the central offices.
Common carrier..........A government-defined group of private companies offering
telecommunications services or facilities to the general public on a
non-discriminatory basis.
Conduit.................A pipe, usually made of metal, ceramic or plastic, that
protects buried cables.
Customer drop routes....Fiber optic facilities that connect a network to
end-user customer sites.
Data transmission
services................Services involving the nonvoice transmission of facts,
concepts or information in a formalized manner, suitable
for communication, interpretation or processing.
Dark fiber..............Fiber that lacks the requisite electronic and optronic
equipment necessary to use the fiber for transmission.
Dialing parity..........One of the changes, required by the Telecom Act,
intended to level the competitive playing field. Dialing
parity when implemented will enable customers to dial
only 1+ or 0+ for service no matter which local or long
distance carrier they choose.
Digital.................Describes a method of storing, processing and
transmitting information through the use of distinct
electronic or optical pulses that represent the binary
digits 0 and 1. Digital transmission/switching
technologies employ a sequence of discrete, distinct
pulses to represent information, as opposed to the
continuously variable analog signal.
Dense wavelength
division multiplexing...A technique for transmitting eight or more different
light wave frequencies on a single fiber to increase the
information carrying capacity.
DS-0, DS-1, DS-3........Standard telecommunications industry digital signal
formats, which are distinguishable by bit rate (the
number of binary digits 0 and 1) transmitted per
second). DS-0 service has a bit rate of 64 kilobits per
second and typically transmits only the equivalent of
one voice conversation at a time. DS-1 service has a bit
rate of 1.544 megabits per second and typically
transmits the equivalent of 24 simultaneous voice
conversations. DS-3 service has a bit rate of 45
megabits per second and typically transmits the
equivalent of 672 simultaneous voice conversations.
End-user................The occupant of the premises who uses and pays for the
telephone service received and does not resell it to
others.
Equal access............The basis upon which customers of interexchange carriers
are able to obtain access to their Primary Interexchange
Carriers' (PIC) long distance telephone
A-2
<PAGE> 145
network by dialing "1", thus eliminating the need to
dial additional digits and an authorization code to
obtain such access.
Facilities-based
provider................A carrier that owns, obtains an indefensible right to
use in or, under some circumstances, leases its
international network facilities (including undersea
fiber optic cables and switching facilities) rather than
reselling private lines or minutes of telecommunications
service provided by another facilities based provider.
FCC.....................Federal Communications Commission.
Fiber optics............A technology in which light is used to transport
information from one point to another. Fiber optic
cables are thin filaments of glass through which light
beams are transmitted over long distances carrying large
amounts of data.
Frame relay.............A high-speed, data-packet switching service used to
transmit data between computers. Frame Relay supports
data units of variable lengths at access speeds ranging
from 56 kilobits per second to 1.5 megabits per second.
This service is well-suited for connecting local area
networks, but is not presently well suited for voice and
video applications due to the variable delays which can
occur. Frame Relay was designed to operate at high
speeds on modern fiber optic networks.
Fujitsu.................Fujitsu Network Transmission Systems, Inc.
GTE.....................GTE Corp.
ILEC (Incumbent Local
Exchange Carrier).......The incumbent carrier providing local exchange services,
typically an RBOC created by the divestiture of AT&T.
Innerduct...............Normally a 1 1/4" or 1" pipe through which fiber optic
cable is installed and housed; usually placed in groups
of 2 or 3 inside a larger duct or conduit.
ISP (Internet Service
Provider)...............A company that provides businesses and consumers with
access to the Internet.
10XXX service...........The ability for a user to access any carrier's long
distance network by dialing the carrier's Carrier
Identification Code (CIC) which is a 1 plus 0 plus three
specifically assigned digits, thereby bypassing the
user's primary interexchange carrier.
Interconnection.........Connection of a telecommunications device or service to
the public switched telephone network.
IXC (Interexchange
Carrier)................A company providing inter-LATA or long distance services
between LATAs on an intrastate or interstate basis.
IXC Carrier.............IXC Carrier, Inc.
KCPL....................Kansas City Power and Light Company
KLT.....................KLT Telecom Inc.
LATAs (Local Access and
Transport Areas)........The approximately 200 geographic areas that define the
areas between which the RBOCs currently are prohibited
from providing long distance services.
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<PAGE> 146
Lit or lighted fiber....Fiber activated or equipped with the requisite
electronic and optronic equipment necessary to use the
fiber for transmission.
LEC (local exchange
carrier)................A company providing local switched services, including
ILECs and CLECs.
Local exchange
services................Local exchange services generally refers to all services
provided by an ILEC or CLEC including local dial tone,
Centrex and long distance access services. Sometimes
also referred to as local switched telephone services
and local telecommunications services.
Local loop..............A circuit that connects an end user to the ILEC central
office within a LATA.
Local switched
services................Services provided where the computer telephony system is
directly connected to the switch, generally providing
better integration than connections than take place over
a network.
Long-haul circuit.......A dedicated telecommunications circuit generally between
locations in different LATAs.
MCI.....................MCI Communications, Inc.
MFS Communications......MFS Communications Company, Inc., a wholly owned
subsidiary of WorldCom.
MHTC....................Missouri Highway and Transportation Commission
Multiplexing............An electronic or optical process that combines a large
number of lower speed transmission lines into one high
speed line by splitting the total available bandwidth
into narrower bands (frequency division), or by
allotting a common channel to several different
transmitting devices, one at a time in sequence (time
division).
Non-facilities based
provider................A LEC that does not own and operate its own network and
equipment.
Nortel..................Northern Telecom Inc.
OC-3, OC-12, OC-48 and
OC-192..................Standard telecommunications industry measurements for
optical transmission capacity distinguishable by bit
rate transmitted per second and the number of voice or
data transmissions that can be simultaneously
transmitted through fiber optic cable. An OC-3 is
generally equivalent to three DS-3s and has a bit rate
of 155.52 megabits per second and can transmit 2,016
simultaneous voice or data transmissions. An OC-12 has a
bit rate of 622.08 megabits per second and can transmit
8,064 simultaneous voice or data transmissions. An OC-48
has a bit rate of 2,488.32 megabits per second and can
transmit 32,256 simultaneous voice or data
transmissions. An OC-192 has a bit rate of 9,953.28
megabits per second and can transmit 129,024
simultaneous voice or data transmissions.
Optical window..........A band of wavelengths at which an optical fiber is
sufficiently transparent for practical use in
communications applications.
PBX (Private Branch
Exchange)...............A PBX is a switching system within an office building
which allows calls from outside to be routed directly to
the individual instead of through a central number. This
PBX also allows for calling within an office by way of
four-digit extensions. Centrex is a service which can
simulate this service from an outside
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<PAGE> 147
switching source, thereby eliminating the need for a
large capital expenditure required for a PBX.
Pirelli.................Pirelli Cable Corporation
POPs
(Points of Presence)....Locations where a long distance carrier has installed
transmission equipment in a service area that serves as,
or relays calls to, a network switching center of that
long distance carrier.
Private line............A private, dedicated telecommunications line connecting
different end user locations or end-user facilities to
LEC or IXC facilities.
PUC (Public Utility
Commission).............A state regulatory body, established in most states,
which regulates utilities, including telephone companies
providing intrastate services.
RBOCs (Regional Bell
Operating Companies)....The seven local telephone companies (formerly part of
AT&T) established as a result of the AT&T Divestiture
Decree.
Regeneration/amplifier...
Devices which automatically re-transmit or boost signals
on an outbound circuit.
Reseller................A carrier that does not own transmission facilities, but
obtains communications services from another carrier for
resale to the public.
Route miles.............The number of miles of the telecommunications path in
which fiber optic cables are installed as it would
appear on a network map.
SBC.....................SBC Communications, Inc.
Siecor..................Siecor Corporation
Single-mode fiber.......A fiber optic wave guide with a slender core that
confines light to a single path; a fiber that allows the
transmission of only one light beam or lightwave
channel.
SMF-28A.................One of several types of standard fiber optic strands
used by carriers.
SONET (Synchronous
Optical Network
Technology).............An electronics and network architecture for
variable-bandwidth products which enables transmission
of voice, data and video (multimedia) at very high
speeds.
SONET ring..............A network architecture which provides for instantaneous
restoration of service in the event of a fiber cut by
automatically rerouting traffic the other direction
around the ring. This occurs so rapidly (in 50
milliseconds) it is virtually undetectable to the user.
Sprint..................Sprint Corporation
Switch..................A device that selects the paths or circuits to be used
for transmission of information and a connection.
Switching is the process of interconnecting circuits to
form a transmission path between users and it also
captures information for billing purposes.
TelCentral..............Tel Central, Inc.
Telecom Act.............The Telecommunications Act of 1996.
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<PAGE> 148
Terminal................The point at which a telephone line ends or is connected
to other circuits of a network.
Tier 1 carriers.........AT&T, MCI, Sprint and WorldCom
Union Electric..........Ameren Corporation, formerly known as Union Electric
Company.
United Telephone........United Telephone Company of Missouri, a wholly owned
subsidiary of Sprint.
Virtual circuit.........A communication link that appears to an end-user to be a
dedicated point-to-point circuit. Virtual circuits are
usually set up on a per-call basis and disconnected when
the call is ended.
WorldCom................WorldCom, Inc.
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<PAGE> 149
- ------------------------------------------------------
- ------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY ANY
SECURITY OTHER THAN THOSE TO WHICH IT RELATES, NOR DOES IT CONSTITUTE AN OFFER
TO SELL TO, OR THE SOLICITATION OF ANY OFFER TO BUY, ANY SECURITIES OTHER THAN
THE EXCHANGE NOTES OFFERED HEREBY OR TO ANY PERSON IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Notice to Investors.................... 3
Available Information.................. 4
Summary................................ 6
Risk Factors........................... 17
The Exchange Offer..................... 29
Use of Proceeds........................ 38
Capitalization......................... 38
Selected Consolidated Financial and
Operating Data....................... 39
Management's Discussion and Analysis of
Financial Condition and Results of
Operations........................... 41
Industry Overview...................... 50
Business............................... 53
Management............................. 71
Certain Relationships and Related
Transactions......................... 75
Principal Stockholders................. 76
Description of the Notes............... 77
Description of the Warrants............ 103
Book-Entry; Delivery and Form.......... 110
Certain United States Federal Income
Tax Considerations................... 112
Plan of Distribution................... 119
Legal Matters.......................... 119
Experts................................ 119
Index to Consolidated Financial
Statements........................... F-1
Glossary............................... A-1
</TABLE>
Until , 1998, all dealers effecting transactions in the
registered securities, whether or not participating in this distribution, may be
required to deliver a prospectus. This is in addition to the obligation of
dealers to deliver a prospectus when acting as underwriters and with respect to
their unsold allotments or subscriptions.
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
DTI DIGITAL TELEPORT LOGO
DTI HOLDINGS, INC.
OFFER TO EXCHANGE
12 1/2% SERIES B SENIOR DISCOUNT NOTES
DUE 2008
FOR ALL OUTSTANDING 12 1/2% SENIOR
DISCOUNT NOTES DUE 2008
, 1998
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 150
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 351.355(1) and (2) of The General and Business Corporation Law of
the State of Missouri provide that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that, in the case of an action or suit by or in the right
of the corporation, the corporation may not indemnify such persons against
judgments and fines and no person shall be indemnified as to any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation,
unless and only to the extent that the court in which the action or suit was
brought determines upon application that such person is fairly and reasonably
entitled to indemnity for proper expenses. Section 351.355(3) provides that, to
the extent that a director, officer, employee or agent of the corporation has
been successful in the defense of any such action, suit or proceeding or any
claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred in connection with
such action, suit or proceeding. Section 351.355(7) provides that a corporation
may provide additional indemnification to any person indemnifiable under
subsection (1) or (2), provided such additional indemnification is authorized by
the corporation's articles of incorporation or an amendment thereto or by a
shareholder-approved bylaw or agreement, and provided further that no person
shall thereby be indemnified against conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct or which
involved an accounting for profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934.
Section 6.5 of the Company's Bylaws provides that the Company shall
indemnify to the full extent authorized by law any person made or threatened to
be made a party to any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator or
intestate is or was a director or officer of the Company or any predecessor of
the Company or serves or served any other enterprise as a director, officer or
employee at the request of the Company or any predecessor of the Company.
Section 6.5 of the Bylaws also provides that the Company may, in the sole
discretion of the Board of Directors, indemnify to the full extent authorized by
law any person made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that he, his testator or intestate is or was an employee of the
Company or any predecessor of the Company.
The Company has entered into an indemnification agreement with each
Director pursuant to which the Company agreed to indemnify the Director and hold
him harmless to the full extent authorized or permitted by Missouri law subject
to limitations based on the Director's conduct. The indemnification agreements
provide that the Company shall make advances as reasonably necessary to pay
expenses of the Director incurred in defending an action against the Director in
such capacity.
The directors and officers of the Company are insured under a policy of
directors' and officers' liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See index to Exhibits.
II-1
<PAGE> 151
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933,
as amended, may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
Prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the Registration Statement through the date of responding to the
request.
(c) The undersigned registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE> 152
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 1 to Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, in the City
of St. Louis, State of Missouri on July 10, 1998.
DTI HOLDINGS, INC.
By: /s/ RICHARD D. WEINSTEIN
------------------------------------
Richard D. Weinstein
President, Chief Executive Officer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on July 10, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RICHARD D. WEINSTEIN President, Chief Executive Officer Secretary
- --------------------------------------------- and Director (Principal Executive Officer)
Richard D. Weinstein
/s/ GARY W. DOUGLASS Senior Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial and Accounting
Gary W. Douglass Officer)
/s/ JEROME W. SHEEHY* Vice President -- Regulatory Affairs and
- --------------------------------------------- Director
Jerome W. Sheehy
/s/ R. G. WASSON* Director
- ---------------------------------------------
Ronald G. Wasson
/s/ B. J. BEAUDOIN* Director
- ---------------------------------------------
Bernard J. Beaudoin
/s/ JAMES V. O'DONNELL* Director
- ---------------------------------------------
James V. O'Donnell
/s/ KENNETH V. HAGER* Director
- ---------------------------------------------
Kenneth V. Hager
*By: /s/ RICHARD D. WEINSTEIN
- ---------------------------------------------
Attorney- in-Fact
</TABLE>
II-3
<PAGE> 153
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
3.1 Restated Articles of Incorporation of the Registrant.
3.2 Restated Bylaws of the Registrant.
*4.1 Indenture by and between the Registrant and The Bank of New
York, as Trustee, for the Registrant's 12 1/2% Senior
Discount Notes due 2008, dated February 23, 1998 (the
"Indenture") (including form of the Company's 12 1/2% Senior
Discount Note due 2008 and 12 1/2% Series B Senior Discount
Note due 2008).
*4.2 Note Registration Rights Agreement by and among the
Registrant and the Initial Purchasers named therein, dated
as of February 23, 1998.
*4.3 Warrant Agreement by and between the Registrant and The Bank
of New York, as Warrant Agent, dated February 23, 1998.
*4.4 Warrant Registration Rights Agreement by and among the
Registrant and the Initial Purchasers named therein, dated
February 23, 1998.
*4.5 Digital Teleport, Inc. Shareholders' Agreement between
Richard D. Weinstein and KLT Telecom Inc., dated March 12,
1997.
*4.6 Amendment No. 1 to the Digital Teleport, Inc. Shareholders'
Agreement, dated November 7, 1997.
*4.7 Amendment No. 2 to the Digital Teleport, Inc. Shareholders'
Agreement, dated December 18, 1997.
*4.8 Amendment No. 3 to the Digital Teleport, Inc. Shareholders'
Agreement, dated February 12, 1998.
*4.9 Stock Pledge Agreement between Richard D. Weinstein and KLT
Telecom Inc., dated March 12, 1997, securing the performance
of Digital Teleport, Inc.'s obligations under that certain
Stock Purchase Agreement dated as of December 31, 1996, as
amended.
*4.10 Amendment No. 1 to Stock Pledge Agreement between Richard D.
Weinstein and KLT Telecom Inc., dated December 18, 1997.
*4.11 Amendment No. 2 to Stock Pledge Agreement between Richard D.
Weinstein and KLT Telecom Inc., dated February 12, 1998.
*4.12 Subordination Agreement, by and among the Registrant,
Digital Teleport, Inc., KLT Telecom Inc. and Richard D.
Weinstein, dated February 12, 1998.
5.1 Legal Opinion of Bryan Cave LLP (Missouri).
8.1 Tax Opinion of Bryan Cave LLP (Missouri) (included in its
opinion filed as Exhibit 5.1 hereto).
*10.1 Employment Agreement between Digital Teleport, Inc. and
Richard D. Weinstein, dated December 31, 1996.
*10.2 Director Indemnification Agreement between the Registrant
and Richard D. Weinstein, dated December 23, 1997.
*10.3 Director Indemnification Agreement between the Registrant
and Jerome W. Sheehy, dated December 23, 1997.
*10.4 Director Indemnification Agreement between the Registrant
and Bernard J. Beaudoin, dated December 23, 1997.
*10.5 Director Indemnification Agreement between the Registrant
and Ronald G. Wasson, dated December 23, 1997.
</TABLE>
- ---------------
<TABLE>
<C> <S>
* Previously.
Filed
</TABLE>
<PAGE> 154
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
*10.6 Director Indemnification Agreement between the Registrant
and James V. O'Donnell, dated December 23, 1997.
*10.7 Director Indemnification Agreement between the Registrant
and Kenneth V. Hager, dated December 23, 1997.
*10.8 1997 Long-Term Incentive Award Plan of the Registrant.
*10.9 Employment Agreement between Digital Teleport, Inc. and
Robert F. McCormick, dated September 9, 1997.
*10.10 Amendment No. 1 to the Employment Agreement between Digital
Teleport, Inc. and Robert F. McCormick, dated January 28,
1998.
*10.11 Amendment No. 2 to the Employment Agreement between Digital
Teleport, Inc. and Robert F. McCormick, dated January 28,
1998.
*++10.12 Product Attachment -- Carrier Networks Products Agreement
between Digital Teleport, Inc. and Northern Telecom, Inc.,
effective October 23, 1997.
*10.13 Agreement re: Fiber Optic Cable on Freeways in Missouri,
between the Missouri Highway and Transportation Commission
and Digital Teleport, Inc., effective July 29, 1994.
*10.14 First Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective September 22, 1994.
*10.15 Second Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective November 7, 1994.
*10.16 Third Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective October 9, 1996.
*10.17 Contract Extension to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Department of
Transportation (as successor to the Missouri Highway and
Transportation Commission) and Digital Teleport, Inc., dated
February 7, 1997.
*10.18 Fiber Optic Cable Agreement, between the Arkansas State
Highway and Transportation Department and Digital Teleport,
Inc., dated May 29, 1997.
10.19 Missouri Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed July
1, 1997.
10.20 Arkansas Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
10.21 Kansas Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
10.22 Oklahoma Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
10.23 Missouri Interconnection, Resale and Unbundling Agreement
between GTE Midwest Incorporated, GTE Arkansas Incorporated
and Digital Teleport, Inc. executed November 7, 1997.
</TABLE>
- -------------------------
* Previously Filed.
++ Confidential treatment has been requested with respect to certain portions of
this Exhibit.
<PAGE> 155
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
10.24 Arkansas Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated, GTE Midwest
Incorporated, GTE Arkansas Incorporated and Digital
Teleport, Inc. executed November 7, 1997.
10.25 Oklahoma Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated, GTE Arkansas
Incorporated, GTE Midwest and Digital Teleport, Inc.,
executed November 7, 1997.
10.26 Texas Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated and Digital Teleport,
Inc., executed November 18, 1997.
10.27 Kansas Master Resale Agreement between United Telephone
Company of Kansas (Sprint) and Digital Teleport, Inc., dated
September 30, 1997.
*10.28 Commercial Lease between Richard D. Weinstein and Digital
Teleport, Inc., dated December 31, 1996.
*10.29 Commercial Lease Extension Agreement between Richard D.
Weinstein and Digital Teleport, Inc., dated December 31,
1997.
*10.30 Purchase Agreement by and between the Registrant and the
Initial Purchasers named therein, dated as of February 13,
1998.
**10.31 Stock Purchase Agreement by and between KLT Telecom Inc. and
Digital Teleport, Inc., dated December 31, 1996.
10.32 Amendment No. 1 to Stock Purchase Agreement between KLT
Telecom Inc. and Digital Teleport, Inc. dated February 12,
1998.
10.33 Consulting Agreement between Digital Teleport, Inc. and H.P.
Scott, dated May 4, 1998.
12.1 Statement re Computation of Ratio of Earnings to Fixed
Charges.
*21.1 Subsidiaries of the Registrant.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Bryan Cave LLP (Missouri) (included in its
opinion filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (contained in signature page).
25.1 Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939 of The Bank of New York, as
Trustee under the Indenture.
27.1 Financial Data Schedule
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
99.4 Form of Letter to Clients.
99.5 Guidelines for Certification of Taxpayer Identification
Number on Form W-9 (included in the Form of Letter of
Transmittal filed as Exhibit 99.1 herein).
99.6 Form of Exchange Agent Agreement.
</TABLE>
- -------------------------
* Previously filed.
** Schedule omitted pursuant to Item 601 of Regulation S-K of the Commission.
<PAGE> 1
EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
DTI HOLDINGS, INC.
DTI HOLDINGS, INC., a Missouri corporation (the "Corporation"), hereby
certifies to the Secretary of State of Missouri that the Corporation desires to
restate its Articles of Incorporation as currently in effect and the following
Restated Articles of Incorporation are all of the provisions of the Articles of
Incorporation of the Corporation as theretofore amended and that these Restated
Articles of Incorporation correctly set forth without change the corresponding
provisions of such Articles of Incorporation as theretofore amended. These
Restated Articles of Incorporation supersede the original Articles of
Incorporation and all amendments thereto.
These Restated Articles of Incorporation were duly approved by the
directors of the Corporation and adopted on behalf of the Corporation by written
consent in lieu of a meeting, dated April 8, 1998.
ARTICLE ONE
The name of the corporation (hereinafter referred to as the
"Corporation") is: DTI HOLDINGS, INC.
ARTICLE TWO
The address, including street and number, if any, or the corporation's
initial registered office in this state is 11111 Dorsett Road, St. Louis,
Missouri 63043 and the name of its initial agent at such address is Richard D.
Weinstein.
ARTICLE THREE
I. Authorization of Shares
The aggregate number of shares of capital stock which the
Corporation has authority to issue is 100,050,000 shares, consisting of:
A. 100,000,000 shares of common stock, par value $.01
per share (the "Common Stock");
B. 50,000 shares of preferred stock, par value $.01 per
share (the "Preferred Stock").
<PAGE> 2
II. Preferred Stock
A. General. The Board of Directors of the Corporation is hereby
authorized to determine all rights, preferences and privileges and
qualifications, limitations and restrictions of the Preferred Stock (including,
without limitation, voting rights and the limitation and exclusion thereof)
granted to or imposed upon any unissued series of Preferred Stock and the number
of shares constituting any such series and the designation thereof, and to
increase or decrease (but not below the number of shares of such series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series then outstanding. Unless otherwise provided in a
particular certificate of designation relating to a series of Preferred Stock,
in case the number of shares of any series is so decreased, the shares
constituting such reduction shall resume the status which such shares had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
B. Series A Preferred Stock
1. Designation. Thirty Thousand (30,000) shares of the authorized and
unissued Preferred Stock of the Corporation shall be designated as "Series A
Preferred Stock" and shall have the following rights and limitations.
2. Dividends. Upon declaration of any dividend by the Board of
Directors of the Corporation on the Common Stock, the holder of each share of
Series A Preferred Stock shall be entitled to receive, out of any funds legally
available therefor, as adjusted appropriately for stock splits, stock dividends,
combinations or similar recapitalizations affecting the Series A Preferred
Stock, such dividends paid in cash or other assets as would be paid on each
share of Common Stock, or any other equity security, into which each share of
Series A Preferred Stock could be converted on the applicable record date. The
dividends shall be payable quarterly in arrears from the date on which a share
of the Series A Preferred Stock is first issued hereunder. The original dates of
issuance of the Series A preferred stock, par value $.01 per share, of Digital
Teleport, Inc. (the "DTI Series A Preferred Stock") to KLT Telecom Inc. ("KLT")
are herein referred to as the "Original Issue Dates".
3. Liquidation, Dissolution or Winding Up and Voting.
(a) Preference. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation (a "Liquidating
Event"), the holders of the then outstanding shares of Series A Preferred Stock
shall be entitled to be paid, prior and in preference to any distribution of any
of the assets or surplus funds of the Corporation to the holders of the Common
Stock of the Corporation by reason of their ownership thereof, out of the assets
of the Corporation available for distribution to its shareholders, $1,500 per
share of Series A Preferred Stock, subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar
recapitalization affecting the Series A Preferred Stock. If upon the occurrence
of any Liquidating Event the remaining assets of the Corporation available for
distribution to its shareholders shall be insufficient to pay the holders of
shares of Series A Preferred Stock the full amount to which they shall be
entitled, the holders of shares of Series A Preferred Stock shall share
2
<PAGE> 3
ratably in any distribution of the remaining assets and funds of the Corporation
in proportion to the respective amounts which would otherwise be payable in
respect of the shares held by them upon such distribution if all amounts payable
on or with respect to such shares were paid in full.
(b) Common Stock. If, after the payment of all preferential amounts
required by subsection 3(a) above to be paid to the holders of Series A
Preferred Stock upon the occurrence of any Liquidating Event, any assets and
funds of the Corporation are legally available for distribution, a dividend
shall be payable on each share of Common Stock then outstanding, prior and in
preference to any further distribution of any of the assets or surplus funds of
the Corporation to the holders of the Series A Preferred Stock by reason of
their ownership thereof in an amount equal to the per share cash consideration
received by the Corporation upon its issuance of Common Stock to the initial
holder of such shares (as adjusted for any stock dividends, combinations or
splits with respect to such shares). Subject to the payment in full of the
liquidation preferences with respect to the Series A Preferred Stock as provided
in subsection 3(a) above, if upon the occurrence of such Liquidating Event, the
assets and funds thus distributed among the holders of the Common Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then the entire remaining assets and funds of the
Corporation legally available for distribution shall be distributed among the
holders of the Common Stock in proportion to the weighted value of shares of
Common Stock (as determined by the per share cash consideration received by the
Corporation upon issuance of the Common Stock to the original holder thereof)
then held by them.
(c) Participation. After payment to the holders of the Common Stock
and the Series A Preferred Stock of the amounts set forth in subsections 3(a)
and (b) above, the entire remaining assets and funds of the Corporation legally
available for distribution, if any, shall be distributed among the holders of
the Common Stock and the Series A Preferred Stock in proportion to the shares of
Common Stock then held by them and the shares of Common Stock which they then
have the right to acquire upon conversion of the shares of Series A Preferred
Stock then held by them.
(d) Voting. Each holder of outstanding shares of Series A Preferred
Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series A Preferred Stock held by
such holder are convertible (as adjusted from time to time pursuant to Section 4
of this Article Three.II.B), at each meeting of shareholders of the Corporation
(and written actions of shareholders in lieu of meetings) with respect to any
and all matters presented to the shareholders of the Corporation for their
action or consideration. Except for any amendment affecting the rights and
obligations of holders of Series A Preferred Stock or as otherwise provided by
law, holders of Series A Preferred Stock shall vote together with the holders of
Common Stock as a single class. The holders of the Series A Preferred Stock
shall vote separately as a class with respect to any amendment affecting the
rights and obligations of holders of Series A Preferred Stock and as otherwise
required by law.
4. Optional Conversion. The holders of the Series A Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
3
<PAGE> 4
(a) Right to Convert. Each share of Series A Preferred Stock shall
be convertible, at the option of the holder thereof, at any time and from time
to time, into one share of Common Stock (the number and type of shares into
which the Series A Preferred Stock shall be converted shall be adjusted as
described below) ("Conversion Shares"), without any payment of monies by the
holder of Series A Preferred Stock for such conversion. Upon a Liquidating
Event, the Conversion Rights shall terminate at the close of business on the
first (1st) full day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of Series A Preferred Stock.
(b) Automatic Conversion. Upon the sale of shares of Common Stock or
debt securities of the Corporation in a public offering (a "Qualified Public
Offering") pursuant to an effective registration statement under the Securities
Act of 1933, as amended, (i) resulting in at least $100,000,000 of net proceeds
to the Corporation or (ii) (A) resulting in more than $50,000,000 but less than
$100,000,000 in net proceeds to the Corporation and (B) the offering price for
Common Stock in such offering multiplied by the number of shares of Common Stock
represented by all the shares of the Series A Preferred Stock issued in exchange
for the DTI Series A Preferred Stock, is greater than the amount that would
provide an IRR (as hereinafter defined) of at least twenty-five percent (25%)
per annum on a cumulative basis, pre-tax ("Benchmark Amount") from the date of
the first Original Issue Date ("First Issue Date"), then all duly issued and
outstanding shares of the Series A Preferred Stock shall, as of the date of
consummation of such Public Offering, be converted into the Conversion Shares
(as in effect immediately prior to the date of consummation of such Public
Offering). "IRR" means the discount rate that equates (i) the present value (to
the First Issue Date) of the Benchmark Amount with (ii) the present value (to
the First Issue Date) of the total investments made by KLT on the Original Issue
Dates. For purposes of calculating IRR, any antecedent debt and all property
(including without limitation any antecedent debts or limited liability company
interests) shall be deemed to be contributed on the First Issue Date in cash at
its face value. The Corporation shall give the holders of the Series A Preferred
Stock notice of the filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), of any registration
statement relating to any proposed Public Offering not less than 30 days prior
to such filing. The holders of shares of Series A Preferred Stock shall present
such shares for surrender to the Corporation in accordance with the provisions
of subsection 4(d)(i) below on or before the closing date of such Public
Offering and the Corporation shall issue to such holders a certificate or
certificates for shares of Common Stock in accordance with the provisions of
subsection 4(d)(i) below on such closing date. The term "Qualified Public
Offering" shall be deemed to exclude any offering (i) pursuant to a registered
exchange offer for debt securities initially sold in a private placement
pursuant to Rule 144A and Regulation S under the Securities Act and (ii) to the
extent such offering registers securities for any party other than the
Corporation, including pursuant to demand registration rights or piggy-back
registration rights, on a shelf registration or otherwise.
(c) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied
4
<PAGE> 5
by the fair market value of such fractional shares of Common Stock as determined
in good faith by the Corporation's Board of Directors, whose determination shall
be conclusive.
(d) Mechanics of Conversion.
(i) Surrender of Certificates. In order for a holder of Series A
Preferred Stock to convert shares of Series A Preferred Stock into shares of
Common Stock, such holder shall surrender the certificate or certificates for
such shares of Series A Preferred Stock, at the office of the transfer agent for
the Series A Preferred Stock (or at the principal office of the Corporation if
the Corporation serves as its own transfer agent), together with written notice
that such holder elects to convert all or any number of the shares of the Series
A Preferred Stock represented by such certificate or certificates without any
payment to the Corporation by the holder for such conversion. Such notice shall
state such holder's name or the names of the nominees in which such holder
wishes the certificate or certificates for shares of Common Stock to be issued.
If required by the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the registered holder or
his, her or its attorney duly authorized in writing. The date of receipt of such
certificates and notice by the transfer agent (or by the Corporation if the
Corporation serves as its own transfer agent) shall be the conversion date
("Conversion Date"). The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such holder of Series A
Preferred Stock, or to his, her or its nominees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.
(ii) Reservation of Common Stock. The Corporation shall at all
times when the Series A Preferred Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Series A Preferred Stock, such number of its duly
authorized shares of Common Stock or other securities into which the Series A
Preferred Stock may then be convertible, as shall from time to time be
sufficient to effect the conversion of all outstanding Series A Preferred Stock.
(iii) Unpaid Dividends. Upon any conversion, no adjustment to
the Conversion Shares shall be made for any accrued and unpaid dividends on the
Series A Preferred Stock surrendered for conversion or on the Common Stock
delivered upon conversion.
(iv) No Rights. All shares of Series A Preferred Stock that have
been surrendered for conversion as herein provided or are subject to automatic
conversion under subsection 4(b), whether or not surrendered, shall no longer be
deemed to be outstanding and all rights with respect to such shares, including
the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive shares of Common Stock in exchange therefor and payment of any
accrued and unpaid dividends thereon.
(e) Adjustments of Conversion Shares. In case the Corporation shall
hereafter (i) declare a dividend or a distribution on its Common
5
<PAGE> 6
Stock payable in shares of its Common Stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding Common Stock into a
smaller number of shares, or (iv) issue other securities of the Corporation by
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Corporation is the
continuing corporation), the number and kind of Conversion Shares at the time of
the record date for such dividend or distribution or the effective date of such
subdivision, combination or reclassification shall be proportionately adjusted
so that the owner of any Series A Preferred Stock converted after such date
shall be entitled to receive the number and kind of Conversion Shares which, if
such Series A Preferred Stock had been converted immediately prior to such time,
he would have owned upon such conversion and been entitled to receive upon such
dividend, distribution, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur; appropriate adjustment (as determined in good faith by the Board of
Directors of the Corporation) shall be made to apply the provisions in this
Section 4 to any Conversion Shares which are not Common Stock in a manner as
similar as possible to that for the Common Stock.
(f) Adjustment for Merger or Reorganization, Etc. In case of any
consolidation or merger of the Corporation with or into another corporation or
the sale of all or substantially all of the assets of the Corporation to another
corporation, each share of Series A Preferred Stock shall automatically convert
into the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Corporation
deliverable upon conversion of such Series A Preferred Stock would have been
entitled upon such consolidation, merger or sale; appropriate adjustment (as
determined in good faith by the Board of Directors of the Corporation) shall be
made to apply the provisions in this Section 4 to any Conversion Shares which
are not Common Stock in a manner as similar as possible to that for the Common
Stock.
(g) No Impairment. The Corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Preferred Stock against impairment.
(h) Notice of Record Date. In the event:
(i) that the Corporation declares a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other
securities of the Corporation;
(ii) that the Corporation subdivides or combines its outstanding
shares of Common Stock;
(iii) of any reclassification of the Common Stock of the
Corporation (other than a subdivision or combination of its outstanding
shares of Common Stock or a stock dividend or stock distribution
thereon), or of any consolidation or merger of the
6
<PAGE> 7
Corporation into or with another corporation, or of the sale of all or
substantially all of the assets of the Corporation; or
(iv) of the involuntary or voluntary dissolution, liquidation or
winding up of the Corporation,
then the Corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series A Preferred Stock, and shall cause to
be mailed to the holders of the Series A Preferred Stock at their last addresses
as shown on the records of the Corporation or such transfer agent, at least 20
days prior to the record date specified below in subparagraph (A) or 20 days
before the date specified below in subparagraph (B), a notice stating:
(A) the record date of such dividend, distribution, subdivision
or combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such
dividend, distribution, subdivision or combination are to be
determined; or
(B) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution or winding
up.
(i) Special Anti-Dilution. In the event that the number of
shares of Common Stock issuable upon exercise of the warrant issued by Digital
Teleport, Inc. ("DTI") to Banque IndoSuez would cause a dilution of the
ownership of outstanding Series A Preferred Stock to less than 49.74874% of the
total outstanding stock of the Corporation, assuming such warrant had been
exercised on the First Issue Date and all shares of DTI Series A Preferred Stock
had been issued at the First Issue Date, the Conversion Shares shall be
increased to a number which would equal the number of shares of capital stock of
the Corporation that would have constituted 49.74874% of the total outstanding
stock of DTI at the First Issue Date assuming such warrant had been exercised at
such time.
ARTICLE FOUR
The extent, if any, of the preemptive right of a shareholder to acquire
additional shares is hereby denied.
ARTICLE FIVE
The name and place of residence of the incorporator is as follows:
Richard D. Weinstein
14222 Kinderhook Drive
Chesterfield, MO 63017
7
<PAGE> 8
ARTICLE SIX
The number of directors to constitute the Board of Directors is six.
Thereafter, the number of directors shall be fixed by, or in the manner provided
in, the Bylaws of the Corporation. Any changes in the number will be reported to
the Secretary of State within thirty calendar days of such change.
ARTICLE SEVEN
The duration of the corporation is Perpetual.
ARTICLE EIGHT
The corporation is formed for the following purposes:
1. To operate a communications business, providing all other
related communications services as well as a general business.
2. To buy, sell, and deal generally at retail and wholesale of
merchandise and services.
3. To borrow money, lend money, invest money, and for such
purpose to execute notes, bonds, debentures, or any other form
of evidence of indebtedness, and to secure the payment of same
by mortgage, deed of trust, or other form of encumbrance,
pledge, or other form of hypothecation.
4. To take, purchase, or otherwise acquire, and to own and
hold such personal property, chattels real, rights, easements,
privileges, chose in action, notes, bonds, mortgages, and
securities as may be lawfully be acquired, held, or disposed
of by the Corporation under the laws of the State of Missouri.
5. To sell, assign, convey, exchange, release, and otherwise
deal in, and dispose of such real and personal property,
lands, buildings, chattels, chattels real, rights, easements,
privileges, chose in action, notes, bonds, mortgages, and
securities as may lawfully be acquired, held, or disposed of
by the Corporation under the laws of the State of Missouri.
6. To enter into and perform all manner and kinds of
contracts, agreements, and obligations of any lawful purposes,
by or with any person, firm, association, corporation, or
governmental division or subdivision.
7. To lend and advance money or to give credit to such persons
and on such terms as may seem expedient, and, in particular,
to customers and others dealing with it;
8
<PAGE> 9
8. To guarantee or give security for the loans of its
customers and other dealing with it;
9. In general, to have and exercise any and all powers that
corporations have and may exercise under the laws of the State
of Missouri and as the same may be amended, except such powers
as are inconsistent with the express provisions of these
articles;
10. To do all and everything necessary, suitable, or proper
for the accomplishment of any of the purposes, the attainment
of any of the objects, or the exercise of any of the powers
herein set forth, either alone, or in conjunction with other
corporations, firms, individuals, and either as principals or
agents, and to do every other act or acts, thing or things,
incidental or appurtenant to, or growing out of, or connected
with the above mentioned objects, purposes or powers;
11. To have and to exercise all of the powers now or hereafter
conferred by the laws of the State of Missouri upon
corporations organized pursuant the laws under which the
Corporation is organized, and any and all acts amendatory
thereof and supplemental thereto;
12. The above enumerated powers shall not be construed as
limiting or restricting in any manner the powers of this
Corporation which shall always have such incidental powers as
may be connected with or related to any specific power herein
enumerated.
ARTICLE NINE
The Corporation shall not be subject to the provisions of Section
351.459 of The General and Business Corporation Law of Missouri.
9
<PAGE> 10
IN WITNESS WHEREOF, the undersigned, Richard D. Weinstein, President,
has executed this instrument and Richard D. Weinstein, its Secretary has
attested thereto on the 14th day of April, 1998.
DTI HOLDINGS, INC.
By:/s/ Richard D. Weinstein
----------------------------------
Richard D. Weinstein, President
Attested:
/s/ Richard D. Weinstein
- -----------------------------------
Richard D. Weinstein, Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
I, Connie B. Walsh, a Notary Public, do hereby certify that on
the 14th day of April, 1998, personally appeared before me Richard D. Weinstein,
and, being first duly sworn by me, acknowledged that he signed as his free act
and deed the foregoing document in the capacity(ies) therein set forth and
declared that the statements therein contained are true, to his knowledge and
belief.
/s/ Connie B. Walsh
---------------------------
Notary Public
My Commission expires:
- ----------------------
10
<PAGE> 1
EXHIBIT 3.2
BY-LAWS
OF
DTI HOLDINGS, INC.
(adopted December 18, 1997)
(restated, with all amendments, as of April 8, 1998)
ARTICLE I
Shareholders
Section 1.1. Annual Meetings. An annual meeting of
shareholders shall be held for the election of directors at such date, time and
place either within or without the State of Missouri as may be designated by the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of
shareholders may be called at any time by the Chairman of the Board, if any, the
Vice Chairman of the Board, if any, the President or the Board of Directors, to
be held at such date, time and place either within or without the State of
Missouri as may be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever shareholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each shareholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the shareholder at his
address as it appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of shareholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of shareholders, except
where otherwise provided by law or the articles of incorporation or these
by-laws, the holders
<PAGE> 2
of a majority of the outstanding shares of each class of stock entitled to vote
at the meeting, present in person or represented by proxy, shall constitute a
quorum. For purposes of the foregoing, two or more classes or series of stock
shall be considered a single class if the holders thereof are entitled to vote
together as a single class at the meeting. In the absence of a quorum, the
shareholders so present may, by majority vote, adjourn the meeting from time to
time in the manner provided by Section 1.4 of these by-laws until a quorum shall
attend. Shares of its own capital stock belonging on the record date for the
meeting to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of shareholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided by
the General and Business Corporation Law of Missouri or by the articles of
incorporation of the corporation or any amendments thereto, every shareholder
shall at every meeting of the shareholders be entitled to one vote in person or
by proxy for each share of the capital stock of the corporation held by such
shareholder entitled to vote thereon, except that no proxy shall be voted after
eleven months from its date unless otherwise provided in the proxy. All
cumulative voting rights of shareholders are hereby denied so that each holder
of the capital stock shall only be entitled to one vote per share of capital
stock in all elections of directors. Voting securities in any other corporation
held by the corporation shall be voted by the president, unless the Board of
directors specifically confers authority to vote with respect thereto, which may
be general or confined to specific instances, upon some other person or officer.
Any person authorized to vote securities shall have the power to appoint
proxies, with general power of substitution.
Section 1.8. Fixing Date for Determination of Shareholders of
Record. In order that the Corporation may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such
<PAGE> 3
meeting, nor more than sixty days prior to any other action. If no record date
is fixed: (1) the record date for determining shareholders entitled to notice of
or to vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board is necessary, shall be the day on which the first written consent
is expressed; and (3) the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
Section 1.9. List of Shareholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
shareholders, a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any shareholder who is
present.
Section 1.10. Consent of Shareholders in Lieu of Meeting.
Unless otherwise provided in the articles of incorporation, any action required
by law to be taken at any annual or special meeting of shareholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such shareholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of all outstanding stock.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and
affairs of the Corporation shall be managed by the Board of Directors, except as
may be otherwise provided by law or in the articles of incorporation. The number
of directors which shall constitute the Board of directors shall not be less
than three and shall be established from time to time by resolution of the
shareholders, provided, however, that any change in the number of directors
shall be reported to the Secretary of State of
<PAGE> 4
Missouri within thirty calendar days of such change. A director shall not be
required to be a resident of the State of Missouri nor a shareholder of the
corporation.
Section 2.2. Election; Term of Office; Resignation; Removal;
Vacancies. Each director shall hold office until the annual meeting of
shareholders next succeeding his election and until his successor is elected and
qualified or until his earlier resignation or removal. Any director may resign
at any time upon written notice to the Board of Directors or to the President or
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors will be held monthly on a regular fixed date at such places within
or without the State of Missouri as determined by the Board of Directors, and if
so determined, notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Missouri whenever called by the Chairman of the Board, if any, by the Vice
Chairman of the Board, if any, by the President or by any two directors.
Reasonable notice thereof shall be given by the person or persons calling the
meeting.
Section 2.5. Telephonic Meetings Permitted. Unless otherwise
restricted by the articles of incorporation or these by-laws, members of the
Board of Directors, or any committee designated by the Board, may participate in
a meeting of the Board or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this by-law shall constitute presence in person at such
meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors all members of the entire Board present in person
shall constitute a quorum for the transaction of business. The vote of a
majority of the directors present at a meeting in person at which a quorum is
present shall be the act of the Board unless the articles of incorporation or
these by-laws shall require a vote of a greater number. In case at any meeting
of the Board a quorum shall not be present, the members of the Board present may
adjourn the meeting from time to time until a quorum shall attend.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his absence
by the Vice Chairman of the Board, if any, or in his absence by the President,
or in their absence by a chairman chosen at the meeting. The Secretary shall act
as secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
<PAGE> 5
Section 2.8. Informal Action by Directors. Any action required
or permitted to be taken at any meeting of the Board of directors, or of any
committee thereof, may be taken without a meeting if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed by the secretary with the minutes or proceedings of the board
of committee.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it; but no such committee shall have power or
authority in reference to amending the articles of incorporation, adopting an
agreement of merger or consolidation, recommending to the shareholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the shareholders a dissolution of the Corporation or a
revocation of dissolution, removing or indemnifying Directors or amending these
by-laws; and, unless the resolution expressly so provided, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 3.2. Compensation Committee. The compensation
committee shall consist of not fewer than two members of the board of Directors,
one selected by Richard D. Weinstein and one selected by KLT Telecom Inc., with
the board member selected by KLT Telecom Inc. to serve as the chairperson of
such committee. The compensation committee shall review and, as it deems
appropriate, recommend to the president and the board of Directors policies,
practices and procedures relating to the compensation of managerial employees
and the establishment and administration of employee benefit plans. The
compensation committee shall have and exercise all authority under any employee
stock option plans of the corporation as the committee therein (unless the board
of Directors by resolution appoints any other committee to exercise such
authority), and shall otherwise advise and consult with the officers of the
corporation as may be requested regarding managerial personnel policies. The
members of the compensation committee shall not be eligible to participate in
any
<PAGE> 6
discretionary employee benefit plan of the corporation including any stock
option plan which are administered by the compensation committee.
Section 3.3. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may make, alter and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a majority of
the members present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee, and in other respects each committee
shall conduct its business in the same manner as the Board conducts its business
pursuant to Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election; Qualification; Term of
Office; Resignation; Removal; Vacancies. As soon as practicable after the annual
meeting of shareholders in each year, the Board of Directors shall elect a
President and a Secretary, and it may, if it so determines, elect from among its
members a Chairman of the Board and a Vice Chairman of the Board. The Board may
also elect one or more Vice Presidents, one or more Assistant Vice Presidents,
one or more Assistant Secretaries, a Treasurer and one or more Assistant
Treasurers and may give any of them such further designations or alternate
titles as it considers desirable. Each such officer shall hold office until the
first meeting of the Board after the annual meeting of shareholders next
succeeding his election, and until his successor is elected and qualified or
until his earlier resignation or removal. Any officer may resign at any time
upon written notice to the Board or to the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board may remove any officer with or
without cause at any time. Any such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation, but the
election or appointment of an officer shall not of itself create contractual
rights. Any number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board at
any regular or special meeting.
Section 4.2. Powers and Duties of Executive Officers. The
officers of the Corporation shall have such powers and duties in the management
of the Corporation as may be prescribed by the Board of Directors and, to the
extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board. The Board may require any officer, agent or
employee to give security for the faithful performance of his duties.
<PAGE> 7
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman or Vice Chairman of the Board of Directors, if
any or the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, of the Corporation,
certifying the number of shares owned by him in the Corporation. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. By-Laws Subject to Shareholders' Agreement. At
any time that the Corporation is bound by the Shareholders' Agreement, dated as
of March 12, 1997, by and among the Corporation (as successor-in-interest to
Digital Teleport, Inc.) and certain shareholders named therein, as the same may
be modified or amended from time to time (the "Shareholders' Agreement"), then,
whether or not expressly so stated in these by-laws or such Shareholders'
Agreement, any term or provision of these by-laws that is modified or superseded
by any term or provision of such Shareholders' Agreement shall not be deemed
contained in these by-laws except as so modified or superseded, and any term or
provision of such Shareholders' Agreement that is contrary to or inconsistent
with any term or provision of these by-laws shall, notwithstanding these
by-laws, govern and control the matter subject thereto.
Section 6.2. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
<PAGE> 8
Section 6.3. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon and shall be in
such form as may be approved from time to time by the Board of Directors. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
Section 6.4. Waiver of Notice of Meetings of Shareholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the certificate of incorporation or these by-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
shareholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the articles of
incorporation or these by-laws.
Section 6.5. Indemnification of Directors, Officers and
Employees. The Corporation shall indemnify to the full extent authorized by law
any person made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that he, his testator or intestate is or was a director or officer
of the Corporation or any predecessor of the Corporation or serves or served any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor of the Corporation. The Corporation may, in the
sole discretion of the Board of Directors, indemnify to the full extent
authorized by law any person made or threatened to be made a party to any
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate is or
was an employee of the Corporation or any predecessor of the Corporation.
Section 6.6. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if: (1) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the
<PAGE> 9
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by majority vote of the shareholders; or (3) the contract or transaction is fair
as to the Corporation as of the time it is authorized, approved or ratified, by
the Board, a committee thereof or the shareholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board or of a committee which authorizes the contract or transaction.
Section 6.7. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 6.8. [Reserved]
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Bryan Cave LLP]
July 13, 1998
Board of Directors
DTI Holdings, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
Gentlemen:
We are acting as special counsel for DTI Holdings, Inc., a
Missouri corporation (the "Company"), in connection with various legal matters
relating to the filing with the Securities and Exchange Commission of a
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), covering an offer to exchange
(the "Exchange Offer") $1,000 principal amount of the Company's 12 1/2% Series B
Senior Discount Notes due 2008 (the "Exchange Notes") for each $1,000 principal
amount of its outstanding 12 1/2% Senior Discount Notes due 2008 (the "Private
Notes"), of which $506,000,000 aggregate principal amount is outstanding on the
date hereof. The Exchange Notes are to be issued pursuant to an Indenture, dated
as of February 23, 1998 (the "Indenture"), between the Company and The Bank of
New York, as Trustee, which is filed as an exhibit to the Registration
Statement.
In connection herewith, we have examined and relied without
independent investigation as to matters of fact upon such certificates of public
officials, such statements and certificates of officers of the Company and
originals or copies certified to our satisfaction of the Registration Statement,
the Indenture, the Notes Registration Rights Agreement, dated as of February 23,
1998, between the Company and the Initial Purchasers named therein, the Restated
Articles of Incorporation and By-laws of the Company, proceedings of the Board
of Directors of the Company and such other corporate records, documents,
certificates and instruments as we have deemed necessary or appropriate in order
to enable us to render the opinions expressed below. In rendering this opinion,
we have assumed the genuineness of all signatures on all documents examined by
us, the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals and the conformity to authentic originals of all
documents submitted to us as certified or photostatted copies.
We express no opinion as to the applicability or effect of (i)
any bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, or (ii) general principles
of equity, including, without limitation, concepts of reasonableness,
materiality, good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable remedies, regardless
of whether enforceability is considered in a proceeding in equity or at law.
Based upon the foregoing and in reliance thereon and subject
to the qualifications and limitations stated herein, we are of the opinion that:
(1) The Company is a corporation validly existing in good standing
under the laws of
<PAGE> 2
BRYAN CAVE LLP
DTI Holdings, Inc.
July 13, 1998
Page 2
the State of Missouri;
(2) When,
(i) the Registration Statement, including any amendments
thereto, shall have become effective under the Act;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended; and
(iii) the Exchange Notes shall have been duly executed and
authenticated in accordance with the provisions of
the Indenture and duly delivered to the holders
thereof in exchange for the Private Notes;
then the Exchange Notes will be valid and binding obligations
of the Company; and
(3) The statements contained in the Preliminary Prospectus dated
July 13, 1998 under the caption "Certain United States
Federal Income Tax Considerations" insofar as such statements
constitute matters of law or legal conclusions, as qualified
therein, fairly describe the material federal income tax
consequences of the Exchange Offer and are true, correct and
complete in all material respects.
In rendering the opinion expressed in clause (3) above, we
have considered the applicable provisions of the Internal Revenue Code, as
amended (the "Code"), Treasury Regulations promulgated thereunder by the
Treasury Department (the "Regulations"), pertinent judicial authorities, rulings
of the Internal Revenue Service and such other authorities as we have considered
relevant. It should be noted that such laws, Code, Regulations, judicial
decisions and administrative interpretations are subject to change at any time
and, in some circumstances, with retroactive effect. We have also assumed that
the Registration Statement reflects all of the material facts, and our opinion
is expressly conditioned on, among other things, the accuracy as of the date
hereof, and the continuing accuracy, of all such facts, information, covenants,
statements and representations through and as of the effective date of the
Exchange Offer. Any variation or difference in the facts referred to, set forth
or assumed herein or in the Registration Statement or in any of the authorities
upon which our opinion is based could affect our opinion.
This opinion is not rendered with respect to any laws other
than the laws of the State of New York, the General and Business Corporation Law
of Missouri and the federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included as a part thereof. We also consent to
your filing copies of this opinion as an exhibit to the Registration Statement
with agencies of such states as you deem necessary in the course of complying
with the laws of such states regarding the Exchange Offer. In giving this
consent, we do not admit that we are in the category of persons whose consent is
required under Section 7 of
<PAGE> 3
BRYAN CAVE LLP
DTI Holdings, Inc.
July 13, 1998
Page 3
the Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Bryan Cave LLP
Bryan Cave LLP
<PAGE> 1
EXHIBIT 10.19
INDEX
SWBT/Digital Teleport, Inc. (Missouri) Tab 1
800 Tab 2
911 - Missouri Tab 3
AIN Tab 4
BCR Tab 5
CH Tab 6
CNAM Tab 7
DCO Tab 8
DA Tab 9
FGA Tab 10
HOST Tab 11
ITR Tab 12
LIDB-AS Tab 13
LIDB-V Tab 14
OSS Tab 15
OS Tab 16
NIM/Physical Collocation Agreement Tab 17
SS7 Tab 18
RECORDING Tab 19
RESALE Tab 20
UNE Tab 21
WIRELESS Tab 22
WP Tab 23
TP Tab 24
PORT Tab 25
Poles, Ducts, Conduits & ROW Tab 26
<PAGE> 2
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
BY AND BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
<PAGE> 3
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 1 OF 3
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1.0 DEFINITIONS..................................................................................................... 1
2.0 INTERPRETATION AND CONSTRUCTION................................................................................. 5
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES.................................................... 5
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)................................................................... 6
4.1 Scope.................................................................................................. 6
4.2 Interconnection Coverage............................................................................... 6
4.3 Methods for Interconnection............................................................................ 7
4.4 Physical Architecture.................................................................................. 8
4.5 Technical Specifications............................................................................... 9
4.6 Interconnection in Additional Metropolitan Exchange Areas.............................................. 9
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO SECTION 251(c)(2)................... 10
5.1 Scope of Traffic....................................................................................... 10
5.2 Responsibilities of the Parties........................................................................ 10
5.3 Reciprocal Compensation for Termination of Local Traffic............................................... 11
5.4 Reciprocal Compensation for Transit Traffic............................................................ 12
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange Traffic............................. 13
5.6 Compensation for Origination and Termination of Switched Access Service Traffic
to or From an IXC (Meet-Point Billing (MPB) Arrangements).............................................. 13
5.7 Billing Arrangements for Compensation for Termination of IntraLATA, Local, Transit, and Optional
Calling Area Traffic................................................................................... 15
5.8 Compensation for "Porting" Optional Calling Area Numbers............................................... 16
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT
TO 251(c)(2).................................................................................................... 16
6.1 Scope of Traffic....................................................................................... 16
6.2 Trunk Group Architecture Traffic Routing............................................................... 16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC............................................................. 17
7.1 Information Services Traffic........................................................................... 17
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic....................................... 17
7.3 Wireless Traffic....................................................................................... 17
8.0 SIGNALING....................................................................................................... 18
9.0 NUMBERING....................................................................................................... 18
10.0 RESALE--SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv)........................................ 19
</TABLE>
<PAGE> 4
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 2 OF 3
<TABLE>
<S> <C> <C>
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B) (ii),(iv),(v),(vi),(x)........................... 20
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)......................................................................... 20
13.0 COLLOCATION -- SECTION 251(c)(6)............................................................................... 20
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271(c)(2)(B)(xi).................................................. 21
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2).......................................... 21
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271(c)(2)(B)(iii)............................................. 21
17.0 DATABASE ACCESS -- SECTION 271(c)(2)(B)(x).................................................................... 21
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS............................................................................... 22
19.0 COORDINATED REPAIR CALLS....................................................................................... 22
20.0 OTHER SERVICES 271(c)(B)(2)(vii) and 271(c)(2)(B)(viii).........................................................22
20.1 White Pages........................................................................................... 22
20.2 Calling Name Information.............................................................................. 23
20.3 Billing/Collecting/Remitting ........................................................................ 23
20.4 911/E911 Service .................................................................................... 23
20.5 Directory Assistance (DA)............................................................................. 23
20.6 Operator Services..................................................................................... 23
20.7 Clearinghouse Services ............................................................................... 23
20.8 Hosting.............................................................................................. 23
20.9 Signaling System 7 Interconnection.................................................................... 23
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES........................................................................ 23
22.0 EFFECTIVE DATE, TERM, AND TERMINATION.......................................................................... 25
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES................................................................... 26
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION.................................................. 26
25.0 SEVERABILITY................................................................................................... 27
26.0 INTELLECTUAL PROPERTY.......................................................................................... 27
27.0 INDEMNIFICATION................................................................................................ 27
</TABLE>
<PAGE> 5
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 3 OF 3
<TABLE>
<S> <C> <C>
28.0 LIMITATION OF LIABILITY........................................................................................ 28
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES.................................................................... 29
29.1 Certain Definitions................................................................................... 29
29.2 Specified Performance Breach.......................................................................... 30
29.3 Liquidated Damages.................................................................................... 30
29.4 Limitations........................................................................................... 31
29.5 Sole Remedy........................................................................................... 31
29.6 Records............................................................................................... 31
30.0 REGULATORY APPROVAL............................................................................................ 31
31.0 MISCELLANEOUS.................................................................................................. 32
31.1 Authorization......................................................................................... 32
31.2 Compliance and Certification.......................................................................... 32
31.3 Law Enforcement....................................................................................... 32
31.4 Independent Contractor................................................................................ 33
31.5 Force Majeure......................................................................................... 33
31.6 Confidentiality....................................................................................... 34
31.7 Governing Law......................................................................................... 35
31.8 Taxes................................................................................................. 36
31.9 Non-Assignment........................................................................................ 37
31.10 Non-Waiver............................................................................................ 37
31.11 Audits................................................................................................ 37
31.12 Disputed Amounts...................................................................................... 38
31.13 Disputed Resolutions.................................................................................. 38
31.14 Notices............................................................................................... 39
31.15 Publicity and Use of Trademarks or Service Marks...................................................... 39
31.16 Section 252(i) Obligations............................................................................ 40
31.17 Joint Work Product.................................................................................... 40
31.18 Intervening Law....................................................................................... 40
31.19 No Third Party Beneficiaries; Disclaimer of Agency.................................................... 41
31.20 No License............................................................................................ 41
31.21 Survival.............................................................................................. 41
31.23 Scope of Agreement.................................................................................... 41
31.24 Entire Agreement...................................................................................... 41
</TABLE>
<PAGE> 6
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 1 OF 42
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Bell Telephone Company, a Missouri Corporation ("SWBT"), and Digital Teleport,
Inc. ("DTI").
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 Missouri; and
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 DTI, a competitive local
exchange carrier, is certified by the Missouri Public Service Commission, as
required.
NOW, THEREFORE, DTI 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 number 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:
<PAGE> 7
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 2 OF 42
(i) "End Office Switches" which
are Class 5 switches where end user
Exchange Services are directly connected
and offered; and
(ii) "Tandem Office Switches" or
"Tandems" which are Class 4 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 (combination Class 5/Class 4).
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 includes, but is not limited to, collocation of 38 GHz
basic transmission equipment, provided it complies with the guidelines in
SWBT's current Physical Collocation 02/14/97 Technical Publication provided to
DTI.
1.9 "Commission" or PSC means the Missouri Public Service Commission.
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 cross connect
rate element which is used to designate 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 DTI 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.
<PAGE> 8
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 3 OF 42
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. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps third-level
in the time-division multiplex hierarchy. In the time-division multiplexing
hierarchy of the telephone network, DS3 is defined as the third level of
multiplexing.
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,
directly or indirectly, interLATA or intraLATA Telephone 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 in order to
originate or terminate traffic to/from DTI's end users.
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
<PAGE> 9
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 4 OF 42
1.25 "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.
1.26 "Local Traffic," for purposes of intercompany compensation, is if (i)
the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "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).
1.28 "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 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.
1.29 "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.
1.30 "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.
1.31 "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.
1.32 "Network Element Bona Fide Request" means the process described [in
Appendix BFR 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.
<PAGE> 10
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 5 OF 42
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 "Telephone Exchange Services"
1.35 "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-l/STS-l) and higher rates are direct
multiples of the base rate, up to 13.22 Gpbs.
1.36 "Telephone Exchange Service" is as defined in the Act.
1.37 "Wire Center" means an occupied structure or portion thereof in which
a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative, regulatory,
judicial order, rule or regulations, or other legal action that revises or
reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and 95-185 or any
applicable order or arbitration award purporting to apply the provisions of the
federal Act, the Parties reserve all of their rights and remedies, including
those to amend, alter, or revise this Agreement.
3.0 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 by modifying or updating Appendix DCO.
<PAGE> 11
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 6 OF 42
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 sub-section
7.2).
4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and shall
interconnect their facilities as stated below:
4.2.1. DTI shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which DTI
chooses to offer local exchange service, DTI, 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 DTI will terminate its traffic will be called
SWBT Interconnection Wire Centers and are identified in
Appendix DCO. As DTI initiates Exchange Service operations
in additional SWBT exchange areas, SWBT and DTI shall agree
upon additional SWBT Interconnection Wire Centers in each
new exchange area. DTI agrees that if SWBT establishes
additional tandems in an exchange area within which DTI
offers local exchange service, DTI will interconnect to the
additional tandems.
b. Interconnection to a SWBT local tandem(s) will
provide DTI local access to the SWBT end offices and
NXXs which subtend that tandem(s), and to other Local
Exchange Carriers ("LECs") (subject to sub-section 5.4)
which are connected to that tandem(s). Interconnection to
SWBT EO(s) will provide DTI access only to the NXXs served
by that individual EO(s) to which DTI interconnects.
c. Interconnection to a SWBT access tandem will
provide DTI interexchange access to SWBT, IXCs, LECs
and CRMS providers (subject to sub-section 7.3) which are
connected to that tandem. Where an access tandem also
<PAGE> 12
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 7 OF 42
provides local tandem functions, interconnection to a
SWBT access tandem serving that exchange will also provide
DTI access to SWBT's EOs with the same functionality
described in (b) above.
d. Where DTI requires ancillary services (e.g.,
Directory Assistance, Operator Assistance, E911/911)
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 DTI's facilities under terms and
conditions no less favorable than those identified in sub-section 4.2.1, above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods 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 DTI
provides fiber cable and connects to its equipment located in the SWBT
Wire Center. DTI owns and maintains DTI's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where DTI
provides fiber cable to SWBT for connection to DTI-designated basic
transmission equipment dedicated solely for DTI'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 DTI provides
fiber cable to SWBT for connection to SWBT-designated basic
transmission equipment located at the SWBT Interconnection Wire Center and
dedicated solely for DTI'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 network
facilities exist, either Party may lease facilities from the other
Party at rates no greater than SWBT Access Tariff rates.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties
agree to interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix MSFI attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
<PAGE> 13
GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
PAGE 8 OF 42
4.3.6 The Parties may agree to utilize another Interconnection
Method as may be determined to be technically feasible in the future.
4.4 PHYSICAL ARCHITECTURE. 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 above. 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.
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.
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4.5 TECHNICAL SPECIFICATIONS
4.5.1 DTI and SWBT shall work cooperatively to install and maintain a
reliable network. DTI 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 DTI 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 and incorporated by reference. Appendix TP will
herein assist the Parties in meeting their respective Interconnection
responsibilities. Copies of the publications listed in Appendix TP have been
or shall be provided to DTI by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If DTI decides to offer Telephone Exchange Services in any other
Metropolitan Exchange and Areas in which SWBT also offers Telephone
Exchange Services, DTI 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 DTI has designated in the Metropolitan Exchange Area; (ii) DTI's
requested Interconnection Activation Date; and (iii) a non-binding forecast of
DTI's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall designate
the Wire Center that DTI has identified as its initial Routing Point in the
Metropolitan Exchange Area as DTI 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 (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 the one-hundred
and fiftieth (150th) day following the date on which DTI delivered notice to
SWBT of the need to establish Interconnection pursuant to Section 4.6.1 above.
Within ten (10) business days of SWBT's receipt of DTI's notice, SWBT and DTI
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.
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5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT
TO SECTION 251(c)(2)
5.1 SCOPE OF TRAFFIC
This Section 5.0 prescribes parameters for Traffic Exchange trunk groups
the Parties shall establish over the Interconnections specified in Section 4.0.
The Parties shall employ the Traffic Exchange trunk groups specified in this
Section 5.0 and in Appendix ITR. The Parties shall employ for the transmission
and routing of all Local and IntraLATA Toll Traffic between the Parties'
respective Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between DTI 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.
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.
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 Toll Traffic in direct proportion to the
minutes of use (MOU) of calls exchanged with CPN information. If the
percentage of calls passed with CPN is less than ninety percent (90%), all
calls passed without CPN will be billed as switched access.
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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 sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section 5.3 apply
only to the termination of Local Traffic, except as
explicitly noted.
ii) The Parties agree to compensate each other for the
termination of Local Traffic on a minute of use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem 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
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.
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5.3.4 Local Traffic Interconnection Rates
Serving Method Prices Per MOU
Tandem Served $.00975
End Office Served $.00720
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 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 MOUs between a Party and third party networks that transit the
other Party's tandem switch. The originating Party is responsible for the
appropriate rates unless otherwise specified. The Transit Traffic rate element
is only applicable when calls do not originate with (or terminate to) the
transit Party's end user. 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 third party incumbent LECs 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, which is attached hereto and incorporated by reference, may
traverse the SWBT tandem and terminate in other third party LEC exchange areas.
Although direct connections could be used for this traffic, SWBT agrees to
transit this traffic for the rate of $0.006 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 $0.003
Optional Area Transit $0.004
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5.4.2 All other traffic which transits a tandem shall be treated as
Meet-Point Billing Traffic as described in Section 5.6 below or as intraLATA
interexchange traffic as described in Section 5.5.3 below, unless otherwise
agreed.
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.
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 $0.016 per MOU. This terminating
compensation rate applies to all traffic to and from the exchange(s) listed in
Appendix Map, and the associated metropolitan area and is independent of any
retail service arrangement established by either DTI or SWBT.
5.5.2 The parties also agree to apply the OCA compensation rate of $0.016
per MOU for traffic terminating to DTI end users in other incumbent LEC
exchange 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 or as otherwise mutually agreed. 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 or as otherwise mutually
agreed.
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. DTI's Meet Points with SWBT shall be those
identified in Appendix DCO and any supplements thereto.
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GENERAL TERMS AND CONDITIONS
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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/multiple 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,
DTI is the Initial Billing Company (IBC) and SWBT is the Subsequent Billing
Company (SBC). The assignment of revenues, by rate element, and the Meet-Point
Billing percentages applicable to this Agreement are set forth in Appendix DCO.
The actual rate values for each element shall be the rates contained in that
Party's own applicable access rates.
5.6.4 The Parties, as applicable, 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/multiple tariff method, as described in the MECAB document. Each
Party will render a bill to the IXC in accordance with its own rate structure
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 BAR/BACR number.
5.6.9 Each Party will provide the other with the Exchange Access detailed
usage data within thirty (30) days of the end of the billing period. SWBT will
perform assembly and editing, messages processing and provision of Access Usage
Records in accordance with
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GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
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Appendix Recording, attached hereto and incorporated by reference.
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 DTI provides SWBT with Access Usage
Records, SWBT will compensate DTI on the same terms as DTI 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 DTI's
request, SWBT will negotiate a mutual and reciprocal charge for provision of
Summary Usage Data Records.
5.6.10 Errors may be discovered by DTI, the IXC or SWBT. Both SWBT and
DTI 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 sub-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 DTI. Reference to
this technical publication is included in Appendix TP.
(a) Where DTI 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 DTI Less Direct End Office
Terminating MOUs Recorded By SWBT Equals Total MOUs To Be
Compensated As Tandem Traffic
(b) Where DTI has direct/high usage trunks to a third party
with overflow trunking through a SWBT tandem, DTI must
differentiate the originating MOU records for the Parties to
ascertain how many MOUs should be compensated as Transit Traffic.
If DTI is unable to so differentiate the originating MOU
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GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
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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.
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 Optional Calling Area telephone number is
ported, DTI will compensate SWBT $12.40 monthly, per ported number.
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 above, for the transmission and routing of Exchange Access traffic
between DTI 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 will jointly provide tandem-transported
Switched Exchange Access Services to IXCs to enable DTI's end users to
originate and terminate traffic to/from such IXCs.
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GENERAL TERMS AND CONDITIONS
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6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Switched Exchange Access to allow DTI end
users to originate and terminate traffic to/from any IXCs which is connected to
a SWBT Access Tandem. In addition, the trunks shall be used to allow DTI's end
users to connect to, or be connected to, the 800 Services of any
Telecommunications Carrier connected to the SWBT Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA Information
Services Traffic to one another, they shall agree to exchange rating and
billing information to effectively allow the Parties to 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 to 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.
7.3 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. 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 such CMRS providers, and the other Party
shall be obligated to enter into an agreement with such CMRS provider for the
termination of wireless to landline traffic.
7.3.2 DTI shall pay the Local Transit Traffic rate to SWBT for calls
that originate on DTI's network and are sent to SWBT for termination to
a CMRS Provider as long as such Traffic can be identified as wireless traffic.
SWBT shall pay the Local Transit Traffic rate to DTI for such calls that
originate on SWBT's network are sent through DTI for termination on a CMRS
Provider's network. Each Party shall be responsible for interconnection
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GENERAL TERMS AND CONDITIONS
DTI - MISSOURI
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agreements with CMRS providers for terminating compensation regarding traffic
originating on the Party's network and terminating on the CMRS provider's
network.
7.3.3 When traffic is originated by either Party to a CMRS Provider, and
the traffic cannot be specifically identified as wireless traffic for purposes
of compensation between SWBT and DTI, the traffic will be rated either as
Local, Optional or Access and the appropriate compensation rate shall be paid
by the originating Party to the transiting Party. The originating
Party agrees to indemnify the transiting Party for any claims of compensation
that may be made by the CMRS provider against the transiting Party regarding
compensation for such traffic.
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 DTI.
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(1), 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.
9.2 At a minimum, in those Metropolitan Exchange Areas where DTI intends
to provide local exchange service, DTI 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 DTI 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.
- ---------------------
(1) 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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GENERAL TERMS AND CONDITIONS
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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 DTI 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 per NXX to the Party formerly assigned the NXX.
10.0 RESALE--SECTIONS 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 DTI for resale at wholesale rates its
Telecommunications Services, as described in Section 25l(c)(4) of the Act,
pursuant to the terms and conditions of Appendix Resale attached hereto and
incorporated herein by this reference.
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10.2 AVAILABILITY OF DTI RETAIL TELECOMMUNICATION SERVICES FOR RESALE
DTI 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 DTI 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 DTI shall make available to SWBT 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.
13.0 COLLOCATION--SECTION 251(c)(6)
13.1 SWBT shall provide to DTI 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 that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
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.
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13.2 Except as otherwise ordered by the Commission or the FCC, or as
mutually agreed to by DTI 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 DTI 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 Local Dialing Parity to each other as
required under Section 251(b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY--SECTION 251(b)(4) 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 and/or standard
agreements.
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
DTI 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, DTI will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
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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 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.
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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 alternated
billed local message 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 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.
20.7 CLEARINGHOUSE SERVICES. To the extent requested by DTI, 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.
20.8 HOSTING. At DTI's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an DTI for distribution to the appropriate billing and/or
processing location or for delivery to an DTI of such data via SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference.
20.9 SIGNALING SYSTEM 7 INTERCONNECTION. At DTI's request, SWBT shall
perform SS7 interconnection services for DTI pursuant to Appendix SS7, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and DTI shall each use their best efforts to meet the
Interconnection Activation Dates.
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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 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 26.0, each
Party shall provide, in its tariffs and contracts with its end users
that relate to any Telecommunications Service provided or contemplated under
this Agreement, that in no case shall such Party or any of its agents,
contractors or others retained by such parties be liable to any end user or
third party for (i) any Loss relating to or arising out of this Agreement,
whether in contract or tort, that exceeds the amount such Party would have
charged the applicable end user for the service(s) or function(s) that gave
rise to such Loss, and (ii) any Consequential Damages.
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
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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 DTI 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 ten (10) days after approval by the
Missouri PSC when it has determined that the Agreement complies with Sections
251 and 252 of the Act ("Effective Date").
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, below.
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.
22.4 If pursuant to Section 22.2, above, 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,
below. 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, below.
22.5 Upon termination or expiration of this Agreement in accordance with
this Section 22.0, above:
(a) each Party shall comply immediately with its obligations set
forth in Section 30.6, below; 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.
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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, below, 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 DTI 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.
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.
The Parties shall make authorization available to each other 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 DTI 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 the
end user's authorized agent. Further, when an end user abandons the premise,
SWBT is free to reclaim the unbundled network element facilities for use by
another customer and is free to issue service orders required to reclaim such
facilities.
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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 INTELLECTUAL PROPERTY
LSP is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. SWBT will
provide a list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a request for
such a list by LSP. SWBT agrees to use its best efforts to facilitate the
obtaining of any necessary license or right to use agreement. SWBT makes no
warranties, express or implied, concerning LSP's (or any third party's) rights
with respect to intellectual property (including with limitation, patent,
copyright, and trade secret rights) or contract rights associated with LSP's
rights to interconnect with SWBT's network and to Unbundled Network Elements.
27.0. INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices, 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 service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
27.2 Except as otherwise provided herein or in specific appendices, 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 connection with the indemnifying provision of
services or functions under this Agreement.
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27.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by the Indemnified
Party, unless the Loss was caused by the gross negligence or intentional
misconduct of the other (Indemnified) Party.
27.4 LSP agrees to indemnify, defend and hold harmless SWBT from any Loss
arising out of SWBT's provision of 911 services or out of LSP's end users' use
of the 911 service, whether suffered, made, instituted, or asserted by LSP 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.
27.5 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from
a Party's own communications or the communications of its end users.
27.6 SWBT shall be indemnified, defended, and held harmless by the LSP for
claims for patent, trademark, infringement or other infringement or
intellectual property rights, arising from the LSP's use of services or
unbundled elements provided under this Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation
of the Indemnified Party. The Indemnifying Party shall not be responsible for
any settlement unless the Indemnifying Party approved such settlement in
advance and agrees to be bound by the settlement agreement.
28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, or except as
otherwise provided in specific appendices, each Party's liability to the other
Party for any Loss relating to or arising out of any negligent act or omission
in its performance under this Agreement, whether in contract or tort, shall not
exceed in total the amount SWBT or LSP has to or would have charged the other
Party for the affected service(s) or function(s) which were not performed or
were otherwise improperly performed.
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28.2 Except for Losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under
this section shall be limited to, that portion (as mutually agreed to by the
Parties) of the resulting expense caused by its own negligence or willful
misconduct or that of its agents, servants, contractors, or others acting in
aid or concert with it.
28.3 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
indemnify, 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 attorney's
fees) and Consequential Damages of such third party.
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
29.1 CERTAIN DEFINITIONS. When used in this Section 29.0, the following
terms shall have the meanings indicated:
29.1.1 "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.
29.1.2 "Specified Activity" means any of the following activities:
(i) the installation by SWBT of unbundled elements
associated with DTI end user Lines;
(ii) SWBT's provision of Interim Number Portability; or
(iii) the repair of out of service problems for DTI ("Out of
Service Repairs").
29.1.3 "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) DTI End User Lines
1-l0 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
29.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss of end
user opportunities, revenues and goodwill which DTI might sustain in the event
of a Specified Performance Breach; (2) the uncertainty, in the event of such a
Specified Performance Breach, of DTI having available to it customer
opportunities similar to those opportunities currently available to DTI; and
(3) the difficulty of accurately ascertaining the amount of damages DTI would
sustain in the event of such a Specified Performance Breach, SWBT agrees to pay
DTI, subject to Section 29.4 below, damages as set forth in Section 29.3 below
in the event of the occurrence of a Specified Performance Breach.
29.3 LIQUIDATED DAMAGES. The damages payable by SWBT to DTI as a result
of a Specified Performance Breach shall be $75,000 for each Specified
Performance Breach (collectively, the "Liquidated Damages"). DTI 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 DTI 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 DTI would sustain
if its damages were readily ascertainable; and (c) DTI shall not be required to
provide any proof of the Liquidated Damages.
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29.4 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 DTI 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 DTI; (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.
29.5 SOLE REMEDY. The Liquidated Damages shall be the sole and exclusive
remedy of DTI for SWBT's breach of the Performance Criteria or a Specified
Performance Breach as described in this Section 29.0 and shall be in lieu of
any other damages or credit DTI 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.
29.6 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 DTI such records in a self-reporting format on a monthly basis.
Notwithstanding Section 31.6.1, below, the Parties agree that such records
shall be deemed "Proprietary Information" under Section 31.6, below.
30.0 REGULATORY APPROVAL
30.1 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.
30.2 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. DTI 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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31.0 MISCELLANEOUS
31.1 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) DTI 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 its obligations hereunder.
31.2 COMPLIANCE AND CERTIFICATION.
31.2.1 Each Party shall comply with all federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
31.2.2 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.
31.2.3 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.
31.3 LAW ENFORCEMENT.
31.3.1 SWBT and DTI 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 user's service provider, in which case
the Party will respond to any valid request.
(c) Emergencies: If a Party receives a request from a law
enforcement agency for temporary number change,
temporary disconnect, or one-way denial of outbound
calls for an end user of the other Party by the
receiving Party's switch, that Party will comply with an
valid emergency request. However, neither Party shall
be held liable for any claims or damages arising from
compliance with such requests on behalf of the other
Party's end user and the Party serving such end user
agrees to indemnify and hold the other Party harmless
against any and all such claims.
31.4 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.
31.5 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.
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GENERAL TERMS AND CONDITIONS
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31.6 CONFIDENTIALITY.
31.6.1 All information, including but not limited to specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information, data, employee records, maps,
financial reports, and market data; (i) furnished by one Party (the "Disclosing
Party") to the other Party (the "Receiving Party") dealing with
customer-specific, facility-specific, or usage-specific information, other than
customer information communicated for the purpose of publication or directory
database inclusion, 911, call processing, billing or settlement or as otherwise
mutually agreed upon; or (ii) in written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery as "Confidential" or
"Proprietary;" or (iii) communicated orally and declared to the Receiving Party
at the time of delivery, or by written notice given to the Receiving Party
within ten (10) days after declaration to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary Information"), shall remain the
property of the Disclosing Party.
31.6.2 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.
31.6.3 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.
31.6.4 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;
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GENERAL TERMS AND CONDITIONS
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(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;
(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 31.6 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.
31.6.5 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.
31.6.6 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.
31.7 GOVERNING LAW. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the FCC, the
exclusive jurisdiction and remedy for all such claims shall be as provided for
by the FCC and the Act. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the Commission,
the exclusive jurisdiction for all such claims shall be with such Commission,
and the exclusive remedy for such claims shall be as provided for by such
Commission. In all other respects, this Agreement shall be governed by the
domestic laws of the State of Missouri without reference to conflict of law
provisions.
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31.8 TAXES.
31.8.1 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")
imposed on or with respect to the services provided by or to such Party, except
for any Tax on either party's corporate existence, status, or income. Whenever
possible, these amounts shall be billed as a separate item on the invoice. To
the extent a sale is claimed to be for resale tax exemption, the purchasing
party shall furnish the providing party a proper resale tax exemption
certificate as authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Failure to timely provide
said resale tax exemption certificate will result in no exemption being
available to the purchasing Party until such time as the purchasing Party
presents a valid certification. Failure to timely provide said resale tax
exemption certificate will result in no exemption being available to the
purchasing Party until such time as the purchasing Party presents a valid
certificate.
31.8.2 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.
31.8.3 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.
31.8.4 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.
31.8.5 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
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GENERAL TERMS AND CONDITIONS
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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.
31.9 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 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.
31.10 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.
31.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
31.11.1 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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GENERAL TERMS AND CONDITIONS
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31.12 DISPUTED AMOUNTS.
31.12.1 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.
31.12.2 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.
31.12.3 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 31.12.2, above, then either
Party may file a complaint with the Commission to resolve such issues or
proceed with any other remedy pursuant to law or equity. The Commission may
direct release of any or all funds (including any accrued interest) in the
escrow account, plus applicable late fees, to be paid to either Party.
31.12.4 The Parties agree that all negotiations pursuant to this Section
31.12 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.
31.12.5 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.
31.13 DISPUTE RESOLUTION.
31.13.1 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.
31.13.2 For disputes other than disputed amounts under this Agreement or
its Appendices, each Party shall appoint a designated representative as set
forth in Section 31.12.2, above, and if unable to resolve the dispute, proceed
as set forth in Section 31.12.3, above.
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31.14 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/DTI 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 DTI CONTACT SWBT CONTACT
NAME/TITLE Richard Weinstein Jeffrey Fields
STREET ADDRESS 11111 Dorsett Rd. One Bell Plaza, 525.07
CITY, STATE, ZIP CODE St. Louis, MO 63043 Dallas, TX 75202
TELEPHONE NUMBER 314-253-6600 214-464-5676
FAX NUMBER 314-253-6699 214-464-1486
24-HOUR NETWORK MGMT CONTACT DTI CONTACT SWBT CONTACT
NAME/TITLE Alan Ducheck NSMC Control
TELEPHONE NUMBER 314-253-6600 1-800-792-2662
FAX NUMBER 314-253-6699 1-972-301-6702
31.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
31.15.1 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.
31.15.2 Nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service marks, or trade
names of the other for commercial purposes without prior written approval.
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31.16 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); 252(d)(1); and 271(c)(2)(B(i) of
the Act; or
(b) Exchange Access - Section 251(c)(2) and 271(c)(2)(B)(ii) of the Act;
or
(c) Unbundling - Section 251(c)(3) and 271(c)(2)(B)(ii) of the Act; or
(d) Resale - Section 251(c)(4) and 271(c)(2)(B)(xiv) of the Act; or
(e) Collocation - Section 251(c)(6) and 271(c)(2)(B)(i) of the Act; or
(f) Number Portability - Section 251(b)(2) and 271(c)(2)(B)(xi) 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) and 271(c)(2)(B)(iii) 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).
31.17 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.
31.18 INTERVENING LAW. This Agreement is entered into as a result of both
private negotiation between the Parties and the incorporation of some of the
results of arbitration by the Missouri PSC. If the actions of Missouri 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 fail, disputes between the Parties
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GENERAL TERMS AND CONDITIONS
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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.
31.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This Agreement
is for the sole benefit of the Parties and their permitted assigns, and nothing
herein express or implied shall create or be construed to create any
third-party beneficiary rights hereunder. Except for provisions herein
expressly authorizing a Party to act for another, nothing in this Agreement
shall constitute a Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the
name or on behalf of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party, whether
regulatory or contractual, or to assume any responsibility for the management
of the other Party's business.
31.20 NO LICENSE. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
31.21 SURVIVAL. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
31.23 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.
31.24 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 1st day of July, 1997.
DIGITAL TELEPORT, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
Signature: /s/ Richard D. Weinstein Signature: /s/ Dennis B. Eidson
-------------------------- ---------------------------------
Name: RICHARD D. WEINSTEIN Name: DENNIS B. EIDSON
------------------------------- --------------------------------------
(Print or Type) (Print or Type)
Title: PRESIDENT Title: Gen. Mgr.-Local Interconnection
------------------------------ -------------------------------------
(Print or Type) (Print or Type)
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APPENDIX 800
Page 2 of 6
APPENDIX 800
ACCESS TO THE TOLL FREE CALLING DATABASE
This Appendix sets forth the terms and conditions under which SWBT provides
Access to the Toll Free Calling Database.
I. DESCRIPTION
A. SWBT's 800 database, an ANSI SS7 call-related database
system, receives updates processed from the national Service
Management System (SMS). Customer records in the SMS are created or
modified by entities known as Responsible Organizations (RespOrg)
who obtain access to the SMS via the 800 Service Management System,
Tariff F.C.C. No. 1. 800 Service Providers must either become their
own RespOrg or use the services of an established RespOrg. The
services of a RespOrg includes creating and updating 800 records in
the SMS to download in the 800 database(s). SWBT does not, either
through a tariff or contract, provide RespOrg service.
B. After the 800 customer record is created in the SMS, the SMS
downloads the records to the appropriate databases, depending on the
area of service chosen by the 800 subscriber. An 800 customer
record is created in the SMS for each 800 number to be activated.
The SMS initiates all routing changes to update information on a
nationwide basis.
C. Access to the Toll Free Calling Database allows an LSP to
access SWBT's 800 database for the purpose of switch query and
database response. Access to the Toll Free Calling Database
supports the processing of toll free calls (e.g., 800 and 888) where
identification of the appropriate carrier (800 Service Provider) to
transport the call is dependent upon the full ten digits of the toll
free number (e.g., 1+800+NXX+XXXX). Access to the Toll Free Calling
Database includes all 800-type dialing plans (i.e., 800 and 888 [and
877, 866, 855, 844, 833, 822, when available]).
D. Access to the Toll Free Calling Database provides the carrier
identification function required to determine the appropriate
routing of an 800 number based on the geographic origination of the
call, from a specific or any combination of NPA/NXX, NPA or LATA.
E. There are three optional features available with 800 service:
Designated 10-Digit Translation, Call Validation and Call Handling
and Destination.
1. The Designated 10-Digit Translation feature
converts the 800 number into a designated 10-digit number.
If the 800 Service Provider provides the designated 10-digit
number associated with the 800 number and requests
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APPENDIX 800
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delivery of the designated 10-digit number in place of
the 800 number, SWBT will deliver the designated 10-digit
number.
2. The Call Validation feature limits calls to an
800 number to calls originating only from an 800 Subscriber's
customized service area. Calls originating outside the area
will be screened and an out of band recording will be
returned to the calling party.
3. The Call Handling and Destination feature allows routing of
800 calls based on one or any combination of the following:
time of day, day of week, percent allocation and specific 10
digit ANI.
II. TERMS AND CONDITIONS
A. Access to the Toll Free Calling Database provided under these
terms and conditions is only available for use in the provision of
telephone exchange and exchange access telecommunications services
as specified in the Telecommunications Act of 1996 and any effective
rules and regulations of the Federal Communications Commission and
the state Public Service Commission.
B. Access to the Toll Free Calling Database is offered separate
and apart from other unbundled network elements necessary for
operation of the network routing function addressed in these terms
and conditions, e.g., end office 800 SSP functionality and CCS/SS7
signaling. This appendix is separate from the prices, terms,
conditions and billing for such related elements, and in no way
shall this appendix be construed to circumvent the prices, terms,
conditions or billing as specified for such related elements.
C. LSP shall address its queries to SWBT's database to the alias
point code of the STP pair identified by SWBT. LSP's queries shall
use subsystem number 0 in the calling party address field and a
translations type of 254 with a routing indicator set to route on
global title. LSP acknowledges that such subsystem number and
translation type values are necessary for SWBT to properly process
queries to its 800 database.
D. Each Party warrants to the other that it shall send queries
and SS7 messages conforming to the ANSI approved standards for SS7
protocol and pursuant to the Specifications and Standards documents
attached and incorporated herein in Exhibit I. Both Parties
acknowledge that transmission in said protocol is necessary for each
Party to provision Access to the Toll Free Calling Database (or the
equivalent thereof). Each Party reserves the right to modify its
network pursuant to other specifications and standards, which may
include Bellcore Specifications defining specific service
applications, message types and formats, that may become necessary
to meet the prevailing demands within the U.S. telecommunications
industry. All such changes shall be announced in accordance
<PAGE> 50
APPENDIX 800
Page 4 of 6
with the then prevailing industry standard procedures. Each
party shall work cooperatively to coordinate any necessary changes.
E. LSP acknowledges and agrees that CCS/SS7 network overload due
to extraordinary volumes of queries and/or other SS7 network
messages can and will have a detrimental effect on the performance
of SWBT's CCS/SS7 network and its 800 database. LSP further agrees
that SWBT, at its sole discretion, may employ certain automatic
and/or manual overload controls within SWBT's CCS/SS7 network to
guard against these detrimental effects. SWBT shall report to the
LSP any instances where overload controls are invoked due to the
LSP's CCS/SS7 network. LSP shall take immediate, corrective actions
as are necessary to cure the conditions causing the overload
situation.
F. During periods of 800 database system congestion, SWBT shall
utilize an automatic code gapping procedure to control
congestion that may affect the service of all customers of SWBT's 800
database. The automatic code gapping procedure used by SWBT shall tell
LSP's switch the gap (how long LSP's switch should wait before sending
another query) and the duration (how long the switch should continue
to perform gapping). For example, during an overload condition, the
automatic code gapping procedure shall tell SWBT's 800 database when
to begin to drop one out of three queries received. This code gapping
procedure shall be applied uniformly to all users of SWBT's 800
database. SWBT reserves the right to manually invoke the automatic
code gapping procedure to control congestion.
G. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour query volumes. LSP
shall update its busy hour forecast for each upcoming calendar year
(January - December) by October 1 of the preceding year. LSP shall
provide such updates each year for the first three (3) years of this
Appendix. If, prior to the establishment of a mutually agreeable
service effective date, in writing, SWB, at its discretion,
determines that it lacks adequate processing capability to provide
Access to the Toll Free Calling Database to LSP, SWBT shall notify
LSP of SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
H. LSP shall from time to time at SWBT's request, provide
additional forecasted information as deemed necessary by SWBT for
network planning in connection with this offering.
I. SWBT shall test the Access to the Toll Free Calling Database
in conjunction with CCS/SS7 Interconnection Service (e.g., SS7
Appendix) as outlined in Bellcore Technical References
TR-NWT-000533, TR-NWT-000954, TR-TSV-000905, and TP 76638.
<PAGE> 51
APPENDIX 800
Page 5 of 6
J. LSP shall only use Access to the Toll Free Calling Database
to determine the routing requirements for originating 800 calls.
Neither the LSP nor carrier customers of the LSP if the LSP is
acting on behalf of other carriers, shall use the database
information to copy, store, maintain or create any table or database
of any kind or for any purpose. If the LSP acts on behalf of other
carriers to access SWBT's Toll Free Calling Database, LSP shall
prohibit such carriers from copying, storing, maintaining, or
creating any table or database of any kind from any response
provided by SWBT after a query to SWBT's Toll Free Calling Database.
LSP shall only use this network element in connection with the
provision of telephone exchange and exchange access services.
K. LSP shall ensure that it has sufficient link capacity and
related facilities to handle its signaling and toll free traffic
without adversely affecting other network subscribers.
L. SWBT shall provide Access to the Toll Free Calling Database
as set forth in this Appendix only as such elements are used for
LSP's activities on behalf of its Missouri local service customers
where SWBT is the incumbent local exchange carrier. LSP agrees that
any other use of SWBT's Toll Free Calling Database for the provision
of 800 database service by LSP will be pursuant to the terms,
conditions, rates, and charges of SWBT's effective tariffs, as
revised, for 800 database services.
M. This Appendix shall become effective on ____ and shall continue
for one (1) year from the effective date of implementation of Access
to the Toll Free Calling Database. Thereafter, this Appendix shall
remain in effect unless terminated by either party upon written
notice given sixty (60) days in advance of the termination date.
N. Ordering and billing inquiries for the elements described
herein shall be directed to the Local Service Provider Service
Center (LSPSC). Ordering shall be done through the LSPSC using the
standard LSP order form and SWBT CCS7-2 Form, if applicable.
III. RATE REGULATIONS
A. LSP shall pay a Local Service Order Request Charge for each
LSP request for service order activity to establish Access to the
Toll Free Calling Database.
B. LSP shall pay the rates for Access to the Toll Free Calling
Database, as described in Section III D. These rates and charges
will apply for one (1) year from the service effective date for each
exchange. After one (1) year, SWBT may change the rates upon sixty
(60) days' notice. SWBT may first give such notice sixty days
before the end of the first year.
<PAGE> 52
APPENDIX 800
Page 6 of 6
C. LSP shall pay a nonrecurring charge when an LSP establishes
or changes a signaling point code. The rates and charges for
Signaling Point Code(s) are described in the SS7 Appendix. This
charge also applies to point code information provided by LSPs
allowing other telecommunications providers to use the LSP's SS7
signaling network.
D. Prices for the four rate elements associated with Access to
the Toll Free Calling Database are as follows:
1. Toll Free Database Query Rate Element $0.001020
2. Designated 10-Digit Translation Rate Element NC
3. Call Validation Rate Element NC
4. Call Handling and Destination Rate Element $0.000140
E. LSP shall pay the Toll Free Database query rate for each
query received and processed by SWB's database. When applicable,
the charge for the additional features (Designated 10-Digit
Translation, Call Validation and Call Handling and Destination) are
per query and in addition to the Toll Free Database query charge,
and will also be paid by LSP.
IV. MONTHLY BILLING
SWBT shall render monthly billing statements to the LSP, and remittance
in full will be due within thirty (30) days of receipt.
<PAGE> 53
APPENDIX 800
EXHIBIT I
Page 1 of 1
APPENDIX 800
EXHIBIT I
SPECIFICATIONS AND STANDARDS
<TABLE>
<CAPTION>
Description of Subject Area
and Issuing Organization Document Number
---------------------------------------------- ---------------
<S> <C>
Bellcore, SS7 Specifications
TR-NWT-000246
TR-NWT-000271
TR-NWT-000533
Bellcore, CCS Network Interface Specifications
TR-TSV-000905
TP 76638
TR-NWT-000954
</TABLE>
<PAGE> 54
APPENDIX 911-MOKA
Page 2 of 3
Appendix 911- MISSOURI
Terms and Conditions for Providing Connection
to E911 Universal Emergency Number Service
This appendix between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide LSP's connection to E911 Universal Emergency Number
Service.
DEFINITIONS
The definition of IEC in the Missouri General Exchange Tariff referenced below
is modified as follows (modifications are shown in bold and italicized):
Independent Exchange Company (IEC): A local exchange telephone company,
including local service providers (LSPS) who are certified by the state
commission, other than Southwestern Bell Telephone Company.
TERMS AND CONDITIONS
The following are in addition to those terms and conditions in the Missouri
General Exchange Tariffs referenced below:
SWBT shall provide LSP with a file containing the Master Street Address
Guide (MSAG) for the exchanges or communities specified in Exhibit I, in
accordance with the methods and procedures described in the document
"Operating Methods for Downloading and Maintaining End User Records in
SWBT's DBMS". SWBT shall provide LSP additional files with the entire
MSAG, including subsequent additions or updates to the MSAG in accordance
with the intervals specified in Exhibit I. In addition, SWBT shall
provide LSP with a statistical report in a timely fashion and in
accordance with the methods and procedures described in the above
mentioned document, for each file downloaded by LSP to SWBT's DBMS, so
that LSP may ensure the accuracy of the end user records. LSP will
attest it has been provided a copy of the document referenced above.
At a reasonable time prior to the establishment of E911 Service, LSP
shall download and maintain thereafter all information required to
establish records necessary for furnishing connection to E911 Service and
shall promptly notify SWBT in writing of any changes to be made to such
records. LSP shall adopt and comply with operating methods applicable to
downloading and maintaining LSP's end user records in SWBT's DBMS, as set
forth in the document referenced in the paragraph above.
<PAGE> 55
APPENDIX 911 - MOKA
Page 3 of 3
LSP acknowledges that its end users in a single local calling scope may
be served by different PSAPs, and LSP shall be responsible for providing
facilities to route calls from its end users to the proper E911 Control
Office(s).
LSP shall connect its switches to the E911 Control Office by one-way
outgoing CAMA trunks dedicated for originating 911 emergency service
calls.
The parties agree that the E911 service is provided for the use of the
E911 Customer, and recognizes the authority of the E911 Customer to
establish service specifications and grant final approval (or denial) of
service configurations offered by SWBT and the LSP. The terms and
conditions of this appendix represent a plan for providing E911 service,
for which LSP must obtain documentation of approval from the appropriate
E911 Customer(s) which have jurisdiction in the area(s) in which LSP's
customers are located. LSP shall provide such documentation to SWBT
prior to the use of LSP's E911 connection for actual emergency calls.
Both parties agree to designate a representative who shall have the
authority to execute additional exhibits to this Appendix when necessary
to accommodate expansion of the geographic area of LSP into the
jurisdiction of additional PSAPs or to increase the number of CAMA
trunks. The designated representative for SWBT is Jeff Fields and for
LSP is Richard Weinstein.
The terms and conditions of this appendix are subject to renegotiation in
the event that the E911 Customer orders changes to the E911 service that
necessitate revision of this appendix.
RATES, TERMS AND CONDITIONS
E911 Universal Emergency Number Service will be provided utilizing the rates,
terms and conditions set forth in the following Missouri tariff, in addition to
those terms and conditions described previously in this Appendix:
SWBT's General Exchange Tariff (Mo. P.S.C. No. 35) Section 28 - Universal
Emergency Number Service (9-1-1)
<PAGE> 56
APPENDIX 911 - MOKA
EXHIBIT I
PAGE 1 OF 1
EXHIBIT I to APPENDIX 9-1-1
<TABLE>
<S><C>
LSP SERVING AREA DESCRIPTION AND E9-1-1 INTERCONNECTION DETAILS
LSP NAME & CONTACTS LSP "OCN" LSP Switch Name & Addr. Switch Type LSP NPA/NXX(s) included
- ------------------------------------------------------------------------------------------------------------------------------------
CLLI Code # 9-1-1 Trunks Requested
E9-1-1 Manager LSP Telco ID
"Connect Signal" Digits(4) "Default" PSAP
- ------------------------------------------------------------------------------------------------------------------------------------
1-1
Database Administrator Estimated # of EAAs ETST Code
- ------------------------------------------------------------------------------------------------------------------------------------
LSP Service Area
Definition:
Switch Site Contact
- ------------------------------------------------------------------------------------------------------------------------------------
SWBT E9-1-1 SYSTEM CONFIGURATION ASSOCIATED WITH DESIGNATED E9-1-1 CONTROL OFFICE
E9-1-1 CONTROL OFFICE:
- ------------------------------------- PSAPs INCLUDED IN COMMUNITY for MSAG E9-1-1 CUSTOMER and AGENCY TYPE (see legend
CLLI Code: 9-1-1 SERVICE PLAN PULL(3) below)
- ------------------------------------- -----------------------------------------------------------------------------------------
E9-1-1 Features Required:
- -------------------------------------
# of 9-1-1 Trunks from LSP:
- -------------------------------------
MSAG Update Interval: Monthly
- -------------------------------------
FOOTNOTES: (1)
(2)
(3) MSAG will only include addresses within SWBT exchanges, unless specifically stated otherwise.
(4) Refer to network interface specifications in Exhibit III.
- ------------------------------------------------------------------------------------------------------------------------------------
"TYPE of AGENCY" LEGEND:
HRC = Home Rule City
ECD = Emergency Communications District
COG = Council of Governments or Regional Planning Commission
GLC = General Law City
Cnty = County with special provisions (only applies to Dallas County)
- ------------------------------------------------------------------------------------------------------------------------------------
Date Prepared
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 57
APPENDIX AIN
PAGE 2 OF 2
Appendix AIN
AIN CALL RELATED DATABASE
AIN is a Network Architecture that uses distributed intelligence in centralized
databases to control call processing and manage network information, rather
than performing those functions at every switch.
SWBT will provide LSP access to the SWBT's Service Creation Environment (SCE)
to design, create, test and deploy AIN-based features, equivalent to the access
it provides to itself, providing that security arrangements can be made. LSP
requests to use the SWBT SCE will be subject to request and review procedures
to be agreed upon by the Parties.
When LSP utilizes SWBT's Local Switching network element and requests SWBT to
provision such network element with a technically feasible AIN trigger, SWBT
will provide access to the appropriate AIN Call Related Database for the
purpose of invoking either an SWBT AIN feature or a LSP developed AIN feature
as per previous section.
When LSP utilizes its own local switch, SWBT will provide access to the
appropriate AIN Call Related Database for the purpose of invoking either an
SWBT AIN feature or a LSP developed AIN feature as per previous section.
SWBT will provide access to AIN Call Related databases in a nondiscriminatory
and competitively neutral manner. Any mediation, static or dynamic, will only
provide network reliability, protection, security and network management
functions consistent with the access service provided. Any network management
controls found necessary to protect the AIN SCP from an overload condition will
be applied based on nondiscriminatory guidelines and procedures either (1)
resident in the SWBT STP that serves the appropriate AIN SCP or (2) via manual
controls that are initiated from SWBT Network Elements. Such management
controls will be applied to the specific problem source, where ever that source
is, including SWBT, and not to all services unless a problem source cannot be
identified.
As requested by LSP, SWBT will provide specifications and information
reasonably necessary for LSP to utilize SWBT SCE as provided above.
SWBT SCP will partition and take reasonable steps to protect LSP service logic
and data from unauthorized access, execution or other types of compromise,
where technically feasible.
<PAGE> 58
APPENDIX BCR
Page 2 of 5
APPENDIX BCR
BILLING, COLLECTING AND REMITTING
This Appendix sets forth the terms and conditions that apply to those
telecommunications services for which charges are billed and collected by one
Local Exchange Carrier (LEC) or LSP but earned by another LEC; and to establish
procedures for the billing, collecting and remitting of such charges and for
compensation for the services performed in connection with the billing,
collecting and remitting of such charges.
I. DEFINITIONS
A. BellCore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - Nationwide system used to produce
information reports that are used in the settlement of LEC revenues
recorded by one BCC (or LEC) and billed to an end user of another
BCC (or LEC) as described in accordance with the BellCore Practice
BR 981-200-110.
B. Charges - the amount approved or allowed by the appropriate
regulatory authority to be billed to an end user for any of the
services described in Section II., rendered by a LEC to an end user.
C. Compensation - the amount to be paid by one Party to the
other Party for billing, collecting and remitting of charges as set
forth in Section IV.
D. IntraLATA - within a Local Access Transport Area (LATA) -
IntraLATA messages are those messages, either intrastate or
interstate, which originate and terminate within a LATA. The term
"IntraLATA messages," as used herein, shall only include those that
qualify for the BellCore Client Company BCC CATS process.
E. InterLATA - between Local Access and Transport Areas (LATAs)
as defined in the FCC's CC Docket No. 78-72. InterLATA messages are
those messages which originate in one LATA and terminate in a
different LATA. The term "InterLATA messages" as used herein, shall
only include those that qualify for the BellCore Client Company BCC
CATS process.
F. Local Exchange Carrier (LEC) - as used in this Appendix shall
mean those Local Exchange Carriers or Local Service Providers using
BCC CATS as a message tracking system.
G. Local Message - Local messages are those messages which
originate and terminate within the area defined as the local service
area of the station from which the message originates.
<PAGE> 59
APPENDIX BCR
Page 3 of 5
H. Revenues - the sum of all or part of the charges as defined
above.
II. SCOPE OF APPENDIX
This Appendix shall apply to procedures for the billing, collecting and
remitting of revenues (and compensation to either Party for billing,
collecting and remitting of such revenues) derived from the following
services:
A. LEC-carried (traffic transported by facilities belonging to a
LEC) local messages of the following types:
1. Local Message Service Charges Billed to a Calling
Card or to a Third Number.
2. Directory Assistance Calls Charged to a Calling
Card or to a Third Number.
3. Public Land Mobile Radiotelephone Transient-Unit
Local Message Service (Mobile Channel Usage Link Charge).
4. Maritime Mobile Radiotelephone Service and
Aviation Radiotelephone Service (Marine, Aircraft, High Speed
Train Radio Link Charges).
B. LEC-carried Interstate IntraLATA and Interstate InterLATA
telecommunications services that qualify for and flow through the
BCC CATS process as addressed in the BellCore Practice BR
981-200-110, of the following types:
1. Interstate IntraLATA Toll Service carried by an
LEC and charged to a Calling Card or a Third Number.
2. Interstate InterLATA Toll Service carried by an
LEC and charged to a Calling Card or a Third Number.
3. Radio Link Charges where service is provided by
one LEC and billed by another LEC.
III. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees to bill, collect and remit to SWBT the charges for
the services described in Section II. which charges are earned by
any LEC (including SWBT), but which are to be billed to end users of
the LSP.
<PAGE> 60
APPENDIX BCR
Page 4 of 5
B. In those cases in which the charges for the services listed
in Section II. are due any LEC other than SWBT, SWBT will arrange to
transfer these and charges to the appropriate company in accordance
with accepted industry standards.
C. Charges for the services listed in Section II. to be billed,
collected and by LSP for SWBT's benefit, shall be remitted by LSP to
SWBT within 30 days of the date of SWBT's bill to LSP for such
services.
D. SWBT agrees to bill and collect (or to have another LEC bill
and collect, where the appropriate), and to remit to LSP, the
charges for the services described in Section II., which charges are
earned by LSP, but which are to be billed by another LEC (including
SWBT) to the end users of that LEC.
E. Charges for the services listed in Section II. to be billed,
collected and remitted by SWBT or another LEC for LSP's benefit,
shall be remitted by SWBT to LSP within 30 days of the date of LSP's
bill to SWBT for such services.
F. The full amount of the charges transmitted to either Party
for billing, collecting and remitting shall be remitted by the other
Party, without setoff, abatement or reduction for any purpose, other
than to deduct the compensation, as described in Section IV, due the
Party for performing the end user billing function. The Party
billing the end user shall be responsible for all uncollectible
amounts related to the services described remitted in Section II.
Notwithstanding this paragraph, SWBT may net amounts due to LSP
under this Appendix against amounts owed to SWBT when SWBT renders a
bill to LSP hereunder.
G. Each Party will furnish to the other such information as may
be required for monthly billing and remitting purposes.
IV. COMPENSATION
A Party performing the services described in Section II. A. will
compensate the other Party in the amount of $.08 for each charge billed
for any service described in Section II.A. and subsequently remitted
pursuant to this Appendix by such other Party to the Party performing the
services described in Section II. A. A Party performing the services
described in Section II. B. will compensate the other Party in the amount
of $.05 for each charge billed for any service described in Section II.
B. and subsequently remitted pursuant to this Appendix by such other
Party to the Party performing the services described in Section II. B.
Such compensation shall be paid (unless a Party has collected such
compensation as described in Section III.F. above) within 30 days of the
date of a bill for such compensation by the Party performing (or which
has another LEC perform for it), the billing, collecting and remitting
functions described in Section III.
<PAGE> 61
APPENDIX BCR
Page 5 of 5
V. SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS
FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED
HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND
USED BY A THIRD PARTY.
<PAGE> 62
APPENDIX CH
Page 2 of 4
APPENDIX CLEARINGHOUSE (CH)
WHEREAS, SWBT operates a Clearinghouse (CH), as described below, for its own
behalf and that of participating LECs and LSPs, including LSP; and
WHEREAS, LSP wants to participate in the CH on the terms set forth herein;
The Parties agree to the following:
1. CLEARINGHOUSE DESCRIPTION
SWBT operates a CH for the purpose of facilitating the exchange of
certain alternatively billed intrastate intraLATA message toll call
records and the reporting of settlement revenues owed by and among
participating LECs and LSPs, including SWBT and LSP.
2. QUALIFYING MESSAGE CRITERIA
The only toll call messages that qualify for submission to SWBT for CH
processing are: (a) intrastate intraLATA sent collect (including calling
card, collect and third number) messages which are originated in one LEC
or LSP exchange, exclusively carried by a LEC or LSP over LEC or LSP
facilities and billed to a customer located in a second LEC's or LSP
exchange within the same state; or (b) intrastate intraLATA sent collect
(but limited to calling card and third number) messages originated in one
of SWBT's operating areas (located in parts of Texas, Arkansas, Kansas,
Missouri or Oklahoma), exclusively carried by a LEC or LSP over LEC or
LSP facilities, and billed to a customer located in a second LEC's or LSP
exchange and not in the originating State.
3. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees that it will provide SWBT with billing records for CH
processing that are in an industry standard format acceptable to SWBT and
at a minimum will display the telephone number of the end user to whom the
call is to be billed, and data about the call sufficient for a carrier to
comply with all applicable state regulatory requirements. For purposes of
this Attachment, these records ("CH Records") will detail intraLATA toll
calls which were originated by use of the single digit access code (i.e.,
0+ and 0-) in one LEC or LSP exchange but are to be billed to an end user
in a second LEC's or LSP exchange. Such records are referred to as
category 92 records for CH processing purposes. The term "CH Record" will
mean the call detail attributed to a single completed toll message.
LSP agrees that all CH Records it generates will display indicators
denoting whether category 92 Records should be forwarded to SWBT's CH.
LSP will retain its originating
<PAGE> 63
APPENDIX CH
Page 3 of 4
records for ninety (90) days such that the category 92 Records can be
retransmitted to SWBT for CH processing, if needed.
B. SWBT will provide and maintain such systems as it believes are required
to furnish the CH service described herein. SWBT, in its capacity as
operator of the CH, agrees to retain all CH Records processed through the
CH for two (2) years.
C. LSP will timely furnish to SWBT all CH Records required by SWBT to
provide the CH service in accordance with the Technical Exhibit Settlement
Procedures (TESP) dated DD/MM/YEAR, or as otherwise mutually agreed upon
by the Parties. SWBT will provide the CH service in accordance with the
TESP, and such modifications as are subsequently agreed upon.
D. Presently, in operating the CH, SWBT relies upon NXX codes to identify
messages for transmission to participating billing companies. To the
extent any subprocesses are required to settle CH messages due to the use
of ported numbers, such subprocessing will be the responsibility of the
porting entity.
4. PROCESSING CHARGE
LSP agrees to pay SWBT a processing charge in consideration of SWBT's
performance of CH services. This charge is $.02 per originated CH Record
processed on behalf of LSP.
5. BILLING CHARGE
LSP agrees to pay a $.05 per message charge to the LEC or LSP responsible
for billing the message, including SWBT, when SWBT bills the message.
6. SETTLEMENT REPORT
SWBT will issue monthly reports containing the results of the processing
of CH Records to each participating LEC and LSP. These reports list the
(a) amounts owed by LSP for billing messages originated by others; (b)
amounts due to LSP for LSP-originated messages billed by others; (c)
applicable billing charges; and (d) processing charges.
7. RETROACTIVE AND LOST MESSAGES
The Parties agree that processing of retroactive messages through the CH
is acceptable, if such messages utilize the industry standard format for
call records, pursuant to Section 3 of this Attachment. The Parties agree
that lost messages are the complete responsibility of the originating LEC
or LSP. If messages are lost by any Party, and cannot be recreated or
retransmitted, the originating LEC or LSP will estimate messages,
minutes,
<PAGE> 64
APPENDIX CH
Page 4 of 4
and associated revenues based on the best available data. No estimate
will be made for messages which are more than two years old at the time
the estimate is made. The estimates will be off-line calculations (i.e.,
not part of the routine CH processing) and will be included as a
supplement to the monthly settlement report.
8. LIMITATION OF LIABILITY
By agreeing to operate the CH, SWBT assumes no liability for any LEC's or
LSP's receipt of appropriate revenues due to it from any other entity.
LSP agrees that SWBT will not be liable to it for damages (including, but
not limited to, lost profits and exemplary damages) which may be owed to
it as a result of any inaccurate or insufficient information resulting
from any entity's actions, omissions, mistakes, or negligence and upon
which SWBT may have relied in preparing settlement reports or performing
any other act under this Attachment.
LSP agrees to indemnify and hold SWBT harmless against and with respect
to any and all third party claims, demands, liabilities or court actions
arising from any of its actions, omissions, mistakes or negligence
occurring during the course of SWBT's performance of CH processing
pursuant to this Attachment.
SWBT will not be liable for any losses or damages arising out of errors,
interruptions, defects, failures, or malfunction of the CH services
provided pursuant to this Attachment, including those arising from
associated equipment and data processing systems, except such losses or
damages caused by the sole negligence of SWBT. Any losses or damage for
which SWBT is held liable under this Attachment will in no event exceed
the amount of processing charges incurred by LSP for the CH services
provided hereunder during the period beginning at the time SWBT receives
notice of the error, interruption, defect, failure or malfunction, to the
time service is restored.
9. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 65
APPENDIX CNAM
Page 2 of 13
APPENDIX CNAM
This appendix contains the terms and conditions under which SWBT and LSP shall
provide CNAM Service Query service (or equivalent service):
1. Definitions
A. A-links mean a diverse pair of facilities connecting local end office
switching centers with Signaling Transfer Points.
B. Calling Name Delivery (CNAM) service enables the terminating end user
to identify the calling party by a displayed name before the call is answered.
The calling party's name, date and time of the call are retrieved from an SCP
database and delivered to the end user's premise between the first and second
ring for display on compatible customer premise equipment (CPE).
C. CNAM Service Query is SWBT's service that allows LSP to query SWBT's
Calling Name database for Calling Name information in order to deliver that
information to LSP's local subscribers.
D. Calling Name database means a Party's database containing current
Calling Name information of all working lines served or administered by that
Party, including the Calling Name information of any telecommunications company
participating in that Party's Calling Name database.
E. Calling Name information means telecommunications companies' records of
all their subscribers' names associated with one or more assigned ten-digit
telephone numbers.
F. Service Control Point (SCP) is a CCS network node where the Calling
Name database resides.
G. Service Point (SP) means a CCS network interface element capable of
initiating and/or terminating SS7 messages from an end office.
H. Service Switching Point (SSP) means the software capability within a
switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7 transmission/reception access
ability.
<PAGE> 66
APPENDIX CNAM
Page 3 of 13
I. Signaling Transfer Point (STP) is the point where a Party interconnects
with a CCS/SS7 network. In order to connect to SWBT's SS7 network, LSP or a
third party initiating LSP's Calling Name Queries must connect with an SWBT STP
in order to connect to SWBT's SCP.
J. Common Channel Signaling (CCS) Network is an out-of-band,
packet-switched, signaling network used to transport supervision signals,
control signals, and data messages. CNAM Queries and Response messages are
transported across the CCS network.
K. Signaling System 7 (SS7) is the signaling protocol used by the CCS
network.
L. CNAM Service Query Rate applies to each CNAM Query received at the SCP
where a Party's Calling Name database resides.
M. Query Transport Rate applies to each CNAM Query transported through a
Party's interconnecting STP and between the STP and the Calling Name database.
SWBT and LSP shall list their STP locations in the National Exchange Carrier
Association, Inc. Tariff FCC No. 4.
N. Query means a message in American National Standards Institute's (ANSI)
standard SS7 signaling protocol which represents a request to a Calling Name
database for Calling Name information.
O. Response means an SS7 message which when appropriately interpreted
represents an answer to a Query.
P. Name Record Administering Companies means telecommunications companies
that administer telephone number assignments to the public and which make their
Calling Name information available in a Party's Calling Name database.
2. Description of Service
A. SWBT shall provide LSP Calling Name information whenever LSP initiates
a Query from an SSP for such information associated with a call terminating to
a CNAM subscriber.
B. All Queries to SWBT's Calling Name database shall use a translation
type of 005 and a subsystem number in the calling party field mutually agreed
upon by
<PAGE> 67
APPENDIX CNAM
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the Parties. LSP acknowledges that such subsystem number and translation type
values are necessary for SWBT to properly process Queries to its Calling Name
database.
C. LSP warrants to SWBT that it shall send Queries conforming to the ANSI
approved standards for SS7 protocol and pursuant to the specification standards
documents identified in Exhibit A. Both Parties acknowledge that transmission in
said protocol is necessary for each party to provision CNAM Service Query. (Or
the equivalent thereof). Both Parties warrant that they shall send SS7 Messages
that comply with ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A. Each party reserves
the right to modify its network pursuant to other specifications standards,
which may include Bellcore specifications defining specific service
applications, message types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications industry. All such changes
shall be announced a minimum of 180 days in advance of implementation through
industry standard procedures. Each party will work cooperatively to coordinate
any necessary changes.
D. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's CCS/SS7 network. LSP
further agrees that SWBT, in its sole discretion, shall employ certain
automatic and/or manual overload controls within its CCS/SS7 network to guard
against these detrimental effects. SWBT shall report to LSP any instances
where overload controls are invoked due to LSP's CCS/SS7 network and LSP agrees
in such cases to take immediate corrective actions as are necessary to cure the
conditions causing the overload situation.
E. Prior to initiating service under this Agreement, LSP shall provide to
SWBT an initial forecast of busy hour Query volumes. If, prior to the
establishment of a mutually agreeable service effective date, in writing, SWBT,
at its discretion, determines that it lacks adequate storage or processing
capability to provide CNAM Service Query to LSP, SWBT shall notify LSP of its
intent not to provide the services under this Appendix and this Appendix will
be void and have no further effect.
F. Upon request, LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the preceding year. LSP
shall provide such updates each year for the first three (3) years of this
Agreement.
G. SWBT provides CNAM Service Query as set forth in this Appendix only as
such service is used for LSP's activities as a local service provider in SWBT's
traditional serving areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas. SWBT provides CNAM Service Query for interexchange
carriers, operator
<PAGE> 68
APPENDIX CNAM
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service providers, and other telecommunications companies under separate
contract rates. LSP agrees that any use of SWBT's LIDB for the provision of CNAM
Service Query by LSP, including, but not limited to, when LSP acts as an LSP
outside of SWBT's traditional serving areas in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas, and/or acts as an operator service provider to
other LSPs, local exchange companies, or any other telecommunications company,
and/or acts as an interexchange carrier, will be pursuant to the standard terms,
conditions, rates and charges of SWBT's non-LSP contracts, as revised, for CNAM
Service Query.
3. Price and Payment
A. LSP shall pay a CNAM Service Query Rate of $0.0115 and a Query Transport
Rate of $0.0045 for each Query initiated into SWBT's Calling Name database.
Additional nonrecurring charges for point code activation of $15.10 and service
order activity of $256.70 shall be applicable for all such activity after the
initial service order and initial point code activation. The per CNAM Service
Query rate SWBT charges hereunder may be increased upon sixty (60) days written
notice to the LSP unless LSP acts as an agent on behalf of other carriers in
which case ninety (90) days written notice shall be given. Upon such notice, the
Party receiving notice may terminate this Appendix without any termination
liability as provided in Section 5(B) of this Appendix. All tariffed rates
associated with Services provided hereunder are subject to change pursuant to
revisions of such tariffs.
B. SWBT shall record usage information for LSP's CNAM Queries terminating
to SWBT's Calling Name database. SWBT shall use its SCPs as the source of
usage data. SWBT shall aggregate usage by the point code of the
Query-originating SSP.
C. Based upon the data identified in Subsection 3.B above, SWBT shall bill
the LSP for its CNAM Queries on a monthly basis. The bill will be issued by
the fifteenth day of each month, and LSP shall pay the Subsection 3.B bill
within thirty (30) days of the bill issue date.
D. Depending on LSP's choice of method for transporting its Queries and
responses, LSP may be required to purchase certain other services, especially
services that may be provided pursuant to effective tariffs. In this event the
prices, terms, conditions and billing for such services will be specified in
the applicable tariff(s), and this Appendix shall not be construed to
circumvent the prices, terms, conditions, or billing as specified in the
applicable tariff(s).
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APPENDIX CNAM
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E. If there is a dispute associated with a monthly bill, the disputing
Party shall notify the other in writing within ninety (90) calendar days of the
date of said monthly bill or the dispute shall be waived. Each party agrees
that any amount of any monthly bill that the Party disputes will be paid by
that Party according to the terms of Subsection 3.C above. Any adjustments
relating to a disputed amount shall be reflected on the next monthly bill
issued after resolution. Any credit issued upon resolution of any dispute
shall bear interest at the rate specified in Subsection 3.C above, payable on
and as of the date the credit is issued. Parties shall work cooperatively and
use their best efforts to resolve any disputes as quickly as possible.
F. If LSP acts as a telecommunications company other than a local service
provider, or if LSP acts as a local service provider in areas outside of SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas, LSP will designate those point codes from which it
originates CNAM Service Queries as an LSP acting as a local service provider
within SWBT's traditional service areas in the states of Arkansas, Kansas,
Missouri, Oklahoma and Texas from those point codes which originate CNAM
Service Queries for all other aspects of its business. If LSP uses the same
OPC to originate Queries for its operations as an LSP within SWBT's traditional
service areas in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas
as it does for any other aspect of its business, then LSP will provide
SWBT with a percentage of use factor that SWBT can use to apportion LSP's
traffic between SWBT's terms and conditions, rates and charges under this
Appendix and the standard terms, conditions, rates and charges under SWBT's
non-LSP contracts. LSP will provide this factor in a whole number between one
(l) and one hundred (100) to indicate the percentage of CNAM Service Queries
LSP originates as an LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas. A percentage of use factor of 1 (one) indicates that one percent of
LSP's CNAM Service Queries originate as an LSP acting as a local service
provider within SWBT's traditional service areas in the states of Arkansas,
Kansas, Missouri, Oklahoma, and Texas. A percentage of use factor of 100
indicates that one hundred percent of LSP's traffic is from LSP acting as a
local service provider within SWBT's traditional service areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas.
G. Such percentage of use factors will be provided by LSP on the LIDB
Access Service Order Form used to establish the service. All updates to this
factor will be provided via a letter. If LSP does not furnish a percentage of
usage factor, LSP agrees that SWBT will apply a percentage of use factor of one
percent (1%).
H. LSP agrees to update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and October of each
year, LSP will
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APPENDIX CNAM
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forward to SWBT, to be received no later than fifteen (15) business days
after the first of each such month, a revised report showing the percentage of
use factors for the past three months ending the last day of December, March,
June, and September, respectively, for each OPC from which LSP originates CNAM
Service Query. Both parties agree that the revised report will serve as the
basis for the next three months billing. Both parties agree that no prorating or
backbilling will be done based on the report. SWBT will use the revised report
to apportion usage rate, monthly rates, and nonrecurring charges until a revised
report is received from LSP as set forth and agreed to herein.
I. Both parties agree that SWBT may, upon written request by Certified
U.S. mail (return receipt requested), require LSP to provide call detail
records which will be audited to substantiate the projected percentage of use
factor provided by LSP. SWBT may request this detailed information annually.
If the audit results represent what SWBT considers to be a substantial
deviation from LSP's previously reported percentage of use for the period upon
which the audit is based, and that deviation is not due to seasonal changes or
other identifiable reasons, LSP agrees to allow SWBT to request such call
detail records more than once annually. Both parties agree that SWBT may make
the call detail records available to an independent auditor or to SWBT audit
employees within thirty (30) days of the request at an agreed upon location
during normal business hours.
J. Both parties agree that if LSP fails to comply with SWBT's request for
auditable call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service for a period of
thirty (30) days. If at the conclusion of thirty (30) days, LSP still does not
comply with this request, both parties agree that SWBT may apply an assumed
percentage of use factor of one percent (1%).
4. Ownership of the Calling Name Information
A. Telecommunications companies depositing information in a Party's
Calling Name database retain full and complete ownership and control over such
Calling Names information in that Calling Name database. The querying Party
obtains no ownership interest by virtue of this Appendix.
B. LSP shall not copy, store, maintain or create any table or database of
any kind after initiation of, and based upon a response to, a CNAM Query to
SWBT's calling name database.
<PAGE> 71
APPENDIX CNAM
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C. If LSP acts on behalf of other carriers, LSP shall prohibit its
Query-originating carrier customers from copying, storing, maintaining, or
creating any table or database of any kind from any Response provided by SWBT
after a CNAM Query to a Calling Name database.
5. Term and Termination
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Agreement and shall continue for two (2) years from the
date of implementation of CNAM Service Query (or the equivalent thereof).
Thereafter, this Appendix shall remain in effect unless terminated by either
party upon written notice given sixty (60) days in advance of the termination
date.
B. Should LSP terminate this Appendix within the first six (6) months of
this effective date, LSP agrees to pay SWBT an early termination sum equal to
two (2) times the average monthly volume of LSP's CNAM Queries times the rate
specified in Section 3(A) of this Appendix. The average monthly volume will be
calculated using the previous two (2) months' volume divided by two (2) or, if
less than two months, the monthly volume of the first month service was
provided.
C. If at any time during the term of this Appendix a tariff for CNAM
Service Query (or the equivalent service thereof) becomes effective, the tariff
and all terms and conditions, including all rates, will supersede this
Appendix. Under these circumstances, no termination liability as provided in
Section 5(B) of this Appendix will apply.
D. If a party materially fails to perform its obligation under this
appendix, the other party, after notifying the non-performing party of the
failure to perform and allowing that party thirty (30) days after receipt of the
notice to cure such failure, may cancel this appendix immediately upon written
notice.
E. Notwithstanding anything to the contrary in this Appendix, if legal or
regulatory decisions or rules compel SWBT or LSP to terminate the Appendix,
SWBT and LSP shall have no liability to the other in connection with such
termination.
6. Limitation of Liability
A. LSP's sole and exclusive remedies against SWBT for injury, loss or
damage caused by or arising from anything said, omitted or done in connection
with this Appendix regardless of the form of action, whether in contract or in
tort (including
<PAGE> 72
APPENDIX CNAM
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negligence or strict liability) shall be the amount of actual
direct damages and in no event shall exceed the amount paid for CNAM Service
Queries.
B. The remedies in Section 6(A) of this Appendix shall be exclusive of all
other remedies against a Party, its affiliate, or parent corporation,
(including their directors, officers, employees or agents).
C. In no event shall SWBT have any liability for system outages or
inaccessibility, or for losses arising from the unauthorized use of the data by
CNAM Service Query purchasers.
D. CALLING NAME INFORMATION PROVIDED TO AN LSP HEREUNDER SHALL BE PROVIDED
"AS IS." SWBT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR
COMPLETENESS OF THE CALLING NAME INFORMATION REGARDLESS OF WHOSE CALLING NAME
INFORMATION IS PROVIDED. AND, SWBT SHALL NOT BE HELD LIABLE FOR ANY ACTIONS OR
OMISSIONS ARISING OUT OF OR IN CONJUNCTION WITH LSP'S USE OF THE CALLING NAME
INFORMATION. NOTWITHSTANDING THE FOREGOING, SWBT WARRANTS THAT LSP WILL BE
ACCESSING THE SAME CALLING NAME DATABASE FOR CUSTOMER'S CNAM QUERIES AS SWBT
ACCESSES FOR ITS OWN QUERIES.
E. SWBT is furnishing access to its Calling Name database in order to
facilitate the LSP's provision of Calling Name Delivery Service (CNDS) to its
end users or to the end users of its Query-originating carrier customers, but
not to insure against the risk of completion of a call to a CNDS subscriber
without the display of the name of the caller. While each Party agrees to make
every reasonable attempt to provide accurate and current Calling Name
information, the Parties acknowledge that Calling Name information is the
product of routine business service order activity. LSP acknowledges that SWBT
can furnish Calling Name information only as accurate and current as the
information has been provided to SWBT for inclusion in its CNAM database.
Therefore, SWBT, in addition to the limitations of liability set forth, is not
liable for inaccuracies in the Calling Name information name records provided to
LSP or to its Query-originating carrier customers, except such inaccuracies
caused by SWBT's willful or wanton misconduct or gross negligence.
The Parties acknowledge that each Calling Name database limits the Calling
Name information length to fifteen (15) characters. As a result, the Calling
Name Information provided in a response to a Query may not reflect a
subscriber's full name. Name records of residential local telephone
subscribers will generally be stored in the form of last name followed by first
name (separated by a comma or space) to a
<PAGE> 73
APPENDIX CNAM
Page 10 of 13
maximum of fifteen (15) characters. Name records of business local
telephone subscribers will generally be stored in the form of the first fifteen
(15) characters of the listed business name that in some cases may include
abbreviations. The Parties also acknowledge that certain local telephone service
subscribers of Name Record Administering Companies may require their name
information to be restricted, altered, or rendered unavailable. Therefore, in
addition to the limitations of liability set forth in Section 6 of this
Appendix, SWBT is not liable for any and all liability, claims, damages or
actions including attorney's fees, resulting directly or indirectly from the
content of any Name Record contained in a Calling Name database and provided to
LSP or its Query-originating carrier customers, except for such content related
claims, damages or actions resulting from SWBT's willful or wanton misconduct or
gross negligence.
F. The Parties acknowledge that certain federal and/or state regulations
require that local exchange telephone companies make available to their
subscribers the ability to block the delivery of their telephone number and/or
name information to the terminating telephone when the subscriber originates a
telephone call. This blocking can either be on a call-by-call basis or on an
every call basis. Similarly, a party utilizing blocking services can unblock
on a call-by-call basis or every call basis. LSP acknowledges its
responsibility to and warrant that it will abide by information received in SS7
protocol during call set-up that the calling telephone service subscriber
wishes to block or unblock the delivery of telephone number and/or name
information to a CNDS subscriber. LSP agrees not to attempt to obtain the
caller's name information by originating a Query to SWBT's Calling Name
database where the subscriber attempted to block such information, nor will LSP
block information a subscriber attempted to unblock. Therefore, SWBT, in
addition to the limitations of liability set forth in this Section, is not
liable for any failure by LSP or its Query-originating carrier customers to
abide by the caller's desire to block or unblock delivery of Calling Name
information, and LSP agrees to hold SWBT harmless from, and defend and
indemnify SWBT for, any and all liability, claims, damages or actions including
attorney's fees, resulting directly or indirectly from LSP or its
Query-originating carrier customers' failure to block or unblock delivery of
the Calling Name information when appropriate indication is provided, except
for such privacy related claims, damages or actions caused by SWBT's willful or
wanton misconduct or gross negligence.
G. In no event shall SWBT, its affiliates, subsidiaries or parent
corporation (including its directors, officers, employees or agents) have any
liability whatsoever to or through LSP for any indirect, special, or
consequential 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, even if SWBT has been advised of the
possibility of such damages.
<PAGE> 74
APPENDIX CNAM
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7. Communication and Notices
A. Ordering and billing inquiries for the services described herein from
SWBT shall be directed to the Local Service Provider Service Center (LSPSC).
Ordering shall be done through the LSPSC using the form attached hereto as
Exhibit B.
8. Confidentiality
A. Identification. SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, it may disclose to the
other party proprietary or confidential customer, technical or business
information in written, graphic, oral or other tangible or intangible forms.
In order for such information to be considered "Proprietary Information" under
this Appendix, it must be marked "Confidential" or "Proprietary" or bear a
marking of similar import. Orally discussed information shall be considered
Proprietary Information only if contemporaneously identified as such and
reduced to writing and delivered to the other party with a statement or marking
of confidentiality within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall remain the
exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary Information to authorized
employees and other individuals who have a need to know the Proprietary
Information in order to perform its obligation under this Appendix.
(3) To keep such Proprietary Information confidential and to use the same
level of care to prevent disclosure or unauthorized use of the received
Proprietary Information as it exercises in protecting its own Proprietary
Information of a similar nature.
(4) For a period of three (3) years following any disclosure, not to copy
or publish or disclose such Proprietary Information to others or authorize
anyone else to copy or publish or disclose such Proprietary Information to
others without the prior written approval of the Disclosing Party.
<PAGE> 75
APPENDIX CNAM
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(5) To use such Proprietary Information only for purposes of performing
its obligations under this Appendix and for other purposes only upon such terms
as may be agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give notice to the
Disclosing Party of any demand to disclose or provide Proprietary Information
of the Disclosing Party to another person, under lawful process, prior to
disclosing or furnishing such Proprietary Information. Further, the Receiving
Party agrees to reasonably cooperate if the Disclosing Party deems it necessary
to seek protective arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the requirements of a
court, regulatory body or government agency having jurisdiction over the Party;
provided, however, that the Receiving Party shall notify the Disclosing Party
so as to give the Disclosing Party a reasonable opportunity to object to such
disclosure. The Disclosing Party may not unreasonably withhold approval of
protective arrangements provided by any such court, regulatory body or
government agency. Nothing herein requires either Party to support the
position of any person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained in this
Appendix, the Proprietary Information described herein shall not be deemed
confidential or proprietary and the Receiving Party shall have no obligation to
prevent disclosure of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication, inspection of the
product, or otherwise, and through no wrongful act of the Receiving Party;
(3) is received from a third party without similar restriction and without
breach of this Section 8;
(4) is independently developed, produced or generated by the Receiving
Party;
(5) is furnished to a third party by the Disclosing Party without a
similar restriction on the third party's rights; or
(6) is approved for release by written authorization of the Disclosing
Party, but only to the extent of such authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary Information
obtained through recording the volume of Customer Queries for the purposes of:
(a) estimation of facilities usage for jurisdictional separations; (b)
engineering and network planning of facilities; and (c) measurement for billing
purposes.
<PAGE> 76
APPENDIX CNAM
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F. Legal Requirements. Notwithstanding anything to the contrary contained
in this Agreement, a Party's ability to disclose Proprietary Information or use
disclosed Proprietary Information is subject to all applicable statutes,
decisions and regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate a different
handling of such information.
9. Mutuality
To the extent that LSP stores its own Calling Name information in a database,
LSP agrees that such Calling Name information shall be available to SWBT on
terms and conditions comparable to those contained in this Appendix. Such
terms and conditions shall include but not be limited to, making such Calling
Name information available on a platform technically similar to that employed
by SWBT, and at a rate comparable to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit A - Specifications and Standards
Exhibit B - LIDB Access Service Order Form [to be attached].
<PAGE> 77
APPENDIX CNAM
EXHIBIT A
Page 1 of 1
Specifications and Standards
<TABLE>
<CAPTION>
Descriptions of Subject Area
and Issuing Organization Document Number
- ------------------------ ---------------
<S> <C>
A. Bellcore, SS7 Specifications TR-NPL-000246
B. ANSI, SS7 Specifications
- Message Transfer part T1.111
- Signaling Connection Control T1.112
Part
- Transaction Capabilities T1.114
Application Part
C. Bellcore, CLASS Calling Name Delivery TR-NWT-001188
Generic Requirements
D. Bellcore, CCS Network Interface TR-TSV-000905
Specifications
</TABLE>
<PAGE> 78
EXHIBIT B
September 1996
Page 1
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB ACCESS VALIDATION SERVICES ORDER FORM
<TABLE>
<S><C>
CUSTOMER NAME ______________________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION _____________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS
____________________________________________________________________________________________
CUSTOMER BILLING NAME
____________________________________________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION ______________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
____________________________________________________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE
____________________________________________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER ___________________________________
( )
____________________________________________________________________________________________
CREDIT INFORMATION: TYPE OF OWNERSHIP ________
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP. ___________ DATE INCORP. ______________
CHARTER NUMBER ____________________________________________
PRES. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
V.P. NAME ________________________________________________OFC. TEL. NO. _(___)____________________
SECT. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
TREA. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
IF PARTNERSHIP:
PARTNERS NAME ____________________________________________OFC. TEL. NO. _(___)____________________
PARTNERS NAME_____________________________________________OFC. TEL. NO. _(___)_____________________
PARTNERS NAME_____________________________________________OFC. TEL. NO. _(___)_____________________
</TABLE>
<PAGE> 79
EXHIBIT B
September 1996
Page 2
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
<TABLE>
<S><C>
PARTNERS NAME__________________________________________OFC. TEL. NO. _(___)_____________________
LETTER OF AGENCY DATED ______________SIGNATURE ___________________________________________
SWBT ORDER NUMBER ___________________
DESIRED DUE DATE ______________________FIRM DUE DATE ______________________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs ____________________________________
TYPE OF ACTIVITY ______ (N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
BILLING ACCOUNT NUMBER (BAN) ______________________________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
_____________________________________
_____________________________________
_______________________(____)________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
___________________________________________________________________________(____)________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
___________________________________________________________________________(____)________________
*SWBT CKR:_________________________________________*TWO SIX CODE:____________________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1. _______________________________
2. _______________________________
3. _______________________________
4. _______________________________
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7 INTERCONNECTION SERVICE PROVIDER.
</TABLE>
<PAGE> 80
EXHIBIT B
September 1996
Page 3
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 81
EXHIBIT B
September 1996
Page 4
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 82
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 5
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND
ADDRESS. THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE
TO THE ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY. THIS
INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN
COORDINATED WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER
FORM TO THE ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE
TO BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED
WITH THE NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 83
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 6
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE ENTERED
TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM
AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO
THE COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S),
ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL
ENTER THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR
CCS/SS7 INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR
LINKS FOR ACCESS TO THE LIDB.
<PAGE> 84
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 7
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE. THE
LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR THEIR
POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO ESTABLISH
THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER SHOULD
ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN FOR OLNS.
IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR THE LIDB
VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER WILL USE
BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE BILLING
ACCOUNTS.
1. LIDB VALIDATION SERVICE __________ CALLING NAME SERVICE __________
ORIGINATING LINE NUMBER SCREENING ____________
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES
ARE REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST
BE LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND
THE "N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 85
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 8
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY FROM
PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
--- ----------- --- -----------
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
--- ----------- --- -----------
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
--- ----------- --- -----------
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT ICSC
IN ST. LOUIS, MISSOURI.
<PAGE> 86
APPENDIX DCO
PAGE 2 OF 3
APPENDIX DCO
INTERCONNECTION SCHEDULE
<TABLE>
<CAPTION>
DTI
Metropolitan Intercon- SWBT Intercon- Interconnection
Serving Direction nection nection Activation
Area (1) Trunk Type Wire Center(2) Wire Center(3) POI(4) Date
- ------------- ----------- ----------- ------------- -------------- ------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
St. Louis DTI to SWBT Local MRHGMOQADS1 STLSMO0501T STLSMO05???
IntraLATA STLSMO2101T STLSMO21???
InterLATA
DTI to SWBT Choke MRHGMOQADS1 STLSMO2101T STLSMO21???
DTI to SWBT TOPS MRHGMOQADS1 STLSMO05B2T STLSMO??
DTI to SWBT 911 MRHGMOQADS1 STLSMO04CG0 STLSMO??
SWBT to DTI Local MRHGMOQADS1 STLSMO0501T MRHGMOQADS1
Intralata STLSMO2101T
DTI to SWBT Local MRHGMOQADS1 STLSMO01DSC STLSMO01???
CHFDMO52DSA CHFDMO52???
STLSMO27CG0 STLSMO27???
STLSMO41CG0 STLSMO41???
STLSMO07CG0 STLSMO07???
STLMO43CG0 STLMO43???
SWBT to DTI Local MRHGMOQADS1 STLSMO01DSC MRHGMOQADS1
CHFDMO52DSA
STLSMO27CG0
STLSMO41CG0
STLSMO07CG0
STLMO43CG0
</TABLE>
- ------------------
(1) This column will be completed by indicating the direction of the
terminating traffic (e.g. DTI to SWBT or SWBT to DTI).
(2) DTI Interconnection Wire Center (DIWC) - The address of DTI's end office
or tandem through which SWBT will terminate traffic on DTI's network.
(3) SWBT Interconnection Wire Center (SIWC) - The address of SWBT's end
office or tandem through which DTI will terminate traffic on SWBT's network.
<PAGE> 87
APPENDIX DCO
PAGE 3 OF 3
<TABLE>
<CAPTION>
DTI
Metropolitan Intercon- SWBT Intercon- Interconnection
Serving Direction nection nection Activation
Area (4) Trunk Type Wire Center(5) Wire Center(6) POI(4) Date
- ------------- ----------- ----------- ------------- -------------- ------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
Springfield, MO DTI to SWBT Local SPFDMO??? SPFDMOTL02T SPFDMOTL???
IntraLATA
InterLATA
Choke
TOPS
911
SWBT to DTI Local SPFDMO??? SPFDMOTL02T SPFDMO???
Intralata
Kansas City DTI to SWBT Local KSCY????? KSCYKSJO07T KSCYKSJO???
IntraLATA
InterLATA
DTI to SWBT Local KSCY????? KSCYMO5503T KSCYMO55???
IntraLATA
InterLATA
Choke
TOPS
DTI to SWBT 911 KSCY????? KSCYKSJO07T KSCY????
SWBT to DTI Local KSCY????? KSCYMO5503T KSCY????
Intralata KSCYKSJO07T
</TABLE>
- ------------------
(4) This column will be completed by indicating the direction of the
terminating traffic (e.g., DTI to SWBT or SWBT to DTI).
(5) DTI Interconnection Wire Center (DIWC) - The address of DTI's end office
or tandem through which SWBT will terminate traffic on DTI's network.
(6) SWBT Interconnection Wire Center (SIWC) - The address of SWBT's end office
or tandem through which DTI will terminate traffic on SWBT's network.
<PAGE> 88
APPENDIX DA
Page 2 of 5
APPENDIX DA
DIRECTORY ASSISTANCE SERVICE
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Directory Assistance Services (DA
Services) for LSP ("LSP").
I. SERVICES
SWBT will provide the following DA Services:
A. DIRECTORY ASSISTANCE (DA) - consists of providing subscriber
listing information (name, address, and published telephone
number or an indication of "non-published status") to LSP's
end users who dial 411 or NPA+555+1212 and whenever
appropriate, performing Non-Published and Non-List service
according to current SWBT methods and practices.
B. DIRECTORY ASSISTANCE CALL COMPLETION (DACC) - an optional
service in which SWBT completes a call to the requested number
on behalf of LSP's end user, utilizing an automated voice
system or with operator assistance. SWBT agrees to provide DA
with DACC upon request.
II. DEFINITIONS
The following terms are defined as set forth below:
A. Non-List Telephone Number - A telephone number that, at the
request of the telephone subscriber, is not published in a
telephone directory, but is available by calling a SWBT DA
operator.
B. Non-Published Number - A telephone number that, at the request
of the telephone subscriber, is neither published in a
telephone directory nor provided by a SWBT DA operator.
C. Published Number - A telephone number that is published in a
telephone directory and is available upon request by calling a
SWBT DA operator.
D. Call Branding - the procedure of identifying a providers name
audibly and distinctly to the consumer at the beginning of
each DA Services call, and prior to completion of a DACC
request.
<PAGE> 89
APPENDIX DA
Page 3 of 5
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Where SWBT provides LSPs OS and DA services via
the same trunk, both the OS and DA calls will be branded with
the same brand. Where SWBT is only providing DA service on
behalf of the LSP, specific DA branding can be provided upon
request. Such branding will be provided pursuant paragraph B.
below.
B. CALL BRANDING - SWBT will brand DA in LSP's name based upon
the criteria outlined below:
1. LSP will provide SWBT with written specification of
its company name to be used in creating LSP specific
branding messages for its DA calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call
Branding as well as a charge per TOPS switch, per
subsequent load to change the brand. In addition, a
per call charge applies for every DA call handled by
SWBT on behalf of LSP when such services are provided
in conjunction with: i) the purchase of SWBT's
unbundled local switching; or ii) when multiple
brands are required on a single Operator Services
trunk. Prices for Call Branding are as outlined in
Exhibit II, attached hereto and incorporated herein.
C. DIRECTORY ASSISTANCE (DA) RATE/REFERENCE INFORMATION - SWBT
will provide LSP DA Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA Rate and Reference Information in
a mutually agreed to format or media thirty (30) days
in advance of the date when the DA Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any changes to
be made to such Rate/Reference Information ten (10)
working days prior to the effective Rate/Reference
change date. LSP acknowledges that it is responsible
to provide SWBT updated Rate/Reference Information in
advance of when the Rates/Reference Information are
to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the
applicable DA rates as provided by LSP.
An initial non-recurring charge will apply per TOPS switch for loading of LSP's
Operator Services Rate/Reference Information as well as a charge per TOPS switch
for each subsequent change to either the LSP's DA Services Rate or Reference
Information.
<PAGE> 90
APPENDIX DA
Page 4 of 5
IV. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of DA Services for LSP's local
serving area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown
in Exhibit I.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with
Automatic Number Identification (ANI) to each SWBT operator
switch. Should LSP seek to provide interexchange DA Service
under this agreement it is responsible for ordering the
necessary facilities. Nothing in this agreement in any way
changes the manner in which an interexchange Carrier obtains
access service for the purpose of originating or terminating
interexchange traffic.
C. Facilities necessary for the provision of DA Services shall be
provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of
service is met. Each party shall bear the costs for its own
facilities. LSP shall bear the costs of facilities necessary
for signaling and routing calls with Automatic Number
Identification (ANI) to each SWBT operator switch. SWBT shall
bear the cost of facilities and equipment necessary to provide
DA Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the DA Services are to be undertaken,
all end user listing records and information required by SWBT
to provide the DA Services.
E. LSP will keep end user listing records current using reporting
forms and procedures that are mutually acceptable to both
parties, and will inform SWBT, in writing, of any changes to
be made to such records. LSP will send the DA listing records
to SWBT via a local manual service order, T-TRAN, magnetic
tape or by any other mutually agreed to format or media.
F. SWBT will accumulate and provide LSP such data as necessary
for LSP to verify traffic volumes and bill its end users.
V. METHODS AND PRACTICES
SWBT will provide the DA Services to LSP's end users in accordance with
SWBT's DA methods and practices that are in effect at the time the DA
call is made, unless otherwise agreed in writing by both parties.
VI. PRICING
Pricing for DA Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached hereto and made part of this
Appendix. The prices will apply from the
<PAGE> 91
APPENDIX DA
Page 5 of 5
service effective date through the term of this agreement as specified
in paragraph X., A. below. Beyond the specified term of this Appendix,
SWBT may change the prices for the provision of DA Services upon one
hundred-twenty (120) days' notice to LSP.
VII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
VIII. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless
SWBT from any and all losses, damages, or other liability
including attorneys fees that LSP may incur as a result of
claims, demands, wrongful death actions, or other suits
brought by any party that arise out of LSP's end users use of
DA Services. LSP shall defend against all end user claims just
as if LSP had provided such service to its end user with the
LSP's own operators and shall assert its tariff limitation of
liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SWBT employees and equipment associated with
provision of the DA Services. This provision includes but is
not limited to suits arising from disclosure of the telephone
number, address, or name associated with the telephone called
or the telephone used to call the DA Services.
IX. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force
for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one
hundred-twenty (120) days notice in writing from either Party
to the other.
B. If LSP terminates this agreement prior to the agreed-upon term
of this Appendix, LSP shall pay SWBT, within thirty (30) days
of the issuance of a final bill by SWBT, all amounts due for
actual services provided under this Appendix, plus estimated
monthly charges for the remainder of the term. Estimated
charges will be based on an average of the actual monthly
amounts billed by SWBT pursuant to this Appendix prior to its
termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit
II.
<PAGE> 92
APPENDIX DA - EXHIBIT I
Page 1 of 1
APPENDIX DA
DIRECTORY ASSISTANCE SERVICES EXCHANGE LIST
EFFECTIVE:_______________
(mm/dd/yr)
The following table depicts the services and exchanges covered by this Appendix:
<TABLE>
<CAPTION>
SWBT SERVING LSP'S
OFFICE(S) OFFICE(S) TOLL (555) LOCAL (411) DACC
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
</TABLE>
<PAGE> 93
APPENDIX DA - EXHIBIT II
Page 1 of 1
APPENDIX DA
MISSOURI
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE:________________
(mm/dd/yr)
The following rates will apply for each service element:
<TABLE>
<S> <C>
A. DIRECTORY ASSISTANCE (DA)
This usage rate applies to each DA call.
Rate per call $0.401
B. DIRECTORY ASSISTANCE CALL COMPLETION DACC)
This usage rate applies to each DA call that has been completed to
the requested number.
Rate per completed call $0.24
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand
for the establishment of Call Branding.
Rate per initial load $2,325.00
Rate per load for Brand change $2,325.00
Per Call(1) $0.02
D. DA SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the
initial load of Carrier's DA Services Rate/Reference Information. An
additional non-recurring charge applies for each subsequent change to
Rate/Reference Information.
Rate per initial load $3,650.00
Rate per subsequent rate change $2,650.00
Rate per subsequent reference change $2,650.00
</TABLE>
- ----------------
(1) A per call charge will apply when DA services are provided in conjunction
with i) unbundled local switching or ii) when multiple brands are required on a
single trunk.
<PAGE> 94
APPENDIX FGA
Page 2 of 6
APPENDIX FGA
This Appendix to Attachment Compensation sets forth the terms and conditions
under which the Parties will distribute revenue from the joint provision of
Feature Group A (FGA) Switched Access Services.
These services will be provided within a Local Access and Transport Area (LATA)
and/or an Extended Area Service (EAS) arrangement. The Primary Company will
compensate the Secondary Company only to the extent that it has not already been
compensated under its interstate or intrastate access service tariffs or other
settlement/contract arrangements. This Appendix is subject to applicable
tariffs.
1.0 DEFINITIONS
1.1 Local Access and Transport Area (LATA) means a pre-established
geographic area encompassing one or more local exchange areas within
which a Party may provide telecommunications services.
1.2 The term Extended Area Service (EAS) as used in this Appendix means the
provision of message telephone exchange service between two or more
local exchange service areas without a toll charge.
1.3 Subscriber Access Lines will mean a communication facility provided
under a general and/or exchange service tariff extended from a customer
premise to a central office switch which may be used to make and
receive exchange service calls, intrastate toll service or interstate
toll service calls.
1.4 Feature Group A Switched Access Service includes all facilities and
services rendered in furnishing FGA access service, both in EAS and
non-EAS (i.e., LATA wide terminations) areas, in accordance with the
schedule or charges, regulations, terms and conditions stated in the
interstate or intrastate access service tariffs of the Parties.
1.5 The Primary Company denotes the Party with the Primary office(s).
1.6 The Primary Office is an office which: (1) directly or jointly connects
to an interexchange carrier and / or end user: and (2) provides joint
FGA switched access service to that interexchange carrier and/or end
user with other end offices.
1.7 The Secondary Company denotes the Party with the secondary office(s).
<PAGE> 95
APPENDIX FGA
Page 3 of 6
1.8 The Secondary Office is any office involved in providing joint FGA
switched access to an Interexchange carrier and / or end user through
the switching facilities of the Primary office.
1.9 Revenues under this Appendix are those FGA Switched Access amounts due
the Primary and Secondary Companies under their applicable tariffs,
less uncollectible revenues. Revenues for any other services are not
included. Uncollectible revenues are those revenues the Primary Company
is unable to collect, using its regular established collection
procedures. The Primary Company may offset uncollectibles against
current revenue distribution.
1.10 Access Minutes or Minutes of Use (MOUs) are those minutes of use as
described in Part 69 of the Federal Communications Commission s Rules,
and are limited to those FGA MOUs which originate and /or terminate in
the Secondary Office(s) covered by this Appendix.
1.11 Currently Effective Tariff Rate means the approved tariff rate
effective on the first day of the month for which compensation is being
calculated.
2.0 UNDERTAKING OF THE PARTIES
2.1 The Secondary Company will notify the Primary Company of all tariff
rate revisions, affecting this Appendix which the FCC or other
appropriate regulatory authority allows to take effect, at least 30
days in advance of their effective date. Revenue distribution will be
based on the revised rates 45 days after the effective date of the
tariff revisions. However, if the secondary Company fails to notify the
Primary Company of a new rate within 30 days of its effective date, the
Primary company may delay implementation of the new rate until the next
month s revenue distribution cycle, and will not be required to adjust
the previous bills retroactive.
2.2 Each party will furnish to the other such information as may reasonably
be required for the administration, computation and distribution of
revenue, or otherwise to execute the provisions of this appendix.
3.0 ADMINISTRATION OF REVENUE DISTRIBUTION
The Primary Company will be responsible for the administration,
computation and distribution of the FGA access service revenues
collected on behalf of the Secondary Company.
<PAGE> 96
APPENDIX FGA
Page 4 of 6
4.0 MINUTES OF USE (MOUs) DEVELOPMENT
4.1 The Parties will calculate the amount of FGA revenues due each Party,
by determining the amount of FGA MOUs attributable to each Party as
described below. The Primary Company will then multiply the MOUs by the
rates in the Secondary Company's applicable tariff to determine the
amounts tentatively due to the Secondary Company.
4.2 TERMINATING MOUs DEVELOPMENT
4.2.1 Actual monthly premium (charged at equal access end office) non-premium
(charged at non-equal access end offices) terminating FGA access MOUs
for each office in the LATA or a FGA access EAS area will be measured
by the Primary Company.
4.2.2 Where the Primary Company cannot measure or identify the terminating
FGA MOUs by end office, terminating MOUs will be total unmeasured MOUs
allocated to the LATA. In this event, those MOUs will be distributed
based upon the ratio of each Party's subscriber access lines, as
identified in Exhibit B, which is attached hereto and made a part
hereof, to the total subscriber access lines in the FGA access area as
determined by the Primary Company.
4.3 ORIGINATING MOUS DEVELOPMENT
4.3.1 The Primary Company will derive and distribute monthly originating FGA
access MOUs, billed by the Primary Company, to each Secondary Company's
end office in the EAS calling area, as identified in Exhibit A, which
is attached hereto and made a part hereof, based upon a ration of each
Party s subscriber access lines to the total subscriber access lines in
the appropriate EAS area as determined by the Primary Company.
4.3.2 The parties recognize that since originating non-EAS calls to the FGA
service area are rated and billed as intraLATA toll, such usage is
assumed to be minimal. Therefore, originating FGA access MOUs will not
be distributed to end offices outside an EAS calling area.
5.0 CALCULATION OF REVENUE DISTRIBUTION
5.1 The amount of premium or non-premium revenues due each party each month
will be equal to the sum of Originating and Terminating premium or
non-premium revenue for each end office. These revenues will be
calculated by the Primary Company by multiplying each of the Secondary
Company s effective interstate and/or intrastate FGA switched access
tariff rate elements (except the
<PAGE> 97
APPENDIX FGA
Page 5 of 6
Local Transport element described below) by the appropriate MOU
calculation under Sections 4.2.1 and 4.2.2.
5.2 Local Transport (or its equivalent under the Secondary Company s tariff
and called Transport in this agreement) compensation will be determined
for each company by multiplying each of the Secondary Company s
Transport rates by the appropriate MOUs (as calculated under Sections
4.2.1 and 4.2.2.) by the Secondary company s percentage ownership of
facilities agreed on by the Parties and set out in Exhibit B, which is
attached hereto and made a part hereof.
6.0 REVENUE DISTRIBUTION AMOUNTS, MONTHLY STATEMENTS AND PAYMENTS
6.1 The Primary Company each month will calculate and prepare a monthly
compensation statement reflecting the revenue distribution amounts for
FGA, both EAS and non-EAS, access service due the Secondary Company.
6.2 The monthly compensation statement will show, for each Secondary
Office, separately:
6.2.1 The total number of non-premium or premium terminating MOUs and
revenue.
6.2.2 The total number on non-premium or premium originating MOUs and
revenues.
6.2.3 The total compensation due the Secondary Company, by rate element.
6.2.4 The number of terminating MOUs recorded by the Primary Company.
6.2.5 The number of originating MOUs estimated by the Primary Company
pursuant to Section 4.3 contained herein.
6.2.6 The number of access lines used to prorate originating usage pursuant
to Section 4.3 contained herein.
6.2.7 The percent ownership factor, if any, used to prorate Local Transport
revenues.
6.2.8 Adjustments for uncollectibles.
6.3 Within 60 Calendar days after the end of each billing period, the
Primary Company will remit the compensation amount due the Secondary
Company. Where more than one compensation amount is due, they may be
combined into a single payment.
<PAGE> 98
APPENDIX FGA
Page 6 of 6
7.0 MISCELLANEOUS PROVISIONS
7.1 This appendix will remain in effect until terminated by thirty (30)
calendar day s notice by either Party to the other.
<PAGE> 99
APPENDIX FGA
EXHIBIT A
Page 1 of 1
EXHIBIT A
EAS Locations for Originating and Terminating
Feature Group A Access Service
Primary Office Secondary Office
Company Company
CLLI CODE NPA-NXX CLLI CODE NPA-NXX
ACCESS LINE
<PAGE> 100
APPENDIX FGA
EXHIBIT B
Page 1 of 1
EXHIBIT B
Location for LATA Wide Termination
of Feature Group A Access Service in
Non-EAS Calling Areas
SECONDARY OFFICE COMPANY
% Ownership of
CLLI CODE NPA-NXX Access Line Transport Facilities LATA
<PAGE> 101
APPENDIX HOST
Page 2 of 5
APPENDIX HOST
This Appendix sets forth the terms and conditions under which SWBT will perform
hosting responsibilities for LSP for ( 1 ) the provision of billable message
data and/or access usage data received from such LSP for distribution to the
appropriate billing and/or processing location via SWBT's in-region network or
via the nationwide Centralized Message Distribution System (CMDS) or (2)
billable message data and/or access usage data received from other Local
Exchange Carriers (LECs) or LSPs or from CMDS to be distributed to such LSP.
This Appendix covers hosting in region (i.e., Missouri, Arkansas, Kansas,
Oklahoma and Texas) and hosting out of region. Hosting out of region is only
available to an LSP that is a Full Status Revenue Accounting Office (RAO)
company.
I. DEFINITIONS
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group,
duration and time of day for a message which is subsequently
used by a LEC to bill access to an Interexchange Carrier
(IXC).
B. Bellcore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - nationwide system used to
produce information reports that are used in the settlement of
LEC or LSP revenues recorded by one BCC (or LEC or LSP within
the territory of that BCC) and billed to a customer of another
BCC (or LEC or LSP within the territory of that BCC) as
described in accordance with the Bellcore Practice BR
981-200-110.
C. Billable Message Record - a message record containing details
of a completed call which has been carried by a LEC over its
facilities or by LSP over its facilities and such record is to
be used to bill an end user.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange
Message Record (EMR) formatted billing data between a company
originating a message and the company billing for a message.
E. Exchange Message Record (EMR) - industry standard message
format as described in accordance with the Bellcore Practice
BR 010-200-010 which was developed to facilitate the exchange
of telecommunications message information.
F. Full Status Revenue Accounting Office (RAO) - an LSP or LEC
that is responsible for formatting EMR records, and for
editing and packing of such detail records into files for
distribution.
<PAGE> 102
APPENDIX HOST
Page 3 of 5
G. In-Region Hosting - includes the transport, using Hosting
Company network, of (1) billable message record data for LEC
or LSP transported messages and/or access usage record data
that originate in a region and are delivered by the LSP to
SWBT at a mutually agreed upon location within the territory
of SWBT to be sent to another LEC or LSP for billing; and (2)
billable message record data and/or access usage data received
from CMDS or another LEC or LSP to be delivered to the LSP for
billing to its end user located within the five state
territory of SWBT.
H. Out-of-Region Hosting - includes the transport, using the
national CMDS network, of (1) billable message record data for
LEC or LSP transported messages and/or access usage record
data that originate out of region and are delivered by the LSP
to SWBT and are to be sent to another LEC or LSP for billing;
and (2) billable message record data and/or access usage data
received from CMDS or another LEC or LSP to be delivered to
the LSP for billing to its end user located outside SWBT's
five state territory.
I. Non-Full Status Revenue Accounting Office (RAO) - An LSP or
LEC that has assigned responsibility to SWBT for editing,
sorting and placing billing message record detail and/or
access usage record detail into packs for distribution.
II. RESPONSIBILITIES OF THE PARTIES
A. All data forwarded from LSP must be in the industry standard
EMR format in accordance with Bellcore Practice BR
010-200-010. The LSP is responsible to ensure all appropriate
settlement plan indicators are included in the message detail,
i.e., the Bellcore Client Company Calling Card and Third
Number Settlement (BCC CATS) System. The LSP acknowledges that
the only message records subject to this Hosting Appendix are
those that arise from LEC or LSP transported billable messages
and/or access usage records to be used by a LEC or LSP for the
purpose of billing access to an IXC.
B. When LSP delivers billable message data and/or access usage
data to SWBT which must be forwarded to another location for
billing purposes, SWBT will accept data from the LSP, perform
edits to make message detail and access usage records
consistent with CMDS specifications, and use its in region
data network to forward this data to the appropriate billing
company or to access the national CMDS network in order to
deliver this data to the appropriate billing and/or processing
company.
If LSP is not a Full Status RAO Company, SWBT will also sort
billable message detail and access usage record detail by
Revenue Accounting Office, Operating Company Number or Service
Bureau and split data into packs for invoicing prior to using
its in region network to forward this data to the appropriate
billing company or to access the national CMDS network in
order to deliver such data to the appropriate billing company.
<PAGE> 103
APPENDIX HOST
Page 4 of 5
C. For billable message data and/or access usage data received by
SWBT for delivery to an LSP location, SWBT will use its in
region data network to receive this data from other LECs or
LSPs or from CMDS in order to deliver such billable message
data and/or access usage data to the agreed upon billing LSP
location.
III. BASIS OF COMPENSATION
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records that are received from LSP and destined for
delivery to another location for billing, at the rates listed below:
Per Record Charge
Full Status RAO Company
Hosting Company Network $.002
National CMDS Network $.005
Non-Full Status RAO Company
Hosting Company Network $.007
National CMDS Network $.010
As part of this per record charge, SWBT will provide Confir mation
and/or Error Reports and any Intercompany Settlement (ICS) Reports,
such as the Bellcore Client Company Calling Card and Third Number
Settlement System (BCC CATS), as needed.
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records which are entered on a magnetic tape or
data file for delivery to the LSP, at the rate listed below:
Per Record Charge $.003
IV. LIABILITY
A. Any failure to populate accurate information in accordance
with Section II.A. will be the responsibility of the LSP.
B. SWBT will not be liable for any costs incurred by the LSP when
the LSP is transmitting data files via data lines and a
transmission failure results in the non-receipt of data by
SWBT.
C. SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES
RESULTING FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS
APPENDIX.
D. SWBT shall not be liable for any losses or damages arising out
of errors, interruptions, defects, failures, or malfunction of
the services provided hereunder,
<PAGE> 104
APPENDIX HOST
Page 5 of 5
including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole
negligence of SWBT. Any losses or damage for which SWBT is
held liable under this Appendix shall in no event exceed the
amount of charges made for the services provided hereunder
during the period beginning at the time SWBT receives notice
of the error, interruption, defect, failure or malfunction to
the time service is restored.
E. The LSP agrees to release, defend, indemnify, and hold
harmless SWBT from any and all losses, damages, or other
liability, including attorney fees, that it may incur as a
result of claims, demands, or other suits brought by any party
that arise out of the use of this service by the LSP, its
customers or end users. The LSP shall defend SWBT against all
end user claims just as if LSP had provided such service to
its end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or
indirectly, by SWBT employees and equipment associated with
provision of this service. This includes, but is not limited
to suits arising from disclosure of any customer specific
information associated with either the originating or
terminating numbers used to provision this service.
VI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 105
APPENDIX ITR
Page 2 of 8
APPENDIX ITR
(TRUNKING REQUIREMENTS)
This Appendix provides descriptions of the trunking requirements for the LSP and
SWBT interconnection. The attached scenarios depict the recommended trunk groups
for local, intraLATA toll, interLATA "meet point", mass calling, E911 and
Operator Services interconnection. All references to incoming and outgoing trunk
groups are from the perspective of the LSP.
I. LOCAL TRAFFIC AND INTRALATA TOLL TRAFFIC
(a) The LSP Originating (The LSP to SWBT)
When SWBT has a combined local and access tandem in an
exchange, IntraLATA Toll Traffic may be combined with the
Local Traffic on the same trunk group. When SWBT has more than
one combined local and access tandem in an exchange, the LSP
shall provide a separate trunk group to each SWBT tandem. When
there are separate SWBT access and local tandems in an
exchange, a separate local trunk group shall be provided to
the local tandem and a separate IntraLATA toll trunk group
shall be provided to the access tandem. This trunk group(s)
shall be one-way or two-way directionalized outgoing only and
will utilize Signaling System 7 (SS7) or multifrequency (MF)
protocol signaling.
(b) The LSP Terminating (SWBT to LSP)
When SWBT has a combined local and access tandem, SWBT shall
normally combine the Local and IntraLATA Toll Traffic over a
single trunk group to the LSP. When SWBT has a separate access
and local tandem in an exchange, a trunk group shall be
established from each tandem to the LSP. This trunk group(s)
shall be one-way or two-way directionalized incoming only and
will utilize SS7 or MF protocol signaling.
(c) Direct End Office Trunking
The Parties shall establish direct end office primary high
usage trunk groups for Local Traffic and/or IntraLATA Toll
Traffic when end office traffic requires twelve or more
trunks. If LSP has established collocation to the end office,
the trunks shall be provisioned over the LSP collocation
facility. If the LSP has no collocation facilities, SWBT shall
provision the trunks from the NIP to the end office. IntraLATA
Toll Traffic shall be provided over a separate trunk group to
the SWBT access tandem.
<PAGE> 106
APPENDIX ITR
Page 3 of 8
II. ACCESS TOLL CONNECTING TRUNKS
InterLATA traffic shall be transported between the LSP Central Office
and the SWBT access tandem over a "meet point" trunk group separate
from local and intraLATA toll traffic. The access toll connecting trunk
group will be established for the transmission and routing of Exchange
Access traffic between the LSP's end users and interexchange carriers
via a SWBT access tandem. When SWBT has more than one access tandem
within an exchange, the LSP shall utilize a single access toll
connecting trunk group to one SWBT tandem within the exchange. This
trunk group may be set up as one-way or two-way (two-way is preferred)
and will utilize SS7 or MF protocol signaling. The traffic use code and
modifier for this trunk group should be MDJ (see Scenario 1, 2, 3, or
4).
III. 800 (888) TRAFFIC
If the LSP chooses SWBT to handle 800 (888) database queries from its
central office switches, all the LSP originating 800 (888) service
queries will be routed over the InterLATA Interexchange Carrier (MDJ)
trunk group. This traffic will include a combination of both InterLATA
Interexchange Carrier 800 (888) service and IntraLATA LEC 800 (888)
service that will be identified and segregated by carrier through the
database query handled through the SWBT tandem switch.
A separate trunk group from each Party to the other will be required
for IntraLATA 800 service if either Party chooses to handle the 800
database queries from its switch location. The purpose of the separate
trunk group is to provide for the segregation of originating 800
IntraLATA call volumes to ensure the proper billing of intercompany
settlement compensation.
The trunk group shall be set up as one-way outgoing only and will
utilize SS7 protocol signaling. The traffic use code and modifier for
this trunk group should be DD800J (see Scenario 1, 2, 3, or 4).
IV. E911
A segregated trunk group will be required to each appropriate E911
tandem within the exchange in which the LSP offers the Exchange
Service. This trunk group shall be set up as a one-way outgoing only
and shall utilize MF CAMA signaling. The traffic use code and modifier
for this trunk group shall be ESJ (see Scenario 1, 2, 3, or 4).
V. MASS CALLING (PUBLIC RESPONSE CHOKE NETWORK)
A segregated trunk group shall be required to the designated Public
Response Choke Network tandem in each serving area. This trunk group
shall be one-way outgoing only and shall utilize MF signaling. It is
recommended that this group be sized as follows:
<PAGE> 107
APPENDIX ITR
Page 4 of 8
<15001 access lines (AC) 2 trunks (min)
15001 to 25000 AC 3 trunks
25001 to 50000 AC 4 trunks
50001 to 75000 AC 5 trunks
>75000 AC 6 trunks (max)
The traffic use code and modifier for this trunk group shall be TOCRJ
(see Scenario 1, 2, 3, or 4).
VI. OPERATOR SERVICES
(a) No Operator Contract:
Inward Operator Assistance (Toll Center (TC) Code plus 121) -
The LSP may choose from two interconnection options for Inward
Operator Assistance as follows:
Option 1 - Interexchange Carrier (IXC) Carrier
The LSP may utilize the Interexchange Carrier Network (see
Scenario 6). The LSP operator will route its calls requiring
inward operator assistance through its designated IXC POP to
SWBT's TOPS tandem. SWBT shall route its calls requiring
inward operator assistance to the LSP's Designated Operator
Switch (TTC) through the designated IXC POP.
Option 2 - The LSP Operator Switch
The LSP reports its switch as the designated serving operator
switch (TTC) for its NPA-NXXs and requests SWBT to route its
calls requiring inward operator assistance to the LSP. This
option requires a segregated two-way (with MF signaling) trunk
group from SWBT's Access Tandem to the the LSP switch. The
traffic use code and modifier for this trunk group should be
OAJ (see Scenario 7). The LSP's operator will route its calls
requiring inward operator assistance to SWBT's operator over
an IXC network.
(b) Operator Contract with SWBT:
(i) Directory Assistance (DA):
The LSP may contract for DA services only. A
segregated trunk group for these services would be
required to SWBT's TOPS tandem. This trunk group is
set up as one-way outgoing only and utilizes MF and
Operator Services signaling. The traffic use code and
modifier for this trunk group should be DAJ (see
Scenario 5).
<PAGE> 108
APPENDIX ITR
Page 5 of 8
(ii) Directory Assistance Call Completion (DACC):
The LSP contracting for DA services may also contract
for DACC. This requires a segregated one-way trunk
group to SWBT's TOPS tandem. This trunk group is set
up as one-way outgoing only and utilizes MF
signaling. The traffic use code and modifier for this
trunk group should be DACCJ (see Scenario 5).
(iii) Busy Line Verification:
When SWBT's operator is under contract to verify the
LSP's end user loop, SWBT will utilize a segregated
one-way with MF signaling trunk group from SWBT's
Access Tandem to the the LSP switch. The traffic use
code and modifier for this trunk group should be VRJ
(see Scenario 5).
(iv) Operator Assistance (0+, 0-):
This service requires a one-way trunk group from the
the LSP switch to SWBT's TOPS tandem. Two types of
trunk groups may be utilized. If the trunk group
transports DA/DACC, the trunk group will be
designated as ETCMFJ (0-, 0+, DA, DACC) (see Scenario
5). If DA is not required or is transported on a
segregated trunk group, then the group will be
designated as ETCM2J (see Scenario 5). MF and
Operator Services signaling will be required on the
trunk group.
VII. Trunk Design Blocking Criteria
Trunk forecasting and servicing for the Local and IntraLATA Toll trunk
groups shall be based on the industry standard objective of 2% overall
time consistent average busy season busy hour loads (1% from the End
Office to the Tandem and 1% from the Tandem to the End Office based on
Neil Wilkinson B.01M [Medium Day-to-Day Variation] until traffic data
is available). Listed below are the trunk group types and their
objectives:
Trunk Group Type Blocking Objective (Neil Wilkinson M)
----------------------------------------------------------------------
Local Tandem 1%
Local Direct 2%
IntraLATA Interexchange 1%
911 1%
Operator Services (DA/DACC) 1%
Operator Services (0+, 0-) 0.5%
InterLATA Tandem 0.5%
<PAGE> 109
APPENDIX ITR
Page 6 of 8
VIII. FORECASTING/SERVICING RESPONSIBILITIES
Both Parties agree to provide an initial forecast for establishing the
initial interconnection facilities. Subsequent forecasts will be
provided on a semi-annual basis concurrent with the publication of the
SWBT General Trunk Forecast including yearly forecasted trunk
quantities for all trunk groups described in this Appendix for a
minimum of three years and the use of Common Language Location
Identifier (CLLI-MSG) which is described in Bellcore documents
BR795-100-100 and BR795-400-100. Trunk servicing will be performed on a
monthly basis at a minimum.
SWBT shall be responsible for forecasting and servicing the trunk
groups terminating to the LSP. The LSP shall be responsible for
forecasting and servicing the trunk groups terminating to SWBT end
users and/or to be used for tandem transit to other provider's
networks, operator services and DA service, and interLATA toll service.
Standard trunk traffic engineering methods will be used as described in
Bell Communications Research, Inc. (Bellcore) document SR-TAP-000191,
Trunk Traffic Engineering Concepts and Applications.
IX. TRUNK SERVICING
1. Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an Access
Service Request ("ASR").
2. All Parties shall jointly manage the capacity of local
Interconnection Trunk Groups. Either Party may send the other
Party an ASR to initiate changes to the Local Interconnection
Trunk Groups that the ordering Party desires based on the
ordering Party's capacity assessment. The receiving Party will
issue a Firm Order Confrontation ("FOC") and a Design Layout
Record ("DLR") to the ordering Party within five (5) business
days after receipt of the ASR.
3. Orders that comprise a major project (i.e., new switch
deployment) shall be submitted in a timely fashion, and their
implementation shall be jointly planned and coordinated.
4. SWBT will process trunk service requests submitted via a
properly completed ASR within twenty (20) business days of
receipt of such ASR. Facilities must also be in place before
trunk orders can be completed.
5. In the event that a Party requires trunk servicing within
shorter time intervals than those provided for in this Article
XI due to a bona fide end user demand, such Party may
designate its ASR as an "Expedite" and the other Party shall
use best efforts to issue its FOC and DLR and install service
within the requested interval.
6. Each Party shall be responsible for engineering their networks
on their side of the NIP.
<PAGE> 110
APPENDIX ITR
Page 7 of 8
X. SERVICING OBJECTIVE/DATA EXCHANGE
Each Party agrees to service trunk groups to the foregoing blocking
criteria in a timely manner when trunk groups exceed measured blocking
thresholds on an average time consistent busy hour for a 20 business
day study period. Upon request, each Party will make available to the
other, trunk group measurement reports for trunk groups terminating in
the requesting Party's network. These reports will contain offered
load, measured in CCS (100 call seconds), that has been adjusted to
consider the effects of overflow, retrials and day-to-day variation.
They will also contain overflow CCS associated with the offered load,
day-to-day variation, peakedness factor, the date of the last week in
the four week study period and the number of valid days of measurement.
These reports shall be made available at a minimum on a semi-annual
basis upon request.
XI. SPECIFICATIONS
All DS-1 and DS-3 facilities utilized for trunking established or
employed by the Parties for purposes of this STC shall meet the
specifications set forth in SWBT's TP-76625 dated June, 1990 and
TP-76839 dated January, 1996.
XII. TRUNK FACILITY UNDER UTILIZATION
At least once a year the Parties shall exchange trunk group measurement
reports as detailed above for trunk groups terminating to the other
Party's network. Each Party will determine the required trunks for each
of the other Party's trunk groups for the previous 12 months. Required
trunks will be based on the Blocking Objectives under "Trunk Design
Blocking Criteria" above and time consistent average busy hour usage
measurements from the highest 4 consecutive week (20 business day)
study. Trunk groups with excess capacity will be identified to the
other Party as eligible for downsizing. Excess capacity exists when a
trunk group, on a modular trunk group design basis, has 48 trunks (2
modular digroups) or 10%, whichever is larger, over the required number
of trunks.
The party with excess trunking capacity will assess the trunk capacity
based on forecasted requirements and agrees to disconnect trunks in
excess of forecasted requirements for the next 12 months. If after 12
months the trunk group continues to have excess capacity the party
agrees to take timely steps to disconnect all excess capacity.
XIII. Where available and upon the request of the other Party, each Party
shall cooperate to ensure that its trunk groups are configured
utilizing the B8ZS ESF protocol for 64 kbps clear channel transmission
to allow for ISDN interoperability between the Parties' respective
networks.
<PAGE> 111
APPENDIX ITR
Page 8 of 8
XIV. INSTALLATION, MAINTENANCE, TESTING AND REPAIR. SWBT's standard
intervals for Feature Group D Switched Exchange Access Services will be
used for Interconnection trunks as specified in the most current SWBT
Accessible Letter, currently SWA96-036, dated April 15, 1996. The LSP
shall meet the same intervals for comparable installations,
maintenance, joint testing, and repair of its facilities and services
associated with or used in conjunction with Interconnection or shall
notify SWBT of its inability to do so and will negotiate such intervals
in good faith.
<PAGE> 112
APPENDIX ITR - SCENARIOS
PAGE 1 OF 7
SCENARIO 1
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
2. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7
SIGNALING) #
5. MDJ INTERLATA ONLY (MF SIGNALING) @
6. MDJ INTERLATA ONLY (SS7 SIGNALING)
7. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ REQUIRED AT THE DALLAS 4 ESS SWITCH ONLY FOR 10XXXX # CUT THROUGH AND FEATURE
GROUP B OVER D.
# REQUIRED IF SWBT DOES NOT PERFORM THE DATABASE QUERY FOR THE LSP.
REVISED 6/17/96
LSP1.AF3
<PAGE> 113
APPENDIX ITR - SCENARIOS
PAGE 2 OF 7
SCENARIO 2
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITH SOME DIRECT END OFFICE, ILEC OR IXC TRUNKING
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
4. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTERLATA 800 (MAXIMIZER 800)(SS7
SIGNALING) #
7. MDJ INTERLATA ONLY (MF SIGNALING) @
8. MDJ INTERLATA ONLY (SS7 SIGNALING)
9. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ REQUIRED AT THE DALLAS 4 ESS SWITCH ONLY FOR 10XXXX # CUT THROUGH AND FEATURE
GROUP B OVER D.
# REQUIRED IF SWBT DOES NOT PERFORM THE DATABASE QUERY FOR THE LSP.
REVISED 6/17/96
LSP2.AF3
<PAGE> 114
APPENDIX ITR - SCENARIOS
PAGE 3 OF 7
SCENARIO 3
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. TOJ LOCAL ONLY (SS7 SIGNALING)
2. TGJ LOCAL ONLY (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTERLATA 800 (MAXIMIZER 800)(SS7
SIGNALING) #
5. DDJ INTRALATA ONLY (SS7 SIGNALING)
6. TCJ INTRALATA ONLY (SS7 SIGNALING)
7. MDJ INTERLATA ONLY (SS7 SIGNALING)
8. ESJ EMERGENCY SERVICE (MF SIGNALING)
# REQUIRED IF SWBT DOES NOT PERFORM THE DATABASE QUERY FOR THE LSP.
REVISED 12/30/96
LSP3.AF3
<PAGE> 115
APPENDIX ITR - SCENARIOS
PAGE 4 OF 7
SCENARIO 4
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITH SOME DIRECT END OFFICE, ILEC OR IXC TRUNKING
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. TOJ LOCAL ONLY (SS7 SIGNALING)
4. TGJ LOCAL ONLY (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7
SIGNALING) #
7. DDJ INTRALATA ONLY (SS7 SIGNALING)
8. TCJ INTRALATA ONLY (SS7 SIGNALING)
9. MDJ INTERLATA ONLY (SS7 SIGNALING)
10. ESJ EMERGENCY SERVICE (MF SIGNALING)
# REQUIRED IF SWBT DOES NOT PERFORM THE DATABASE QUERY FOR THE LSP.
REVISED 12/30/96
LSP4.AF3
<PAGE> 116
APPENDIX ITR - SCENARIOS
PAGE 5 OF 7
SCENARIO 5
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS THE OPERATOR SERVICES PROVIDER FOR THE LSP
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. VRJ BUSY LINE VERIFICATION (MF SIGNALING) #
2. DAJ OR DACCJ DIRECTORY ASSISTANCE OR DIRECTORY ASSISTANCE CALL
COMPLETION (MF SIGNALING, OPERATOR SERVICES SIGNALING)
3. ETCM2J 0-, 0+ COMBINED COIN AND NONCOIN (MF SIGNALING, OPERATOR
SERVICES SIGNALING)
4. ETCMFJ 0-, 0+, DA, DACC COMBINED COIN AND NONCOIN (MF SIGNALING,
OPERATOR SERVICES SIGNALING)
# BUSY LINE VERIFICATION IS SOMETIMES TRUNKED OUT FROM THE TOPS TANDEM RATHER
THAN THE ACCESS TANDEM.
REVISED 1/7/97
LSP5.AF3
<PAGE> 117
APPENDIX ITR - SCENARIOS
PAGE 6 OF 7
SCENARIO 6
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER FOR THE LSP
121 INWARD OPERATOR ASSISTANCE
GRAPHIC
NOTE: THIS SCENARIO WOULD USE EXISTING INTEREXCHANGE CARRIER NETWORK.
REVISED 6/17/96
LSP6.AF3
<PAGE> 118
APPENDIX ITR - SCENARIOS
PAGE 7 OF 7
SCENARIO 7
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER
FOR THE LSP AND THE LSP'S SWITCH IS THE DESIGNATED
OPERATOR SWITCH (TTC) FOR 121 INWARD ASSISTANCE
GRAPHIC
TRAFFIC USE/MODIFIER DESCRIPTION
1. OAJ ACCESS TO INWARD OPERATOR (121)(MF SIGNALING)
REVISED 6/17/96
LSP7.AF3
<PAGE> 119
APPENDIX LIDB
PAGE 2 OF 14
APPENDIX LIDB
AGREEMENT FOR THE PROVISION OF DATA BASE ADMINISTRATION
AND
LINE INFORMATION DATA BASE (LIDB) STORAGE
This Appendix, between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide data base administration to store LSP's line/billing
records in SWBT's Line Information Data Base (LIDB).
WHEREAS, SWBT owns and maintains a Line Validation Administration System (LVAS)
that provides facilities for adding, deleting, and changing information in LIDB;
and
WHEREAS, SWBT maintains LIDB for various purposes, including the validation of
alternately billed service (ABS) requests and the provision of other services;
and
WHEREAS LSP desires to have SWBT use LVAS to administer LSP's line information
cords for the provision of services set forth in the exhibits attached to this
Appendix; and
WHEREAS SWBT is willing to provide, where equipment, processing capability and
hardware configurations permit, such LVAS services and LIDB storage for LSP; and
WHEREAS, SWBT owns and maintains a Sleuth System that provides facilities for
ABS fraud monitoring; and
WHEREAS LSP desires SWBT to use its Sleuth System for ABS fraud monitoring of
its telecommunications traffic.
NOW, THEREFORE, in consideration of the mutual promises and undertakings made,
the parties agree as follows:
1. DEFINITIONS
As used herein and for the purpose of this Appendix, the following
terms shall have the meanings set forth below:
A. Alternate Billing Services (ABS) - A service that allows end
users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect and third number billed calls.
B. Billed Number Screening (BNS) - A process which utilizes a
database to determine specific characteristics and/or end user
preferences with respect to a billed number.
<PAGE> 120
APPENDIX LIDB
PAGE 3 OF 14
C. Calling Card Service (CCS) - A service which enables a calling
customer to bill a telephone call to a calling card number
with or without the help of an operator.
D. Data Base - An integrated collection of related data. In the
case of the LIDB, the data base is the line number and related
line information.
E. Data Base Administration Center (DBAC) - The LIDB input center
where the LVAS facility and administrative personnel are
currently located.
F. Exchange - For the purpose of this Appendix, a specific
NPA-NXX combination.
G. Group Record - Information in LIDB or LVAS that is common
to all lines or billing records in an NPA-NXX or NPA-RAO.
H. LIDB Editor - A database editor located at the SCP where LIDB
resides. LIDB ditor provides emergency access to LIDB that
bypasses the service management system for LIDB.
I. Line Validation Administration System (LVAS) - An off-line
administrative system, used by SWBT to add, delete and change
information in LIDB.
J. Line Information Data Base (LIDB) - The line information
database, which is an ANSI SS7 database system, functions as a
centralized repository for data storage and retrieval. LIDB
supports validation and recording of ABS requests. LIDB also
supports storage, retrieval and recording capabilities for
other information that can be associated with an end user's
line. Examples of such information are, or are expected to be,
originating screening information, ZIP code data and calling
name.
K. Line Record - Information in LIDB or LVAS that is specific
to a single telephone number or special billing number.
L. Personal Identification Number (PIN) - A confidential four
digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in the LIDB for those line numbers that have an
associated calling card.
M. Response - A single response in a set of predefined expected
responses to a request for information contained in a query
from a computer processor.
<PAGE> 121
APPENDIX LIDB
PAGE 4 OF 14
N. Toll Billing Exception (TBE) - A LIDB option that allows end
users to restrict third number billing or collect calls to
their lines.
O. Service Management System (SMS) - An off-line system used to
access, create, modify, or update information in LIDB. For the
purposes of this appendix, the SMS for LIDB is LVAS.
P. Sleuth - An off-line administration system that SWBT uses to
monitor suspected occurrences of ABS-related fraud. Sleuth
uses a systematic pattern analysis of query message data to
identify potential incidences requiring fraud investigation.
Detection parameters are based upon vendor recommendations and
SWBT's analysis of collected data and are subject to change
from time to time.
Q. Special Billing Number (SBN) Account Groups - Line records in
LIDB that are based on an NPA-RAO numbering format. NPA-RAO
numbering formats are similar to NPA-NXX formats except that
the fourth digit of an NPA-RAO line record is either a zero
(0) or a one (1).
R. Tape Load Facility - A separate data entry point at the SCP
where LIDB resides. The Tape Load Facility provides direct
access to LIDB for data administration that bypasses the
service management system for SWBT's LIDB.
S. Translation Type - A code in the Signaling Connection Control
Point (SCCP) of the SS7 signaling message. Translation Types
are used for routing LIDB queries. Signal Transfer Points
(STPs) use Translation Types to identify the routing table
used to route a LIDB query. All LIDB queries against the same
exchange and Translation Type are routed to the same LIDB.
2. General Description
A. SWBT's LIDB is connected directly to a service management
system (i.e., LVAS), a database editor (i.e., LIDB Editor),
and a tape load facility. Each of these facilities, processes,
or systems, provide SWBT with the capability of creating,
modifying, changing, or deleting, line/billing records in
LIDB. SWBT's LIDB is also connected directly to an adjunct
fraud monitoring system (i.e., Sleuth).
B. SWBT will provide LSP with access to LVAS, LIDB Editor, and
tape load facility as set forth in this Appendix and the
Exhibit or Exhibits attached hereto. SWBT warrants that the
manner in which it provides such access to LSP will be
equivalent to the manner in which SWBT provides such access to
itself.
<PAGE> 122
APPENDIX LIDB
PAGE 5 OF 14
C. SWBT will also provide LSP with fraud alerts from Sleuth as
set forth in this Appendix and in Exhibit IV (Sleuth). SWBT
warrants that it will provide fraud alerts to LSP using the
same fraud monitoring parameters as SWBT uses for itself.
D. From time-to-tome, SWBT enhances its LIDB to create new
services and/or LIDB functionalities. Such enhancements may
involve the creation of new line-level or group-level data
elements in LIDB. SWBT will coordinate with LSP to provide LSP
with the opportunity to update its data concurrent with SWBT's
updates of SWBT's own data. Both parties understand and agree
that some LIDB enhancements will require LSP to update its
line/billing records with new or different information.
E. Charges for the provisioning of Data Base Administration and
LIDB Storage are set forth in Exhibit II (Basis of
Compensation).
3. Service Description
3.1 LVAS
LVAS provides LSP with the capability to access, create,
modify or update information in LIDB. LVAS has two electronic interfaces. These
interfaces are the Service Order Entry Interface and the Interactive Interface.
3.1.1 Service Order Entry Interface
(A) The Service Order Entry Interface provides
LSP with unbundled access to SWBT's LVAS
that is equivalent to SWBT's own service
order entry process to LVAS. Service Order
Entry Interface allows LSP to electronically
transmit properly formatted records from
LSP's service order process into LVAS.
(B) LSP's access to the Service Order Entry
Interface will be through a remote access
facility (RAF). The RAF will provide SWBT
with a security gateway for LSP access to
the Service Order Entry Interface. The RAF
will verify the validity of LSP's
transmissions and limit LSP's access to
SWBT's Service Order Entry Interface to
LVAS. LSP does not gain access to any other
SMS, interface, database, or operations
support system through this Appendix.
<PAGE> 123
APPENDIX LIDB
PAGE 6 OF 14
(C) SWBT will provide LSP with the file transfer
protocol specifications LSP will use to
administer LSP's data over the Service Order
Entry Interface. LSP acknowledges that
transmission in such specified protocol is
necessary for SWBT to provide LSP with Data
Base Administration and Storage.
(D) LSP can choose the Service Order Entry
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific
documentation for properly formatting the
records LSP will transmit over the Service
Order Entry Interface.
(F) LSP understands that its record access
through the Service Order Entry Interface
will be limited to its own line/billing
records.
3.1.2 Interactive Interface
(A) The Interactive Interface provides LSP with
unbundled access to SWBT's LVAS that is
equivalent to SWBT's access at its LIDB
DBAC. Interactive Interface provides LSP
with the ability to have its own personnel
access LSP's records via an application
screen that is presented on a computer
monitor. Once LSP has accessed one of its
line/billing records, LSP can perform all of
the data administration tasks SWBT's LIDB
DBAC personnel can perform on SWBT
line/billing records.
(B) SWBT will provide LSP with Interactive
Interface through a modem. LSP understands
that its record access through the
Interactive Interface will be limited to its
own line/billing records.
(C) LSP will use hardware and software that is
compatible with LVAS hardware and software.
(D) LSP can choose to request the Interactive
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
<PAGE> 124
APPENDIX LIDB
PAGE 7 OF 14
(E) SWBT will provide LSP with SWBT-specific
documentation in the form of screen prints
and prints of help screens.
3.1.3 Manual Interface
(A) Manual Interface is available only if the
LSP has 1,000 line/billing records or less.
Manual Interface allows LSP to fax updates
to SWBT's LIDB DBAC. SWBT's LIDB DBAC
personnel will manually enter these faxed
updates into LVAS for LSP.
(B) Manual Interface is not available with any
other interface SWBT provides under this
Appendix.
(C) LSP understands that its record access
through the Manual Interface will be limited
to its own line/billing records.
3.2 Tape Load Facility Interface
(A) Tape Load Facility Interface provides LSP with
unbundled access to SWBT's Tape Load Facility in the
same manner that SWBT accesses this facility. Tape
Load Facility Interface allows LSP to create and
submit magnetic tapes for input into LIDB.
(B) The Tape Load Facility Interface is not an interface
to LVAS. The Tape Load Facility Interface is an entry
point to LIDB at the SCP where LIDB resides.
(C) The Tape Load Facility Interface is available only
when the amount of information is too large for LVAS
to accommodate. Both parties agree that these
situations normally occur during the initial load of
LSP's information into LIDB or when LIDB is updated
for a new product. The Tape Load Facility Interface
is not available for ongoing updates of information.
LSP may request the Tape Load Facility Interface only
when its updates exceed 100,000 line/billing records
over and above the LSP's normal daily update
processing.
(D) LSP will create its own tapes in formats specified in
GR-446-CORE, Issue 2, June 1994, as revised. Such
tapes will only include information associated with
LSP's line/billing records.
(E) LSP will deliver a separate set of tapes, each having
identical information to each SCP node on which LIDB
resides. SWBT will
<PAGE> 125
APPENDIX LIDB
PAGE 8 OF 14
provide LSP with the name and address of the SWBT
employee designated to receive the tapes at each
location.
(F) In addition to the tapes LSP will create and
deliver to the SCP node locations, LSP shall deliver
an additional set of tapes to the LVAS System
Administrator so that SWBT can load LSP's updates
into LVAS. LSP understand that these additional tapes
must contain information identical to the tapes
delivered to the SCP nodes, but that the format will
differ. SWBT shall provide LSP SWBT-specific
documentation for record formations of these
additional tapes. SWBT shall use these tapes to
create LSP records in LVAS that correspond with the
records being loaded into LIDB using the Tape Load
Facility Interface. SWBT shall provide LSP with the
name and address of the SWBT System Administrator to
whom the LVAS update tapes should be sent.
(G) SWBT and LSP shall negotiate mutually agreed upon
dates and times for tape loads of LSP data when such
loads are the result of an LSP request.
(H) LSP understands and agrees that its record access
through the Tape Load Facility Interface is only for
LSP's own line/billing records. LSP warrants that it
shall not use the Tape Load Facility Interface to
modify any group record. LSP further warrants that it
shall not use the Tape Load Facility Interface to
modify any line/billing record not belonging to LSP.
3.3 LIDB Editor Interface
(A) LIDB Editor Interface provides LSP with unbundled
access to SWBT's LIDB Editor equivalent to SWBT's
manner of access. LIDB Editor provides LSP with
emergency access to LIDB only when LVAS is unable to
access LIDB or is otherwise inoperable.
(B) LIDB Editor Interface is not an interface to LVAS.
LIDB Editor is an SCP tool accessible only by
authorized SWBT employees. LSP shall have access to
SWBT employees authorized to access LIDB Editor
during the same times and under the same conditions
that SWBT has access to LIDB Editor.
(C) LSP understands that its record access through the
LIDB Editor Interface is limited to its own
line/billing records.
<PAGE> 126
APPENDIX LIDB
PAGE 9 OF 14
3.4 Audits
SWBT shall provide LSP with access equivalent to SWBT's own
access to LVAS audit functionalities.
3.4.1 LIDB Audits
(A) This audit is between LVAS and LIDB. This
audit verifies that LVAS records match LIDB
records. The LIDB Audit is against all line
records and group record information in LVAS
and LIDB, regardless of data ownership.
(B) SWBT shall run the LIDB audit continuously
throughout each and every day.
(C) SWBT shall create a "variance file" of all
LSP records that fail the LIDB audit. LSP
can access these files through the
Interactive Interface.
(D) LSP shall investigate accounts that fail the
LIDB audit and correct any discrepancies as
set forth in paragraph 3(H). LSP shall
correct all discrepancies using the LVAS
interface(s) LSP has requested under this
Appendix.
3.4.2 Billing System Audit
(A) This type of audit is between LVAS and
SWBT's billing system(s). This audit
verifies that LVAS records match SWBT's
billing system records.
(B) SWBT shall provide LSP with access
equivalent to SWBT's own access to the
billing system audit functionality. SWBT
shall provide LSP with a file containing LSP
records in LIDB. LSP shall specify if the
billing system audit tape will be delivered
by either magnetic tape or electronically
over the Service Order Entry Interface.
(C) LSP shall audit its LIDB accounts against
LSP's billing system and correct any
discrepancies as set forth in paragraph
3(H). LSP shall correct all discrepancies
using the LVAS interface(s) LSP has
requested under this Appendix.
(C) SWBT shall provide LSP scheduled and
unscheduled billing system audits as set
forth below:
<PAGE> 127
APPENDIX LIDB
PAGE 10 OF 14
(1) Scheduled Audits
SWBT shall provide LSP with a
billing system audit file twice per
year. Such audit files will
represent LSP's entire data store in
LVAS. The Parties shall mutually
agree upon the dates such audit
files will be provided.
(2) Unscheduled Audits
LSP can request additional audit
files and SWBT will work
cooperatively to accommodate all
reasonable LSP requests for such
additional audit files. Charges for
additional audit files shall apply
as set forth in Exhibit II (Basis
for Compensation).
3.5 Sleuth
(A) Sleuth notification provides LSP with Sleuth
alert messages. Sleuth alert messages
indicate potential incidences of ABS-related
fraud for investigation.
(B) Sleuth historical reports are available to
LSP as set forth in Exhibit IV (Sleuth).
3. Manner of Provisioning
(A) SWBT shall provide to LSP, on request, SWBT-specific
documentation regarding record formatting and associated
hardware requirements for LSP to access each of the interfaces
SWBT provides for LIDB data administration.
(B) LSP shall obtain, at its own expense, all necessary
documentation produced by non-SWBT entities such as Bellcore.
(C) Magnetic tapes submitted by LSP must conform to the hardware
specifications of each SCP node where LIDB resides. This
includes 9-track and 8mm tapes as well as other site-specific
limitations. SWBT shall provide LSP with all magnetic tape
hardware requirements upon request. LSP shall create the
magnetic tapes its submits for input into LIDB and LVAS over
the tape load interface.
(D) SWBT shall input information provided by LSP into LIDB for the
NPA-NXXs and/or NPA-RAOs set forth in Exhibit I, EXCHANGES TO
BE ADMINISTERED, attached hereto and made a part hereof. LSP
shall provide
<PAGE> 128
APPENDIX LIDB
PAGE 11 OF 14
all information needed by SWBT to support the services being
requested. This information may include, but is not limited
to, Calling Card Service information, Toll Bill Exception
information (such as restrictions on collect and third number
billing), class of service information, originating line
number screening information, ZIP code information, and
calling name information.
(E) LSP shall furnish, prior to the initial LVAS load, and as
requested by SWBT thereafter, the following forecast data:
- the number of working lines per account group
- the number of working line numbers to be established
- the average number of monthly changes to these records
- the number of busy hour queries, by query type
- the number of annual queries by query type
If SWBT, at its discretion, determines that it lacks adequate
storage, or processing capability, prior to the initial
loading of LSP information, SWBT shall notify LSP of its
intent to not provide to LSP the Services under this Appendix
and this Appendix will be void.
(F) LSP shall furnish all line records and group records in a
format required by SWBT to establish records in LIDB for all
working line numbers, not just line numbers associated with
calling card PIN or Toll Billing Exceptions (TBE).
(G) LSP acknowledges that SWBT's LIDB is accessible by many
telecommunications companies and that these telecommunications
companies expect a high degree of accuracy in the response
information provided to their queries. LSP shall administer
its data in such a manner that SWBT's accuracy of response
information is not adversely impacted.
(H) LSP shall verify to SWBT the line information data residing in
LVAS by reviewing the listing of line information data
provided by SWBT's billing system audit file. LSP shall
provide to SWBT all additions, deletions, and corrections
resulting from its verification on, or before, the fourteenth
business day following its receipt of line information
verification reports produced by SWBT for audit processes.
(I) SWBT shall provide the functionality needed to perform certain
query/response functions on a call-by-call basis for the
line/billing records of LSP that reside in SWBT's LIDB. Those
query/response functions SWBT will perform are set forth in
the Exhibits.
(J) With respect to all matters covered by this Appendix, each
Party shall adopt and comply with SWBT standard operating
methods and procedures and shall
<PAGE> 129
APPENDIX LIDB
PAGE 12 OF 14
observe the rules and regulations which cover the
administration of LVAS service and the Sleuth System, as set
forth in SWBT practices. The Parties acknowledge that those
practices may be changed by SWBT from time to time.
(K) Administration of the SCP on which LIDB resides, as well as
any system or query processing logic that applies to all data
resident on SWBT's LIDB is, and remains, the responsibility of
SWBT. LSP acknowledges that SWBT, in its role as system
administrator, may need to access any record in LIDB,
including any such records of LSP. SWBT shall limit such
access to those actions necessary to ensure the successful
operation and administration of SWBT's SCP and LIDB.
(L) LSP acknowledges that SWBT shall, in its sole discretion,
allow or negotiate any access to SWBT's LIDB. LSP does not
gain any ability, by virtue of this Appendix, to determine
which telecommunications companies are allowed to access
information in SWBT's LIDB. LSP acknowledges that when SWBT
allows a query originator to access SWBT data in SWBT's LIDB,
such query originators shall also have access to LSP's data
that is also stored in SWBT's LIDB.
(M) LSP acknowledges that SWBT does not have data screening
capability in LIDB. Data Screening is the ability of a LIDB
owner to deny complete or partial access to LIDB data or
processes.
4. Billing
Compensation to SWBT for data storage and administration service and
Sleuth services shall be based upon the rates set forth in Exhibit II
(Basis of Compensation), attached hereto and made a part hereof. These
rates will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
seventy-five (75) days' notice. SWBT may first give such notice
seventy-five days before the end of the first year.
4.1 SWBT Responsibilities
(A) SWBT shall determine, for billing purposes, the
number of access lines that are administered for each
NPA-NXX or NPA-RAO for which SWBT performs the
database administration function on behalf of LSP.
SWBT shall quantify access lines monthly.
(B) SWBT shall provide, upon written request, such data
as is reasonably necessary to verify billing charges
for data base administration update functions. SWBT
shall provide this information in standard SWBT LVAS
report formats.
<PAGE> 130
APPENDIX LIDB
PAGE 13 OF 14
(C) SWBT shall provide such data, as is reasonably
necessary, to enable the independent Billing
Information Systems (IBIS) billing statements to be
substantiated for query volumes of LSP line/billing
records that reside in SWBT's LIDB. SWBT shall
provide this data to LSP in standard Exchange Message
Record (EMR) format.
4.2 LSP Responsibilities
(A) LSP shall pay SWBT the amounts billed for the
services rendered.
(B) LSP shall bill the appropriate charges to end users,
on behalf of third parties who query LIDB and receive
a response verifying the end user's willingness to
accept the charges for the underlying call.
(C) LSP shall provide to third parties, that query LIDB
and receive a response verifying an end user's
willingness to accept charges of services supported
by LIDB, all necessary billing information needed by
the third party to bill for the services provided.
4.3 Compensation for Data Access
(A) Subject to the limitations in (B) below, SWBT shall
compensate LSP for queries against the data LSP
stores in SWBT's LIDB. Queries by SWBT and LSP
against the data LSP stores in SWBT's LIDB shall be
included in the count of queries for which LSP will
be compensated. SWBT shall compensate LSP by paying a
percentage of the amounts SWBT billed, or would have
billed, for each query. LSP acknowledges that the
amount SWBT bills for LIDB queries against LSP's data
may differ by query type, by query originator, and/or
may change over time. The percentage SWBT will use to
calculate such credits is set forth in Exhibit II
(Basis of Compensation).
(B) LSP acknowledges that SWBT's ability to provide
such credit is based upon SWBT's ability to identify
account ownership in LIDB. LSP acknowledges that LIDB
currently identifies account ownership only at the
level of the group record (i.e., NPA-NXX or NPA-RAO).
LSP further agrees that SWBT will not provide such
credit for LSP accounts that reside in group records
that also contain SWBT or other data owner accounts.
SWBT agrees to work with its LIDB and switch vendors
to attempt to develop the capabilities for SWBT to
identify, and record for billing, the service
provider of individual line/billing records. SWBT
shall provide LSP compensation if SWBT implements
such capabilities in its network.
<PAGE> 131
APPENDIX LIDB
PAGE 14 OF 14
5. Liability
(A) SWBT shall not be liable for any losses or damages
arising out of errors, interruptions, defects,
failures, or malfunction of LVAS, including any and
all associated equipment and data processing systems,
except such losses or damages caused by the sole
negligence of SWBT. Any losses or damages for which
SWBT is held liable under this Appendix shall in no
event exceed the amount of charges made for LVAS
during the period beginning at the time SWBT receives
notice of the error, interruption, defect, failure or
malfunction to the time service is restored.
(B) SWBT shall not be liable for any losses or damages
arising out of SWBT's administration of Sleuth.
(C) SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES RESULTING FROM, OR ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT.
(D) LSP agrees to release, indemnify, defend, and hold
harmless SWBT from any and all claims, demands, or
suits brought by a third party against SWBT, directly
or indirectly, arising out of SWBT's provision of
service under this Appendix. This provision shall not
apply to any losses, damages or other liability for
which SWBT is found liable as a result of its sole
negligence.
6. Disclaimer of Warranties
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO LVAS
SERVICE, LIDB OR THE SLEUTH SYSTEM. ADDITIONALLY, SOUTHWESTERN BELL
ASSUMES NO RESPONSIBLEILITY WITH REGARD TO THE CORRECTNESS OF THE DATA
SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 132
APPENDIX LIDB
EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT I
EXCHANGES TO BE ADMINISTERED
SWBT shall provide service management system and other interface service
capabilities to LSP as set forth in this Appendix and attached Exhibit or
Exhibits for the following LSP exchanges:
EXCHANGE NAME NPA NXX NPA-RAO
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
_______________________________ ___________________ _________________
(Attach additional copies as needed)
<PAGE> 133
APPENDIX LIDB
EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT II
BASIS OF COMPENSATION
1. COMPENSATION :
All rates and charges contained in this section are applicable in all regulatory
jurisdictions.
2. RATES AND CHARGES
Manual Interface Rate Per Initial Load
(a) Initial Load
(1) per initial load $372.00
(2) per 100 line records
loaded $ 55.00
(b) Ongoing Updates Rate Per Month
(1) per month $ 51.00
(2) per 100 line records
stored in LIDB $ 3.75
<PAGE> 134
APPENDIX LIDB
EXHIBIT III
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT III
CALLING CARD AND BILLED NUMBER SCREENING VALIDATION
(A) SWBT shall provide the functionality needed to perform the
following query/response functions, on a call-by-call basis,
for the line/billing records residing in SWBT's LIDB to:
1. Validate a 14-digit billing number where the
first 10 digits are a telephone number or a
special billing number assigned and the last
four digits (PIN) are a security code
assignment.
2. Determine whether the billed line
automatically rejects, accepts, or requires
verification of certain calls billed as
collect or third number.
3. Determine whether the billed line is a
public telephone number using the Class of
Service information in the LIDB.
B. LSP shall bill the appropriate charges to end users, on behalf
of third parties who query LIDB and receive a response
validating the end user's willingness to accept the charges
for the underlying call.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 135
APPENDIX LIDB
EXHIBIT IV
PAGE 1 OF 2
APPENDIX LIDB
EXHIBIT IV
SLEUTH
(A) SWBT shall provide LSP with an alert notification, by fax, or
another mutually agreed upon format, when SWBT's Sleuth system
indicates the probability of a fraud incidence. SWBT will use
the same criteria to determine fraud alerts for LSP as SWBT
uses for its own accounts.
(B) Sleuth alert messages have four levels of priority. These
levels are low, medium, high and urgent. Sleuth delivers alert
messages to a queue in the Sleuth DBAC in priority order.
Urgent alerts are prioritized first, followed by high, medium
and low alerts (in that order).
(C) SWBT's Sleuth investigators can access alerts only in the
order the alerts appear in the queue. Low alerts almost never
see investigator treatment. However, when Sleuth encounters a
number of low priority alerts on the same account, Sleuth may
upgrade the alert's status to a higher priority status.
(D) When a Sleuth investigator determines that an urgent, high, or
medium priority alert is for an LSP account, the Sleuth
investigator will print the alert for the queue and fax the
alert to the LSP. Sleuth alerts only identify potential
occurrences of fraud. The LSP receiving Sleuth alerts will
need to perform its own investigations to determine whether a
fraud situation actually exists. The LSP will also need to
determine what, it any action should it take as a result of a
Sleuth alert.
(E) SWBT's hours of operation for Sleuth are seven days a week,
twenty-four hours per day (7X24). LSP shall provide SWBT with
a contact name and fax number for SWBT to fax alerts from
SWBT's Sleuth DBAC.
(F) SWBT shall provide LSP with a Sleuth contact name and number,
including fax number, for LSP to contact the Sleuth DBAC.
(G) For each alert notification SWBT provides to LSP, LSP may
request a corresponding 30-day historical report of
ABS-related query processing. LSP may request up to three
reports per alert. The charge for each historical report is
set forth in Exhibit II (Basis of Compensation).
<PAGE> 136
APPENDIX LIDB
EXHIBIT IV
PAGE 2 OF 2
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 137
APPENDIX LIDB
EXHIBIT V
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT V
CNAM SERVICE QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT will provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the name associated with the line record.
Calling Name records are limited to fifteen characters. LSP is responsible for
providing all name truncations and/or abbreviations needed to limit a calling
name to 15 characters. LSP is also responsible for ensuring that its calling
name data does not contain obscenities in English or other languages. Upon
receipt of Calling Name data, in a format acceptable to SWBT, SWBT will provide
the query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to identify the name associated with the line
record.
CNAM Service Query is SWBT's service that allows customers to query SWBT's LIDB
for calling name information. Calling Name information means a
telecommunications company's records of all its subscribers' names associated
with one or more ten-digit telephone numbers assigned to the end user.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 138
APPENDIX LIDB
EXHIBIT VI
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT VI
SINGLE NUMBER SERVICE (SNS) QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the ZIP code associated with the line record.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By______________________________
Title_____________________________ Title___________________________
Date______________________________ Date____________________________
<PAGE> 139
APPENDIX LIDB
EXHIBIT VII
PAGE 1 OF 1
APPENDIX LIDB
EXHIBIT VII
ORIGINATING LINE NUMBER SCREENING (OLNS) QUERY
Upon receipt of the line/billing information for LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the originating line screening requirements of the line
record.
LSP shall ensure that its OLNS data complies with the definitions and record
formats set forth in GR-1149-CORE and GR-446-CORE.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By______________________________
Title_____________________________ Title___________________________
Date______________________________ Date____________________________
<PAGE> 140
APPENDIX LIDB-V
PAGE 2 OF 14
APPENDIX LIDB VALIDATION SERVICE
WHEREAS, the Parties are interested in purchasing each other's LIDB
Validation Service (or equivalent service);
In consideration of the mutual promises contained herein, SWBT and LSP
agree as follows.
I. DEFINITIONS
A. A-links means a diverse pair of facilities connecting local
end office switching centers with Signaling Transfer Points.
B. Alternate Billing Service (ABS) means a service that allows
end users to bill calls to accounts that may not be associated with
the originating line. There are three types of ABS calls: calling
card, collect, and third number billed calls.
C. Billed Number Screening (BNS) means a validation of toll
billing exception (TBE) data and performance of public telephone
checks i.e., determining if a billed line is a public (including
those classified as semi-public) telephone number.
D. Calling Card Service (CCS) means a service that enables a
calling customer to bill a telephone call to a calling card number
with or without the help of an operator.
E. Common Channel Signaling (CCS) Network means an out-of-band,
packet-switched, signaling network used to transport supervision
signals, control signals, and data messages. Validation Queries
and Response messages are transported across the CCS network.
F. Data Base means an integrated collection of related data.
In the case of the LIDB, the data base is the line number and
related line information.
G. Data Owner means telecommunications companies that
administer their own validation data in a party's LIDB or LIDB-like
database.
H. Line Information Data Base (LIDB) means an ANSI SS7
call-related database system. LIDB functions as a centralized
repository for data storage and retrieval. SWBT's LIDB supports
validation of ABS calls as well as certain other services.
I. Line Record means information in LIDB that is specific to a
single telephone number or special billing number.
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APPENDIX LIDB-V
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J. Nonrecurring charges are one-time charges that apply for a
specific work activity (i.e., installation or change to an existing
service). Nonrecurring charges are applicable for the
establishment of LIDB Validation Service, service rearrangements,
and service order activity.
K. Originating Point Code (OPC) means a code assigned to
identify LSP's operator service system location(s).
L. Personal Identification Number (PIN) means a confidential
four-digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The PIN
is stored in LIDB for those line numbers that have an associated
calling card.
M. Query means a message in American National Standards
Institute's (ANSI) standard SS7 signaling protocol which represents
a request to a LIDB or LIDB-like database for Validation
information.
N. Query Rate applies to each Validation Query that is received
at SWBT's LIDB for the validation of calling card and toll billing
exception data and performance of public telephone checks; i.e.,
determining if a billed line is a public (including those
classified as semi public) telephone number.
O. Query Transport Rate applies to each Validation Query
transported from SWBT's STP to the SCP where LIDB resides and back.
SWBT and LSP shall list their STP locations in the National
Exchange Carrier Association, Inc. Tariff FCC No. 4.
P. Response means an SS7 message which, when appropriately
interpreted, represents an answer to a Query.
Q. Service Order Charge is a nonrecurring charge that applies,
per service order form, that specifies the LSP's originating point
codes (OPCs) of the LSP's designated operator service systems
sending the Validation Query or Queries.
R. Service Control Point (SCP) is a CCS network node where
Validation information resides.
S. Service Point (SP) means a CCS network interface element
capable of initiating and/or terminating SS7 messages from an end
office.
T. Service Rearrangements are changes to existing services
which do not result in changes to previously established OPCs.
U. Service Switching Point (SSP) means the software capability
within a switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7
transmission/reception access ability.
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APPENDIX LIDB-V
PAGE 4 OF 14
V. Signaling System 7 (SS7) means the signaling protocol used
by the CCS network.
W. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to
SWBT's SS7 network, LSP or a third party initiating LSP's
Validation Queries must connect with an SWBT STP in order to
connect to SWBT's SCP.
X. Special Billing Number means line records in LIDB that are
based on an NPA-RAO numbering format. NPA-RAO numbering formats
are similar to NPA-NXX formats except that the fourth digit of an
NPA-RAO line record is either a zero (0) or a one (1).
Y. Toll Billing Exception (TBE) Service means a service that
allows end users to restrict third number billing or collect calls
to their lines.
Z. Validation information means Data Owners' records of all
their Calling Card Service and Toll Billing Exception Service.
II. DESCRIPTION OF SERVICE
A. SWBT shall provide LSP access to Validation information
whenever LSP initiates a query from an SSP for Validation
information available in SWBT's LIDB.
B. All LSP Queries to SWBT's LIDB shall use a translations type of
253 and a subsystem number in the calling party address field that
is mutually agreed upon by the Parties. LSP acknowledges that such
subsystem number and translation type values are necessary for SWBT
to properly process Validation Queries to its LIDB.
C. LSP warrants SWBT that LSP shall send Queries conforming to
the ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A attached
hereto and incorporated by reference. Both Parties acknowledge that
transmission in said protocol is necessary for each party to
provision Validation Service (or the equivalent thereof). Both
Parties warrant that they shall send SS7 Messages that comply
with ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A. Each
Party reserves the right to modify its network pursuant to other
specifications standards, which may include Bellcore
Specifications defining specific service applications, message
types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications industry.
All such changes shall be announced a minimum of one hundred
eighty (180) days in advance of implementation through industry
<PAGE> 143
APPENDIX LIDB-V
PAGE 5 OF 14
standard procedures. Each Party will work cooperatively to
coordinate any necessary changes.
D. LSP acknowledges that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages
can and will have a detrimental effect on the performance of SWBT's
CCS/SS7 network. LSP further agrees that SWBT, in its sole
discretion, shall employ certain automatic and/or manual overload
controls within SWBT's CCS/SS7 network to guard against these
detrimental effects. SWBT shall report to LSP any instances where
overload controls are invoked due to LSP's CCS/SS7 network and LSP
agrees in such cases to take immediate corrective actions as are
necessary to cure the conditions causing the overload situation.
E. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour Query volumes. If,
prior to the establishment of a mutually agreeable service
effective date, in writing, SWBT, at its sole discretion,
determines that it lacks adequate processing capability to provide
Validation Service to LSP, SWBT shall notify LSP of SWBT's intent
not to provide the services under this Appendix and this Appendix
will be void and have no further effect.
F. LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the preceding
year. LSP shall provide such updates each year for the first three
(3) years of this Appendix.
G. SWBT will perform testing of the LIDB Validation Service in
conjunction with CCS/SS7 Interconnection Service as outlined in
Bellcore Technical References TR-NWT-000954, TR-TSV-000905, and TP
76638.
H. SWBT supports the performance standards as defined in
Section 7 of TR- TSV-000905. The overall end-to-end CCS/SS7
network objective is less than ten minutes unavailability per year
from any Signal Point (SP) to any other SP. The performance
objective for any single SP, including a Service Control Point
(SCP), is less than three minutes unavailability per year. The
combined link set from the SCP to the Signal Transfer Point (STP)
has a performance objective of less than two minutes unavailability
per year.
I. SWBT's LIDB Validation Service system downtime will be less
than twelve hours per year. The response time for a Query, from
switch transmission to reception, should not exceed one second for
ninety-nine (99) percent of all Queries.
J. SWBT shall administer its LIDB to provide acceptable service
levels to all customers of SWBT's LIDB Validation Service. During
periods of LIDB system congestion, SWBT will utilize an automatic
code gapping procedure to control
<PAGE> 144
APPENDIX LIDB-V
PAGE 6 OF 14
such congestion. The automatic code gapping procedure will tell
LSP's switch the gap (how long LSP's switch should wait before
sending another query) and the duration (how long the switch should
continue to perform gapping). For example, during an overload
condition, the automatic code gapping procedure will tell SWBT's
LIDB when to begin to drop one out of three queries received. This
code gapping procedure will be applied uniformly to all users of
SWBT's LIDB Validation Service. SWBT maintains the right to invoke
manual intervention of the automatic code gapping procedure to
preserve the integrity of its network.
K. LSP agrees that network overload due to extraordinary
volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's network and
its LIDB Validation Service. LSP further agrees to take immediate,
corrective actions as are necessary to cure the conditions causing
the overload situation.
L. All access by LSP to SWBT's LIDB shall occur through SWBT's
regional STP as designated by SWBT.
M. SWBT's LIDB shall contain a record for every SWBT working
line number and Special Billing Number served by SWBT. Other
telecommunications companies, including LSP, may also store their
data in SWBT's LIDB. SWBT shall request such telecommunications
companies to also provide this data as well.
N. SWBT shall update the LIDB information; e.g., add, delete,
and modify customer accounts as customers move, become delinquent
on their account, or order new service, on a daily basis. SWBT
shall request other Data Owners to provide such updates in like
time.
O. SWBT has procedures in place to deactivate billing
validation data in the event that such data is being used
fraudulently or in the event end users exceed SWBT-defined limits
on toll charges. SWBT shall update SWBT- issued calling cards that
SWBT suspects of being fraudulently used or exceeding SWBT-defined
toll limits seven (7) days a week, 24 hours a day.
P. SWBT's LIDB shall receive and respond to all Calling Card
Service and Billed Number Screening queries, including SWBT's and
LSP's queries, as defined in Bellcore publications TR-NWT-000246,
FR-NWT-000271, TR-TSV-000905, TR-NWT-000954 and SWBT's publication
TP 6638. These procedures shall be applied uniformly to all users
of SWBT's LIDB Validation Service.
Q. SWBT's LIDB Validation Service shall provide the following
functions on a per query basis:
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APPENDIX LIDB-V
PAGE 7 OF 14
- validation of a telecommunications calling
card account number stored in LIDB;
- determination of whether the billed line has
decided in advance to reject certain calls billed as collect
or to a third number; and
- determination of billed line as a public
(including those classified as semi public) or nonworking
telephone number.
R. SWBT provides LIDB Validation Service as set forth in this
Appendix only as such service is used for LSP's activities as a
local service provider in SWBT's traditional serving areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. SWBT
provides a LIDB Validation Service for interexchange carriers,
operator service providers, and other telecommunications companies
under effective tariffs. LSP agrees that any other use of SWBT's
LIDB for the provision of LIDB Validation Service by LSP,
including, but not limited to, when LSP acts as an LSP outside of
SWBT's traditional serving areas in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas, and/or acts as an operator service
provider to other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange
carrier, will be pursuant to the terms, conditions, rates, and
charges of SWBT's effective tariffs, as revised, for LIDB
Validation Service.
III. PRICE AND PAYMENT
A. LSP shall pay SWBT a Validation Query rate and a Query
Transport Rate for each Query initiated into SWBT's LIDB. These
rates are set forth in Exhibit I (Basis of Compensation), which is
attached hereto and incorporated by reference.
B. LSP shall pay a Nonrecurring Charge for each request for
establishment or change of existing LIDB Validation Service. The
LIDB Validation Service Establishment Charge applies per
originating point code per request and is set forth in Exhibit I
(Basis of Compensation).
C. LSP shall pay a Service Order Charge for each request for
service order activity. The Service Order Charge is set forth in
Exhibit I (Basis of Compensation).
D. Payment to SWBT for LIDB Validation Service shall be based
upon the rates set forth in Exhibit I (Basis of Compensation),
attached hereto and made a part thereof. These rates and charges
will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
sixty (60) days' notice. SWBT may first give such notice sixty
(60) days before the end of the first year.
<PAGE> 146
E. SWBT shall record usage information for LSP's Validation
Queries terminating to SWBT's LIDB. SWBT shall use its SCPs as the
source of usage data. SWBT shall aggregate usage by the point code
of the Query-originating SSP.
F. Based upon the data identified in SubSection 3.E of this
Appendix, SWBT shall bill LSP for its Validation Queries on a
monthly basis. The bill will be issued by the fifteenth day of
each month, and LSP shall pay the bill within thirty (30) days of
the bill issue date. LSP shall pay late payment charges as
applicable and as described in SWBT's Tariff FCC No. 73.
G. SWBT shall provide sufficient information with the bill to
enable LSP to determine how the billed amount was calculated.
H. Depending on LSP's choice of method for transporting its
Queries and Responses, LSP may be required to purchase certain
other services, especially services that may be provided pursuant
to effective tariffs. In this event the prices, terms, conditions,
and billing for such services will be specified in the applicable
tariff(s) and this Appendix shall not be construed to circumvent
the prices, terms, conditions, or billing as specified in the
applicable tariff(s).
I. If there is a dispute associated with a monthly bill, the
disputing Party shall notify the other in writing within ninety
(90) calendar days of the date of said monthly bill or the dispute
shall be waived. Each Party agrees that any amount of any monthly
bill that that Party disputes will be paid by that Party according
to the terms of Subsection III.F. above. Any adjustments relating
to a disputed amount shall be reflected on the next monthly bill
issued after resolution. Any credit issued upon resolution of any
dispute shall bear interest at the rate specified in Subsection
III.F. above, payable on and as of the date the credit is issued.
Parties shall work cooperatively and use their best efforts to
resolve any disputes as quickly as possible.
J. SWBT shall treat changes in previously established OPCs as a
discontinuance of the existing LIDB Validation Service and
establishment of a new LIDB Validation Service and all applicable
Nonrecurring Charges shall be paid by LSP.
K. If LSP acts as a telecommunications company other than a
local service provider, or if LSP acts as a local service provider
in areas outside of SWBT's traditional service areas in the states
of Arkansas, Kansas, Missouri, Oklahoma, and Texas, LSP shall
designate those point codes from which it originates LIDB
Validation Service Queries as an LSP acting as a local service
provider within SWBT's traditional service areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas from those point
codes which originate LIDB Validation Service Queries for all other
aspects of its business. If LSP uses the same OPC to originate
Queries for its operations as an LSP within SWBT's traditional
service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas as it does
<PAGE> 147
APPENDIX LIDB-V
Page 9 of 14
for any other aspect of its business, then LSP shall provide SWBT
with a percentage of use factor that SWBT can use to apportion LSP's
traffic between SWBT's terms, conditions, rates and charges under
this Appendix and the terms, conditions, rates and charges under
SWBT's appropriate and effective tariff. LSP shall provide this
factor in a whole number between one (1) and one hundred (100) to
indicate the percentage of LIDB Validation Services LSP originates
as an LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas. A percentage of use factor of 1
(one) indicates that one percent of LSP's LIDB Validation Service
Queries originate as an LSP acting as a local service provider
within SWBT's traditional service areas in the states of Arkansas,
Kansas, Missouri, Oklahoma, and Texas. A percentage of use factor
of one hundred (100) indicates that one hundred percent of LSP's
LIDB Validation Service Queries is from LSP acting as a local
service provider within SWBT's traditional service area in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas.
L. Such percentage of use factors will be provided by LSP on
the LIDB Access Service Order Form used to establish the service.
All updates to this factor will provided via a letter. If LSP does
not furnish a percentage of usage factor, LSP agrees that SWBT will
apply a percentage of usage factor of one percent (1%).
M. LSP shall update its percentage of use factors on a
quarterly basis. Effective on the first of January, April, July
and October of each year, LSP shall forward to SWBT, to be received
no later than fifteen (15) business days after the first of each
such month, a revised report showing the percentage of use factors
for the past three months ending the last day of December, March,
June, and September, respectively, for each OPC from which LSP
originates LIDB Validation Service Queries. Both Parties agree
that the revised report will serve as the basis for the next three
months billing. Both Parties agree that no prorating or
backbilling will be done based on the report. SWBT shall use the
revised report to apportion usage rates, monthly rates, and
nonrecurring charges until a revised report is received from LSP as
set forth and agreed to herein.
N. SWBT may, upon written request by Certified U.S. mail
(return receipt requested), require LSP to provide call detail
records which will be audited to substantiate the projected
percentage of use factor provided by LSP. SWBT may request this
detailed information annually. If the audit results represent what
SWBT considers to be a substantial deviation from LSP's previously
reported percentage of use for the period upon which the audit was
based, and that deviation is not due to seasonal changes or other
identifiable reasons, LSP agrees to allow SWBT to request such call
detail records more than once annually. Both parties agree that
SWBT may make the call detail records available to an independent
auditor or to SWBT audit employees within thirty (30) days of the
request at an agreed upon location during normal business hours.
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APPENDIX LIDB-V
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O. If LSP fails to comply with SWBT's request for auditable
call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service
for a period of thirty (30) days. If at the conclusion of thirty
(30) days, LSP still does not comply with this request, SWBT may
apply an assumed percentage of use factor of one percent (1%).
IV. OWNERSHIP OF VALIDATION INFORMATION
A. Telecommunications companies depositing information in
SWBT's LIDB may retain full and complete ownership and control over
such information. LSP obtains no ownership interest by virtue of
this Appendix.
B. Unless expressly authorized in writing by parties, LIDB
Validation Service is not to be used for purposes other than those
described in this Appendix. LSP may use LIDB Validation Service
for those functions only on a call-by-call basis. Data accessed on
LIDB may not be stored by LSP elsewhere for future use.
C. Proprietary information residing in SWBT's LIDB is protected
from unauthorized access and LSP may not store such information in
any table or database for any reason. All information related to
alternate billing service is proprietary. Examples of proprietary
information are as follows:
- Billed (Line/Regional Accounting Office (RAO)) Number
- PIN Number(s)
- Billed Number Screening (BNS) indicators
- Class of Service (also referred to as Service or Equipment)
- Reports on LIDB usage
- Information related to billing for LIDB usage
- LIDB usage statistics.
D. LSP shall not copy, store, maintain, or create any table or
database of any kind after initiating, and based upon a Response
to, a Validation Query to SWBT's LIDB.
E. If LSP acts on behalf of other carriers, LSP shall prohibit
its Query- originating carrier customers from copying, storing,
maintaining, or creating any table or database of any kind from any
Response provided by SWBT after a Validation Query to SWBT's LIDB.
F. SWBT will share end user information, pertinent to fraud
investigation, with LSP when validation queries for the specific
end user reaches SWBT's established fraud threshold level. This
fraud threshold level will be applied uniformly to all end user
information in SWBT's LIDB.
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APPENDIX LIDB-V
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V. TERM AND TERMINATION
A. This Appendix shall become effective pursuant to Section
XXVII (Effective Date) of the Statement and shall continue for one
(1) year from the effective date of implementation of LIDB
Validation Service. Thereafter, this Appendix shall remain in
effect unless terminated by either party upon written notice given
sixty (60) days in advance of the termination date.
B. If a Party materially fails to perform its obligations under
this Appendix, the other Party, after notifying the non-performing
Party of the failure to perform and allowing that Party thirty (30)
days after receipt of the notice to cure such failure, may cancel
this Appendix immediately upon written notice.
C. Notwithstanding anything to the contrary in this Appendix,
if legal or regulatory decisions or rules compel SWBT or LSP to
terminate the Appendix, SWBT and LSP shall have no liability to the
other in connection with such termination.
VI. LIMITATION OF LIABILITY
A. A Party's sole and exclusive remedies against the other
Party for injury, loss or damage caused by or arising from anything
said, omitted or done in connection with this Appendix regardless
of the form of action, whither in contract or in tort (including
negligence or strict liability) shall be the amount of actual
direct damages and in no event shall exceed the amount paid for
LIDB Validation Service.
B. The remedies in Section VI.A. of this Appendix shall be
exclusive of all other remedies against a Party, its affiliates,
subsidiaries or parent corporation, (including their directors,
officers, employees or agents).
C. In no event shall a Party have any liability for system
outage or inaccessibility, or for losses arising from the
unauthorized use of the data by LIDB Validation Service Query
purchasers.
D. SWBT is furnishing access to its LIDB or LIDB-like database
in order to facilitate LSP's provision of Alternate Billing Service
to its end users, but not to insure against the risk of completion
of an ABS-related call. While SWBT agrees to make every reasonable
attempt to provide accurate Validation information, the Parties
acknowledge that Validation information is the product of routine
business service order activity and fraud investigations. LSP
acknowledges that SWBT can furnish Validation information only as
accurate and current as the information has been provided to SWBT
for inclusion in its LIDB. Therefore, SWBT, in addition to the
limitations of liability set forth, is not liable for inaccuracies
in the Validation information records provided to LSP except such
inaccuracies caused by SWBT's willful or wanton misconduct or gross
negligence.
<PAGE> 150
APPENDIX LIDB-V
PAGE 12 OF 14
E. IN NO EVENT SHALL SWBT, ITS AFFILIATES, SUBSIDIARIES OR
PARENT CORPORATION, (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES
OR AGENTS) HAVE ANY LIABILITY WHATSOEVER TO OR THROUGH LSP FOR ANY
INDIRECT, SPECIAL, OR CONSEQUENTIAL 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, EVEN IF LSP HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
VII. COMMUNICATION AND NOTICES
A. Ordering and billing inquiries for the services described
herein from SWBT shall be directed to the Local Service Provider
Service Center (LSPSC). Ordering shall be done through the LSPSC
using the form attached hereto as Exhibit III.
VIII. CONFIDENTIALITY
A. Identification SWBT and LSP recognize and acknowledge that,
in connection with the services to be provided hereunder, either
may disclose to the other party proprietary or confidential
customer, technical or business information in written graphic,
oral or other tangible or intangible forms. In order for such
information to be considered "Proprietary Information" under this
Appendix, such information must be marked "Confidential" or
"Proprietary" or bear a marking of similar import. Orally
disclosed information shall be considered Proprietary Information
only if contemporaneously identified as such and reduced to writing
and delivered to the other party with a statement or marking of
confidentiality within twenty (20) calendar days after oral
disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party
(the "Receiving Party") that receives Proprietary Information from
the other Party (the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and
shall remain the exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary
Information to authorized employees and other individuals
who have a need to know the Proprietary Information in order
to perform its obligations under this Appendix.
(3) To keep such Proprietary Information
confidential and to use the same level of care to prevent
disclosure or unauthorized use of the received Proprietary
Information as it exercises in protecting its own
Proprietary Information of a similar nature.
<PAGE> 151
APPENDIX LIDB-V
PAGE 13 OF 14
(4) For a period of three (3) years following any
disclosure, not to copy or publish or disclose such
Proprietary Information to others or authorize anyone else
to copy or publish or disclose such Proprietary Information
to others without the prior written approval of the
Disclosing Party.
(5) To use such Proprietary Information only for
purposes of performing its obligations under this Appendix
and for other purposes only upon such terms as may be agreed
upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give
notice to the Disclosing Party of any demand to disclose or provide
Proprietary Information of the Disclosing Party to another person,
under lawful process, prior to disclosing or furnishing such
Proprietary Information. Further, the Receiving Party agrees to
reasonably cooperate if the Disclosing Party deems it necessary to
seek protective arrangements. The Receiving Party may disclose or
provide Proprietary Information of the Disclosing Party to meet the
requirements of a court, regulatory body or government agency
having jurisdiction over the Party; provided, however, that the
Receiving Party shall notify the Disclosing Party so as to give the
Disclosing Party a reasonable opportunity to object to such
disclosure. The Disclosing Party may not unreasonably withhold
approval of protective arrangements provided by any such court,
regulatory body or government agency. Nothing herein requires
either Party to support the position of any person or entity as to
whether any particular Proprietary Information is proprietary under
applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary
contained in this Appendix, the Proprietary Information described
herein shall not be deemed confidential or proprietary and the
Receiving Party shall have no obligation to prevent disclosure of
such Proprietary Information if such Proprietary Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and
through no wrongful act of the Receiving Party;
(3) is received from a third party without similar restriction
and without breach of this Section 8;
(4) is independently developed, produced or generated by the
Receiving Party;
(5) is furnished to a third party by the Disclosing Party without
a similar restriction on the third party's rights; or
<PAGE> 152
APPENDIX LIDB-V
PAGE 14 OF 14
(6) is approved for release by written authorization of the
Disclosing Party, but only to the extent of such
authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of LSP Queries
for the purposes of: (a) estimation of facilities usage for
jurisdictional separations; (b) engineering and network planning of
facilities; and (c) measurement for billing purposes.
F. Legal Requirements. Notwithstanding anything to the
contrary contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary Information is
subject all applicable statures, decisions, and regulatory rules
concerning the disclosure and use of such Proprietary Information
which, by their express terms, mandate a different handling of such
information.
9. Mutuality
To the extent that LSP stores its own Validation Information in a
database, LSP agrees that Validation Information shall be available to
SWBT on terms and conditions comparable to those contained in this
Appendix. Such terms and conditions shall include, but not be limited
to, making such Validation Information available on a platform
technically similar to that employed by SWBT, and at a rate comparable
to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit I - Basis of Compensation
Exhibit II - Specifications and Standards
Exhibit III - LIDB Access Service Order Form
<PAGE> 153
APPENDIX LIDB-V - EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB-V
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. Rates and Charges
A LIDB Query Rate Per Query
---------------------
1. Per LIDB Query Transport $.0045
2. Per LIDB Validation Query $.026
- Billed Number Screening
- Calling Card Count
B. LIDB Nonrecurring Charge Nonrecurring Charge
---------------------
1. Per Originating Point Code (OPC) $15.10
2. Per LIDB Validation Service Form $256.70
<PAGE> 154
APPENDIX LIDB-V EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB-V
SPECIFICATIONS AND STANDARDS
Issuing Organization Document Number
-------------------- ---------------
Bellcore TR-NWT-000246
Bellcore TR-NWT-000271
Bellcore TR-TSV-000905
Bellcore TR-NWT-000954
SWBT TP 76638
<PAGE> 155
EXHIBIT III
SEPTEMBER 1996
PAGE 1
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB ACCESS VALIDATION SERVICES ORDER FORM
CUSTOMER NAME__________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION _____________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS
_______________________________________________________________________________
CUSTOMER BILLING NAME__________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION ______________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
___________________________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE
__________________________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER_____________________________
______________________________________________________________(____)____________
CREDIT INFORMATION: TYPE OF OWNERSHIP ________
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP. ___________ DATE INCORP. ______________
CHARTER NUMBER ____________________________________________
PRES. NAME __________________________________OFC. TEL. NO._(___)_______________
V.P. NAME ___________________________________OFC. TEL. NO._(___)_______________
SECT. NAME __________________________________OFC. TEL. NO._(___)_______________
TREA. NAME __________________________________OFC. TEL. NO._(___)_______________
IF PARTNERSHIP:
PARTNERS NAME _______________________________OFC. TEL. NO._(___)_______________
PARTNERS NAME________________________________OFC. TEL. NO._(___)_______________
PARTNERS NAME________________________________OFC. TEL. NO._(___)_______________
<PAGE> 156
EXHIBIT III
SEPTEMBER 1996
PAGE 2
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
PARTNERS NAME________________________________OFC. TEL. NO._(___)_______________
LETTER OF AGENCY DATED ______________SIGNATURE_________________________________
SWBT ORDER NUMBER ___________________
DESIRED DUE DATE ______________________FIRM DUE DATE___________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs____________________________
TYPE OF ACTIVITY ______ (N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
BILLING ACCOUNT NUMBER (BAN)___________________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE
NUMBER:
__________________________________________
__________________________________________
____________________________(____)_________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
_________________________________________________________(____)________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
_________________________________________________________(____)________________
*SWBT CKR:_________________________________________*TWO SIX
CODE:____________________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1. _______________________________
2. _______________________________
3. _______________________________
4. _______________________________
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
<PAGE> 157
EXHIBIT III
SEPTEMBER 1996
PAGE 3
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
<TABLE>
<S> <C> <C> <C>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
</TABLE>
REMARKS_________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 158
EXHIBIT III
SEPTEMBER 1996
PAGE 4
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
<TABLE>
<S> <C> <C> <C>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
____ ___________________ ____ ___________________
</TABLE>
REMARKS
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 159
EXHIBIT III
SEPTEMBER 1996
PAGE 5
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY. THIS
INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN COORDINATED
WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER FORM TO THE
ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE TO
BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED WITH THE
NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 160
EXHIBIT III
SEPTEMBER 1996
PAGE 6
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE
ENTERED TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM
AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO THE
COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S), ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL ENTER
THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER TO
ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR LINKS FOR
ACCESS TO THE LIDB.
<PAGE> 161
EXHIBIT III
SEPTEMBER 1996
PAGE 7
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVDED FACTOR REPORTS
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND
ORIGINATING LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE.
THE LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR
THEIR POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING
ACCOUNT. IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN
SEPARATE BANs MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS")
IN THE BILLING ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER
WANTS TO ESTABLISH THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE
LIDB CUSTOMER SHOULD ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM
SERVICE" IN THE BILLING ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY
FOR A SEPARATE BAN FOR OLNS. IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS,
THE POINT CODES FOR THE LIDB VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE
SAME. THE CUSTOMER WILL USE BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES
SEPARATELY FOR SEPARATE BILLING ACCOUNTS.
1. LIDB VALIDATION SERVICE _____ CALLING NAME SERVICE _____
ORIGINATING LINE NUMBER SCREENING _____
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES ARE
REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE
LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE
"N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 162
EXHIBIT III
SEPTEMBER 1996
PAGE 8
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
PAGES 3 & 4 INSTRUCTIONS CONTINUED
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY
FROM PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
<TABLE>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
N XXX-XXX-XXX N XXX-XXX-XXX
- --------------------- --------------------- --------------------- ---------------------
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO ADD A
NEW POINT CODE AND DELETE AN EXISTING POINT CODE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
- --------------------- --------------------- --------------------- ---------------------
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE
SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
- --------------------- ------------------- ------------------- -----------------
</TABLE>
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF
THE FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT
ICSC IN ST. LOUIS, MISSOURI.
<PAGE> 163
APPENDIX OSS
PAGE 2 OF 9
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under
which SWBT provides nondiscriminatory access to SWBT's operations
support systems (OSS) "functions" to LSP for pre-ordering, ordering,
provisioning, maintenance / repair, and billing. Such functions will
be made available as described herein for Resold Services, as
provided in Appendix Resale, and for Unbundled Network Elements
(UNE), as provided in Appendix UNE.
1.2 The functions, for Resale and UNE, will be accessible via
electronic interface, as described herein, where such functions are
available. Manual access will be available to all pre-ordering,
ordering, provisioning, and billing functions via the Local Service
Provider Service Center (LSPSC). Repair and maintenance functions are
available via manual handling by the Local Service Provider Center
(LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT
defines in its requirements, only for the functions described herein
for the purposes of establishing and maintaining Resale services or
UNE. LSP agrees that such use will comply with the summary of
SWBT's Operating Practice No. 113, Protection of Electronic
Information, titled Local Service Provider Security Policies and
Guidelines.
1.4 LSP acknowledges and agrees that access to OSS functions
will only be utilized to view an end-user's Customer Proprietary
Network Information under the conditions set forth and agreed to in
Exhibit A of this Appendix.
1.5 By utilizing electronic interfaces to access OSS functions,
LSP acknowledges and agrees to perform accurate and correct billing
functions that occur during ordering per the terms of this Agreement.
Further, LSP recognizes that such billing functions for conversion
orders require viewing CPNI as described in 1.4 above. All exception
handling must be requested manually from LSPSC.
1.6 In areas where Resale and UNE service order transactions
cannot be provided via an electronic interface for the pre-order,
ordering and provisioning processes, SWBT and LSP will utilize manual
processes until such time as the transactions can be electronically
transmitted.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
1.8 SWBT and LSP will jointly establish interface contingency
and disaster recovery plans for the pre-order, ordering and
provisioning of Resale services and UNE.
1.9 SWBT reserves the right to modify or discontinue the use of
any system or interface as it deems appropriate.
<PAGE> 164
APPENDIX OSS
PAGE 3 OF 9
1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale or UNE, SWBT and LSP agree to work together in
the Order and Billing Forum (OBF) and the Telecommunications Industry
Forum (TCIF) to establish and conform to uniform industry standards
for electronic interfaces for pre-order, ordering, and provisioning.
Neither Party waives its rights as participants in such forums in the
implementation of the standards. To achieve industry standard system
functionality as quickly as possible, the Parties acknowledge that
SWBT may deploy these interfaces with requirements developed in
advance of industry standards. Thus, subsequent modifications may be
necessary to comply with emerging standards. LSP and SWBT are
individually responsible for evaluating the risk of developing their
respective systems in advance of standards and agree to support their
own system modifications to comply with new requirements.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support
LSP ordering of Resale services and UNE via several electronic
interfaces. The Parties acknowledge that ordering requirements
necessitate the use of current, real time pre-order information to
accurately build service orders. The following lists represent
pre-order information that will be available to LSP so that LSP order
requests may be created to comply with SWBT ordering requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the
end office where the customer is provisioned;
2.2.2 features and services to which the customer subscribes (LSP
agrees that LSP's representatives will not access the information specified in
this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP and such request complies with
conditions of Exhibit A of this Appendix.)
2.2.3 a telephone number (if the customer does not have one assigned)
with the customer on-line.
2.2.4 service availability dates to the customer;
2.2.5 information regarding the dispatch / installation schedule, if
applicable;
2.2.6 PIC options for intraLATA toll (when available) and interLATA
toll;
2.2.7 address verification.
2.3 PRE-ORDERING FUNCTIONS FOR UNE WILL INCLUDE:
2.3.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the
end office where the customer is provisioned;
<PAGE> 165
APPENDIX OSS
PAGE 4 OF 9
2.3.2 features and services to which the customer subscribes (LSP
agrees that LSP's representatives will not access the information specified in
this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP, and such request complies with
conditions of Exhibit A of this Appendix.)
2.3.3 telephone number (if the customer does not have one assigned)
with the customer on-line;
2.3.4 PIC options for intraLATA toll (when available) and interLATA
toll;
2.3.5 address verification;
2.3.6 channel facility assignment (CFA), network channel (NC), and
network channel interface (NCI) data.
2.4 Electronic Access to Pre-Order Functions: Upon request by
LSP for electronic access to pre-ordering functions, SWBT will
provide LSP access to one or more of the following systems:
2.4.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.4.1.1 Residential Easy Access Sales Environment (R-EASE): R-EASE is
an ordering entry system through which SWBT will provide LSP access for the
functions of pre-ordering SWBT's Resale services so long as EASE is utilized to
order SWBT Residential Resale Services.
2.4.1.2 Business Easy Access Sales Environment (EASE): B-EASE is an
ordering entry system through which SWBT will provide LSP access for the
functions of pre-ordering SWBT's Resale services so long as such access is
utilized to order SWBT's Business Resale Services.
2.4.2 RESALE AND UNE PRE-ORDER SYSTEM AVAILABILITY:
2.4.2.1 DataGate: DataGate is transaction-based data query system
through which SWBT will provide LSP access for the functions of gathering
pre-ordering information to support industry standardized ordering processes
for Residential and Business Resale services. When ordering Resale services or
UNE, LSP's representatives will have access to a pre-order electronic gateway
provided by SWBT for both consumer and business customers that provides
real-time access to SWBT's operations systems. This gateway shall be a
Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will allow
the LSP representatives to perform the pre-order functions for Resale services
and UNE, as described above. SWBT and LSP agree to work together to develop and
implement an electronic communication interface that will replace this initial
pre-order electronic interface consistent with industry standards developed by
the OBF and the TCIF.
2.4.2.2 VERIGATE is an Access Service Pre-order system that will
also provide access to the pre-ordering functions for Resale Services and UNE.
VERIGATE may be used in connection with electronic or manual ordering.
VERIGATE provides the UNE
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pre-order capability of identifying CFA information,
NC, and NCI codes that are associated with order requirements for UNE.
2.5 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.5.1 Where due dates are not available electronically, SWBT will
provide LSP with due date interval for inclusion in the service order request.
2.5.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to
construct order requests only in exception handling.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services and UNE via one or more electronic interfaces.
Upon request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.2 B-EASE is available for the generation of Business Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.3 SWBT will provide LSP with an Electronic Data Interexchange
(EDI) Interface for transmission of industry-standardized Resale service order
requests in formats as defined by the Ordering and Billing Forum (OBF) and EDI
mapping as defined by TCIF. EDI ordering functionality will be made available
as negotiated and implemented in timeframes mutually acceptable to SWBT and
LSP.
3.3 UNE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
3.3.1 In ordering and provisioning UNE, LSP and SWBT will utilize
mutually agreeable standard industry order formats and data elements developed
by OBF and TCIF EDI. Where industry standards do not currently exist for the
ordering and provisioning of UNE, LSP and SWBT agree to jointly develop a form
for ordering Common-Use UNE. Common-Use UNE, including, without limitation,
tandem switching, signaling and call-related databases, Operator Services and
DA, and Operations Support Systems, shall be ordered in a manner that is
consistent with OBF Access Service Request Process; in addition customized
routing will be ordered in the same manner. Customer Specific UNE, including,
Local Loop (which includes
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NID), and unbundled Local Switching, and Interim
Number Portability will be ordered consistent with the OBF Local Service
Request (LSR) process.
3.4 SWBT will provision Resale Services and UNE as prescribed in
LSP order requests. Access to status on such orders of Resale
services and UNE will be provided via the following electronic
interfaces:
3.4.1 Customer Network Administration (CNA) will allow LSP to check
service order status via CNA.
3.4.2 In cases of industry-standardized EDI ordering, SWBT will
provide to LSP an EDI electronic interface for transferring and receiving
orders, Firm Order Confirmation (FOC), service completion, and, as available,
other provisioning data and information. SWBT will provide LSP with a FOC for
each Resale and UNE order. The FOC includes but is not necessarily limited to:
purchase order number, telephone number, Local Service Request number, due
date, Service Order number, and completion date. Upon work completion, SWBT
will provide LSP with an 855 EDI transaction-based Order Completion that states
when that order was completed. When available, SWBT will provide LSP an 865
EDI transaction-based Order Completion.
3.4.3 A file transmission may be provided to confirm order
completions for R-EASE or B- EASE order processing. This file will provide
service order information of all distributed and completed orders for LSP,
regardless of order entry mechanism.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for both Resale and UNE. Upon request, LSP may
access these functions via the following methods:
4.1.1 CNA system access provides LSP with SWBT software that allows
LSP to submit trouble reports and subsequently check status on trouble reports
for LSP end-users. CNA will provide ability to review the maintenance history
of a converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an industry-standardized
interface that is available for trouble report submission and status updates.
This EBI will conform to ANSI standards T1:227:1995 and T1.228:1995,
Electronic Communications Implementation Committee (ECIC) Trouble Report Format
Definition (TFRD) Number 1 as defined in ECIC document ECIC/TRA/95-003, and all
standards referenced within those documents, as mutually agreed upon by LSP and
SWBT. Functions currently implemented will include Enter Trouble, Request
Trouble Report Status, Add Trouble Information, Modify Trouble Report
Attributes, Trouble Report Attribute Value Change Notification, and Cancel
Trouble Report, as explained in 6 and 9 of ANSI T1.228:1995. LSP. SWBT will
exchange requests over a mutually agreeable X.25-based network.
5. BILLING
5.1 SWBT shall bill LSP for resold services and UNE. SWBT shall send
associated billing information to LSP as necessary to allow LSP to perform
billing functions. At minimum
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SWBT will provide LSP billing information in a paper format or via
magnetic tape, as agreed to between LSP and SWBT.
5.2 Upon request, electronic access to billing information for Resale
Services will also be available via the following interfaces:
5.2.1 LSP may receive Bill Plus(TM), an electronic version of their
electronic bill as described in and in accordance with SWBT's Local Exchange
Tariff.
5.2.2 LSP may receive a mechanized bill format via the industry
standards EDI.
5.2.3 LSP may also view billing information through the CNA system.
5.2.4 SWBT shall provide the Usage Billable Records for Resale
Services via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers change their local
service provider.
5.3 Upon request, electronic access to billing information for UNE will
also be available via the following interfaces:
5.3.1 SWBT will make available a mechanized bill data tape (local)
format by February 1997.
5.3.2 LSP may also view billing information through the CNA system.
5.3.3 SWBT shall provide the Usage/Toll Billable Records for UNE via
EMR industry standard format with a daily feed.
5.2.4 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers, utilizing SWBT
ports, change their local service provider.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following SWBT's OSS functions via a LSP Remote
Access Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, CNA, DATAGATE
and VERIGATE.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide
its own router, circuit, and two Channel Service Units/Data Service Units
(CSU/DSU). The demarcation point shall be the router interface at the LRAF.
Switched Access connections require LSP to provide its own modems and
connection to the SWBT LRAF. LSP shall pay the cost of the call if Switched
Access is used.
6.3 LSP shall use TCP/IP to access SWBT OSS via the LRAF. In
addition, each LSP shall have a valid Internet Protocol (IP) network
address. A user-id /password unique to each
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individual accessing an OSS shall be maintained to access SWBT OSS's. LSP shall
provide estimates regarding its volume of transactions, number of concurrent
users, desired number of private line or dial-up (switched) connections, and
length of a typical session.
6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on
an ongoing basis in accessing any SWBT OSS over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
7.1 LSP must participate with SWBT in Operational Readiness Testing
(ORT), which will allow for the testing of the systems, interfaces, and
processes for the ordering and provisioning of Resale services. ORT will be
completed in conformance with agreed upon implementation dates.
8. RATES - MISSOURI
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $ 3,345.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $ 1,580.00 / month
Dial Up Per Port $ 316.00 / month
8.4 LPS requesting the Bill Plus, as desribed in 5.2.1, agrees to pay
applicable tariffed rate, less Resale discount.
8.3 LSP requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.4 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.4 Should unforeseen modifications and costs to provision OSS functions
become required by SWBT or industry standards, SWBT reserves the right to
modify its rate structure. In addition, should LSP request custom development
of an exclusive interface to support OSS functions, such development will be
considered by SWBT on an Individual Case Basis (ICB) and priced as such.
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9. EFFECTIVE DATE, TERM
9.1 The Appendix OSS will be effective upon approval by the state
commission when it determined that the entire Interconnection Agreement is in
compliance with Sections 251 and 252 of the Act.
9.2 The Term Appendix OSS will be the shorter of the Term of this
Interconnection Agreement or December 31, 1998. Continuation of Appendix OSS
follows the continuation rules of the Agreement. Should the Interconnection
Agreement establish a new term, the Term of Appendix OSS will be the shorter of
one year, or the new Term of the Interconnection Agreement. Should the term of
the Interconnection Agreement Expire without provision for continuance, the
Term of Appendix OSS expires as well.
<PAGE> 171
APPENDIX OSS - RESALE & UNE - EXHIBIT A
PAGE 1 OF 1
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE OF
CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent
request or in the course of ordering SWBT's network elements or
services via manual and/or mechanized interfaces, the undersigned
must, at least, certify that "yes" (Y) it has obtained Authorization
for Release of CPNI and provide the name of the individual
authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of
CPNI has been obtained from an end-user and that it includes the
expressed content of the language, "Minimum Scope." SWBT may then
provide the CPNI referenced herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects the
following: "This document serves as instruction to all holders of
my local exchange telecommunications Customer Proprietary Network
Information (CPNI) to provide such information to the undersigned.
I understand that this CPNI includes the following information:
billing name, service address, billing address, service and feature
subscription, directory listing information long distance carrier
identity, and all pending service order acitivity. This
Authorization remains in effect until such time that I revoke it
directly or appoint another individual/company with such capacity or
undersigned receives notice to disconnect my local exchange service
or notice that a service disconnect has been performed. At and from
such time, this Authorization is null and void."
or
2) Authorization for change in local exchange service and release of
CPNI with documentation that adheres to all requirements of state
and federal law, as applicable.
__________________________________________
Signed
__________________________________________
Name (Typed/Printed)
__________________________________________
Title
__________________________________________
Company
__________________________________________
Date
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APPENDIX OS
OPERATOR SERVICES
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Operator Services for LSP ("LSP").
I. SERVICES
SWBT will provide the following Operator Services:
A. FULLY AUTOMATED CALL PROCESSING - Allows the caller to
complete a call utilizing equipment without the assistance of a SWBT
operator, hereafter called "Operator."
This allows the caller the option of completing calls through an
automated alternate billing system (AABS). Automated functions can
only be activated from a touch-tone telephone. Use of a rotary
telephone and failure or low response by the caller to the audio
prompts will bridge the caller to an Operator for assistance. The
called party must also have Touch-tone service to automatically
accept calls that are billed collect or to a third number.
B. OPERATOR-ASSISTED CALL PROCESSING - Allows the caller to
complete a call by receiving assistance from an Operator.
II. DEFINITIONS
A. FULLY AUTOMATED CALL PROCESSING
SWBT will support the following fully automated call types for LSP:
1. FULLY AUTOMATED CALLING CARD STATION-TO-STATION -
This service is provided when the caller dials zero ("0"),
plus the desired telephone number and the telecommunications
calling card number to which the call is to be charged. The
call is completed without the assistance of an Operator. An
authorized telecommunications calling card for the purpose of
this Appendix, is one for which SWBT can perform billing
validation. Fully-Automated Calling Card Call Service may
also include the following situations:
a. When an individual with a disability dials zero
(0) and identifies himself or herself as disabled, he or
she will provide the Operator the desired telephone
number and the calling card number to which the call is
to be billed.
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b. When due to trouble on the network,
or lack of service components (facilities to the AABS
network), the automated call processing cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
2. FULLY AUTOMATED STATION-TO-STATION - This service
is limited to those calls placed collect or billed to a third
number. The caller dials zero (0) plus the telephone number
desired, the service selection codes and/or billing
information as instructed by the automated equipment. The
call is completed without the assistance of an Operator.
Fully Automated Station-to-Station service may also include
the following situations:
a When an individual with a disability
identifies himself or herself as disabled and provides
the Operator the number to which the call is to be
billed (either collect or third number).
b. When due to trouble on the network or
lack of service components, the automated call cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
B. OPERATOR-ASSISTED CALL PROCESSING
SWBT will support the following operator-assisted call types for LSP:
1. SEMI-AUTOMATED STATION-TO-STATION - A service
provided when the caller dials zero (0) plus the telephone
number desired and the call is completed with the assistance
of an Operator. Semi-Automated Station-to-Station service may
also include the following situations:
a Where the caller does not dial zero (0)
prior to calling the number desired from a public or
semi-public telephone, or from a telephone where the call
is routed directly to an Operator (excluding calling card
calls).
b. When an Operator re-establishes an
interrupted call that meets any of the situations
described in this call type.
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2. SEMI-AUTOMATED PERSON-TO-PERSON - A service in
which the caller dials zero (0) plus the telephone number
desired and specifies to the Operator the particular person to
be reached or a particular PBX station, department or office
to be reached through a PBX attendant. This service
applies even if the caller agrees, after the connection is
established, to speak to any party other than the party
previously specified. Semi-Automated Person-to-Person
service may also include:
a. Where the caller does not dial a zero
(0) prior to dialing the number from a public or
semi-public telephone, or where the call is routed
directly to an Operator.
b. When an operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
3. SEMI-AUTOMATED CALLING CARD STATION-TO-STATION -
A service provided when the caller dials zero (0) plus the
desired telephone number and provides the Operator the calling
card number to which the call is to be charged.
Semi-Automated Calling Card Station-to-Station service may
also include the following situations:
a. When the caller does not dial zero
(0) prior to dialing the number desired from a public or
semi-public telephone, or from a telephone that is
directly routed to an Operator, and the call is billed
to a calling card.
b. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
4. STATION-TO-STATION (OPERATOR HANDLED) - A service
provided when the caller dials zero (0) and places a sent
paid, collect, third number or calling card station-to-station
call using an Operator's assistance. These calls may
originate from a private, public or semi-public telephone.
The service may also include the situation when an Operator
reestablishes an interrupted call that meets any of the
situations described in this call type.
5. PERSON-TO-PERSON (OPERATOR HANDLED) - A service
in which the caller dials zero (0) and specifies to the
Operator the number desired and the person to be reached, or a
particular PBX station, department or office to be reached
through a PBX attendant, or a particular mobile service point
to be reached through a mobile telephone attendant. The call
remains a person-to-person call even if the caller agrees,
after the connection is established, to speak to any party
other than the party previously specified. The service may
also include situations when an
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Operator reestablishes an interrupted call that meets any of
the situations described in this call type.
6. LINE STATUS VERIFICATION - A service in which the
caller asks the Operator to determine the condition of a
telephone line.
7. BUSY LINE INTERRUPT - A service in which the
caller asks the Operator to interrupt a conversation in
progress, to determine if one of the parties is willing to
speak to the caller requesting the interrupt. A Busy Line
Interrupt charge will apply even if no conversation is in
progress at the time of the interrupt attempt, or when the
parties interrupted refuse to terminate the conversation in
progress.
8. 0PERATOR TRANSFER SERVICE - A service offered by
SWBT in which the local caller requires Operator Assistance
for completion of a call outside the originating LATA. The
SWBT Operator transfers the call to an interexchange carrier
selected by the caller from a list of IXCs provided to SWBT by
the LSP. This transfer service is similar to SWBT's "0perator
Transfer" service offering. LSP agrees to obtain all
necessary compensation arrangements between LSP and
participating carriers.
9. MISCELLANEOUS - Includes the following call
types: General Assistance and Rate Quotes, 800, 888 and
connections to all other Toll Free services, Repair Bureau and
Business Office requests, credit requests, NPA-NXX location
requests, and all other 0- No Attempt services.
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of Operator Services
is required to:
1. provide its brand at the beginning of each
telephone call and before the consumer incurs any charge for
the call; and
2. disclose immediately to the consumer, upon
request a quote of its rates or charges for the call.
B. CALL BRANDING - In compliance with A. 1. above, SWBT will
brand Operator Services in LSP's name based upon the criteria
outlined below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP specific
branding messages for its OS calls.
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APPENDIX OS
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2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every Operator Services call handled by SWBT on behalf of LSP
when such services are provided in conjunction with: i) the
purchase of SWBT's unbundled local switching; or ii) when
multiple brands are required on a single Operator Services
trunk. Prices for Call Branding are as outlined in Exhibit
II, attached hereto and incorporated herein.
C. OPERATOR SERVICES (OS) RATE/REFERENCE INFORMATION - In
compliance with A.2. above, SWBT will provide LSP Operator Services
Rate/Reference Information based upon the criteria outlined below:
1. LSP will furnish OS Rate and Reference
Information in a mutually agreed to format or media thirty
(30) days in advance of the date when the Operator Services
are to be undertaken.
2. LSP will inform SWBT, in writing, of any changes
to be made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date. LSP
acknowledges that it is responsible to provide SWBT updated
Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the applicable OS
rates as provided by LSP.
4. An initial non-recurring charge will apply per
TOPS switch for loading of LSP's Operator Services
Rate/Reference Information as well as a charge per TOPS
switch, for each subsequent change to either LSP's Operator
Services Rate or Reference Information.
IV. HANDLING OF EMERGENCY CALLS TO OPERATOR
To the extent LSP's NXX encompasses multiple emergency agencies, SWBT
will agree to query the caller on his/her community and to transfer the
caller to the appropriate emergency agency for the caller's area. LSP
must provide SWBT with the correct information to enable the transfer.
When the assistance of another Carrier's operator is required, SWBT will
attempt to reach the appropriate operator if the network facilities for
inward assistance exist. LSP agrees to indemnify SWBT for any
misdirected calls.
V. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of Operator Services for LSP's
local service area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I. SWBT will provide Operator
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Services only where the necessary physical facilities are available
and in place and under conditions previously stated in this Appendix.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with Automatic
Number Identification (ANI) to each SWBT operator switch. Should
LSP seek to provide interexchange Operator Services under this
agreement, it is responsible for ordering the necessary facilities
through SWBT's interstate or intrastate Access Service tariffs.
Nothing in this agreement in any way changes the manner in which an
interexchange Carrier obtains access service for the purpose of
originating or terminating interexchange traffic.
C. Facilities necessary for the provision of Operator Services
shall be provided by the parties hereto, using standard trunk
traffic engineering procedures to insure that the objective grade of
service is met. Each party shall bear the costs for its own
facilities. LSP shall bear the costs of facilities necessary for
signaling and routing calls with Automatic Number Identification
(ANI) to each SWBT operator switch. SWBT shall bear the cost of
facilities and equipment necessary to provide Operator Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the Operator Services are to be undertaken,
unless otherwise agreed to by the SWBT, all records required by SWBT
to provide the Operator Services.
E. LSP will keep all records furnished to SWBT current by using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT in advance of any changes to be made
in such records. SWBT will specify the required interval for such
advance notice. LSP will provide all records and changes to records
to SWBT in writing or in any other mutually agreeable format.
F. SWBT will accumulate and provide the LSP such data as
necessary for the LSP to verify traffic volumes and bill its end
users.
VI. METHODS AND PRACTICES
SWBT will provide the Operator Services to LSP's end users in accordance
with SWBT's OS methods and practices in effect for SWBT at the time the
OS call is made, unless otherwise agreed in writing by both parties.
VII. PRICING
Pricing for Operator Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached and made part of this Appendix.
The rates will apply from the service effective date through the term of
this agreement as specified in paragraph X.,
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A. below. At any time beyond the specified or the term of this Appendix,
SWBt may change the prices for the provision of OS upon one hundred-
twenty (120) days' notice to LSP.
VIII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
IX. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability including
attorneys fees that LSP may incur as a result of claims, demands,
wrongful death actions, or other suits brought by any party that
arise out of LSP's end users use of Operator Services. LSP shall
defend against all end user claims just as if LSP had provided such
service to its end user with the LSP's own operators and shall
assert its tariff limitation of liability for benefit of both SWBT
and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any person
or persons caused or claimed to be caused, directly, or indirectly,
by SWBT employees and equipment associated with provision of the
Operator Services. This provision includes but is not limited to
suits arising from disclosure of the telephone number, address, or
name associated with the telephone called or the telephone used to
call the Operator Services.
X. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in
force for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one hundred-twenty
(120) days notice in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon
term of this Appendix, LSP shall pay, within thirty (30) days of the
issuance of a final bill by SWBT, all amounts due for actual
services provided under this Appendix, plus estimated monthly
charges for the remainder of the term. Estimated charges will be
based on an average of the actual monthly amounts billed by SWBT
pursuant to this Appendix prior to its termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit II.
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APPENDIX OS - EXHIBIT I
PAGE 1 OF 1
APPENDIX OS
LOCAL SERVICE AREA(S)
EFFECTIVE:
------------------------
(mm/dd/yr)
The following table depicts the service area(s) covered by this Appendix:
LSP'S LOCAL SERVICE AREA(S) EFFECTIVE DATE
- --------------------------- --------------
- --------------------------- --------------------------------
- --------------------------- --------------------------------
- --------------------------- --------------------------------
- --------------------------- --------------------------------
<PAGE> 180
APPENDIX OS - EXHIBIT II
PAGE 1 OF 1
APPENDIX OS
MISSOURI
EXHIBIT II
PRICING - FCILITIES BASED
EFFECTIVE:
----------------
(mm/dd/yr)
The following rates will apply for each service element:
A. FULLY AUTOMATED CALL PROCESSING
This usage rate applies to each call that has been completed on a
fully automated basis.
Rate per completed automated call $ 0.173
B. OPERATOR-ASSISTED CALL PROCESSING
This usage rate applies to each call that has been answered by or
forwarded to an operator.
Rate per actual work second $ 0.020
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand
for the establishment of LSP specific Call Branding. An additional
non-recurring charge applies for each subsequent change to the
branding
Rate per initial load group $2,325.00
Rate per load for Brand change $2,325.00
Per Call(1) $ 0.02
D. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch, per rate
schedule, for the initial load of LSP's Operator Services Rate/
Reference Information. An additional non-recurring charge applies
for each subsequent change to Rate/Reference Information.
Rate per initial load $3,650.00
Rate per subsequent rate change $2,650.00
Rate per subsequent reference change $2,650.00
- -----------------------
(1) A per call charge will apply when OS are provided in conjunction with: i)
unbundled local switching or ii) when multiple brands are required on a single
operator services trunk
<PAGE> 181
APPENDIX NIM
PAGE 2 OF 5
APPENDIX NETWORK INTERCONNECTION METHODS (NIM)
This Appendix NIM designates Network Interconnection Methods (NIMs) to
be used by the Parties. These include, but are not limited to: MidSpan Fiber
Interconnection (MSFI); Virtual Collocation Interconnection; SONET Based
Interconnection; Physical Collocation Interconnection; leasing of SWBT
facilities; and other methods as mutually agreed to by the Parties.
1. MID-SPAN FIBER INTERCONNECTION (MSFI)
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.
MSFI may be used to provide interconnection trunking as defined in
Appendix ITR to Attachment 11: Network Interconnection Architecture.
A. There are two basic mid-span interconnection designs:
1. 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
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.
<PAGE> 182
APPENDIX NIM
PAGE 3 OF 5
2. 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.
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.
B. 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.
C. 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.
D. The fiber connection point may occur at several locations:
1. 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;
2. 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;
3. 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;
4. 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.
E. 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
<PAGE> 183
APPENDIX NIM
PAGE 4 OF 5
trunking as outlined in Appendix ITR. This location is SWBT's
responsibility to provision and maintain.
F. 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.
2. AVOIDANCE OF OVER PROVISIONING
Underutilization is the 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.
3. JOINT FACILITY GROWTH PLANNING
The initial fiber optic 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:
1. Investment is to be minimized;
2. Facilities are to be deployed in a "just in time" fashion.
B. Processes
1. discussions to provide relief to existing facilities will be
triggered when either Party recognizes that the overall system
facility (DS1s) is at 90% capacity;
2. 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;
<PAGE> 184
APPENDIX NIM
PAGE 5 OF 5
3. 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;
4. 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;
5. 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;
6. the joint planning process/negotiations should be completed
within two months of identification of 90% fill.
4. VIRTUAL COLLOCATION INTERCONNECTION
The description of Virtual Collocation Interconnection is contained in
SWBT's Virtual Collocation tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
5. SONET-BASED INTERCONNECTION
The description of SONET-Based Interconnection is contained in SWBT's
Sonet-Based Interconnection tariffs (i.e., SWBT's Tariff F.C.C. No.
73).
6. PHYSICAL COLLOCATION INTERCONNECTION
SWBT will provide Physical Collocation Interconnection on
nondiscriminatory terms and conditions at the time LSP requests such
interconnection.
7. LEASING OF SWBT'S FACILITIES
LSP's leasing of SWBT's facilities for purposes of Attachment 11:
Network Interconnection Architecture will be subject to the mutual
agreement of the Parties.
<PAGE> 185
PHYSICAL COLLOCATION AGREEMENT
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
for
MISSOURI
<PAGE> 186
TABLE OF ARTICLES
<TABLE>
<S> <C>
ARTICLE I - PREMISES...................................................................................................-1-
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL.....................................................................-2-
ARTICLE III - TERM.....................................................................................................-3-
ARTICLE IV - PREMISES CHARGES..........................................................................................-4-
ARTICLE V - INTERCONNECTION CHARGES....................................................................................-7-
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT..................................................................-7-
ARTICLE VII - USE OF PREMISES..........................................................................................-8-
ARTICLE VIII - STANDARDS..............................................................................................-10-
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR...................................................................-11-
ARTICLE X - QUIET ENJOYMENT...........................................................................................-13-
ARTICLE XI - ASSIGNMENT...............................................................................................-13-
ARTICLE XII - CASUALTY LOSS...........................................................................................-13-
ARTICLE XIII - RE-ENTRY...............................................................................................-14-
ARTICLE XIV - LIMITATION OF LIABILITY................................................................................-15-
ARTICLE XV - INDEMNIFICATION OF SWBT..................................................................................-16-
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES.........................................................-17-
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION..............................................................-17-
ARTICLE XVIII - SUCCESSORS BOUND......................................................................................-19-
ARTICLE XIX - CONFLICT OF INTEREST....................................................................................-19-
ARTICLE XX - NON-EXCLUSIVE REMEDIES...................................................................................-20-
ARTICLE XXI - NOTICES.................................................................................................-20-
ARTICLE XXII - COMPLIANCE WITH LAWS...................................................................................-20-
ARTICLE XXIII - OSHA STATEMENT........................................................................................-21-
ARTICLE XXIV - INSURANCE..............................................................................................-21-
ARTICLE XXV - SWBT'S RIGHT OF ACCESS..................................................................................-24-
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT.........................................................................-24-
</TABLE>
<PAGE> 187
<TABLE>
<S> <C>
ARTICLE XXVII - MISCELLANEOUS.........................................................................................-25-
</TABLE>
<PAGE> 188
PHYSICAL COLLOCATION AGREEMENT
THIS PHYSICAL COLLOCATION AGREEMENT ("Agreement") is made this _____
day of __, 19__ by and between SOUTHWESTERN BELL TELEPHONE COMPANY, a
Missouri corporation ("SWBT"), and Digital Teleport, Inc., a [STATE OF
INCORPORATION] corporation ("Interconnector").
WITNESSETH
WHEREAS, SWBT is an incumbent local exchange carrier having a statutory
duty to provide for "physical collocation" of "equipment necessary for
interconnection or access to unbundled network elements" at its premises, 47
U.S.C. 251(c)(6);
WHEREAS, the Interconnector wishes to physically locate certain of its
equipment within the Premises (as defined herein) and connect with SWBT;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SWBT and the Interconnector (the
"parties") agree as follows:
ARTICLE I - PREMISES
1.1 Right to Use. Subject to this Agreement, SWBT grants to
Interconnector the right to use the premises described on Exhibit ____
("Premises"), attached and incorporated herein, within real property at
__________ in the City of ______________________, County of ______________,
State of _________________.
1.2 Relocation. Notwithstanding Section 1.1, in the event that SWBT
determines it necessary for the Premises to be moved within the building in
which the Premises is located ("Building") or to another SWBT wire center, the
Interconnector is required to do so. In such an event, the Interconnector shall
be responsible for the preparation of the new premises at the new location if
such relocation arises from circumstances beyond the reasonable control of SWBT,
including condemnation
<PAGE> 189
-2-
or government order or regulation that makes the continued occupancy of the
Premises or Building uneconomical in SWBT's sole judgment. Otherwise SWBT shall
be responsible for any such preparation.
In the event that the Interconnector requests that the Premises be
moved within the Building or to another SWBT wire center, SWBT shall permit the
Interconnector to relocate the Premises, subject to the availability of space
and associated requirements. The Interconnector shall be responsible for all
applicable charges associated with the move, including the reinstallation of its
equipment and facilities and the preparation of the new Premises and the new
wire center as applicable.
In either such event, the new premises shall be deemed the "Premises"
hereunder and the new wire center the "Building."
1.3 The Premises. SWBT agrees, at the Interconnector's sole cost and
expense as set forth herein, to prepare the Premises in accordance with working
drawings and specifications entitled ___________________ ___________________ and
dated ________________________, which documents, marked Exhibit _____, are
attached and incorporated herein. The preparation shall be arranged by SWBT in
compliance with all applicable codes, ordinances, resolutions, regulations and
laws. After the Interconnector has made the initial payments required by Section
4.4 and the state regulatory approval is obtained in accordance with Section 2.1
hereof, SWBT agrees to pursue diligently the preparation of the Premises for use
by the Interconnector.
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL
2.1 Submission to State Commission. The effectiveness of this Agreement
is conditioned upon the unqualified approval of this Agreement, whether as a
result of an approval process or by operation of law, under 47 U.S.C. 252(a)(1).
After execution of this Agreement, the parties shall submit it to the State
commission for the State in which the Premises is located as thereby required
for approval, and shall defend the Agreement and support any reasonable effort
to have this Agreement so approved,
<PAGE> 190
-3-
including the supplying of witnesses and testimony if a hearing is to be held.
2.2 Failure to Receive Approval. In the event that this Agreement does
not receive such unqualified approval, this Agreement shall be void upon written
notice of either party to the other after such regulatory action becomes final
and unappealable. Thereafter Interconnector may request to begin negotiations
again under 47 U.S.C. 251. Alternatively, the parties may both agree to modify
this Agreement to receive such approval, but neither shall be required to agree
to any modification. Any agreement to modify shall not waive the right of either
party to pursue any appeal of the ruling made by any reviewing regulatory
commission.
2.3 Preparation Prior to Regulatory Approval. At the written election
of the Interconnector, SWBT shall begin preparing the Premises for the
Interconnector prior to receiving the approval required by Section 2.1 hereof.
The sole evidence of such election shall be the payment to SWBT of the initial
payments specified in Sections 4.4. Payment to SWBT of the remaining charges
under these Sections shall be due upon completion. Upon such an election, this
Agreement shall become effective but only insofar as to be applicable to the
Premises preparation. In the event that the Agreement does not become fully
effective as contemplated by this Article, the Interconnector shall not be
entitled to any refund or return of any such payments beyond any portion of the
charges paid but not attributable to costs incurred by SWBT. To the extent that
SWBT has incurred preparation costs not included within any payment made by the
Interconnector, the Interconnector shall pay those costs within thirty (30) days
of notice by SWBT.
ARTICLE III - TERM
3.1 Commencement Date. This Agreement shall be month-to-month,
beginning on the "Commencement Date." The "Commencement Date" shall be the first
day after this Agreement becomes effective in accordance with Article II hereof.
3.2 Occupancy. Unless there are unusual circumstances, SWBT will notify
the Interconnector
<PAGE> 191
-4-
that the Premises is ready for occupancy within ____ days after receipt of the
payments due under Sections 4.4. The Interconnector must place operational
telecommunications equipment in the Premises and connect with SWBT's network
within sixty (60) days after receipt of such notice; provided, however, that
such 60-day period shall not begin until regulatory approval is obtained under
Article II. If the Interconnector fails to do so, this Agreement is terminated
except that the Interconnector shall be liable in an amount equal to the unpaid
balance of the charges due under and, further, shall continue to be bound by
Articles II, IV, XI, XIV, XV, XVII, XVIII, XX, XXI, XXVI and XXVII hereof. For
purposes of this Section, the Interconnector's telecommunications equipment is
considered to be operational and interconnected when connected to SWBT's network
for the purpose of providing service.
ARTICLE IV - PREMISES CHARGES
4.1 Monthly Charges. Beginning on the Commencement Date, Interconnector
shall pay to SWBT a charge of __________ Dollars ($_______ ) per month for use
of the Premises. The monthly charge may be increased upon thirty (30) days'
notice by SWBT.
4.2 Billing. Billing shall occur on or about the 25th day of each
month, with payment due thirty (30) days from the bill date. SWBT may change its
billing date practices upon thirty (30) days notice to the Interconnector.
4.3 Preparation Charge. (a) The one-time charge for preparing the
Premises for use by the Interconnector is estimated to be __________________
Dollars ($XXX.XX) ("Preparation Charge"), which consists of two components: (i)
the charge to the Interconnector associated with modifying the Building to
provide physical collocation ("Common Charge"), and (ii) the charge associated
with preparing the Premises ("Premises Charge"). Of the Preparation Charge
___________ Dollars ($XXX.XX) is the estimate for subcontractor charges
("Subcontractor Charges").
(b) SWBT will contract for and perform the construction and preparation
activities underlying the
<PAGE> 192
-5-
Preparation Charge, including the Common Charge, the Premises Charge, and the
Subcontractor Charges, and any Custom Work charges, using same or consistent
practices that are used by SWBT for other construction and preparation work
performed in the Building. Subject to an appropriate non-disclosure agreement,
SWBT will permit the Interconnector to inspect supporting documents for the
Preparation Charge, including the Common Charge (if the Interconnector is the
initial physical collocator as used in Section 4.5(b)) and the Premises Charge,
and any Custom Work charge. Any dispute regarding such SWBT charges will be
subject to the dispute resolution provisions hereof.
4.4 Payment of Premises Charge. Prior to any obligation on SWBT to
start any preparation of the Premises, the Interconnector shall pay SWBT fifty
percent (50%) of the Premises Charge and eighty-five percent (85%) of any custom
work charge required to create or vacate any entrance facility for the
Interconnector ("Custom Work"), and shall be due no later than ten (10) business
days after the Agreement has become effective in accordance with Article II
hereof. The remainder of the Premises Charge and any Custom Work charge are due
upon completion and prior to occupancy by the Interconnector.
4.5 Payment of Common Charge. (a) In addition and prior to any
obligation on SWBT to start any preparation of the Building for physical
collocation, the Interconnector shall pay SWBT fifty percent (50%) of the Common
Charge. The other fifty percent (50%) of the Common Charge is due upon
completion and prior to occupancy by the Interconnector.
(b) The first entity to which SWBT provides physical collocation in the
Building shall be responsible for all costs incurred by SWBT associated with the
preparation of the Building to provide physical collocation in the initial space
where physical collocation is to be located ("Initial Common Charge").
Thereafter the Initial Common Charge will be prorated and the prorated share
refunded to the previous physical collocator(s) as additional entities use
physical collocation in the Building within twelve (12) months of the first
billing date of the initial monthly charge for the first physical collocator in
the Building, using the following schedule:
<PAGE> 193
-6-
<TABLE>
<CAPTION>
Collocator Initial Common Charge Refund
- ---------- --------------------- ------
<S> <C> <C>
1st 100% NA
2nd 50% 50%
3rd 33 1/3% 16 2/3%
4th 25% 8 1/3%
5th and beyond 0% 0%
</TABLE>
To the extent that a physical collocator uses a space other than such initial
space, SWBT shall refund to the Interconnector the portion of the Initial Common
Charge applicable to such collocator based on the relative use of such initial
space in a manner consistent with the above methodology and other terms of this
Agreement.
(c) No interest will be paid on refunds. Refunds shall be based on the
Initial Common Charge actually paid by the first physical collocator.
(d) Notwithstanding the above, SWBT shall have no obligation to remit
any amount that would result in SWBT being unable to retain the full amount of
the Initial Common Charge or to remit any amount based upon charges not actually
collected.
4.6 Payment of Preparation Charge. SWBT is not obligated to start any
preparation of the Premises until the Interconnector pays SWBT fifty percent
(50%) of the Preparation Charge and eighty-five percent (85%) of the charges for
any Custom Work charge. Such charges shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Preparation Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.7 Occupancy Conditioned on Payment. SWBT shall not permit the
Interconnector to have access to the Premises for any purpose other than
inspection until SWBT is in receipt of complete payment of the Preparation
Charge and any Custom Work charges.
4.8 Subcontractor Charges. Within one hundred twenty (120) days of the
completion date of the Premises, SWBT shall perform a true-up of all
Subcontractor Charges using the actual amounts billed by subcontractors. Any
amounts incurred above the Subcontractor Charges will be billed to the
<PAGE> 194
-7-
Interconnector or, alternatively, any amount below such Charges will be remitted
to the Interconnector.
4.9 Breach Prior to Commencement Date. In the event that the
Interconnector materially breaches this Agreement by purporting to terminate
this Agreement after SWBT has begun preparation of the Premises but before SWBT
has been paid the entire amounts due under this Article, then in addition to any
other remedies that SWBT might have, the Interconnector shall be liable in the
amount equal to the non-recoverable costs less estimated net salvage.
Non-recoverable costs include the non-recoverable cost of equipment and material
ordered, provided or used; trued-up Subcontractor Charges, the non-recoverable
cost of installation and removal, including the costs of equipment and material
ordered, provided or used; labor; transportation and any other associated costs.
4.10 Late Payment Charge. In the event that any charge is not paid when
due, the unpaid amounts shall bear interest in accordance with the terms and
conditions set forth in SWBT's intrastate tariff late payment provision(s)
applicable to access services for the State in which the Premises is located, or
the highest rate permitted by law, whichever is lower, from the due date until
paid.
ARTICLE V - INTERCONNECTION CHARGES
5.1 Charges for interconnection shall be as set forth in any
interconnection agreement between SWBT and the interconnector and any applicable
tariffs.
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT
6.1 Fiber Entrances. The Interconnector shall use a single mode
dielectric fiber optic cable as a transmission medium to the Premises. The
Interconnector shall be permitted no more than two (2) entrance routes into the
Building, if available.
6.2 Demarcation Point. SWBT shall designate the point(s) of termination
within the Building as the point(s) of physical demarcation between the
Interconnector's network and SWBT's network, with
<PAGE> 195
-8-
each being responsible for maintenance and other ownership obligations and
responsibilities on its side of that demarcation point. SWBT anticipates that
the demarcation point will be within the point-of-termination frame.
ARTICLE VII - USE OF PREMISES
7.1 Nature of Use. The Premises are to be used by the Interconnector
for purposes of locating equipment and facilities within SWBT's central offices
to connect with SWBT services only. Consistent with the nature of the Building
and the environment of the Premises, the Interconnector shall not use the
Premises for office, retail, or sales purposes. No signage or markings of any
kind by the Interconnector shall be permitted on the Building or on the grounds
surrounding the Building.
7.2 Equipment List. A list of all of the Interconnector's equipment and
facilities that will be placed within the Premises is set forth on Exhibit ___,
attached and incorporated herein, with the associated power requirements, floor
loading, and heat release of each piece. The Interconnector warrants and
represents that Exhibit __ is a complete and accurate list, and acknowledges
that any incompleteness or inaccuracy would be a material breach of this
Agreement. The Interconnector shall not place or leave any equipment or
facilities within the Premises beyond those listed on Exhibit ___ without the
express written consent of SWBT.
7.2.1 Subsequent Requests to Place Equipment. In the event that
subsequent to the execution of this Agreement the Interconnector desires to
place in the Premises any equipment or facilities not set forth on Exhibit ___,
the Interconnector shall furnish to SWBT a written list and description thereof
substantially in the form of Attachment A, which is attached and incorporated.
Thereafter, in its sole discretion, SWBT may provide such written consent or may
condition any such consent on additional charges arising from the request,
including any engineering design charges and any additional requirements such as
power and environmental requirements for such listed and described equipment
and/or facilities. Upon the execution by both parties of a final list and
description, including any
<PAGE> 196
-9-
applicable charges, this Agreement shall be deemed to have been amended to
include the terms and conditions of the final list and description.
7.2.2 Limitations. The foregoing imposes no obligation upon SWBT to
purchase additional plant or equipment, relinquish used or forecasted space or
facilities, or to undertake the construction of new quarters or to construct
additions to existing quarters in order to satisfy a subsequent request for
additional space or the placement of additional equipment or facilities.
7.3 Administrative Uses. The Interconnector may use the Premises for
placement of equipment and facilities only. The Interconnector's employees,
agents and contractors shall be permitted access to the Premises at all
reasonable times, provided that the Interconnector's employees, agents and
contractors comply with SWBT's policies and practices pertaining to fire, safety
and security. The Interconnector agrees to comply promptly with all laws,
ordinances and regulations affecting the use of the Premises. Upon the
expiration of the Agreement, the Interconnector shall surrender the Premises to
SWBT, in the same condition as when first occupied by the Interconnector,
ordinary wear and tear excepted.
7.4 Threat to Network or Facilities. Interconnector equipment or
operating practices representing a significant demonstrable technical threat to
SWBT's network or facilities, including the Building, are strictly prohibited.
7.5 Interference or Impairment. Notwithstanding any other provision
hereof, the characteristics and methods of operation of any equipment or
facilities placed in the Premises shall not interfere with or impair service
over any facilities of SWBT or the facilities of any other person or entity
located in the Building; create hazards for or cause damage to those facilities,
the Premises, or the Building; impair the privacy of any communications carried
in, from, or through the Building; or create hazards or cause physical harm to
any individual or the public. Any of the foregoing events would be a material
breach of this Agreement.
<PAGE> 197
-10-
7.6 Interconnection to Other Collocated Interconnectors Within the
Building. To the extent that SWBT is required by law to permit such
interconnection, SWBT will provide the connection between physical collocation
arrangements on a time and materials basis whenever the collocated
interconnectors cannot for technical reasons provide the connection for
themselves by passing the facility through the cage wall(s). SWBT will provide
nothing more than the labor and physical structure(s) necessary for the
collocator(s) to pull facilities provided by one collocator from its cage to the
cage of another collocator. If the collocators are not located on the same floor
and cannot physically pull the cable themselves through the SWBT provided
structure(s), SWBT will perform the cable pull on an time and materials basis.
At no time will the collocators be allowed access to any portion of the central
office other than the collocation area. SWBT will not make the physical
connection within the collocator's cage, SWBT will not accept any liability for
the cable or the connections and SWBT will not maintain any records concerning
these connections.
7.7 Personality and its Removal. Subject to this Article, the
Interconnector may place or install in or on the Premises such fixtures and
equipment as it shall deem desirable for the conduct of business. Personal
property, fixtures and equipment placed by the Interconnector in the Premises
shall not become a part of the Premises, even if nailed, screwed or otherwise
fastened to the Premises, but shall retain their status as personality and may
be removed by Interconnector at any time. Any damage caused to the Premises by
the removal of such property shall be promptly repaired by Interconnector at its
expense.
7.8 Alterations. In no case shall the Interconnector or any person
purporting to be acting through or on behalf of the Interconnector make any
rearrangement, modification, improvement, addition, repair, or other alteration
to the Premises or the Building without the advance written permission and
direction of SWBT. SWBT shall consider a modification, improvement, addition,
repair, or other alteration requested by the Interconnector, provided that SWBT
shall have the right to reject or modify
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any such request. The cost of any such construction shall be paid by
Interconnector in accordance with SWBT's then-standard custom work order
process.
ARTICLE VIII - STANDARDS
8.1 Minimum Standards. This Agreement and the physical collocation
provided hereunder is made available subject to and in accordance with the (i)
Bellcore Network Equipment Building System (NEBS) Generic Requirements
(GR-63-CORE and GR-1089-CORE), as may be amended at any time and from time to
time, and any successor documents; (ii) SWBT's Technical Publication for
Physical Collocation dated ________ ___, 1996, as may be amended from time to
time; (iii) SWBT's Technical Publication 76300, Installation Guide, followed in
installing network equipment and facilities within SWBT central offices, as may
be amended from time to time; (iv) SWBT's Emergency Operating Procedures, as may
be amended from time to time; and (v) any statutory and/or regulatory
requirements in effect at the execution of this Agreement or that subsequently
become effective and then when effective. The Interconnector shall strictly
observe and abide by each.
8.2 Revisions. Any revision to SWBT's Technical Publication for
Physical Collocation, its Technical Publication 76300, or its Emergency
Operating Procedures shall become effective and thereafter applicable under this
Agreement thirty (30) days after such revision is released by SWBT; provided,
however, that any revision made to address situations potentially harmful to
SWBT's network or the Premises, or to comply with statutory and/or regulatory
requirements shall become effective immediately.
8.3 Compliance Certification. The Interconnector warrants and
represents compliance with the Bellcore Network Equipment Building System (NEBS)
Generic Requirements (GR-63-CORE and GR-1089-CORE) for each item set forth on
Exhibit ___. The Interconnector also warrants and represents that any equipment
or facilities that may be placed in the Premises pursuant to Section 7.2.1 or
otherwise shall be so compliant. DISCLOSURE OF ANY NON-COMPLIANT ITEM ON
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EXHIBIT __, PURSUANT TO SECTION 7.2.1, OR OTHERWISE SHALL NOT QUALIFY THIS
ABSOLUTE CERTIFICATION IN ANY MANNER.
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR
9.1 Contact Number. The Interconnector is responsible for providing to
SWBT personnel a contact number for Interconnector technical personnel who are
readily accessible 24 hours a day, 7 days a week.
9.2 Trouble Status Reports. The Interconnector is responsible for
providing trouble report status when requested by SWBT.
9.3 Optical Fiber Extension. The Interconnector is responsible for
bringing its fiber optic cable to the wire center entrance manhole(s) designated
by SWBT, and for leaving sufficient cable length in order for SWBT to fully
extend the Interconnector-provided cable through the cable vault to the
Premises.
9.4 Regeneration. Regeneration of either DS1 or DS3 signal levels may
be provided by the Interconnector, or SWBT under its then-standard custom work
order process, including payment requirements prior to the installation of the
regeneration equipment.
9.5 Removal. The Interconnector is responsible for removing any
equipment, property or other items that it brings into the Premises or any other
part of the Building. If the Interconnector fails to remove any equipment,
property, or other items from the Premises within thirty (30) days after
discontinuance of use, SWBT may perform the removal and shall charge the
Interconnector for any materials used in any such removal, and the time spent on
such removal at the then-applicable hourly rate for custom work. Further, in
addition to the other provisions herein, the Interconnector shall indemnify and
hold SWBT harmless from any and all claims, expenses, fees, or other costs
associated with any such removal by SWBT.
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9.6 Interconnector's Equipment and Facilities. The Interconnector is
solely responsible for the design, engineering, testing, performance, and
maintenance of the equipment and facilities used by the Interconnector in the
Premises. The Interconnector will be responsible for servicing, supplying,
repairing, installing and maintaining the following facilities within the
Premises:
(a) its fiber optic cable(s);
(b) its equipment;
(c) required point of termination cross connects;
(d) point of termination maintenance, including replacement of fuses
and circuit breaker restoration, if and as required; and
(e) the connection cable and associated equipment which may be required
within the Premises to the point(s) of termination.
SWBT NEITHER ACCEPTS NOR ASSUMES ANY RESPONSIBILITY WHATSOEVER IN
ANY OF THESE AREAS.
9.7 Verbal Notifications Required. The Interconnector is responsible
for immediate verbal notification to SWBT of significant outages or operations
problems which could impact or degrade SWBT's network, switches, or services,
and for providing an estimated clearing time for restoral. In addition, written
notification must be provided within twenty-four (24) hours.
9.8 Service Coordination. The Interconnector is responsible for
coordinating with SWBT to ensure that services are installed in accordance with
the service request.
9.9 Testing. The Interconnector is responsible for testing, to identify
and clear a trouble when the trouble has been isolated to an
Interconnector-provided facility or piece of equipment. If SWBT testing is also
required, it will be provided at charges specified in SWBT's F.C.C. No. 73,
Section 13.
ARTICLE X - QUIET ENJOYMENT
Subject to the other provisions hereof, SWBT covenants that it has full
right and authority to
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permit the use of the Premises by the Interconnector and that, so long as the
Interconnector performs all of its obligations herein, the Interconnector may
peaceably and quietly enjoy the Premises during the term hereof.
ARTICLE XI - ASSIGNMENT
The Interconnector shall not assign or otherwise transfer this
Agreement, neither in whole nor in part, or permit the use of any part of the
Premises by any other person or entity, without the prior written consent of
SWBT. Any purported assignment or transfer made without such consent shall be
voidable at the option of SWBT. The Interconnector shall not permit any third
party to jointly occupy the Premises.
ARTICLE XII - CASUALTY LOSS
12.1 Damage to Premises. If the Premises are damaged by fire or other
casualty, and
(i) The Premises are not rendered untenantable in whole or in part,
SWBT shall repair the same at its expense (as hereafter limited)
and the rent shall not be abated, or
(ii) The Premises are rendered untenantable in whole or in part and
such damage or destruction can be repaired within ninety (90)
days, SWBT has the option to repair the Premises at its expense
(as hereafter limited) and rent shall be proportionately abated
while Interconnector was deprived of the use. If the Premises
cannot be repaired within ninety (90) days, or SWBT opts not to
rebuild, then this Agreement shall (upon notice to the
Interconnector within thirty (30) days following such occurrence)
terminate as of the date of such damage.
Any obligation on the part of SWBT to repair the Premises shall be limited to
repairing, restoring and rebuilding the Premises as originally prepared for the
Interconnector and shall not include any obligation to repair, restore, rebuild
or replace any alterations or improvements made by the
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Interconnector or by SWBT on request of the Interconnector; or any fixture or
other equipment installed in the Premises by the Interconnector or by SWBT on
request of the Interconnector.
12.2. Damage to Building. In the event that the Building shall be so
damaged by fire or other casualty that closing, demolition or substantial
alteration or reconstruction thereof shall, in SWBT's opinion, be advisable,
then, notwithstanding that the Premises may be unaffected thereby, SWBT, at its
option, may terminate this Agreement by giving the Interconnector ten (10) days
prior written notice within thirty (30) days following the date of such
occurrence, if at all possible.
ARTICLE XIII - RE-ENTRY
If the Interconnector shall default in performance of any agreement
herein, and the default shall continue for thirty (30) days after receipt of
written notice, or if the Interconnector is declared bankrupt or insolvent or
makes an assignment for the benefit of creditors, SWBT may, immediately or at
any time thereafter, without notice or demand, enter and repossess the Premises,
expel the Interconnector and any claiming under the Interconnector, remove the
Interconnector's property, forcibly if necessary, and thereupon this Agreement
shall terminate, without prejudice to any other remedies SWBT might have.
SWBT may also refuse additional applications for service and/or refuse
to complete any pending orders for additional space or service by the
Interconnector at any time thereafter.
ARTICLE XIV - LIMITATION OF LIABILITY
14.1 Limitation. With respect to any claim or suit for damages arising
in connection with the mistakes, omissions, interruptions, delays or errors, or
defects in transmission occurring in the course of furnishing service hereunder,
the liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly charge to the Interconnector for the period during which
such mistake, omission, interruption, delay, error, or defect in transmission or
service occurs and continues.
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However, any such mistakes, omissions, interruptions, delays, errors, or defects
in transmission or service which are caused or contributed to by the negligence
or willful act of the Interconnector or which arise in connection with the use
of the Interconnector-provided facilities or equipment shall not result in the
imposition of any liability whatsoever upon SWBT.
Neither party shall be responsible to the other for any indirect,
special, consequential, lost profit, or punitive damages, whether in contract or
tort.
Each party shall be indemnified and held harmless by the other against
claims and damages by any third party arising from provision of the other
party's services or equipment except those claims and damages directly
associated with the provision of services to the other party which are governed
by the provisioning party's applicable tariffs.
Neither party shall have any liability whatsoever to the customers of
the other party for claims arising from the provision of the other party's
service to its customers, including claims for interruption of service, quality
of service or billing disputes.
The liability of either party for its willful misconduct, if any, is
not limited by this Agreement. With respect to any other claim or suit, by a
customer or by any others, for damages associated with the installation,
provision, preemption, termination, maintenance, repair or restoration of
service, SWBT's liability, if any, shall not exceed an amount equal to the
proportionate monthly charge for the affected period.
SWBT shall not be liable for any act or omission of any other carrier
or customer providing a portion of a service, nor shall SWBT for its own act or
omission hold liable any other carrier or customer providing a portion of a
service.
When the Interconnector is provided service under this Agreement, SWBT
shall be indemnified, defended and held harmless by the Interconnector against
any claim, loss or damage arising from the customer's use of services offered
under this Agreement, involving:
(1) Claims for libel, slander, invasion of privacy, or infringement of
copyright arising from
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the customer's own communications;
(2) Claims for patent infringement arising from the customer's acts
combining or using the service furnished by SWBT in connection with
facilities or equipment furnished by the customer; or
(3) All other claims arising in connection with any act or omission of
the Interconnector in the course of using services provided
pursuant to this Agreement.
14.2 Third Parties. The Interconnector acknowledges and understands
that SWBT may provide space in or access to the Building to other persons or
entities ("Others"), which may include competitors of Interconnectors; that such
space may be close to the Premises, possibly including space adjacent to the
Premises and/or with access to the outside of the Premises; and that the cage
around the Premises is a permeable boundary that will not prevent the Others
from observing or even damaging the Interconnector's equipment and facilities.
In addition to any other applicable limitation, SWBT shall have absolutely no
liability with respect to any action or omission by any Other, regardless of the
degree of culpability of any such Other or SWBT, and regardless of whether any
claimed SWBT liability arises in tort or in contract. The Interconnector shall
save and hold SWBT harmless from any and all costs, expenses, and claims
associated with any such acts or omission by any Other acting for, through, or
as a result of the Interconnector.
ARTICLE XV - INDEMNIFICATION OF SWBT
In addition to any other provision hereof, the Interconnector agrees to
indemnify, defend and save harmless SWBT (including its officers, directors,
employees, and other agents) from any and all claims, liabilities, losses,
damages, fines, penalties, costs, attorney's fees or other expenses of any kind,
arising in connection with Interconnector's use of the Premises, conduct of its
business or any activity, in or about the Premises, performance of any terms of
this Agreement, or any act or omission of the Interconnector (including its
officers, directors, employees, agents, contractors, servants,
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invitees, or licensees). Defense of any claim shall be reasonably satisfactory
to SWBT.
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES
16.1 Operating Services. SWBT, at its sole cost and expense, shall
maintain for the Building customary building services, utilities (excluding
telephone facilities), including janitor and elevator services, 24 hours a day.
The Interconnector shall be permitted to have a single-line business telephone
service for the Premises subject to applicable SWBT tariffs.
16.2 Utilities. SWBT will provide negative DC and AC power, back-up
power, heat, air conditioning and other environmental support necessary for the
Interconnector's equipment, in the same manner that it provides such support
items for its own equipment within that wire center.
16.3 Maintenance. SWBT shall maintain the exterior of the Building and
grounds, and all entrances, stairways, passageways, and exits used by the
Interconnector to access the Premises.
16.4 Legal Requirements. SWBT agrees to make, at its expense, all
changes and additions to the Premises required by laws, ordinances, orders or
regulations of any municipality, county, state or other public authority
including the furnishing of required sanitary facilities and fire protection
facilities, except fire protection facilities specially required because of the
installation of telephone or electronic equipment and fixtures in the Premises.
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION
17.1 Finality of Disputes. No claim arising from this Agreement shall
be brought more than twenty-four (24) months from the date of occurrence which
gives rise to the claim.
17.2 Alternative to Litigation. The parties desire to resolve
disputes arising in connection with this Agreement without litigation.
Accordingly, except for action seeking a temporary restraining order or an
injunction related to the purposes of this Agreement, or suit to compel
compliance with this dispute resolution process, the parties agree to use the
following alternative dispute resolution
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procedure as their sole remedy with respect to any controversy or claim
arising from or relating to this Agreement.
17.3 Resolution of Disputes Between Parties. At the written request of
a party, each party will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration and conclusion of these
discussions shall be left to the discretion of the representatives. Upon
agreement, the representatives may use other alternative dispute resolution
procedures, such as mediation, to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of settlement, exempt from
discovery and production, shall not be admissible in the arbitration described
below or in any lawsuit without the concurrence of all parties. Documents
identified in or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and, if otherwise admissible,
may be admitted in evidence in the arbitration or lawsuit.
17.4 Arbitration. If the negotiations do not resolve the dispute within
sixty (60) days of the initial written request, the dispute shall be submitted
to binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A Party may demand
such arbitration in accordance with the procedures set forth in those rules.
Discovery shall be controlled by the arbitrator and shall be permitted only to
the extent set forth in this Section. Each party may submit in writing to the
other party, and the receiving party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have subparts) of the
following:
(a) Interrogatories
(b) Demands to produce documents
(c) Requests for admission
Additional discovery may be permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60) days of the demand for
arbitration. The arbitration shall be held in ___________________. The
arbitrator shall control the scheduling so as to process the matter
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expeditiously. The parties shall submit written briefs five days before the
hearing. The arbitrator shall rule on the dispute by issuing a written opinion
within thirty (30) days after the close of hearings. The arbitrator has no
authority to order punitive or consequential damages. The times specified in
this section may be extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
17.5 Costs. Each party shall bear its own costs of these procedures. A
party seeking discovery shall reimburse the responding party the costs of
production of documents (including search time and reproduction costs). The
parties shall equally split the fees of the arbitration and the arbitrator.
ARTICLE XVIII - SUCCESSORS BOUND
Without limiting Article XI hereof, the conditions and agreements
contained herein shall bind and inure to the benefit of SWBT, the Interconnector
and their respective successors and, except as otherwise provided herein,
assigns.
ARTICLE XIX - CONFLICT OF INTEREST
The Interconnector represents that no employee or agent of SWBT has
been or will be employed, retained, paid a fee, or otherwise has received or
will receive any personal compensation or consideration from the Interconnector,
or any of the Interconnector's employees or agents in connection with the
arranging or negotiation of this Agreement or associated documents.
ARTICLE XX - NON-EXCLUSIVE REMEDIES
No remedy herein conferred upon is intended to be exclusive of any
other remedy in equity, provided by law, or otherwise, but each shall be in
addition to every other such remedy.
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ARTICLE XXI - NOTICES
Except as may be specifically permitted in this Agreement, any notice,
demand, or payment required or desired to be given by one party to the other
shall be in writing and shall be valid and sufficient if dispatched by
registered or certified mail, return receipt requested, postage prepaid, in the
United States mails, or by facsimile transmission; provided, however, that
notices sent by such registered or certified mail shall be effective on the
third business day after mailing and those sent by facsimile transmission shall
only be effective on the date transmitted if such notice is also sent by such
registered or certified mail no later than the next business day after
transmission, all addressed as follows:
If to SWBT:
Jeffrey Fields
One Bell Plaza, 525.07
Dallas, Texas 75202
If to the Interconnector:
Richard Weinstein
11111 Dorsett Road
St. Louis, Missouri 63043
Either party hereto may change its address by written notice given to the other
party hereto in the manner set forth above.
ARTICLE XXII - COMPLIANCE WITH LAWS
The Interconnector and all persons acting through or on behalf of the
Interconnector shall comply with the provisions of the Fair Labor Standards Act,
the Occupational Safety and Health Act, and all other applicable federal, state,
county, and local laws, ordinances, regulations and codes (including
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identification and procurement of required permits, certificates, approvals and
inspections) in its performance hereunder. The Interconnector further agrees
during the term of this Agreement to comply with all applicable Executive and
Federal regulations as set forth in SW9368, attached as Exhibit ____ and
incorporated herein, as may be modified from time to time.
ARTICLE XXIII - OSHA STATEMENT
The Interconnector, in recognition of SWBT's status as an employer,
agrees to abide by and to undertake the duty of compliance on behalf of SWBT
with all federal, state and local laws, safety and health regulations relating
to the Premises which the Interconnector has assumed the duty to maintain
pursuant to this Agreement, and to indemnify and hold SWBT harmless for any
judgments, citations, fines, or other penalties which are assessed against SWBT
as the result of the Interconnector's failure to comply with any of the
foregoing. SWBT, in its status as an employer, shall comply with all federal,
state and local laws, safety and health standards and regulations with respect
to the structural and those other portions of the Premises which SWBT has agreed
to maintain pursuant hereto.
ARTICLE XXIV - INSURANCE
24.1 Coverage Requirements. The Interconnector shall, at its sole cost
and expense procure, maintain, pay for and keep in force the following insurance
coverage and any additional insurance and/or bonds required by law and
underwritten by insurance companies having a BEST Insurance rating of A+VII or
better, and which is authorized to do business in the jurisdiction in which the
Premises are located. SWBT shall be named as an ADDITIONAL INSURED on general
liability policy.
(1) Comprehensive General Liability insurance including
Products/Completed Operations Liability insurance including the
Broad Form Comprehensive General Liability endorsement (or its
equivalent(s)) with a Combined Single limit for Bodily Injury and
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Property Damage of $1,000,000. Said coverage shall include
the contractual, independent contractors products/completed
operations, broad form property, personal injury and fire legal
liability.
(2) If use of an automobile is required or if the Interconnector is
provided or otherwise allowed parking space by SWBT in connection
with this Agreement, automobile liability insurance with minimum
limits of $1 million each accident for Bodily Injury, Death and
Property Damage combine. Coverage shall extend to all owned, hired
and non-owned automobiles. The Interconnector hereby waives any
rights of recovery against SWBT for damage to the Interconnector's
vehicles while on the grounds of the Building and the
Interconnector will hold SWBT harmless and indemnify it with
respect to any such damage or damage to vehicles of the
Interconnector's employees, contractors, invitees, licensees or
agents.
(3) Workers' Compensation insurance with benefits afforded in
accordance with the laws of the state in which the space is to be
provided.
(4) Employer's Liability insurance with minimum limits of $100,000 for
bodily injury by accident, $100,000 for bodily injury by disease
per employee and $500,000 for bodily injury by disease policy
aggregate.
(5) Umbrella/Excess liability coverage in an amount of $5 million
excess of coverage specified above.
(6) All Risk Property coverage on a full replacement cost basis
insuring all of the Interconnector's personal property situated on
or within the Building or the Premises. The Interconnector
releases SWBT from and waives any and all right of recovery,
claim, action or cause of action against SWBT, its agents,
directors, officers, employees, independent contractors, and other
representatives for any loss or damage that may occur to equipment
or any other personal property belonging to Interconnector or
located on or in the space at
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the instance of the Interconnector by reason of fire or water or
the elements or any other risks would customarily be included in a
standard all risk casualty insurance policy covering such
property, regardless of cause or origin, including negligence of
SWBT, its agents, directors, officers, employees, independent
contractors, and other representatives. Property insurance on the
Interconnector's fixtures and other personal property shall
contain a waiver of subrogation against SWBT, and any rights of
the Interconnector against SWBT for damage to the Interconnector's
fixtures or personal property are hereby waived.
The Interconnector may also elect to purchase business interruption and
contingent business interruption insurance, knowing that SWBT has no liability
for loss of profit or revenues should an interruption of service occur.
24.2 Coverage Increases. The limits set forth in Section 24.1 may be
increased by SWBT from time to time during the term of occupancy to at least
such minimum limits as shall then be customary in respect of comparable
situations within the existing SWBT buildings.
24.3 Primary Coverage. All policies purchased by the Interconnector
shall be deemed to be primary and not contributing to or in excess of any
similar coverage purchased by SWBT.
24.4 Effective Date. All insurance must be in effect on or before
occupancy date and shall remain in force as long as any of the Interconnector's
facilities or equipment remain within the Premises or the Building. If the
Interconnector fails to maintain the coverage, SWBT may pay the premiums thereon
and, if so, shall be reimbursed by the Interconnector.
24.5 Supporting Documentation. The Interconnector shall submit
certificates of insurance and copies of policies reflecting the coverages
specified above prior to the commencement of the work called for in this
Agreement. The Interconnector shall arrange for SWBT to receive thirty (30) days
advance written notice from the Interconnector's insurance company(ies) of
cancellation, non-renewal or substantial alteration of its terms.
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24.6 Carrier Recommendations. The Interconnector must also conform to
the recommendation(s) made by SWBT's Property Insurance Company which
Interconnector has already agreed to or to such recommendations as it shall
hereafter agree to.
24.7 Material Breach. Failure to comply with the provisions of this
section will be deemed a material violation of this Agreement.
ARTICLE XXV - SWBT'S RIGHT OF ACCESS
SWBT, its agents, employees, and other SWBT-authorized persons shall
have the right to enter the Premises at any reasonable time to examine its
condition, make repairs required to be made by SWBT hereunder, and for any other
purpose deemed reasonable by SWBT. SWBT may access the Premises for purpose of
averting any threat of harm imposed by the Interconnector or its equipment or
facilities upon the operation of SWBT equipment, facilities and/or personnel
located outside of the Premises. If routine inspections are required, they shall
be conducted at a mutually agreeable time.
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT
Through this Agreement, the Interconnector is placing
telecommunications equipment and facilities on SWBT property for the purpose of
connecting with SWBT's network only. The parties agree that this Agreement does
not constitute, and shall not be asserted to constitute, an admission or waiver
or precedent with any State commission, the Federal Communications Commission,
any other regulatory body, any State or Federal Court, or in any other form that
SWBT has agreed or acquiesced that any piece of Interconnector equipment or
facility is "equipment necessary for interconnection or access to unbundled
network elements" under 47 U.S.C. 251(c)(6).
ARTICLE XXVII - MISCELLANEOUS
27.1 Exhibits The following Exhibits are attached hereto and made
part hereof:
Exhibit ____________
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Exhibit ____________
Exhibit ____________
Exhibit ____________
27.2 Variations. In the event of variation or discrepancy between any
duplicate originals hereof, including exhibits, the original Agreement held by
SWBT shall control.
27.3 Governing Law. This Agreement shall be governed by the laws of the
State in which the Premises are located, without regard to the choice of law
principles thereof.
27.4 Joint and Several. If Interconnector constitutes more than one
person, partnership, corporation, or other legal entities, the obligation of all
such entities under this Agreement is joint and several.
27.5 Future Negotiations. SWBT may refuse requests for additional space
in the Building or in any other SWBT premises if the Interconnector is in
material breach of this Agreement, including having any past due charges
hereunder. In any and each such event, the Interconnector hereby releases and
shall hold SWBT harmless under Article XV from any duty to negotiate with the
Interconnector or any of its affiliates for any additional space or physical
collocation.
27.6 Severability. With the exception of the requirements, obligations,
and rights set forth in Article II hereof, if any of the provisions hereof are
otherwise deemed invalid, such invalidity shall not invalidate the entire
Agreement, but rather the entire Agreement shall be construed as if not
containing the particular invalid provision(s), and the rights and obligations
of SWBT and the Interconnector shall be construed accordingly.
27.7 Paragraph Headings and Article Numbers. The headings of the
articles and paragraphs herein are inserted for convenience only and are not
intended to affect the meaning or interpretation of this Agreement.
27.8 Entire Agreement. This Agreement with the attached schedules and
exhibits, and referenced documentation and materials attached hereto set forth
the entire understanding of the parties and
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supersedes all prior agreements, arrangements and understandings relating to
this subject matter and may not be changed except in writing by the parties;
provided, however, that this provision shall not affect current or pending
tariffs, under investigation or otherwise, including any charges due thereunder.
No representation, promise, inducement or statement of intention has been made
by either party which is not embodied herein, and there are no other oral or
written understandings or agreements between the parties relating to the subject
matter hereof except as may be referenced herein.
27.9 No Third Party Beneficiaries. Nothing in this Agreement is
intended, nor shall be deemed, to confer any rights or remedies upon any person
or legal entity not a party hereto.
27.10 Construction. This Agreement shall be interpreted and governed
without regard to which party drafted this Agreement.
27.11 Multiple Originals. This Agreement may be executed in multiple
copies, each of which shall be deemed an original.
27.12 Wavier of Obligations. (a) Whenever this Agreement requires the
consent of a party, any request for such consent shall be in writing.
(b) Neither party shall be deemed to have waived or impaired any right,
authority, or option reserved by this Agreement (including the right to demand
exact compliance with every term, condition and covenant herein, or to declare
any breach hereof to be a default and to terminate this Agreement prior to the
expiration of its term), by virtue of any custom or practice of the parties at
variance with the terms hereof or any failure, refusal or neglect to exercise
any right under this Agreement or to insist upon exact compliance by the other
with its obligations hereunder, including any rule or procedure, or any waiver,
forbearance, delay, failure or omission by SWBT to exercise any right, power or
option, whether of the same, similar or different nature, with respect to one or
more other interconnectors.
27.13 Rights Cumulative. The rights of a party hereunder are cumulative
and no exercise or
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enforcement by such party of any right or remedy hereunder shall preclude the
exercise or enforcement of any other right or remedy hereunder or to which such
party is entitled to enforce.
27.14 Binding Effect. (a) This Agreement is binding upon the parties
hereto, their respective executors, administrators, heirs, assigns and
successors in interest.
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(b) All obligations by either party which expressly or by their nature
survive the expiration or termination of this Agreement shall continue in full
force and effect subsequent to and notwithstanding its expiration or termination
and until they are satisfied in full or by their nature.
27.15 Impossibility of Performance. Neither party shall be liable for
loss or damage or deemed to be in breach of this Agreement if its failure to
perform its obligations results from: (a) compliance with any law, ruling,
order, regulation, requirement or instruction of any federal, state or municipal
government or any department or agency thereof or court of competent
jurisdiction; (b) acts of God; (c) acts of omissions of the other party; (d)
fires, strikes, labor difficulties, embargoes, war, insurrection or riot; or any
other intervening act beyond the reasonable control of the party claiming such a
delay. Any delay resulting from any of said causes shall extend performance
accordingly or excuse performance, in whole or in part, as may be reasonable. In
any such event, the Interconnector's employees, authorized agents and
contractors will comply with the Emergency Operating Procedures established by
SWBT.
27.16 Survival. The terms, provisions, representations, and warranties
contained in this Agreement that by their nature and/or context are intended to
survive the performance thereof by either or both parties hereunder shall so
survive the completion of performances and termination of this Agreement,
including the making of any and all payments due hereunder.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed and delivered this Agreement as of the day and year first above
written.
<PAGE> 217
-30-
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
SOUTHWESTERN BELL TELEPHONE COMPANY
By: ________________________________
Title: _____________________________
DIGITAL TELEPORT, INC. (MISSOURI)
By: _________________________________
Title: ______________________________
<PAGE> 218
-31-
ATTACHMENT A
Southwestern Bell Telephone Company
[ADDRESS AND TO THE ATTENTION OF PER NOTICE PROVISION]
Re: [REFERENCE IDENTIFIER ON COVER SHEET]
Pursuant to the referenced Physical Collocation Agreement
("Agreement"), this letter constitutes a request to place the following
additional equipment and/or facilities in the Premises:
Generic Name # of Bays Floor Loading Power Req. Heat Release
------------ --------- ------------- ---------- ------------
If this request is acceptable to Southwestern Bell Telephone Company
("SWBT"), please indicate that acceptance by executing both originals and
returning one to the undersigned. With the return of an executed original, the
Agreement shall be deemed amended to reflect that the listed equipment and
facilities may be located in the Premises. In all other respects, the Agreement
shall be unaffected.
If not acceptable, please let me know of SWBT's objections or
conditions to its acceptance.
All capitalized terms not defined in this letter but defined in the
Agreement shall have the meaning ascribed to such term in the Agreement.
DIGITAL TELEPORT, INC. (MISSOURI)
By: _________________________
Title: ______________________
Name: _______________________
AGREED AND ACCEPTED:
SOUTHWESTERN BELL TELEPHONE
COMPANY
By: _______________________
Title: ____________________
Name: ____________________
Date: _____________________
<PAGE> 219
APPENDIX SS7
Page 2 of 12
APPENDIX SS7
APPENDIX FOR THE PROVISION OF
SS7 SERVICE
This Appendix sets forth the terms and conditions under which SWBT shall provide
to LSP certain Common Channel Signaling/Signaling System 7 (CCS/SS7) services,
herein referred to as "SS7 Service".
This Appendix provides for the use of the SWBT Common Channel Signaling network,
which uses the Signaling System 7 (SS7) protocol, and for a Dedicated Signaling
Link, which provides network interconnection to SWBT's Signal Transfer Point
(STPs), including facilities. SS7 Service provides CCS/SS7 functionality and
translations to support SS7 based services and applications as they become
available and as facilities permit.
SS7 Service includes the screening of messages based on origination signaling
point code and the routing of messages by a SWBT mated pair of STPs. Any
services beyond SS7 Transport, Use of the STP or a Dedicated Signaling Link
interconnection (e.g. Local and IntraLATA Call Set-Up Signaling, Interexchange
Carrier (IXC) Call Set-Up Signaling, Easy OptionsSM, 800 Data Base Access, and
Line Information Data Base (LIDB) Validation Service Access) will be provided by
an amendment to this appendix, by a separate agreement, or by tariff, whichever
is applicable. Arrangements for services should be made through the LSP Service
Center of SWBT.
I. SERVICE DESCRIPTION
A. SS7 TRANSPORT
SS7 Transport provides for the routing and screening of SS7
messages from a SWBT pair of STPs (i.e. a mated pair) to
another SWBT pair of STPs. The screening of messages provides
for LSP designation of signaling points associated with the
LSP and controls which messages may be allowed or not allowed
by the SWBT STP pairs. The routing of messages provides for
the transfer of a complete message between signaling links,
and for a Global Title Translation of the message address, if
needed.
SS7 Transport provides routing of messages for all parts of the
SS7 protocol including, for example, Message Transfer Part
(MTP) messages, Integrated Services Digital Network User Part
(ISDNUP or ISUP) messages, Signaling Connection and Control
Part (SCCP) messages, Transaction Capability
<PAGE> 220
APPENDIX SS7
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Application Part (TCAP) messages and Operations and
Maintenance Application Part (OMAP) messages.
SS7 Transport provides for screening and routing of signaling
messages based on the SS7 protocol. These messages may support
other applications and services such as, for example, Easy
Option[ICON] (referred to as Call Control Option[ICON]
or Bellcore CLASS[ICON]) services, Message Waiting services,
Toll Free Database services, Line Information Data Base (LIDB)
Services, Calling Name (CNAM) Database services, Advanced
Intelligent Network (AIN) services and Telecommunications
Industry Association Interim Standard-41 (IS-41) services. SS7
Transport will route messages to the global title address or
to the signaling point code address of the message based on
the translation information of SWBT's STP.
SS7 Transport provides screening and routing of messages that
are generated by the action of the LSP signaling point, or
messages that are generated by a signaling point connected via
the LSP signaling point.
B. DEDICATED SIGNALING LINKS
Dedicated Signaling Links provide physical access to SWBT's
signaling network. The links are fully dedicated to the use of
LSP and provide the screening and routing usage for the SWBT
STP to which the link is connected. Dedicated signaling links
are provided as a set of links connecting to a SWBT mated pair
of STPs. Dedicated Signaling Links are dedicated two-way
digital data circuits that interconnect SWBT's STP locations
and the LSP's Signaling Points at Signaling Point of Interface
(SPOI) locations. Dedicated Signaling Links are available to
LSPs for their use in furnishing SS7-based services or
applications to their end users or other users of SS7 signaling
information.
Dedicated Signaling Links include the following elements:
1. SS7 Link Cross Connect: The SS7 Link Cross Connect provides a
DS-0A or DS1 connection and access point for testing in the
SWBT STP building. The cross connect connects the STP Port
Termination to an LSP unbundled dedicated transport or to a
collocation cage.
2. STP Port Termination: The STP Port Termination is the physical
termination of the signaling link (i.e. 56 kbps circuit) at a
SWBT STP. An STP Port Termination is used for each 56 kbps SS7
Link Cross Connect terminated at a SWBT STP.
The STP Port Termination shall provide for the use of the SWBT
STP to which the port is connected.
<PAGE> 221
APPENDIX SS7
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The LSP shall provide the portion of the signaling link from
the LSP premises within the LATA to the SWBT STP location using
unbundled dedicated transport. LSP shall notify SWBT that the
facility contains a signaling link service. Multiple facilities
provided by SWBT will be identified so that SWBT may maintain
facility diversity between links and linksets that require
diversity. LSP shall identify the DS1 or channel of a DS1 that
will be used for the signaling link.
If LSP does not use an unbundled dedicated transport facility
to LSP premises, LSP shall identify that the SS7 Link Cross
Connect shall connect to a LSP collocation cage in the SWBT STP
building.
When LSP uses an alternative DS1 facility or arranges, or
agrees to allow, a physical degree of diversity or performance
that is not in accordance with the specifications of Bellcore,
GR-905-CORE, LSP acknowledges that the performance and
reliability of the SS7 protocol may be affected and the
performance and reliability standards described in GR-905-CORE
may be disqualified.
Dedicated Signaling Links are subject to SWBT compatibility
testing and certification requirements per the Network
Operations Forum Reference Document, per Bellcore, GR-905-CORE
and per SWBT Technical Publication, TP76638. First
interconnections to the SWBT signaling network per LSP and per
signaling point type of equipment will require pre-ordering
meetings to exchange information and schedule testing for
certification by SWBT.
C. USE OF THE STP
The Use of the STP provides for the use of the SWBT SS7
signaling network when LSP uses the SWBT Local Switching
Unbundled Network Element. The Use of the STP provides for the
use of the signaling link between the SWBT local switch and
the STP, the use of the signaling link and ports between the
SWBT tandem switch and the STP when applicable, the use of the
SWBT STP port and use of STP Transport. The Use of the STP is
a signaling network element incurred by use of the SWBT local
switching (i.e. Unbundled Local Switching). The Use of the STP
provides the SWBT signaling when LSP subscribers originate and
terminate calls from a SWBT SS7 equipped end office.
II. DEFINITIONS
Attachment 1, which is attached hereto and made a part hereof, contains
DEFINITIONS OF TERMS in this Appendix.
<PAGE> 222
APPENDIX SS7
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III. MANNER OF PROVISIONING
A. SS7 TRANSPORT
LSP shall use SS7 Transport subject to the screening and
routing information of the SWBT STPs. SWBT shall provide
information to LSP on the routes and signaling point codes
served by the SWBT STPs.
SS7 Transport shall route ISUP messages for the purpose of
establishing trunk voice paths between switching machines.
Routes requiring ISUP routes longer than two SWBT STP pairs may
be provisioned pursuant to Attachment Network Element Bona Fide
Request per specific LSP request, if such route is technically
feasible. However, routes involving signaling point codes not
associated with LSP are subject to the route designated by the
owner of the SPC.
SS7 Transport shall route TCAP queries when feasible per the
SS7 Protocol to the SWBT "regional" STP pair that directly
serves the database of TCAP message. SS7 Transport shall route
TCAP responses from a SWBT "regional" STP pair to another SWBT
STP pair.
When LSP requires modification of SWBT's SS7 Service components
not otherwise provided in this contract, the modifications may
be furnished pursuant to Attachment Network Element Bona Fide
Request.
SS7 Transport provides a signaling route for messages only to
signaling points to which SWBT has a route. SS7 Transport does
not include the provision of a signaling route to every
possible signaling point. When SWBT does establish a route to a
signaling point in a mated pair of STPs, the route may not be
available to other SWBT pairs of STPs, until ordered. When SWBT
or LSP, pursuant to a service order, arranges to establish a
route to a signaling point, such route to the other signaling
point or other signaling network will be used by all signaling
points within and connected to the SWBT signaling network per
the standard requirements of the SS7 protocol.
Disputes concerning the association of a signaling point among
specific link sets associated with a SWBT mated STP will be
resolved by consultation with the signaling point owner, as
defined in the Local Exchange Routing Guide (LERG), Section 1,
assignment of Signaling Point Codes.
B. DEDICATED SIGNALING LINKS
LSP shall designate the signaling points and signaling point
codes associated with LSP. LSP shall provide information to
SWBT to allow SWBT to translate
<PAGE> 223
APPENDIX SS7
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SWBT STPs. The information shall define the screening
and routing information for the signaling point codes of LSP.
This information may include global title address, translation
type and subsystem designations as needed.
Signaling links from SWBT mated pairs of STPs shall connect to LSP
premises (including collocation locations) within the same LATA. A
set of links can be either:
1. "A" Link Sets from LSP's Signaling Point (SP)/Service
Switching Point (SSP). A minimum of two links will be
required, one from the SP/SSP to each STP; or,
2. "B" Link Sets from LSP's STPs that are connected to SWBT's
mated pair of STPs. A minimum of four links will be required
(i.e., a "quad") between the two pairs of STPs. (This same
arrangement is sometimes referred to as a set of "D" links.)
An STP Port Termination and SS7 Link Cross Connect is required for
each 56 kbps access link utilized for the Service. STP locations
are set forth in the National Exchange Carrier Association, Inc.
(NECA) Tariff F.C.C. No. 4.
A pre-order meeting will define the SWBT facility availability and
the degree of diversity in both the SWBT physical network and the
LSP physical network from signaling point to signaling point for
the link.
All applicable signaling point codes for each signaling link must
be installed at each of SWBT's interconnecting STPs.
Call set-up times may be adversely affected when LSP, using SS7
signaling, employs Intermediate Access Tandems (IATs) in its
network. SWBT makes no warranties with respect to call set-up times
when multiple STP pairs are involved or when the signaling traffic
is exchanged between two non-SWBT signaling points.
Provisioning of the SS7 Service is in accordance with SWBT CCS/SS7
Network Interface Specifications (TP76638) and Bellcore Common
Channel Network Interface Specification
(GR-905-CORE), as amended.
When LSP uses the Dedicated Signaling Links of another party and
LSP submits an order for SWBT to change the routing or screening
information associated with the other party's signaling links, LSP
shall include with the order a Letter of Authorization (LOA). The
LOA shall be from the other party (i.e. the owner of the set of
links) and shall indicate that the other party shall agree to pay
SWBT charges to change the translations associated with the link
set and shall agree to pay SWBT charges associated with SS7
Transport.
<PAGE> 224
APPENDIX SS7
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C. USE OF THE STP
When LSP orders SWBT Unbundled Local Switching the Use of the
STP shall apply. No order nor provisioning by LSP is needed.
The SWBT Local Switch will use the SWBT SS7 signaling network.
Any changes, additions or deletions to the SWBT SS7 signaling
network required per LSP shall be submitted pursuant to
Attachment Network Element Bona Fide Request.
IV. DESCRIPTION OF RATE ELEMENTS
The following rate elements apply to SS7 Service:
A. SS7 TRANSPORT
SS7 Transport shall be measured per octet of information
screened and routed.
LSP shall pay SS7 Transport Per Octet rate element for the
screening and routing of messages by each additional SWBT STP
pair. A usage rate applies per octet generated by action of
LSP.
B. DEDICATED SIGNALING LINKS
1. SS7 Link Cross Connect
LSP shall pay the DS-0 or DS-1 rate for the SS7 Link
Cross Connect at the STP location for each Dedicated
Signaling Link. Rates are per DS-0 and DS-1 bandwidth
and per connection to unbundled dedicated facility or
connection to a collocation cage. Rates are per month
and nonrecurring installation per first or additional
cross connects ordered per order.
2. STP Port Termination
LSP shall pay the STP Port Termination rate element
for each termination of the SS7 Link Cross Connect at
the SWBT STP. One STP Port Termination must be
installed at SWBT's interconnecting STP for each
Dedicated Signaling Link.
There are two charges that apply to the STP Port
Termination, i.e., a fixed recurring monthly rate per
port termination and a nonrecurring installation
charge per port.
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APPENDIX SS7
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C. SIGNALING POINT CODE ADDITION
LSP shall pay the Signaling Point Code Addition rate element
for the establishment and translation of each applicable CCS
network signaling point code at a SWBT STP. LSP shall pay a
nonrecurring charge per Signaling Point Code established at
each STP.
D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall pay the GTT Addition rate element for the
establishment of LSP's global title address, translation type
or subsystem information in the SWBT STP translations. LSP
shall pay a nonrecurring charge per GTT established at each
STP.
E. SERVICE REARRANGEMENT
LSP shall pay charges for rearrangement of the SS7 Service
which are not specifically addressed pursuant to the Network
Element Bona Fide Request process.
F. USE OF THE STP PER CALL
LSP shall pay the Use of the STP Per Call rate element
for Use of the SWBT STP. The rate shall apply for each call
originated by LSP subscribers using the SWBT Local Switch
Unbundled Network Element. The rate is based on an assumed
mean quantity of 200 octets of signaling used for each
originated call times the STP Transport rate element.
The Use of the STP Per Call is a surrogate for STP Transport
and Dedicated Signaling Links when LSP uses the SWBT Unbundled
Local Switching Network Element.
<PAGE> 226
APPENDIX SS7
Page 9 of 12
V. RATES AND CHARGES
Rates and Charges for the elements described above are as follows:
<TABLE>
<CAPTION>
Monthly Nonrecurring
SS7 Links - Cross Connects Zone A Zone B Zone C Initial Additional
-------------------------- ------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C>
STP to Collocators Cage - DS0 $74.20 $74.20 $74.20 $299.00 $202.45
STP to Collocators Cage- DS1 $53.65 $53.65 $53.65 $257.00 $174.45
STP to SWBT MDF - DS0 $74.20 $74.20 $74.20 $299.00 $202.45
STP to SWBT DSX Frame-DS1 $53.65 $53.65 $53.65 $257.00 $174.45
</TABLE>
<TABLE>
<CAPTION>
SS7 Links
---------
<S> <C>
STP Access Connection - 1.544 Mbps See Dedicated
Transport
STP Access Link - 56 Kbps $100.16 fixed +
$0.91 per mile
</TABLE>
<TABLE>
<CAPTION>
SS7 Signalling
--------------
<S> <C> <C> <C>
SS7 Signalling $0.0003800 per call
STP Port $774.85 per port $286.60 ---
STP Trunk Signalling $0.0000019 per octet
Point Code Addition N/A per point code $15.10 ---
Global Title Translation Addition ICB ICB ICB
</TABLE>
VI. ORDERING THE SERVICE
LSP shall abide by the following ordering guidelines:
A. SS7 TRANSPORT
LSP shall submit SWBT's CCS/SS7 Activity Notification Form,
identify the set of links the LSP will use and identify the
service(s) associated with each SPC. LSP shall identify
Signaling Point Code and Global Title Translation information
that must be translated into the SWBT STPs.
B. DEDICATED SIGNALING LINKS
LSP shall submit an Access Service Request form and SWBT's CCS
Activity Notification form. LSP shall identify the SWBT STPs,
the LSP premises, the circuit interconnection arrangement at
the LSP Dedicated Transport location and the LSP signaling
point. LSP shall identify Signaling Point Code and Global
Title Translation information that must be translated in the
SWBT STPs.
C. SIGNALING POINT CODE ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT STPs and the LSP signaling point code
information that must be added or changed in the SWBT STP
translations. If more than one pair of SWBT STPs are affected,
LSP shall indicate translation route information.
<PAGE> 227
APPENDIX SS7
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D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT Global Title Translation information
that must be added, deleted or changed in the SWBT STP
translations. If more than one pair of SWBT STPs are affected,
LSP shall indicate translation route information.
E. SERVICE REARRANGEMENT
LSP shall order a SS7 Signaling Service Rearrangement per
Attachment Network Element Bona Fide Request.
F. USE OF THE STP
Ordering requirements for the Use of the STP are included in
the requirements set forth in the ordering clause of the Local
Switching UNE (Attachment Switching), and are incorporated
here by reference.
VII. RESPONSIBILITIES OF SWBT
A. SWBT shall manage the network and, at its sole discretion,
apply protective controls. Protective controls include actions
taken to control or minimize the effect of network failures or
occurrences, which include, but are not limited to, failure or
overload of SWBT or LSP facilities, natural disasters, mass
calling or national security demands.
B. SWBT shall determine the GTT and Translation Type (TT) route
for messages routed to GTT which are associated with SWBT
signaling points.
C. SWBT shall define regional functions and local functions of
its STPs. SWBT will route ISUP messages within the SWBT
signaling network subject to technical feasibility. Capacity
limitations shall define a temporary technical infeasibility
until the capacity limit can be resolved.
D. SWBT shall meet service performance standards as outlined in
GR-905-CORE and TP76638 except as otherwise provided herein.
E. In the event that SWBT provides under this contract special
service arrangements associated with diversity or other
arrangements that do not strictly adhere to GR-905-CORE and
TP76638 and are of non-compliance to the technical
publications or not certified by SWBT, LSP acknowledges that
the service performance standards need not be met in the
provision of the total service.
<PAGE> 228
APPENDIX SS7
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F. SWBT shall route messages generated by the action of LSP
throughout the SWBT signaling network. The content of the
messages is for the use of signaling points of origination and
destination. SWBT will not use any information within messages
for any purpose not required by or related to the use of the
SWBT signaling network. SWBT will not divulge any message or
any part of messages generated by LSP to any other party,
except as required to manage the SWBT signaling network or as
may be required by law.
G. SWBT shall determine the monthly charges and issue an invoice
to the billing address of LSP for the respective service(s)
requested by LSP and provided by SWBT. The invoice will
identify nonrecurring charges, recurring charges, and other
charges and credits, as they apply.
H. SWBT shall work cooperatively and provide knowledgeable
personnel to meet with LSP in order to provision, test and
install the SS7 Service in a timely fashion.
VIII. RESPONSIBILITIES OF LSP
A. LSP shall provision the signaling links at the LSP premises
and from the LSP premises to the SWBT STP location in a
diverse, reliable and technically acceptable manner to comply
with the standard SS7 protocol, Bellcore GR-905-CORE and the
SWBT network.
B. If LSP requires a greater degree of diversity than SWBT
provides in the existing network, a special facility or a
special routing of services, LSP agrees to initiate a
Wholesale Construction request and pay additional charges as
SWBT may reasonably determine.
C. LSP shall identify to SWBT the SPC(s) associated with the LSP
set of links.
D. When LSP orders the use of the SWBT STP, LSP shall specify the
set of signaling links to be used. If the links are provided
to another party LSP shall warrant to SWBT that the other
party is aware of the charges associated with the use of the
STP and that the other party will pay the monthly charges for
the use of the SWBT STP.
E. LSP shall identify to SWBT the Global Title and Translation
Type information for messages that route to LSP.
F. When routing messages addressed to a SWBT Subsystem Number
(SSN), LSP shall use the SWBT defined SSN designation of the
SWBT mated STP pair to which the message is routed.
<PAGE> 229
APPENDIX SS7
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G. LSP shall transfer Calling Party Number Parameter information
unchanged, including the "privacy indicator" information, when
ISUP Initial Address Messages are interchanged with the SWBT
signaling network.
H. LSP shall verify the accuracy of information concerning the
services ordered by LSP.
I. LSP shall designate the level of diversity associated with the
LSP premises. SWBT shall provide the same degree of diversity
as LSP provides.
J. LSP shall work cooperatively and provide knowledgeable
personnel to meet with SWBT in order to provision, test and
install the SS7 Service in a timely fashion.
K. LSP shall furnish to SWBT, at the time the SS7 Service is
ordered and annually thereafter, an updated three year
forecast of usage of the SS7 Signaling network. The forecast
shall include total annual volume and busy hour busy month
volume. SWBT shall utilize the forecast in its own efforts to
project further facility requirements.
L. LSP shall inform SWBT in writing thirty (30) days in advance
of any change in LSP's use of such SS7 Service which alters by
ten percent for any thirty (30) day period the volume of
signaling transactions by individual SS7 service that are
planned by LSP to be forwarded to SWBT's network. LSP shall
provide in said notice the reason, by individual SS7 service,
for the volume change.
<PAGE> 230
Attachment 1
Appendix SS7
Page 1 of 2
ATTACHMENT 1
DEFINITIONS OF TERMS
Common Channel Signaling (CCS)
A high-speed specialized packet switched communications network that is separate
(out-of-band) from the public packet switched and message networks. CCS carries
addressed signaling messages for individual trunk circuits and/or database
related services between Signaling Points (SS7 nodes) in the CCS network.
Compatibility Testing
Testing performed by representatives from SWBT and LSP to determine proper
interconnection of CCS network facilities for accurate transmission of system
signals and messages. This is often referred to as TR-905 Compatibility Testing.
Octet
8-bits of binary information.
Service Control Point (SCP)
A node in the CCS network that provides a database functionality.
Service Switching Point (SSP)
A signaling point that can launch queries to databases and receive/interpret
responses used to provide specific end user services.
Signal Transfer Point (STP)
A packet switch in the CCS network that is used to route SS7 protocol signaling
messages between signaling nodes. An STP provides screening and routing of SS7
messages. STPs transfer signaling messages to other networks. SWBT's signaling
network includes mated pairs of local and regional STPs.
Signaling Link
An end-to-end high-capacity digital, data quality, link operating at 56 kilobits
per second that transmits signaling information in the form of signaling
messages from one network SS7 node to another node in a CCS network. The Link
Type identifies the functionality of the signaling link sets. Signaling links
provide physical interconnection between signaling points of another party and
SWBT STPs.
<PAGE> 231
Attachment 1
Appendix SS7
Page 2 of 2
Signaling Point (SP)
A node in the CCS network that originates and/or receives signaling messages, or
transfers signaling messages from one signaling link to another, or both.
Signaling Point Code (SPC)
An identifier code that identifies a signaling point in the CCS network. The
signaling point code provides an address within the CCS network which enables
messages to be routed to signaling points. Signaling Point Codes are 24 bit
binary numbers comprised of three segments: the Network Identification, the
Network Cluster, and the Member number within the cluster. Signaling Point Codes
are represented digitally as AAA-AAA-AAA, where "AAA" represents a decimal
number from 000 to 255.
Signaling Point of Interface (SPOI)
Mutually agreed point at which SWBT hands off signaling information to LSP.
Signaling System 7 (SS7)
See SS7 Protocol
Signaling System 7 (SS7) Protocol
The signaling protocol, Version 7, used by the nodes of the CCS network. The SS7
protocol used by SWBT is the American National Standards Institute (ANSI)
standard protocol defined by Bellcore Generic Requirement, GR-246-CORE, defined
by Bellcore requirements (GR-317-CORE, GR-394-CORE, GR-444-Core, GR-606-CORE,
GR-82-CORE, GR-905-CORE and various other documents) and defined by the SWBT
Technical Publication TP76638.
<PAGE> 232
APPENDIX RECORDING
APPENDIX RECORDING
RECORDING, MESSAGE PROCESSING AND
PROVISION OF INTEREXCHANGE CARRIER TRANSPORTED
MESSAGE DETAIL APPENDIX
This Appendix sets forth the terms and conditions under which SWBT will provide
recording, message processing and message detail services as described in total
in Exhibit I, SERVICES AND ASSOCIATED CHARGES, and those services specifically
selected by LSP as described in Exhibit II, SELECTED SERVICE OPTIONS AND METHOD
OF PROVISION and at the rates set forth in Exhibit III, BASIS OF COMPENSATION.
Exhibits I, II and III are attached hereto and made a part of this Appendix by
reference.
I. DEFINITIONS
As used herein and for the purposes of this Appendix, the following
terms shall have the meanings set forth below:
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group,
duration and time of day for a message and is subsequently
used to bill access to Interexchange Carriers (IXCs).
B. Assembly and Editing - the aggregation of recorded customer
message details to create individual message records and the
verification that all necessary information required to ensure
all individual message records meet industry specifications is
present.
C. Billing Company - the company that bills end users for the
charges incurred in originating and terminating IXC
transported calls.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange
Message Records (EMR) formatted billing data between SWBT and
the Billing Company.
E. Data Transmission - the forwarding by SWBT of IXC transported
toll message detail and/or access usage record detail in EMR
format over data lines or on magnetic tapes to the appropriate
Billing Company.
F. Exchange Message Record (EMR) - Industry standard message
format as described in accordance with the Bellcore Practice
BR010-200-010 developed for the interexchange of
telecommunications message information.
G. Interexchange Carrier (IXC) - A third party transmission
provider that carries long distance voice and non-voice
traffic between user locations for a related
<PAGE> 233
APPENDIX RECORDING
recurring fee. IXCs provide service interstate and
intrastate. In some states IXCs are permitted to operate
within a LATA.
H. Interexchange Carrier Transported - telecommunications
services provided by an IXC or traffic transported by
facilities belonging to an IXC.
I. Message Processing - the creation of individual EMR formatted
billable message detail records from individual recordings
that reflect specific billing detail for use in billing the
end user and/or access usage records from individual
recordings that reflect the service feature group, duration
and time of day for a message, Carrier Identification Code,
among other fields, for use in billing access to the
Interexchange Carriers. Message Processing includes performing
CMDS online edits required to ensure message detail and access
usage records are consistent with CMDS specifications.
J. Originating Local Exchange Carrier Company - the company whose
local exchange telephone network is used to originate calls
thereby providing originating exchange access to IXCs.
K. Provision of Message Detail - the sorting of all billable
message detail and access usage record detail by Revenue
Accounting Office, Operating Company Number or Service Bureau,
splitting of data into packs for invoicing, and loading of
data into files for data transmission to LSP for those records
created internally or received from other Local Exchange
Carrier Companies or Interexchange Carriers through SWBT's
internal network or national CMDS.
L. Record - a logical grouping of information as described in the
programs that process information and create the magnetic
tapes or data files.
M. Recording - the creation and storage on magnetic tape or other
medium of the basic billing details of a message in Automatic
Message Accounting (AMA) format.
N. Service Switching Point (SSP) - a signaling point that can
launch queries to databases and receive/interpret responses
used to provide specific customer services.
O. Switching Control Point (SCP) - the real time database system
that contains routing instructions for 800 calls. In addition
to basic routing instructions, the SCP may also provide
vertical feature translations, i.e., time of day, day of week
routing, out of area screening and/or translation of the
dialed 800 number to its assigned working telephone number.
P. 800 SCP Carrier Access Usage Summary Record (SCP Record) - a
summary record which contains information concerning the
quantity and types of queries launched to a SWBT SCP. In those
situations where charges are applicable for
<PAGE> 234
APPENDIX RECORDING
the production and delivery of SCP records, such charges
will be those specified in Exhibit III-A pertaining to the
production and forwarding of AUR data.
Q. Terminating Local Exchange Carrier Company - the company whose
local exchange telephone network is used to terminate calls
thereby providing terminating exchange access to IXCs.
II. RESPONSIBILITIES OF THE PARTIES
A. SWBT will record all IXC transported messages for LSP carried
over all Feature Group Switched Access Services that are
available to SWBT-provided recording equipment or operators.
Unavailable messages (i.e., certain operator messages which
are not accessible by SWBT-provided equipment or operators)
will not be recorded. The recording equipment will be provided
at locations selected by SWBT.
B. SWBT will perform assembly and editing, message processing and
provision of applicable access usage record detail for IXC
transported messages if the messages are recorded by SWBT.
C. SWBT will provide access usage records that are generated by
SWBT.
D. Assembly and editing will be performed on all IXC transported
messages recorded by SWBT, during the billing period
established by SWBT and selected by LSP from Exhibit III-B.
E. Standard EMR record formats for the provision of billable
message detail and access usage record detail will be
established by SWBT and provided to LSP.
F. Recorded access usage record detail will not be sorted to
furnish detail by specific end users, by specific groups of
end users, by office, by feature group or by location.
G. SWBT will provide message detail to LSP either on magnetic
tapes or in data files, depending on the option contracted for
by LSP in Exhibit III. Only ONE method may be selected by the
LSP.
1. Magnetic Tapes
a. SWBT will supply the magnetic tapes, which
will be provided without the return of
previously supplied tapes.
b. LSP will specify one of the following options
for provision of tapes:
<PAGE> 235
APPENDIX RECORDING
1) SWBT may send the tapes to LSP via
first class U.S. Mail Service or an
equivalent service of SWBT's
choice, or
2) LSP may pick up the magnetic tapes
at a location designated by SWBT.
3) If, at the request of LSP, overnight
delivery other than those provided
in 1 & 2 above is requested, the
cost of this delivery will be at the
expense of LSP.
2. Data Files
The message detail may be transmitted to LSP
in data files via data lines using software
and hardware acceptable to both parties.
H. In Exhibit III LSP will identify separately the location where
the tapes and any data transmissions should be sent (as
applicable) and the number of times each month the information
should be provided. SWBT reserves the right to limit the
frequency of transmission to existing SWBT processing and work
schedules, holidays, etc.
I. SWBT will determine the number of magnetic tapes or data files
required to provide the access usage record detail to LSP.
J. Access usage record detail previously provided LSP and lost or
destroyed through no fault of SWBT will not be recovered and
made available to LSP except on an individual case basis at a
cost determined by SWBT.
K. When SWBT receives rated billable messages from an IXC or
another Local Exchange Carrier (LEC) that are to be billed by
LSP, SWBT will forward those messages to LSP.
L. When SWBT has rated billable message detail originating from
LSP's end users requiring billing by another LEC or LSP, SWBT
will forward such messages to the appropriate Billing Company.
M. SWBT will record the applicable detail necessary to generate
access usage records and forward them to LSP for its use in
billing access to the IXC.
III. BASIS OF COMPENSATION
A. Compensation for recording, assembly and editing, rating,
message processing and provision of messages provided
hereunder by SWBT for the LSP shall be based upon the rates
and charges set forth in Exhibit III, BASIS OF COMPENSATION.
<PAGE> 236
APPENDIX RECORDING
B. When message detail is entered on a magnetic tape or data file
for provision of message detail to LSP, a per record charge
will apply for each record processed. SWBT will determine the
charges based on its count of the records processed.
IV. LIABILITY
A. Except as otherwise provided herein, neither party shall be
liable to the other for any special, indirect, or
consequential damage of any kind whatsoever. A party shall not
be liable for its inability to meet the terms of this
Agreement where such inability is caused by failure of the
first party to comply with the obligations stated herein. Each
party is obliged to use its best efforts to mitigate damages.
B. When SWBT is notified that, due to error or omission,
incomplete data has been provided to the LSP, SWBT will make
reasonable efforts to locate and/or recover the data and
provide it to the LSP at no additional charge. Such requests
to recover the data must be made within 30 days from the date
the details initially were made available to the LSP. If
written notification is not received within 30 days, SWBT
shall have no further obligation to recover the data and shall
have no further liability to the LSP.
C. If, despite timely notification by the LSP, message detail is
lost and unrecoverable as a direct result of SWBT having lost
or damaged tapes or incurred system outages while performing
recording, assembly and editing, rating, message processing,
and/or transmission of message detail, SWBT will estimate the
volume of lost messages and associated revenue based on
information available to it concerning the average revenue per
minute for the average interstate and/or intrastate call. In
such events, SWBT's liability to the LSP shall be limited to
the granting of a credit adjusting amounts otherwise due from
it equal to the estimated net lost revenue associated with the
lost message detail.
D. SWBT will not be liable for any costs incurred by the LSP when
the LSP is transmitting data files via data lines and a
transmission failure results in the non-receipt of data by
SWBT.
E. The LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability,
including attorney fees, that it may incur as a result of
claims, demands, or other suits brought by any party that
arise out of the use of this service by the LSP, its customers
or end users. The LSP shall defend against all end users'
claims just as if the LSP had provided such service to its end
users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or
indirectly, by SWBT employees and equipment associated with
provision of this
<PAGE> 237
APPENDIX RECORDING
service. This includes, but is not limited to suits arising
from disclosure of any customer specific information
associated with either the originating or terminating numbers
used to provision this service.
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO
MERCHANTABILITY
OR FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED
HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE
CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY
A THIRD PARTY.
<PAGE> 238
EXHIBIT 1
EXPLANATION OF SERVICE OPTIONS
The attached pages of this Exhibit I show the service options that are offered
under this Appendix and the charges that are associated with each option.
Alphabetical and numerical references in the CHARGES columns are to rates and
charges set forth in Exhibit III, BASIS OF COMPENSATION.
ORIGINATING 1+ DDD RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS USAGE
RECORDS
OPTION #1: SWBT performs recording, assembly and editing, rating of
billable message detail and creates an Access Usage Record
(AUR) for all 1+ Interexchange Carrier (IXC) transported
messages originating from LSP end office telephone network and
forwards both billable message detail records and AUR records
to LSP.
OPTION #2: SWBT performs recording, assembly and editing of the
billable message detail and extracts that detail to the IXC
for all 1+ IXC transported messages originating from LSP end
office. SWBT creates Access Usage Records for this traffic and
forwards those AUR records to LSP.
OPTION #3: The IXCs do their own billable message recording for their
1+ IXC transported messages originating from LSP end office.
SWBT performs recording for Access purposes only, assembles
and edits this data, creates AURs and forwards the AUR records
to LSP.
ORIGINATING OPERATOR RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS
USAGE RECORDS
OPTION #4: LSP Non-Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for all 0+, 0-, Coin Sent Paid, CAMA and
International IXC transported messages. SWBT assembles and
edits this data, creates AURs and forwards the AUR records to
LSP.
OPTION #5: LSP Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for 0- only IXC transported messages. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
OPTION #6: LSP Equal or Non-Equal Access End Office - The IXCs do
their own billable message recording. LSP chooses to have SWBT
purchase source information from IXC in order to have
information required to create Access Usage Records. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
<PAGE> 239
OPTION #7: The IXCs do their own billable message recording and
forward to SWBT the billable message detail for assembly and
editing and rating of these operator service IXC transported
messages. SWBT forwards the rated billable message detail to
the appropriate billing company, creates an AUR and forwards
the AUR records to LSP. This situation occurs when the LSP has
not signed a rating takeback waiver with the IXC.
800 RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL
OPTION #8: SWBT performs SSP function for LSP end office and bills
query charge to the appropriate IXC. SWBT performs recording
for Access purposes only, assembles and edits this data,
creates AURs and forwards AUR records to LSP.
OPTION #9: SWBT performs SSP function for LSP end office. LSP
performs billing of query charge to the appropriate IXC. SWBT
performs recording at the SSP for Access purposes only,
assembles and edits this data, creates AURs and forwards AUR
records to LSP. SWBT performs recording at the SCP for query
billing purposes only, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
OPTION 10: SWBT performs SCP function for LSP. SWBT performs
recording at the SCP, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
TERMINATING RECORDINGS - IXC TRANSPORTED ACCESS USAGE RECORDS
OPTION 11: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B, Feature Group C and Feature
Group D terminating usage recordings including Feature Group B
over D and Feature Group C over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 12: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group B terminating usage
recordings excluding B over D. SWBT creates terminating AURs
for this data and forwards AUR records to LSP.
OPTION 13: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B terminating usage recordings
including Feature Group B over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 14: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group D terminating usage recordings
including B over D and C over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
<PAGE> 240
OPTION 15: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group D terminating usage
recordings including B over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
MESSAGE PROVISIONING:
OPTION 16: SWBT will forward all IXC transported message detail
records or access usage records to LSP generated internally
within SWBT system or received via CMDS from an IXC or another
Local Exchange Carrier or LSP. LSP forwards rated IXC
transported message detail or access usage detail to SWBT for
distribution to the appropriate billing company through SWBT's
internal network or using the CMDS network.
There is no charge for this option under this
Appendix if LSP has also executed, as part of an
agreement executed pursuant to this Statement, an
Appendix for SWBT to provide "Hosting" services to
LSP, of if LSP has executed a separate agreement with
SWBT for "Hosting" services to be provided from SWBT
to LSP.
<PAGE> 241
DRAFT APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page two, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
<PAGE> 242
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
Attached to and made a part of the RECORDING, MESSAGE PROCESSING AND PROVISION
OF INTEREXCHANGE CARRIER TRANSPORTED MESSAGE DETAIL AGREEMENT effective
_______________ , 19 __, between Southwestern Bell Telephone Company and
_________________________________________________________.
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page 2, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
Approved and executed the day of , 19 .
------------ --------------------- -------
SOUTHWESTERN BELL
- --------------------------- TELEPHONE COMPANY
By: By:
------------------------ ----------------------
(Title) (Title)
<PAGE> 243
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:
----------
<TABLE>
<CAPTION>
MESSAGE
1+DDD OPERATOR HANDLED 800 SERVICE TERMINATING AUR PROVISIONING
OPTIONS OPTIONS OPTIONS OPTIONS OPTIONS
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NPA/NXX 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
</TABLE>
Numerical references are to specific service options listed in Exhibit I.
6
<PAGE> 244
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:
---------------
METHOD OF PROVISION:
Circle One: DATA FILE 9 TRACK MAGNETIC TAPE 18 TRACK MAGNETIC TAPE
7
<PAGE> 245
DRAFT APPENDIX RECORDING
EXHIBIT III-A
BASIS OF COMPENSATION [RATES TO BE CONSISTENT WITH ORDER.]
EFFECTIVE:
-----------------------
LSP shall pay SWBT the following amounts for services provided under the
Recording, Message Processing and Provision of Message Detail Appendix.
<TABLE>
<CAPTION>
TYPE OF ACTIVITY RATE
<S> <C> <C> <C>
A. Recording
Per AUR $ .0100
B. Assembly and Editing
Per Message and/or AUR $ .0050
C. Rating
Per Message $ .0050
D. Message Processing
Per Message and/or AUR $ .0050
E. Provision of Message Detail
Per Record $ .0030
F. Source Information Provided
1 Per Record Purchased - Meet Point Bill Applicable $ .0115
2 Per Record Purchased - Meet Point Bill Not Applicable $ .0230
</TABLE>
<PAGE> 246
DRAFT APPENDIX RECORDING
EXHIBIT III-B
INVOICE DESIGNATION
COMPANY NAME:
-------------------------------
EXCHANGE COMPANY I.D. NUMBER (OCN):
---- ---- ---- ----
BILLABLE INVOICE INTERVAL:
Check One:
___
| |
| |
Daily (Full Status RAO Companies will receive
billable messages daily.)
___
| | Bill period (A maximum of five dates may be chosen.)
| | A file is created five workdays from each bill
period date, and three additional days should be
allowed for distribution. Circle a maximum of five
bill period dates:
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
<PAGE> 247
DRAFT APPENDIX RECORDING
EXHIBIT III-B
AUR INVOICE INTERVAL:
Check One:
___
| | Daily (Full Status RAO Companies will receive AURs daily.)
| |
___
| | Bill period (A maximum of five dates may be chosen.) A
| | file is created five workdays from each bill period date, and
three additional days should be allowed for distribution.
Circle a maximum of five bill period dates:
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
<PAGE> 248
APPENDIX-RESALE (MO, AR & KS)
PAGE 2 OF 12
APPENDIX RESALE
This Appendix sets forth the rates, terms and conditions for those services
available for sale at retail to end users which are made available to LSPs by
SWBT for resale.
1.0 TERMS AND CONDITIONS OF SERVICE
1.1 For services included in this Appendix, the rules and
regulations associated with the corresponding tariffs apply
except for applicable resale restrictions, which are offered
through tariffs by SWBT to its end users and except as
otherwise provided herein.
1.2 LSP shall only sell Plexar services to a single end user.
1.3 Except where otherwise explicitly provided in the
corresponding tariffs, LSP shall not permit the sharing of a
service by multiple end users or the aggregation of traffic
from multiple end users onto a single service or except where
SWBT permits such sharing by its own end users.
1.4 The LSP shall resell these telecommunications services only to
the same class of customers to which SWBT sells the services,
e.g. residence service may not be resold to business
customers. LSP may only resell Lifeline Assistance, Link-Up,
and other like services to similarly situated customers who
are eligible for such services. Further, to the extent LSP
resells services that require certification on the part of the
buyer, LSP will ensure that the buyer has received proper
certification and complies with all rules and regulations as
established by the Commission.
1.5 SWBT promotions of ninety (90) days or less shall not be
available to the LSP for resale.
1.6 The LSP shall not use a resold service to avoid the rates,
terms and conditions of SWBT's corresponding retail tariff.
1.7 The LSP shall not use resold local exchange telephone service
to provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers, competitive
access providers (CAPs), or other telecommunications
providers. Provided however, that LSP may permit its end users
to use resold local exchange telephone service to access IXCs,
wireless carriers, CAPs, or other retail telecommunications
providers.
1.8 An End User Common Line (EUCL) charge will continue to apply
for each local exchange line resold under this agreement. All
federal rules and regulations associated with EUCL charges, as
found in Tariff FCC 73, also apply.
<PAGE> 249
APPENDIX-RESALE (MO, AR & KS)
PAGE 3 OF 12
1.9 To the extent allowable by law, LSP shall be responsible for
Primary Interexchange Carrier (PIC) change charges associated
with such local exchange line. LSP shall pay for PIC changes
at the tariffed rate.
1.10 SWBT shall provide the services covered by this Appendix
subject to availability of existing facilities and on a
nondiscriminatory basis with its other customers. LSP shall
resell the services provided herein only in those service
areas in which such resale services or any feature or
capability thereof are offered at retail by SWBT as the
incumbent local exchange carrier to its end users.
1.11 When LSP converts an end user currently receiving non-complex
service from the SWBT network, without any changes to SWBT's
network, LSP will be charged a per-order conversion charge of
twenty-five dollars ($25.00) in Arkansas, Kansas and Missouri.
When LSP converts an end user with non-complex service and
adds or changes are made to the network, the respective
twenty-five dollars ($25.00) conversion charge will apply, as
well as any normal service order charges associated with said
changes. All nonrecurring service connection charges,
excluding the conversion charge mentioned above, will be
charged at a discount for those services listed in Exhibits A
& B to this Appendix. Complex conversion orders will be
charged at a rate of one hundred twenty-five dollars
($125.00). Custom Services conversions (e.g., Plexar Custom)
will be handled on a Customer Specific Proposal basis.
1.12 For the purposes of ordering service under this Appendix, all
requests for service shall be handled as an initial request
for service. The additional line rate for Service Order
Charges shall apply only to those requests for additional
residential service at the end user's same location where a
residential line is currently provided on SWBT's network,
regardless of the non-facilities based local service provider
of record.
1.13 If the LSP is in violation of a provision of this Appendix,
SWBT will notify the LSP of the violation in writing. Such
notice must refer to the specific provision being violated. At
such time, the LSP will have thirty (30) days to correct the
violation and notify SWBT in writing that the violation has
been corrected. SWBT will then bill the LSP for the charges
which should have been collected by SWBT or the actual
revenues collected by the LSP from its end users for the
stated violation, whichever is greater. Should the LSP dispute
the violations, it must notify SWBT in writing within fourteen
(14) days of receipt of notice from SWBT. Disputes will be
resolved as outlined in the Disputed Amounts Section of the
Agreement.
1.14 SWBT is not required to make services available for resale at
wholesale rates to LSP for is own use. SWBT, however, shall at
its option agree to allow LSP to
<PAGE> 250
APPENDIX-RESALE (MO, AR & KS)
PAGE 4 OF 12
purchase SWBT's Telecommunications Services and other services
available for resale as outlined in the exhibits to this
Appendix, as long as said services are not resold exclusively
or predominately to LSP, its subsidiaries, or affiliates.
1.15 The effective date of this Appendix shall be ten (10) days
after the date the Commission approves the Interconnection
Agreement.
2.0 ANCILLARY SERVICES
2.1 Where available, SWBT will afford LSP end users with the
ability to make 911 calls. LSP shall be responsible for
collecting and remitting all applicable 911 surcharges on a
per line basis to the Public Safety Answering Point (PSAP).
2.2 Where requested by SWBT, the LSP shall provide SWBT with
accurate and complete information regarding end users in a
format and time frame prescribed by SWBT, for purposes of 911
administration.
2.3 SWBT shall provide LSP's end users access to SWBT Directory
Assistance Service. LSP shall pay SWBT amounts attributable to
Directory Assistance services used by LSP's end users.
Discounts associated with the utilization of Directory
Assistance Service are outlined in the exhibits to this
Appendix.
2.4 SWBT shall provide, at no additional charge, a straight line
listing of the LSP end user in the appropriate SWBT local
White Pages. Subscriber listing information on resold lines
shall remain the property of SWBT.
2.5 Additional Listing services (e.g., foreign or signature
listings) can be purchased by LSP for its end users on a per
listing basis. LSP shall pay SWBT amounts attributable to
Additional Listing services used by LSP's end users. The
exhibits outline the discounts associated with such additional
listing services.
2.6 SWBT or its agents will deliver local White Pages directories
to LSP end user's premises at the same time and under the same
conditions that such directories are delivered to SWBT end
users.
2.6.1 LSP end users shall be entitled to one directory per
basic residential or business line provided by SWBT
pursuant to this Appendix.
2.6.2. SWBT, or its agents, shall deliver a White Pages
Directory to LSP end users' premises at the same time
that such directories are delivered to SWBT end
users. If an LSP's end user already has a current
SWBT directory, SWBT shall not be required to deliver
a directory to that end user until new directories
are published for that end user's location.
<PAGE> 251
APPENDIX-RESALE (MO, AR & KS)
PAGE 5 OF 12
2.7 SWBT shall provide LSP's end users access to SWBT's Operator
Services. LSP shall pay SWBT amounts attributable to Operator
Services used by LSP's end users. Discounts associated with
the utilization of Operator Services features are outlined in
the exhibits to this Appendix.
3.0 BRANDING
3.1 Except where otherwise required by law, LSP shall not, without
SWBT's written authorization, offer the resale services
covered by this Appendix using the trademarks, service marks,
trade names, brand names, logos, insignia, symbols or
decorative designs of SWBT or its affiliates, nor shall the
LSP state or imply that there is any joint business
association or similar arrangement with SWBT in the provision
of telecommunications services to its own customers. The LSP
may brand services included in this Appendix with its own
brand name, but SWBT will not provide for LSP branding of
those services.
3.2 Development of Branding Directory Assistance and Operator
Services
A. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of
Operator Services is required to:
1. provide its brand at the beginning of each
telephone call and before the consumer
incurs any charge for the call; and
2. disclose immediately to the consumer, upon
request a quote of its rates or charges for
the call.
3. Where SWBT provides LSPs OS and DA services
via the same trunk, both the OS and DA calls
will be branded with the same brand. Since
SWBT's DA and OS utilize the same trunk
group, LSP will receive the same brand for
both DA/OS. Such branding will be provided
pursuant Section B. below.
B. CALL BRANDING - In compliance with A. 1. above, SWBT
will brand DA/OS in LSP's name based upon the
criteria outlined below:
1. LSP will provide SWBT with written
specification of its company name to be used
in creating LSP specific branding messages
for its DA/OS calls.
2. An initial non-recurring charge applies per
TOPS switch, per load, for the establishment
of Call Branding as well as a charge per
TOPS switch, per subsequent load to change
the brand. In addition, a per call charge
applies for every DA/OS call handled
<PAGE> 252
APPENDIX-RESALE (MO, AR & KS)
PAGE 6 OF 12
by SWBT on behalf of LSP when such services
are provided in conjunction with resale
services. Prices for Call Branding are as
outlined in Exhibit C, attached hereto and
incorporated herein.
C. RATE/REFERENCE INFORMATION - SWBT will provide LSP
DA/OS Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA/OS Rate and Reference
Information in a mutually agreed to format
or media thirty (30) days in advance of the
date when the DA/OS Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any
changes to be made to such Rate/Reference
Information ten (10) working days prior to
the effective Rate/Reference change date.
LSP acknowledges that it is responsible to
provide SWBT updated Rate/Reference
Information in advance of when the
Rates/Reference Information are to become
effective.
3. In all cases when a SWBT Operator receives a
rate request from a LSP end user, SWBT will
quote the applicable DA/OS rates as provided
by LSP.
4. An initial non-recurring charge will apply
per TOPS switch for loading of LSP's DA/OS
Rate/Reference Information as well as a
charge for each subsequent change, per TOPS
switch to either the LSP's DA/OS Services
Rate or Reference Information as outlined in
Exhibit C, attached hereto and incorporated
herein.
3.4 SWBT shall also offer LSP the opportunity to customize route
DA/OS beginning March 1, 1997, where technically feasible. LSP
agrees to pay SWBT appropriate charges associated with
customized routing on an ICB basis.
4.0 RESPONSIBILITIES OF SWBT
4.1 SWBT shall allow LSP to place service orders and receive phone
number assignments (for new lines). These activities shall be
accomplished by telephone call or facsimile until electronic
interface capability has been established. SWBT, with input
from LSP, shall provide interface specifications for
electronic access for these functions to LSP once such
electronic interfaces become technically feasible and are in
place. However, LSP shall be responsible for modifying and
connecting any of its systems with SWBT provided interfaces
when such interfaces become available, as outlined in Appendix
OSS.
<PAGE> 253
APPENDIX-RESALE (MO, AR & KS)
PAGE 7 OF 12
4.2 SWBT shall implement LSP service orders within the same time
intervals SWBT uses to implement service orders for similar
services for its own end users.
4.3 LSP will have the ability to report trouble for its end users
to appropriate SWBT trouble reporting centers twenty-four (24)
hours a day, seven (7) days a week. LSP will be assigned a
customer contact center when initial service agreements are
made. LSP end users calling SWBT will be referred to LSP at
the number provided by LSP.
4.3.1. Methods and procedures for ordering and trouble
reporting are outlined in the Handbook for
Non-Switched Based Providers dated 11/15/95, as
amended by SWBT from time to time. Both parties agree
to abide by the procedures contained therein.
4.4 SWBT will provide LSP with the detailed billing information in
a standard electronic format as outlined in Appendix OSS
necessary for LSP to issue a bill to its end users. On no less
than sixty (60) days advance written notice, LSP will have the
option of receiving daily usage to monitor the patterns of its
end users' usage sensitive services. LSP agrees to pay SWBT
three tenths of a cent ($.003) per message.
4.5 SWBT shall make telecommunications services that SWBT provides
at retail to subscribers who are not telecommunications
carriers available for resale consistent with its obligation
under Section 251(c)(4)(A) of the Telecommunications Act. SWBT
currently uses the Accessible Letter process to notify LSP of
new services available for resale during the term of this
Agreement. The notification shall advise LSP of the category
in which such new service shall be placed and the same
discount already applicable to LSP in that category shall
apply to the new service. Should SWBT change its notification
procedures to the LSP, the notice will be no less prompt than
the Accessible Letter.
4.5.1 Furthermore, to the extent that a federal or state
regulatory agency adopts a final order establishing
wholesale discounts under Section 252(d)(3) of the
Telecommunications Act, which is not stayed and which
directs SWBT to apply state-specific wholesale
discount percentages which are different from those
incorporated within this Agreement, either Party
shall have the option of converting to that discount
level upon ten (10) days written notice to the other
Party.
4.6 LSP end user's activation of Call Trace shall be handled by
the SWBT Call Trace Center (CTC) or its Annoying and Anonymous
Call Bureau. SWBT shall notify LSP of requests by its end
users to provide the call records to the proper authorities.
Subsequent communication and resolution of the case with LSP's
end
<PAGE> 254
APPENDIX-RESALE (MO, AR & KS)
PAGE 8 OF 12
user (whether that end user is the victim or the
suspect) will be coordinated through the LSP.
4.6.1. LSP understands that for services where reports are
provided to law enforcement agencies (e.g., Call
Trace) only billing number and address information
shall be provided. It shall be the LSP's
responsibility to provide additional information
necessary for any police investigation. LSP shall
indemnify SWBT against any claims that insufficient
information led to inadequate prosecution. SWBT shall
handle law enforcement requests consistent with the
Miscellaneous-Law Enforcement Section of the
Interconnection Agreement.
4.7 LSP may offer to resell Customer Initiated Suspension and
Restoral Service to their end users. SWBT will offer to LSP
Company Initiated Suspension service for their own purposes at
the SWBT retail tariffed rate. Should LSP choose to suspend
their end user through Company Initiated Suspension Service,
this suspension period shall not exceed fifteen (15) calendar
days. If LSP issues a disconnect on their end user account
within the fifteen (15) day period, appropriate services will
not be billed for the suspension period. However, should LSP
issue a disconnect after the fifteen (15) day suspension
period, LSP will be responsible for all appropriate charges on
the account back to the suspension date. Should LSP restore
their end user, restoral charges at the SWBT retail tariffed
rate will apply and LSP will be billed for the appropriate
service from the time of suspension.
5.0 RESPONSIBILITIES OF LSP
5.1 Prior to submitting an order under this Agreement, LSP shall
obtain end user authorization as required by applicable state
or federal laws and regulations, and assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996. SWBT shall abide by the same
applicable laws and regulations.
5.2 Only an end user can initiate a challenge to a change in its
local exchange service provider. If an end user notifies SWBT
or LSP that the end user requests local exchange service, the
Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to
connect the end user to any local service provider based upon
the local service provider's request and local service
provider's assurance that proper end user authorization has
been obtained. LSP shall make authorization available to SWBT
upon request and at no charge.
5.3 When an end user changes or withdraws authorization, each
Party shall release customer-specific facilities in accordance
with the end user customer's direction
<PAGE> 255
APPENDIX-RESALE (MO, AR & KS)
PAGE 9 OF 12
or the direction of the end user's authorized agent. Further,
when an end user abandons the premise, SWBT is free to reclaim
the facilities for use by another customer and is free to
issue service orders required to reclaim such facilities.
5.4 Neither Party shall be obligated by this Agreement to
investigate any allegations of unauthorized changes in local
exchange service (slamming) on behalf of the other Party or a
third party. If SWBT, on behalf of LSP, agrees to investigate
an alleged incidence of slamming, SWBT shall charge LSP a
fifty dollar ($50) investigation fee.
5.5 When SWBT receives an order from LSP for services under this
Agreement and SWBT is currently providing the same services to
another local service provider for the same end user, SWBT
shall notify the end user's local service provider of record
of such order coincident with processing the order, should LSP
subscribe to the Local Disconnect Report (LDR) as outlined
below. It shall then be the responsibility of the local
service provider of record and LSP to resolve any issues
related to the end user. This paragraph shall not apply to new
additional lines and services purchased by an end user from
multiple LSPs or from SWBT.
5.5.1 On no less than sixty (60) days notice, LSP may
request the LDR., SWBT agrees to furnish to LSP the
Billing Telephone Number (BTN), Working Telephone
Number (WIN), and terminal number of all end users
who have disconnected LSP's service. LSP understands
and agrees that the CARE interface will be used to
provide such information and such information will
only be available via the CARE electronic data
transmission as outlined in Appendix OSS. Information
will be provided on a per WTN basis to be priced on a
per WTN basis. SWBT will provide LSP no less than
thirty (30) days notice prior to any change of the
per-WTN charge. SWBT grants to LSP a non-exclusive
right to use the information provided by SWBT. LSP
will not permit anyone but its duly authorized
employees or agents to inspect or use this
information. LSP agrees to pay SWBT ten cents ($0.10)
per WTN and any applicable transmission charges for
the LDR.
5.6 The LSP agrees to hold harmless and indemnify SWBT against any
and all liability and claims, including reasonable attorney's
fees, that may result from SWBT acting under this Article.
5.7 LSP is solely responsible for the payment of charges for all
services furnished under this Appendix including, but not
limited to, calls originated or accepted at LSP's location and
its end users' service locations, with the exception of any
retail services provided directly by SWBT to the end user
which SWBT shall be responsible for billing.
<PAGE> 256
APPENDIX-RESALE (MO, AR & KS)
PAGE 10 OF 12
5.7.1 Interexchange carried traffic (e.g., sent-paid,
information services and alternate operator services
messages) received by SWBT for billing to resold
end-user accounts will be returned as unbillable and
will not be passed on to LSP for billing. An
unbillable code returned with those messages to the
carrier will indicate that the messages originated
from a resold account and will not be billed by SWBT.
5.8 SWBT shall not be responsible for the manner in which the use
of resold service, or the associated charges are allocated to
others by LSP. All applicable rates and charges for such
services will be billed to and shall be the responsibility of
LSP, with the exception of other retail services provided
directly to the end user by SWBT as described in paragraph 7
above.
5.8.1. Compensation for all services shall be paid
regardless of a Party's ability or inability to
collect charges from its end user for such service.
5.9 If LSP does not wish to be responsible for collect, third
number billed, toll and information services (e.g., 900)
calls, it must order the appropriate blocking for resold lines
under this Appendix and pay any applicable charges. LSP
acknowledges that blocking is not available for certain types
of calls, including 800 numbers.
5.10 LSP shall be responsible for modifying and connecting any of
its systems with SWBT-provided interfaces as described in this
Appendix.
5.11 LSP shall be responsible for providing to its end users and to
SWBT a telephone number or numbers that LSP's end users can
use to contact LSP in the event of service or repair requests.
In the event that LSP's end users contact SWBT with regard to
such requests, SWBT shall inform the end user that they should
call LSP and may provide LSP contact number. The requirements
herein are subject to additional terms and conditions in the
Coordinated Repair Calls Section of the Agreement.
6.0 PROCEDURES FOR NONPAYMENT AND DISCONNECTION
6.1 If LSP fails to pay when due, any and all charges billed to
them under this Agreement, including any late payment charges
(Unpaid Charges), and any portion of such charges remain
unpaid more than fifteen (15) days after the due date of such
Unpaid Charges, SWBT shall notify LSP in writing that in order
to avoid having service disconnected, LSP must remit all
Unpaid Charges to SWBT within fourteen (14) business days.
6.2 If LSP disputes the billed charges, it shall, within the
fourteen (14) day period provided for above, inform SWBT in
writing which portion of the charges it
<PAGE> 257
APPENDIX-RESALE (MO, AR & KS)
PAGE 11 OF 12
disputes, including the specific details and reasons for its
dispute; immediately pay to SWBT all undisputed charges; and
pay all disputed charges into an interest bearing escrow
account.
6.3 Disputes hereunder shall be resolved in accordance with the
procedures identified in the Dispute Resolution Section of the
Interconnection Agreement. Failure of LSP to pay charges
deemed owed to SWBT after conclusion of the Arbitration shall
be grounds for termination under this section.
6.4 If any LSP charges remain unpaid or undisputed twenty-nine
(29) days past the due date, SWBT shall notify LSP, the
Commission and the end user's IXC(s) of Record in writing,
that unless all charges are paid within sixteen (16) days,
LSP's service shall be disconnected and its end users shall be
defaulted to SWBT local service. SWBT will also suspend order
acceptance at this time.
6.5 If any LSP charges remain unpaid or undisputed forty (40) days
past the due date, LSP shall, at its sole expense, notify its
end users, the Commission and the end user's of Record that
their service may be disconnected for LSP failure to pay
Unpaid Charges, and that its end users must affinnatively
select a new local service provider within five (5) days. The
notice shall also advise the end user that SWBT will assume
the end user's account at the end of the five (5) day period
should the end user fail to select a new local service
provider.
6.6 If any LSP charges remain unpaid or undisputed forty-five (45)
days past the due date, SWBT shall disconnect LSP and transfer
all LSP's end users who have not selected another local
service provider directly to SWBT's service. These end users
shall receive the same services provided through LSP at the
time of transfer. SWBT shall inform the Commission and the end
user's IXC(s) of Record of the names of all end users
transferred through this process. Applicable service
establishment charges for switching end users from LSP to SWBT
shall be assessed to LSP.
6.7 Within five (5) days of the transfer (fifty (50) days past
LSP's due date), SWBT shall notify all affected end users that
because of an LSP's failure to pay, their service is now being
provided by SWBT. SWBT shall also notify the end user that
they have thirty (30) days to select a local service provider.
6.8 SWBT may discontinue service to LSP upon failure to pay
undisputed charges as provided in this section, and shall have
no liability to LSP or LSP end users in the event of such
disconnection.
6.9 If any end user fails to select a local service provider
within thirty (30) days of the change of providers (eighty
(80) days past LSP's due date), SWBT shall terminate the end
user's service. SWBT shall notify the Commission and the end
user's
<PAGE> 258
APPENDIX-RESALE (MO, AR & KS)
PAGE 12 OF 12
IXC of Record of the names of all end users whose service has
been terminated. The end user shall be responsible for any and
all charges incurred during the selection period.
6.10 Nothing herein shall be interpreted to obligate SWBT to
continue to provide service to any such end users. Nothing
herein shall be interpreted to limit any and all disconnection
rights SWBT may have with regard to such end users.
6.11 After disconnect procedures have begun, SWBT shall not accept
service orders from LSP until all unpaid charges are paid.
SWBT shall have the right to require a deposit equal to one
month's charges (based on the highest previous month of
service from SWBT) prior to resuming service to LSP after
disconnect for nonpayment.
<PAGE> 259
APPENDIX-RESALE - EXHIBIT A
PAGE 1 OF 2
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
MISSOURI
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Life Line and Link Up America Services 13.2% 13 2%
Residence 1 Party 13.2% 13 2%
Residence Measured 13.2% 13.2%
EXPANDED LOCAL CALLING
Mandatory EAS 13.2% 13.2%
Optional Metropolitan Calling Area 13.2% 13.2%
CALL MANAGEMENT SERVICES 13.2% 13.2%
Auto Redial 13.2% 13.2%
Call Blocker 13.2% 13.2%
Call Forwarding 13.2% 13.2%
Call Forwarding - Busy Line 13.2% 13.2%
Call Forwarding - Busy Line/Don't Answer 13.2% 13.2%
Call Forwarding - Don't Answer 13.2% 13.2%
Call Return 13.2% 13.2%
Call Trace 13.2% 13.2%
Call Waiting 13.2% 13.2%
Calling Name 13.2% 13.2%
Calling Number 13.2% 13.2%
ComCall 13.2% 13.2%
Personalized Ring (1 dependent number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 1st number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 2nd number) 13.2% 13.2%
Priority Call 13.2% 13.2%
Remote Access to Call Forwarding 13.2% 13.2%
Selective Call Forwarding 13.2% 13.2%
Simultaneous Call Forwarding 13.2% 13.2%
Speed Calling 8 13.2% 13.2%
Three Way Calling 13.2% 13.2%
DIRECTORY ASSISTANCE SERVICES 13.2% 13.2%
ISDN
Digiline(sm) 13.2% 13.2%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 260
APPENDIX RESALE - EXHIBIT A
PAGE 2 OF 2
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
MISSOURI
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
OTHER
Customer Alerting Enablement 13.2% 13.2%
Grandfathered Services 13.2% 13.2%
Hot Line 13.2% 13.2%
Local Operator Assistance Service 13.2% 13.2%
Packages 13.2% 13.2%
Promotions (greater than 90 days) 13.2% 13.2%
Preferred Number Service 13.2% 13.2%
Toll Restriction 13.2% 13.2%
Voice Dial 13.2% 13.2%
Warm Line 13.2% 13.2%
TOLL
900 Call Restriction 13.2% 13.2%
Home 800(SM) 13.2% 13.2%
IntraLATA MTS 13.2% 13.2%
Billed Number Screen (Toll Billing Exception) 13.2% 13.2%
NON-TELECOMMUNICATION SERVICES
Bill Plus(SM) 13.2% 13.2%
Consolidated Billing 13.2% 13.2%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 13.2% 13.2%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 261
APPENDIX RESALE - EXHIBIT B
PAGE 1 OF 3
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
MISSOURI
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Business 1 Party 13.2% 13.2%
Business - Multi-Line Hunting 13.2% 13.2%
Business - Measured 13.2% 13.2%
Business - Measured (HTG Class of Service) 13.2% 13.2%
Semi Public Coin Telephone Service 13.2% 13.2%
EXPANDED LOCAL CALLING
Mandatory EAS 13.2% 13.2%
Optional Metropolitan Calling Area 13.2% 13.2%
CALL MANAGEMENT SERVICES
Auto Redial 13.2% 13.2%
Call Blocker 13.2% 13.2%
Call Forwarding 13.2% 13.2%
Call Forwarding - Busy Line 13.2% 13.2%
Call Forwarding - Busy Line/Don't Answer 13.2% 13.2%
Call Forwarding - Don't Answer 13.2% 13.2%
Call Return 13.2% 13.2%
Call Trace 13.2% 13.2%
Call Waiting 13.2% 13.2%
Calling Name 13.2% 13.2%
Calling Number 13.2% 13.2%
ComCall(R) 13.2% 13.2%
Personalized Ring (1 dependent number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 1st number) 13.2% 13.2%
Personalized Ring (2 dependent numbers - 2nd number) 13.2% 13.2%
Priority Call 13.2% 13.2%
Remote Access to Call Forwarding 13.2% 13.2%
Selective Call Forwarding 13.2% 13.2%
Simultaneous Call Forwarding 13.2% 13.2%
Speed Calling 30 13.2% 13.2%
Three Way Calling 13.2% 13.2%
DID
DID (First Block of 100 - Category 1) 13.2% 13.2%
DID (First Block of 10 - Category 1) 13.2% 13.2%
DID (Ea. adl. block of 10 after first 10 - Category 1) 13.2% 13.2%
DID (Ea. adl. block of 100 after first 100 - Category 2) 13.2% 13.2%
DID (with dial pulse) 13.2% 13.2%
DID (with Multifrequency) 13.2% 13.2%
DID (with Dual-Tone Multifrequency) 13.2% 13.2%
TRUNKS
Trunk 13.2% 13.2%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 262
APPENDIX RESALE - EXHIBIT B
PAGE 2 OF 3
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
MISSOURI
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
AIN
Area Wide Networking 13.2% 13.2%
Disaster Routing Service 13.2% 13.2%
Intelligent Redirect(SM) 13.2% 13.2%
IntelliNumber 13.2% 13.2%
Positive ID 13.2% 13.2%
OTHER
Customer Alerting Enablement 13.2% 13.2%
Grandfathered Services 13.2% 13.2%
Hot Line 13.2% 13.2%
Hunting 13.2% 13.2%
Local Operator Assistance Service 13.2% 13.2%
Night Number associated with Telephone Number 13.2% 13.2%
Night Number associated with a Terminal 13.2% 13.2%
Packages 13.2% 13.2%
Promotions (greater than 90 days) 13.2% 13.2%
Telebranch(R) 13.2% 13.2%
Toll Restriction 13.2% 13.2%
TouchTone (Business) 13.2% 13.2%
TouchTone (Trunk) 13.2% 13.2%
Voice Dial 13.2% 13.2%
Warm Line 13.2% 13.2%
ISDN
Digiline(SM) 13.2% 13.2%
Select Video Plus(R) 13.2% 13.2%
Smart Trunk(SM) 13.2% 13.2%
DIRECTORY ASSISTANCE SERVICES 13.2% 13.2%
TOLL
800 Service 13.2% 13.2%
900 Call Restriction 13.2% 13.2%
Billed Number Screen (Toll Billing Exception) 13.2% 13.2%
IntraLATA MTS 13.2% 13.2%
MaxiMizer 800(R) 13.2% 13.2%
OutWATS 13.2% 13.2%
PLEXAR(R)
Plexar I(R) 13.2% 13.2%
Plexar II(R) 13.2% 13.2%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 263
APPENDIX RESALE - EXHIBIT B
PAGE 3 OF 3
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
MISSOURI
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
PRIVATE LINE
Analog Private Lines 13.2% 13.2%
Business Video Service 13.2% 13.2%
DOVLink 13.2% 13.2%
Frame Relay 13.2% 13.2%
MegaLink II(R) 13.2% 13.2%
MegaLink III(R) 13.2% 13.2%
MicroLink I(R) 13.2% 13.2%
Multi Point Video 13.2% 13.2%
Network Recongiguration Service 13.2% 13.2%
NON-TELECOMMUNICATION SERVICES
Bill Plus(SM) 13.2% 13.2%
Consolidated Billing 13.2% 13.2%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 13.2% 13.2%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 264
APPENDIX RESALE - EXHIBIT C
PAGE 1 OF 1
APPENDIX RESALE - EXHIBIT C
MISSOURI
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
<TABLE>
<S> <C>
A. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand for the
establishment of LSP specific Call Branding. A Per Call charge also applies.
When there are subsequent changes to the branding announcement, an additional
non-recurring charge will also apply per change.
Rate per initial load group $2,325.00
Rate per load for Brand change $2,325.00
Per Call $0.02
B. DIRECTORY ASSISTANCE RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial load of
LSP's DA Services Rate/Reference Information. An additional non-recurring charge
applies for each subsequent change to Rate/Reference Information.
Rate per initial load $3,850.00
Rate per subsequent rate change $2,850.00
Rate per subsequent reference change $2,850.00
C. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial load of
LSP's Operator Services Rate/Reference Information. An additional non-recurring
charge applies for each subsequent change to Rate/Reference Information.
Rate per initial load $3,850.00
Rate per subsequent rate change $2,850.00
Rate per subsequent reference change $2,850.00
</TABLE>
<PAGE> 265
APPENDIX UNE
Page 2 of 16
APPENDIX: UNBUNDLED NETWORK ELEMENTS (UNE)
I. Introduction
A. This Appendix Unbundled Network Elements to the Agreement sets
forth the unbundled Network Elements that SWBT agrees to offer
to LSP. The specific terms and conditions that apply to the
unbundled Network Elements are described below. The prices for
Network Elements are set forth in Appendix Pricing Schedule.
II. General Terms and Conditions
A. SWBT and LSP may agree to connect LSP's facilities with SWBT's
network at any technically feasible point for access to
unbundled Network Elements for the provision by LSP of a
Telecommunications Service. Unbundled Network Elements may not
be connected to or combined with SWBT access services or other
SWBT tariffed service offerings with the exception of tariffed
collocation services.
B. SWBT will provide LSP access to the unbundled Network Elements
to permit LSP to combine such Network Elements with other
Network Elements obtained from SWBT or with network components
provided by itself to provide Telecommunications Services to
its customers, provided that such combination is technically
feasible and would not impair the ability of other carriers to
obtain access to other unbundled network elements or to
interconnect with SWBT's network. Any request by LSP for SWBT
to provide a type of connection between Network Elements that
is not currently being utilized in the SWBT network and is not
otherwise provided for under this Agreement will be made in
accordance with the Bona Fide Request process described in
Section III.
C. When LSP orders unbundled network elements, SWBT will perform
the functions necessary to combine unbundled network elements
in any manner required by law, even if those elements are not
ordinarily combined in SWBT's network, provided that such
combination is a) technically feasible; and b) would not
impair the ability of other carriers to obtain access to
unbundled network elements or to interconnect with SWBT's
network as provided in F.C.C. Rule 51.315 (c).
D. LSP is responsible to designate each network element being
ordered from SWBT and how those network elements are to be
combined. Where multiple SWBT network elements are to be
combined, LSP must designate the order in which the elements
are to be connected. Where SWBT network elements are to be
connected to another carrier's network element(s), LSP will
designate how SWBT network element(s) are to be connected
(i.e., cross connected) to the network element(s) of the other
telecommunications carrier.
<PAGE> 266
APPENDIX UNE
Page 3 of 16
E. Various subsections below list the Network Elements that LSP
and SWBT have identified as of the Effective Date of this
Agreement. SWBT will upon request of LSP and to the extent
technically feasible provide LSP additional Network Elements
or modifications to previously identified Network Elements for
the provision by LSP of a Telecommunications Service. Such
requests will be processed in accordance with the Bona Fide
Request process.
F. Unbundled Network Elements are provided under this agreement
over such routes, technologies, and facilities as SWBT may
elect at its own discretion. If LSP requests special
facilities, equipment or routing of unbundled network elements
such requests will be handled under the Bona Fide Request
process.
G. Subject to the terms herein, SWBT is responsible only for the
installation, operation and maintenance of the Network
Elements it provides. SWBT is not otherwise responsible for
the Telecommunications Services provided by LSP through the
use of those elements.
H. Where unbundled elements provided to LSP are dedicated to a
single end user, if such elements are for any reason
disconnected they will be made available to SWBT for future
provisioning needs. The LSP agrees to relinquish control of
any such unbundled element concurrent with the disconnection
of a LSPs end user's service.
I. The Parties acknowledge that the Commission may decline to
require unbundling of Network Elements beyond those identified
in 47 CFR Section 51.319 if the Commission concludes that: (1)
such Network Element is proprietary or contains proprietary
information that will be revealed if such Network Element is
provided to LSP on an unbundled basis, and LSP could offer the
same proposed Telecommunications Service through the use of
other, nonproprietary Network Elements within SWBT's network;
or (2) the Commission concludes that the failure of SWBT to
provide access to such Network Element would not decrease the
quality of, and would not increase the financial or
administrative cost of, the Telecommunications Service LSP
seeks to offer, compared with providing that service over
other unbundled Network Elements in SWBT's network.
J. LSP will, upon request of SWBT, and to the extent technically
feasible, provide SWBT access to Network Elements for the
provision of SWBT's telecommunications services in
accordance with the Act. Such request by SWBT will be
processed in accordance with the Bona Fide Request process.
K. Each Party is solely responsible for the services it provides
to its end users and to other Telecommunications Carriers.
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L. Network elements provided to LSP under the provisions of this
Appendix will remain the property of SWBT.
M. SWBT will provide network elements where technically feasible.
Where facilities and equipment are not available, LSP may
request and, to the extent required by law and as SWBT may
otherwise agree, SWBT may provide Network Elements through the
Bona Fide Request process.
N. The elements provided pursuant to this Agreement will be
available to SWBT at times mutually agreed upon in order to
permit SWBT to make tests and adjustments appropriate for
maintaining the services in satisfactory operating condition.
No credit will be allowed for any interruptions involved
during such tests and adjustments.
O. LSP's use of any SWBT network element, or of its own equipment
or facilities in conjunction with any SWBT network element,
will not materially interfere with or impair service over any
facilities of SWBT, its affiliated companies or its connecting
and concurring carriers involved in its services, cause damage
to their plant, impair the privacy of any communications
carried over their facilities or create hazards to the
employees of any of them or the public. Upon reasonable
written notice and opportunity to cure, SWBT may discontinue
or refuse service if LSP violates this provision.
P. When converting a SWBT account to an LSP account or between
LSP and another provider, the conversion will be handled as a
disconnect of the current account and a new connect of the
unbundled network elements account.
Q. Performance of Network Elements
1. Each Network Element provided by SWBT to LSP will
meet applicable regulatory performance standards and
be at least equal in quality and performance as that
which SWBT provides to itself. Each Network Element
will be provided in accordance with SWBT Technical
Publications or other written descriptions, if any,
as changed from time to time by SWBT at its sole
discretion. LSP may request, and SWBT will provide,
to the extent technically feasible, Network Elements
that are superior or lesser in quality than SWBT
provides to itself and such service will be requested
pursuant to the Bona Fide Request process.
2. Nothing in this Agreement will limit either Party's
ability to modify its network through the
incorporation of new equipment, new software or
otherwise. Each Party will provide the other Party
written notice of any such upgrades in its network
which will materially impact the other Party's
service consistent with the timelines established by
the FCC in the Second Report and Order, CC Docket
96-98. LSP will be solely responsible, at its own
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expense, for the overall design of its
telecommunications services and for any redesigning
or rearrangement of its telecommunications services
which may be required because of changes in
facilities, operations or procedure of SWBT, minimum
network protection criteria, or operating or
maintenance characteristics of the facilities.
R. LSP will connect equipment and facilities that are compatible
with the SWBT Network Elements and will use Network Elements
in accordance with the applicable regulatory standards and
requirements referenced in paragraph II, Q.
III. Bona Fide Request
A. Sections IV - XI below identify specific unbundled Network
Elements and provide the terms and conditions on which SWBT
will offer them to LSP. Any request by LSP for an additional
unbundled Network Element, or modifications to previously
identified Network Elements, both to the extent technically
feasible, will be considered under this Bona Fide Request
process. Where facilities and equipment are not available, LSP
may request and SWBT may agree to provide, Network Elements
through the Bona Fide Request process.
B. Each Party will promptly consider and analyze access to new
unbundled Network Element with the submission of a Network
Element Bona Fide Request hereunder. The Network Element Bona
Fide Request process set forth herein does not apply to those
services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. Oct. 19, 1992) paragraph 259
and n. 603 and subsequent rulings.
C. A Network Element Bona Fide Request will be submitted in
writing and will include a technical description of each
requested Network Element, the date when interconnection is
requested and the projected quantity of interconnection points
ordered with a demand forecast.
D. The requesting Party may cancel a Network Element Bona Fide
Request at any time, but will pay the other Party's reasonable
and demonstrable costs of processing and/or implementing the
Network Element Bona Fide Request up to the date of
cancellation.
E. Within ten (10) business days of its receipt, the receiving
Party will acknowledge receipt of the Network Element Bona
Fide Request.
F. Except under extraordinary circumstances, within thirty (30)
days of its receipt of a Network Element Bona Fide Request,
the receiving Party will provide to the requesting Party a
preliminary analysis of such Network Element Bona Fide
Request. The preliminary analysis will confirm that the
receiving Party will offer access to the Network Element or
will provide a detailed explanation that access to the Network
Element is not
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technically feasible and/or that the request does not qualify
as a Network Element that is required to be provided under the
Act.
G. If the receiving Party determines that the Network Element
Bona Fide Request is technically feasible and otherwise
qualifies under the Act, it will promptly proceed with
developing the Network Element Bona Fide Request upon receipt
of written authorization from the requesting Party. When it
receives such authorization, the receiving Party shall
promptly develop the requested services, determine their
availability, calculate the applicable prices and establish
installation intervals.
H. Unless the Parties otherwise agree, the Network Element Bona
Fide Request must be priced in accordance with Section 252(d)
(1) of the Act.
I. As soon as feasible, but not more than ninety (90) days after
its receipt of authorization to proceed with developing the
Network Element Bona Fide Request, the receiving Party shall
provide to the requesting Party a Network Element Bona Fide
Request quote which will include, at a minimum, a description
of each Network Element, the availability, the applicable
rates and the installation intervals.
J. Within thirty (30) days of its receipt of the Network Element
Bona Fide Request quote, the requesting Party must either
confirm its order for the Network Element Bona Fide Request
pursuant to the Network Element Bona Fide Request quote or
seek arbitration by the Commission pursuant to Section 252 of
the Act.
K If a Party to a Network Element Bona Fide Request believes
that the other Party is not requesting, negotiating or
processing the Network Element Bona Fide Request in good
faith, or disputes a determination, or price or cost quote,
such Party may seek mediation or arbitration by the Commission
pursuant to Section 252 of the Act.
IV. Network Interface Device
A. The Network Interface Device (NID) is a cross-connect used to
connect loop facilities to inside wiring. The fundamental
function of the NID is to establish the official network
demarcation point between a carrier and its end-user customer.
The NID contains the appropriate and accessible connection
points or posts to which the service provider and the end-user
customer each make its connections.
B. LSP may connect to the customer's inside wire at the SWBT NID,
as is, at no charge. Any repairs, upgrade and rearrangements
required by LSP will be performed by SWBT based on time and
material charges.
C. LSP will provide its own NID and will interface to the
customer's premises wiring through connections in the customer
chamber of the SWBT NID.
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D. With respect to multiple dwelling units or multiple-unit
business premises, LSP will provide its own NID, will connect
directly with the customer's inside wire and will not require
any connection to the SWBT NID, unless such premises are
served by "single subscriber" type NIDs.
E. The SWBT NIDs that LSP uses under this Appendix will be those
installed by SWBT to serve its customers.
F. LSP will not attach to or disconnect SWBT's ground. LSP will
not cut or disconnect SWBT's loop from its protector. LSP will
not cut any other leads in the NID. LSP will protect all
disconnected leads with plastic sleeves and will store them
within the NID enclosure. LSP will tighten all screws or lugs
loosened by LSP in the NID's enclosure and replace all
protective covers.
V. Local Loop
A. A "loop" is a dedicated transmission facility between a
distribution frame (or its equivalent) in a SWBT central
office and an end user customer premises.
B. SWBT will provide at the rates, terms, and conditions set out
in Appendix Pricing Schedule the following:
1. The 2-Wire analog loop supports analog voice
frequency, voice band services with loop start
signaling within the frequency spectrum of
approximately 300 Hz and 3000 Hz
2. SWBT will offer 5 dB conditioning on a 2-wire analog
loop as the standard conditioning option available.
3. The 4-Wire analog loop provides a non-signaling voice
band frequency spectrum of approximately 300 Hz to
3000 Hz. The 4-Wire analog loop provides separate
transmit and receive paths.
4. The 2-Wire digital loop 160 Kbps supports Basic Rate
ISDN (BRI) digital exchange services. The 2-Wire
digital loop 160 Kbps supports usable bandwidth up to
160 Kbps.
5. The 4-Wire digital loop 1.544 Mbps will support DS1
service including Primary Rate ISDN (PRI). The 4-wire
digital loop 1.544 Mbps supports usable bandwidth up
to 1.544 Mbps.
C. If LSP requests one or more unbundled Loops serviced by
Integrated Digital Loop Carrier (IDLC) or Remote Switching
technology, SWBT will, where available, move the requested
unbundled Loop(s) to a spare, existing physical or a universal
digital loop carrier unbundled Loop at no additional charge to
LSP. If, however, no spare unbundled Loop is available, SWBT
will within two business days, excluding weekends and
holidays, of LSP's request notify LSP of the lack of
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available facilities. LSP may request alternative arrangements
through the Bona Fide Request process.
D. In addition to any liability provisions in this agreement,
SWBT does not guarantee or make any warranty with respect to
unbundled loops when used in an explosive atmosphere. LSP will
indemnify, defend and hold SWBT harmless from any and all
claims by any person relating to LSP's or LSP end user's use
of unbundled loops in an explosive atmosphere.
VI. Local Switching
A. The local switching element encompasses line-side and trunk
side facilities plus the features, functions and capabilities
of the switch. The line side facilities include the connection
between a loop termination at, for example, a main
distribution frame (MDF), and a switch line card. Trunk-side
facilities include the connection between, for example, trunk
termination at a trunk-side cross-connect panel and a trunk
card. The local switching element includes all features,
functions, and capabilities of the local switch, including but
not limited to the basic switching function of connecting
lines to lines, lines to trunks, trunks to lines and trunks to
trunks. It also includes the same basic capabilities that are
available to SWBT customers, such as a telephone number, dial
tone, signaling and access to 911, operator services,
directory assistance, and features and functions necessary to
provide services required by law. In addition, the local
switching element includes all vertical features that the
switch is capable of providing, including custom calling,
CLASS features, and centrex-like capabilities.
B. SWBT will route InterLATA calls as defined by the exchange
dialing plan via the existing PIC process when LSP uses Local
Switching elements. Until such time that the commission
mandates intraLATA presubscription, SWBT will route IntraLATA
Toll calls as defined by the exchange dialing plan when LSP
uses Local Switching elements and will provide intraLATA toll
to LSP without other usage sensitive charges. When the
commission mandates intraLATA presubscription, SWBT will route
IntraLATA Toll calls to the presubscribed carrier.
C. When LSP requests Unbundled Common Transport, SWBT's Local
Switching element will route local calls on SWBT's common
network to the appropriate trunk or lines for call origination
or termination.
D. SWBT will provide the Local Switching element only with
standard central office treatments (e.g., busy tones, vacant
codes, fast busy, etc.), supervision and announcements.
E. SWBT will control congestion points such as those caused by
radio station call-ins, and network routing abnormalities,
using capabilities such as Automatic Call Gapping, Automatic
Code Gapping, Automatic
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Congestion Control, and Network Routing Overflow. LSP agrees
to respond to SWBT's notifications regarding network
congestion.
F. SWBT will provide switch interfaces to adjuncts in the same
manner it provides them to itself. LSP requests for use of
SWBT adjuncts will be handled through the Bona Fide Request
process.
G. SWBT will allow LSP to designate the features and functions
that are activated on a particular unbundled switch port to
the extent such features and functions are available or as may
be requested by the Bona Fide Request process.
H. Switch Ports
1. Analog Line Port: A line side switch connection
available in either a loop or ground start signaling
configuration used primarily for Switched voice
communications.
2. Analog (DID) Trunk Port: A trunk side switch
connection used for voice communications via customer
premises equipment primarily provided by a Private
Branch Exchange (PBX) switch.
3. ISDN Basic Rate Interface (BRI) Port: A line side
switch connection which provides ISDN Basic Rate
Interface (BRI) based capabilities.
4. ISDN Primary Rate Interface (PRI) Trunk Side Port:
trunk side switch connection which provides Primary
Rate Interface (PRI) ISDN Exchange Service
capabilities.
VII. Tandem Switching
A. Tandem Switching is defined as: (1) trunk-connect facilities,
including but not limited to the connection between trunk
termination at a cross-connect panel and a switch trunk card,
(2) the basic switching function of connecting trunks to
trunks; and (3) all technically feasible functions that are
centralized in tandem switches (as distinguished from separate
end-office switches), including but not limited to call
recording, the routing of calls to operator services, and
signaling conversion features.
B. Tandem Switching will provide trunk to trunk connections for
local calls between two end offices.
C. To the extent all signaling is SS7, Tandem Switching will
preserve CLASS/LASS features and Caller ID as traffic is
processed. Additional signaling information and requirements
are provided in Section IX.
VIII. Interoffice Transport
A. The Interoffice Transport network element is defined as SWBT
interoffice transmission facilities dedicated to a particular
customer or carrier, or shared by more than one customer or
carrier, that provide
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telecommunications between wire centers owned by SWBT or LSP,
or between switches owned by SWBT or LSP. Interoffice
Transport includes Common Transport and Dedicated Transport.
B. SWBT will be responsible for the engineering, provisioning,
and maintenance of the underlying equipment and facilities
that are used to provide Interoffice Transport.
C. Common Transport - Common Transport is a shared interoffice
transmission path between SWBT switches. Common Transport will
permit LSP to connect its Unbundled Local Switching element
purchased from SWBT with Common Transport to transport the
local call dialed by the Unbundled Local Switching element to
its destination through the use of SWBT's common transport
network. Common Transport will also permit LSP to utilize
SWBT's common network between a SWBT tandem and a SWBT end
office.
D. Dedicated Transport
1. Dedicated Transport is an interoffice transmission
path dedicated to a particular customer or carrier
that provides telecommunications between wire centers
owned by SWBT or LSP, or between switches owned by
SWBT or LSP.
2. SWBT will offer Dedicated Transport as a circuit
(e.g., DS1, DS3) dedicated to LSP.
3. SWBT will provide Dedicated Transport at the
following speeds: DS1 (1.544 Mbps), DS3 (45 Mbps),
OC3 (155.520 Mbps) and OC12 (622.080 Mbps). In
addition, SWBT offers OC48 (2488.320 Mbps) bandwidth
as an option for interoffice capacity.
4. In addition to any liability provisions in this
agreement, SWBT does not guarantee or make any
warranty with respect to entrance facilities when
used in an explosive atmosphere. LSP will indemnify,
defend and hold SWBT harmless from any and all claims
by any person relating to LSP's or LSP end user's use
of unbundled loops in an explosive atmosphere.
E. Digital Cross-Connect System (DCS) - SWBT will offer Digital
Cross-Connect System (DCS) in conjunction with the unbundled
dedicated transport element with the same functionality that
is offered to interexchange carriers.
IX. Signaling Networks and Call-Related Databases - Signaling Networks and
Call-Related Databases are Network Elements that includes Signaling
Link Transport, Signaling Transfer Points, and Service Control Points
and Call-Related Databases. Access to SWBT's signaling network and call
related databases will be provided as described in the following
Appendices: SS7, LIDB Validation, LIDB, CNAM, 800, and AIN.
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X. Operations Support Systems Functions
A. Operations Support Systems Functions consist of pre-ordering,
ordering, provisioning, maintenance and repair, and billing
functions supported by SWBT's databases and information.
B. SWBT will provide LSP access to its Operations Support Systems
Functions as outlined in Appendix OSS.
XI. Cross Connects
A. The cross connect is the media between the SWBT distribution
frame and an LSP designated collocation or to other SWBT
unbundled network elements purchased by LSP.
B. SWBT offers a choice of four types of cross connects with each
unbundled loop type. The applicable cross connects are as
follows:
1. Cross connect to DCS
2. Cross connect to MUX
3. Cross connect to Collocation
4. Cross connect to Switch Port
C. Cross connects must also be ordered with Unbundled Dedicated
Transport (UDT).
1. The LSP must specify when placing an UDT order, in
what order the unbundled network components are to be
connected.
2. The Cross Connect being requested must have a
compatible interface to each of the elements which
the Cross Connect is joining together.
3. The following cross connects are available with UDT:
a) Voice Grade 2-Wire
b) Voice Grade 4-Wire
c) DS0 - DCS to Collocation
d) DS1
e) DS3
f) OC3
g) OC12
h) OC48
XII. Pricing
A. Attached hereto as Appendix Pricing Schedule is a schedule
which reflects the prices at which SWBT agrees to furnish
Unbundled Network Elements to LSP. LSP agrees to compensate
SWBT for unbundled Network elements at the rates contained in
this Appendix. Unbundled Network Elements are available from
SWBT on a per unbundled Network Element basis at prices as
contained in Appendix Pricing Schedule.
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B. For any rate element and/or charge contained in or referenced
to in this Appendix that are not listed in the attached
Appendix Pricing Schedule, including Bona Fide Requests, SWBT
and LSP will negotiate prices.
C. Unless otherwise stated, SWBT will render a monthly bill for
Network Elements provided hereunder. Remittance in full will
be due within thirty (30) days of receipt of invoice.
Interest will apply on overdue amounts.
D. SWBT will recover the costs of modifying its outside plant
facilities for LSP space requirements. These costs will be
recovered via the Bona Fide Request process described herein.
E. Recurring Charges
1. Unless otherwise listed below, where Rates are shown
as monthly, a month will be defined as a calendar
month. The minimum term for each monthly rated
element will be one (1) month. After the initial
month, billing will be on the basis of whole or
fractional months used. The minimum service period
for elements provided under the Bona Fide Request
process may be longer.
2. When an unbundled network element with a minimum
period greater than one month is discontinued prior
to the expiration of the minimum period, the
applicable charge will be the total monthly charges,
for the remainder of the minimum period.
3. The minimum service period for unbundled dedicated
transport elements is 12 months.
4. Where rates will be based on minutes of use, usage
will be accumulated at the end office or other
measurement point without any per call rounding and
total minutes by end office are rounded to the next
higher minute. LSP will pay for all usage on such
calls including those that are not completed due to
busy or don't answer conditions.
5. Where rates are based on miles, the mileage will be
calculated on the airline distance involved between
the locations. To determine the rate to be billed,
SWBT will first compute the mileage using the V&H
coordinates method, as set forth in the National
Exchange Carrier Association, Inc. Tariff F.C.C. No
4. When the calculation results in a fraction of a
mile, SWBT will round up to the next whole mile
before determining the mileage and applying rates.
F. Non-Recurring Charges
1. There are non-recurring charges for the first
connection on an LSP order as well as separate
non-recurring charges for each additional connection
associated with the same LSP order at the same LSP
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specified premises. When converting the SWBT account
to LSP or between LSP and another local service
provider, the conversion will be handled as a
disconnect of the current account and a new connect
of the unbundled network element account.
2. LSP will pay a non-recurring charge when an LSP adds
or removes a signaling point code. The rates and
charges for Signaling Point Code(s) are identified in
the Pricing Schedule. This charge also applies to
point code information provided by LSP allowing other
telecommunications providers to use LSP's SS7
signaling network.
3. A service order processing (Service Order) charge
will apply for each service order issued by SWBT to
process a request for installation, disconnection,
rearrangement, changes to or record orders for
unbundled elements.
G. Maintenance of Elements
1. The network elements provided by SWBT pursuant to
this Appendix will be maintained by SWBT. LSP or
others may not rearrange, move, disconnect, remove or
attempt to repair any facilities provided by SWBT,
other than by connection or disconnection to any
interface means used, except with the written consent
of SWBT.
2. If trouble occurs with unbundled network elements
provided by SWBT, LSP will first determine whether
the trouble is in LSP's own equipment and/or
facilities or those of the end user. If LSP
determines the trouble is in SWBT's equipment and/or
facilities, LSP will issue a trouble report to SWBT.
3. LSP will pay Time and Material charges when LSP
reports a suspected failure of a network element and
SWBT dispatches personnel to the end user's premises
or a SWBT central office and trouble was not caused
by SWBT's facilities or equipment. Time and Material
charges will include all technicians dispatched,
including technicians dispatched to other locations
for purposes of testing.
4. LSP will pay Time and Material charges when SWBT
dispatches personnel and the trouble is in equipment
or communications systems provided an entity by other
than SWBT or in detariffed CPE provided by SWBT,
unless covered under a separate maintenance
agreement.
5. If LSP issues a trouble report allowing SWBT access
to the end user's premises and SWBT personnel are
dispatched but denied access to the premises, then
Time and Material charges will apply
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for the period of time that SWBT personnel are
dispatched. Subsequently, if SWBT personnel are
allowed access to the premises, the charges discussed
herein will still apply.
6. Time and Material charges apply on a first and
additional basis for each half hour or fraction
thereof. If more than one technician is dispatched in
conjunction with the same trouble report, the total
time for all technicians dispatched will be
aggregated prior to the distribution of time between
the "First Half Hour or Fraction Thereof" and "Each
Additional Half Hour or Fraction Thereof" rate
categories. Basic Time is work related efforts of
SWBT performed during normally scheduled working
hours on a normally scheduled work day. Overtime is
work related efforts of SWBT performed on a normally
scheduled work day, but outside of normally scheduled
working hours. Premium Time is work related efforts
of SWBT performed other than on a normally scheduled
work day.
7. If LSP requests or approves a SWBT technician to
perform services in excess of or not otherwise
contemplated by the nonrecurring charges herein, LSP
will pay for any additional work to perform such
services, including requests for installation or
conversion outside of normally scheduled working
hours.
H. Other Pricing Terms and Conditions for Unbundled Local
Switching (ULS)
1. When LSP purchases Unbundled Local Switching, SWBT
will provide LSP the vertical features that the
switch is equipped to provide, as part of the usage
charges associated with ULS. LSP will pay
non-recurring charges to activate such features in
association with a particular ULS Port type. There
are two levels of non-recurring charges. The first
will apply when the features are activated at the
same time the port is established. A different
non-recurring charge applies when the feature is
activated subsequent to initial installation of the
port.
2. When the NXX of the telephone number provided to LSP
is one associated with an optional EAS arrangement,
LSP will pay a flat-rated monthly port additive for
the optional EAS toll package(s) inherent in the
telephone number.
3. LSP will pay the Toll Free Database query rate for
each query received and processed by SWBT's database.
When applicable, the charge for the additional
features (Designated 10-Digit Translation, Call
Validation and Call Handling and Destination) are per
query and in addition to the Toll Free Database query
charge, and will also be paid by LSP.
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4. Use of SWBT's SS7 signaling network will be provided
for unbundled local switching as set forth in
Appendix SS7. LSP does not separately order SS7 under
this method. LSP will be charged for the use of the
SWBT SS7 network on a per call basis when the SS7
network is used in conjunction with unbundled local
switching.
5. With Unbundled Local Switching, SWBT will make
available features that require resources outside the
switch, but LSP will pay additional charges (e.g.,
TCAP messages, SS7 Signaling, database queries, etc.)
for such features.
6. Associated with Unbundled Local Switching, LSP will
pay a non-recurring and a monthly recurring charge
for the establishment of common block for a
particular end user served by LSP. LSP will also pay
a non-recurring charge for activation of features
associated with individual ports and for subsequent
changes to features associated with individual ports.
These non-recurring charges are separate from the
service charges for service order processing.
I. Temporary Rate Structure for Unbundled Local Switching (ULS)
1. LSP will be charged a per minute rate for each local
call generated by an unbundled local ULS port, when
both the originating and terminating telephone number
are in the same 11 digit CLLI end office. When LSP
uses a ULS port to initiate a call to a terminating
number associated with a different 11 digit CLLI, LSP
will pay a rate per minute for ULS plus a rate per
minute for UCT transport. The parties agree to assume
that SWBT's common transport network is used in this
latter case.
J. Standard Interim Structure for ULS
1. Intra Switch Calls - On calls originating and
terminating in the same switch:
a) LSP will pay ULS-O for a call originating
from an ULS line or trunk port that
terminates to a SWBT end user service line
or any other unbundled line or trunk port
which is connected to the same end office
switch.
b) LSP will pay ULS-O for a centrex-like ULS
intercom call in which the LSP's user dials
from one centrex-like station to another
centrex-like station in the same common
block defined system.
c) SWBT will not bill ULS-T for calls
originating from a bundled line port (a line
port associated with the provision
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of resold local service by SWBT, or
associated with local service to SWBT end
user) and terminating to a ULS Port.
d) SWBT will not bill ULS-T for Intraswitch
calls originated by an unbundled ULS port
even when the line to which the call is
terminated is another ULS Port.
2. Inter Switch Calls - On calls not originating and
terminating in the same switch:
a) When a call originates from an ULS Port and
is routed to SWBT's public network via a
connection to UCT, ULS-O will apply. Charges
for UCT as outlined below will also apply.
b) When an InterLATA toll call is initiated
from an ULS port it will be routed to the
end user PIC choice. ULS-O usage charges
will apply to LSP in such event.
c) Until IntraLATA Dialing Parity, all
intraLATA toll calls initiated by ULS Port
will be routed to SWBT. The LSP will pay
IntraLATA toll rates for such calls. No ULS
usage charges will apply to LSP in such
event.
d) After IntraLATA Dialing Parity, IntraLATA
toll calls from ULS Ports will be routed to
the end user PIC choice. ULS-O charges will
apply.
e) When LSP uses ULS Ports to initiate an
800/888 call, SWBT will perform the
appropriate database query and route the
call to the indicated IXC. No ULS-O charges
will apply to the ULS Port.
f) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from another of the same LSP's ports
or another LSP's ULS Port, ULS-T charges
will apply.
g) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from the bundled local exchange
service of SWBT, ULS-T charges will apply.
h) When a call terminates to an ULS Port via
terminating access services provided by SWBT
(e.g., FGA, FGB, FGD, WATS etc.) SWBT will
assess ULS-T charges.
i) When a call which has been routed from
another network terminates to an ULS line
port, ULS-T charges will apply.
<PAGE> 280
UNE PRICE LIST - MISSOURI
<TABLE>
<CAPTION>
Monthly/MOU Rates Nonrecurring Charge
Zone A Zone B Zone C Initial Additional
------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C>
Network Interface Device (NID)
Disconnect Loop from inside wiring, per NI N/A N/A N/A $60.40 $30.20
Unbundled Loops
2-Wire Analog $42.65 $27.10 $16.95 $53.20 $22.65
Conditioning for dB Loss $6.85 $6.85 $6.85 $46.45 $17.50
4-Wire Analog $85.30 $54.20 $33.90 $53.20 $22.65
2-wire Digital $84.35 $59.70 $44.40 $117.80 $61.65
4-wire Digital $167.10 $152.15 $135.25 $278.65 $110.00
Loop Cross Connects
Analog Loop to Collocation
2-wire cross connect $2.15 $2.15 $2.15 $71.25 $67.80
4-wire cross connect $4.20 $4.20 $4.20 $84.35 $80.90
Digital Loop to Collocation
2-wire cross connect $2.15 $2.15 $2.15 $71.25 $67.80
4-wire cross connect $11.35 $11.35 $11.35 $84.35 $80.90
Analog Loop to Multiplexer/Interoffice
2-wire cross connect $5.05 $5.05 $5.05 $104.85 $96.35
4-wire cross connect $6.80 $6.80 $6.80 $122.95 $114.45
Digital Loop to Multiplexer/Interoffice
2-wire cross connect $12.10 $12.10 $12.10 $104.85 $96.35
Analog Loop to DCS/Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Digital Loop to DCS/Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Local Switching
Interim Structure
Within the Same Central Office
Per Originating or Terminating MOU $0.005510 $0.006728 $0.006841 N/A N/A
Between Different Central Offices
Per Originating or Terminating MOU $0.012929 $0.015253 $0.015553 N/A N/A
Long Term Structure
Per Originating or Terminating MOU $0.005510 $0.006728 $0.006841 N/A N/A
Customized Routing ICB ICB ICB ICB ICB
Port Charge Per Month
Analog Line Port $3.40 $3.40 $3.40 $81.90 $73.45
Analog Trunk Side (DID) $23.85 $23.85 $23.85 $140.70 --
BRI Port $6.70 $6.70 $6.70 $13.30 $7.25
PRI Port $198.70 $198.70 $198.70 $441.10 $202.60
Feature Activation per Port Type ICB ICB ICB ICB ICB
Centrex-like System Charges ICB ICB ICB ICB ICB
EAS Port Additive $24.80 $24.80 $24.80 NA NA
Tandem Switching
per Minute Of Use $0.002795 $0.002795 $0.002795 -- --
Common Transport
per Minute Of Use $0.000511 $0.000399 $0.000473 -- --
Dedicated Transport
Entrance Facility:
DS1 $148.95 $148.95 $148.95 $628.00 $456.00
DS3 $1,805.00 $1,805.00 $1,805.00 $637.00 $496.00
Interoffice Transport:
DS1 First Mile $69.00 $69.00 $69.00 $408.00 $314.00
</TABLE>
Page 1 of 2
<PAGE> 281
UNE PRICE LIST - MISSOURI
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Each Additional Mile $17.70 $17.70 $17.70 N/A N/A
DS3 First Mile $933.00 $933.00 $933.00 $473.00 $341.00
Each Additional Mile $118.00 $118.00 $118.00 N/A N/A
Dedicated Transport Cross Connects
Voice Grade 2-wire NC NC NC NC NC
Voice Grade 4-wire NC NC NC NC NC
DS0 to DCS NC NC NC NC NC
DS1 NC NC NC NC NC
DS3 NC NC NC NC NC
Digital Cross-Connect System
DCS Port Charge
DSO $12.00 $12.00 $12.00 $20.00 N/A
DS1 $45.14 $45.14 $45.14 $43.00 N/A
DS3 $490.05 $490.05 $490.05 $32.00 N/A
DCS Establishment Charge N/A N/A N/A $1,722.00 N/A
Database Modification Charge N/A N/A N/A $80.00 N/A
Reconfiguration Charge N/A N/A N/A $1.25 N/A
Service Order Charges - Unbundled Elements Simple Complex
New Service $60.00 $245.00
Change $58.00 $136.00
Record $36.00 $114.00
Disconnect $30.00 $65.00
Nonrecurring Charge
Maintenance of Service Charges Initial Additional
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
Time and Material Charges
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
</TABLE>
Page 2 of 2
<PAGE> 282
APPENDIX WIRELESS
PAGE 2 0F 5
APPENDIX WIRELESS
This Appendix sets forth the terms and conditions under which the Parties will
distribute revenue from their joint provision of Wireless Interconnection
Service for traffic originated on a Commercial Mobile Radio Service (CMRS)
Provider's network and terminating through the Parties' respective wireline
switching networks within a Local Access and Transport Area (LATA). The Parties
will be compensated under this Appendix only to the extent that they are not
been compensated for Wireless Interconnection Service under other tariffs,
settlement agreements, contracts or other mechanism. This Appendix is subject to
the terms and conditions of applicable tariffs.
1.0 Definitions
1.1. Wireless Interconnection Service - The interchange of traffic
originated from a Commercial Mobile Radio Service (CMRS)
Provider's Mobile Telephone Switching Office (MTSO) through
SWBT's or the LSP's point of switching for termination on the
relevant Party's wireline switching network.
1.2. Commercial Mobile Radio Service (CMRS) Provider - A radio
common carrier provider of domestic public cellular
telecommunication service, as defined in Part 22, Part 24, or
Part 90 of the FCC Rules and Regulations.
1.3. End Office - SWBT or LSP switching system where exchange
service customer station loops are terminated for the purpose
of interconnection to each other and to the network.
1.4. Local Access and Transport Area ("LATA") - A geographic area
marking the boundaries beyond which a Bell Operating Company
formerly could not carry telephone calls pursuant to the terms
of the Modification of Final Judgment (MFJ), U.S. vs. American
Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C. 1983), affirmed sub
nom. Maryland v. United States, 460 U.S. 1001 (1983).
1.5. Local Calling Area or Local Calling Scope - That area in which
the message telephone exchange service between two or more end
offices, without a toll charge, is provided.
1.6. Minutes of Use (MOU) - For the purposes of this Appendix, MOU
means the Terminating Traffic as recorded by the Primary
Company or MOU provided by the CMRS Provider to the Primary
Company where the Primary Company is unable to measure the
actual terminating usage.
1.7. Mobile Telephone Switching Office ("MTSO") - A CMRS Provider's
switching equipment or terminal used to provide CMRS
Provider's switching services or,
<PAGE> 283
APPENDIX WIRELESS
PAGE 3 0F 5
alternatively, any other point of termination designated by
the CMRS Provider. The MTSO directly connects the CMRS
Provider's customers within its licensed serving area to the
Primary Company's facilities.
1.8. Primary Company - The Party that provides the End Office or
Tandem Office where the CMRS Provider chooses to connect
terminating traffic. The Primary Company also bills the CMRS
Provider for Wireless Interconnection Service.
1.9. Revenues - Those monies the Primary Company bills and collects
from the CMRS Provider for jointly provided Wireless
Interconnection Service.
1.10. Secondary Company - The Party that receives Terminating
Traffic from the Primary Company.
1.11. Tandem Office - A Party's switching system that provides an
intermediate switching point for traffic between end offices
or the network.
1.12. Terminating Traffic - That traffic which is delivered by a
CMRS Provider to the Primary Company for termination at a
point on the intraLATA wireline switching network.
2.0 ADMINISTRATION OF REVENUE DISTRIBUTION
2.1. The Primary Company will compute, bill, collect and distribute
the revenue for jointly provided Wireless Interconnection
Service for calls terminating within a LATA. On jointly
provided Wireless Interconnection Service, the Primary Company
will distribute a portion of the Local Transport (LT) Revenues
as described below with the Secondary Company for its part in
terminating traffic from the CMRS Provider. The Primary
Company will distribute applicable Local Switching (LS) and
Carrier Common Line (CCL) charges which are collected from the
CMRS Provider to the Secondary Company, as described below.
2.2. Distribution of revenues will be computed using the rate
elements as defined in SWBT's applicable Wireless
Interconnection Tariff.
2.3. For terminating traffic, actual monthly wireless MOU will be
measured by the Primary Company for each office in the LATA or
provided to the Primary Company by the CMRS Provider in those
cases where the Primary Company is unable to measure the
actual terminating usage.
2.4. Each month, the amount of CCL and LS revenue (based on the
rates in the Primary Company's applicable tariffs) due the
Secondary Company from the Primary Company will be determined
by totaling the actual terminating MOU associated with each of
the Secondary Company's end offices and multiplying those MOU
by the appropriate rates as set out above. The LT revenues due
to the
<PAGE> 284
APPENDIX WIRELESS
PAGE 4 0F 5
Secondary Company will be determined for each Secondary
Company end office by multiplying the billed MOU by the
appropriate LT rate multiplied by the applicable end office
percentage ownership of facilities listed in Exhibit A to this
Appendix.
2.5. The Primary Company will prepare a revenue and usage statement
on a monthly basis. Within 90 calendar days after the end of
each billing period, except in cases of disputes, the Primary
Company will remit the compensation amount due the Secondary
Company. When more than one compensation amount is due, they
may be combined into a single payment. No distribution will be
made for the revenue the Primary Company is unable to collect.
2.6. The revenue and usage statement will contain the following
information:
2.6.1. The number of MOU for each of the Secondary
Company's end offices, the corresponding rate elements
to be applied to the MOUs for each end office, and the
resulting revenues;
2.6.2. The total of the MOU and revenues for the
Secondary Company;
2.6.3. The percent ownership factor used to
calculate the distribution of Local Transport revenues;
and,
2.6.4. Adjustments for uncollectibles.
2.7. The Parties agree that revenue distribution under this
Appendix will apply as of the effective date of the Agreement.
The Primary Company will start revenue distribution on usage
within 60 calendar days from the date this Appendix is
effective.
3.0 TERMINATION PROVISIONS
3.1. This Appendix shall remain in effect until terminated by
either Party upon a minimum of 30 calendar days written notice
by such Party to the designated representative of the other.
3.2. This Appendix may be terminated by an order of an appropriate
regulatory commission or a court of competent jurisdiction.
4.0 MISCELLANEOUS PROVISIONS
4.1. Exhibit A to this Appendix is attached and incorporated into
this Appendix by reference. From time to time, by written
agreement of both parties, new Exhibits
<PAGE> 285
APPENDIX WIRELESS
PAGE 5 OF5
may be substituted for the attached Exhibit A, superseding and
canceling the Exhibit A previously in effect.
4.2. Each party will promptly upon request, furnish to the other
such information as may reasonably be required to perform
under this Appendix.
5.0 NOTICE
5.1. In the event any notices are required under the terms of this
Appendix, they shall be sent by registered mail, return
receipt requested to:
if to SWBT Jeff Fields
if to LSP Richard Weinstein
<PAGE> 286
APPENDIX WIRELESS
EXHIBIT A
PAGE 1 OF 1
EXHIBIT A TO APPENDIX WIRELESS
END OFFICE PERCENT OWNERSHIP OF LOCAL TRANSPORT FACILITIES
CLLI CODE NPA-NXX % OWNERSHIP OF TRANSPORT
FACILITIES
<PAGE> 287
APPENDIX WP
PAGE 2 OF 5
APPENDIX WP
WHITE PAGES DIRECTORY APPENDIX
SWBT and LSP agree to the following terms and conditions for the printing and
distribution of White Pages directories:
1. SWBT publishes White Pages directories for geographic areas in which
LSP also provides local exchange telephone service, and LSP wishes to
include listings information for its end users in the appropriate SWBT
White Pages directories.
2. LSP also desires distribution to its end users of the White Pages
directories that include listings of LSP's end users.
3. NOW THEREFORE, in consideration of these premises, SWBT and LSP agree
as follows:
I. SERVICE PROVIDED
A. Subject to SWBT's practices, as well as the rules and
regulations applicable to the provision of White Pages
directories, SWBT will include in appropriate White Pages
directories the primary alphabetical listings of all LSP end
users located within the local directory scope. The rules,
regulations and SWBT practices are subject to change from time
to time.
B. Prior to the issuance of a particular directory and at such
time or times as may be mutually agreed, the LSP shall furnish
to SWBT, in a form acceptable to both Parties, subscriber
listing information pertaining to LSP end users located within
the local directory scope, along with such additional
information as SWBT may require to prepare and print the
alphabetical listings of said directory.
C. LSP may provide LSP's subscriber listing information to SWBT
for inclusion in the White Pages directory via either a
mechanical or manual feed of the listing information to SWBT's
listing database or the LSP may choose to provide listings in
the form of camera ready copy.
D. If LSP provides its subscriber listing information to SWBT via
a mechanical or manual feed such listings are to be
alphabetically interfiled (interspersed) in the SWBT directory
among SWBT subscriber listings. If LSP provides its subscriber
listing information to SWBT in the form of camera ready copy,
SWBT will include such listings as a separate section of the
White Pages directory included in a separate section of the
SWBT White Pages directory.
<PAGE> 288
APPENDIX WP
PAGE 3 OF 5
E. Sixty (60) days prior to the business office close date for a
particular directory, SWBT shall provide LSP a verification
list of its subscriber listings, as such listings are to
appear in the directory. The verification list shall also
include Directory Delivery Address information for each LSP
end user. LSP shall review this verification list and shall
submit to SWBT any necessary additions, deletions or
modifications within thirty (30) days of receipt of the list
from SWBT.
F. If LSP provides its subscriber listing information to SWBT in
the form of camera ready copy. SWBT shall provide LSP sixty
(60) days written notice of the date by which LSP must provide
this information to SWBT.
G. Sixty (60) days prior to the directory close, LSP shall
provide to SWBT written specification of the total number of
directories that it will require, along with the number of
directory(ies) that each LSP end user will require. SWBT will
provide one (1) copy of the directory to LSP end users, unless
otherwise instructed by the LSP.
H. At LSP's request, SWBT will include LSP specific information
(i.e., business office, residence office, repair bureau, etc.)
in the White Pages directory on an "index-type" informational
page. This page will also include specific information
pertaining to other LSPs. At its option, LSP shall provide
SWBT with its logo and information in the form of a camera
ready copy, sized at 1/8th of a page.
I. At its request, LSP may purchase "Informational Page(s)" in
the informational section of the White Pages directory
covering a geographic area. Such page(s) shall be no different
in style, size, color and format than SWBT "Informational
Pages". Sixty (60) days prior to the directory close date, the
LSP shall provide to SWBT the "Informational Page" in the form
of camera- ready copy.
II. USE OF SUBSCRIBER LISTING INFORMATION
A. LSP authorizes SWBT to use the subscriber listing information
provided to SWBT pursuant to this Appendix for the sole
purpose of including the listings in the appropriate printed
White Pages directory and directory assistance databases where
such service is provided by SWBT.
B. At LSP's request, SWBT shall transmit LSP's end user listing
information to designated third party directory publishers
(limited to publishers that SWBT transmits its own listing
information) for a one-time administrative fee of $100.00 per
occurrence, per directory publisher.
<PAGE> 289
APPENDIX WP
PAGE 4 OF 5
III. PRICING
A. The rates for the services described herein are identified on
Exhibit I. If LSP provides its subscriber listing information
to SWBT via a mechanical or manual feed of the listings to
SWBT's listings database, SWBT will assess per book copy, per
subscriber line, charge when directories are delivered to LSP
end user premises, or an annual, per book copy charge when
delivered in bulk to LSP. Included in this rate, LSP will
receive for its end user, one single listing in SWBT's White
Page directory, and one copy of the directory delivered to
either its end user's premises, or in bulk to the LSP
location.
B. Where an LSP end user requires additional listings to appear
in the White Pages directory, SWBT will assess LSP an annual
charge for such listings at existing SWBT tariff rates.
C. For any "Subsequent" directory orders (orders placed after the
initial order/forecast is provided - see I. G. above), SWBT
shall charge LSP a per book copy charge. This rate applies,
per book copy, when such directories are delivered in bulk to
LSP or to the LSP's end user premises.
D. For inclusion of the LSP "Informational Page" in the White
Pages directory, SWBT shall charge the LSP an annual fee for
inclusion in the Metropolitan area book.
IV. ASSIGNMENT
The subscriber listing information shall remain the property of LSP.
Except as stated in Section II herein, SWBT shall not sublicense,
assign, sell or transfer the subscriber listing information provided
hereunder, nor shall SWBT authorize any other company or any person to
use the subscriber listing information for any other purpose. SWBT
shall take appropriate measures to guard against any unauthorized use
of the listings provided to it hereunder (at least the same measures
SWBT takes to protect its own listings from unauthorized use), whether
by SWBT, its agents, employees or others.
V. LIABILITY
A. LSP hereby releases SWBT from any and all liability for
damages due to errors or omissions in LSP's subscriber listing
information as provided to SWBT under this Appendix, and/or
LSP's subscriber listing information as it appears in the
White Pages directory, including, but not limited to, special,
indirect, consequential, punitive or incidental damages.
B. LSP shall indemnify, protect, save harmless and defend SWBT
(or SWBT's officers, employees, agents, assigns and
representatives) from and against any and all losses,
liability, damages and expense arising out of any demand,
claim, suit or
<PAGE> 290
APPENDIX WP
PAGE 5 OF 5
judgment by a third party in any way related to any error or
omission in LSP's subscriber listing information as it appears
in the White Pages directory, including any error or omission
related to non-published or non-listed subscriber listing
information. LSP shall so indemnify regardless of whether the
demand, claim or suit by the third party is brought jointly
against LSP and SWBT, and/or against SWBT alone. However, if
such demand, claim or suit specifically alleges that an error
or omission appears in LSP's subscriber listing information in
the White Pages directory, SWBT may, at its option, assume and
undertake its own defense, or assist in the defense of the
LSP, in which event the LSP shall reimburse SWBT for
reasonable attorney's fees and other expenses incurred by SWBT
in handling and defending such demand, claim and/or suit.
C. This Appendix shall not establish, be interpreted as
establishing, or be used by either party to establish or to
represent their relationship as any form of agency,
partnership or joint venture. Neither Party shall have any
authority to bind the other or to act as an agent for the
other unless written authority, separate from this Appendix,
is provided. Nothing in the Appendix shall be construed as
providing for the sharing of profits or losses arising out of
the efforts of either or both of the Parties. Nothing herein
shall be construed as making either Party responsible or
liable for the obligations and undertakings of the other
Party.
VI. BREACH OF CONTRACT
If either Party is found to have materially breached this Appendix, the
non-breaching Party may terminate the Appendix by providing written
notice to the breaching party, whereupon this Appendix shall be null
and void with respect to any issue of SWBT's White Pages directory
published sixty (60) or more days after the date of receipt of such
written notice.
VIII. TERM
A. This Appendix shall continue in force for one (1) until
terminated by sixty (60) days prior written notice by either
Party to the other. Upon termination, SWBT shall cease using,
for any purpose whatsoever, the subscriber listing information
provided hereunder by LSP, and shall promptly return such
subscriber listing information to the LSP.
B. Upon termination of the interconnection Agreement, this
Appendix will be null and void with respect to any issue of
directories published thereafter, except that the
indemnification provided by Section V herein shall continue
with respect to any directory published within sixty (60) days
of termination.
<PAGE> 291
APPENDIX WP
EXHIBIT I
PAGE 1 OF 1
APPENDIX WP
EXHIBIT I
PRICE LIST
<TABLE>
<CAPTION>
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
Directory Price Per Book Price Per Book Price Per Single Price Per Book
Copy Copy Sided Copy(1) Ordered
Delivered in Delivered to Informational After Initial
Bulk LSP End User Page Order
to LSP
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Kansas City $4.46 $6.48 $3,191.73 $10.00
Springfield $4.46 $6.48 $3,191.73 $10.00
St. Louis $4.46 $6.48 $3,191.73 $10.00
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
</TABLE>
- ------------------------
(1) Subject To Availability
<PAGE> 292
APPENDIX TP
PAGE 2 OF 2
ELECTRICAL/OPTICAL INTERFACES:
- SWBT Technical Publication TP-76839 - SONET Transmission
Requirements - Performance and Interface Specifications,
Issue 1, January 1996, or the most current version.
- SWBT Technical Publication TP-76625 - High Capacity Digital
Service (1.544 Mbs and 44.736 Mbs Requirements and
Transmission Limits, Issue 1, June 1990, or the most current
version.
INTERCONNECTION RESPONSIBILITIES RELATED TO SIGNALING:
- SWBT Technical Publication, TP-76638 - Common Channel
Signaling Network Interface Specifications
- GR-000246-CORE, Bell Communications Research Specifications of
Signaling System 7
- GR-000317-CORE, Switching System Requirements for Call Control
Using the Integrated Services Digital Network User Part
- GR-000394-CORE, Switching System Requirements for
Interexchange Carrier Interconnection Using the Integrated
Services Digital Network User Part
- GR-000606-CORE, LATA Switching Systems Generic
Requirements-Common Channel Signaling-Section 6.5
- GR-000905-CORE, Common Channel Signaling Network Interface
Specification Supporting Network Interconnection Message
Transfer Part (MTP) and Integrated Digital Services Network
User Part (ISDNUP)
COLLOCATION
- SWBT's Technical Publication for Physical Collocation (sixth
revision dated 2-18-97)
TECHNICAL EXHIBIT SETTLEMENT PROCEDURES
- TESP
<PAGE> 293
APPENDIX PORT
PAGE 2 OF 5
APPENDIX PORT
I. GENERAL
SWBT and LSP will provide Interim Number Portability (INP) in
accordance with requirements of the Act. INP will be provided by each
Party to the other upon request. INP will be provided with minimum
impairment of functionality, quality, reliability and convenience to
subscribers of LSP or SWBT. The Parties will provide Permanent Number
Portability (PNP) as soon as it is technically feasible, in conformance
with FCC rules and the Act, and will participate in development of PNP
in the state, in accordance with the FCC's First Report and Order in
Docket No. 95-116 (hereinafter called the Number Portability Order). As
described herein, INP is a service arrangement whereby an end user, who
switches subscription of local exchange service from one provider to
another is permitted to retain, for its use, the existing assigned
number provided that the end user remains in the same serving wire
center.
II. TERMS, CONDITIONS UNDER WHICH SWBT SHALL PROVIDE INP
A. Service Provided
1. SWBT shall only provide INP, as described herein, to
LSPs.
2. SWBT shall only provide INP services and facilities
where technically feasible, subject to the
availability of facilities, and only from properly
equipped central offices. SWBT does not offer INP
services and facilities for NXX codes 555, 976, 950,
or SWBT operated coin telephone service.
3. LSP shall not order INP services for local exchange
end user accounts of SWBT where the end user=s
payments are 45-days or more in arrears unless full
payment is made or an agreement is reached where the
LSP agrees to make full payment on the end user=s
behalf.
4. When the exchange service offerings associated with
INP service are provisioned using remote switching
arrangements, SWBT shall only make INP service
available from, or to host central offices.
B. Obligations Of SWBT
1. SWBT's sole responsibility is to comply with the
service requests it receives from the LSP and to
provide INP in accordance with this Appendix.
<PAGE> 294
APPENDIX PORT
PAGE 3 OF 5
C. OBLIGATIONS OF LSPS
1. LSP shall coordinate the provision of service with
SWBT to assure that LSP's switch is capable of
accepting INP ported traffic.
2. LSP is solely responsible to provide equipment and
facilities that are compatible with SWBT's service
parameters, interfaces, equipment and facilities. LSP
shall provide sufficient terminating facilities and
services at the terminating end of an INP call to
adequately handle all traffic to that location and
shall ensure that its facilities, equipment and
services do not interfere with or impair any
facility, equipment or service of SWBT or any of its
end users. In the event that SWBT determines in its
sole judgment that the LSP will likely impair or is
impairing, or interfering with any equipment,
facility or service of SWBT or any of its end users,
SWBT may either refuse to provide INP service or
terminate it in accordance with other provisions of
this STC or SWBT's tariffs.
3. LSP shall provide an appropriate intercept
announcement service for any telephone numbers
subscribed to INP service for which LSP is not
presently providing local exchange service or
terminating to an end user.
4. Where LSP chooses to disconnect or terminate any INP
service, LSP shall designate which standard SWBT
intercept announcement SWBT shall provide for
disconnected number.
5. LSP shall designate to SWBT at the time of its
initial service request for INP service one of the
following options for handling and processing of
Calling Card, Collect, Third Party, and other
operator handled non-sent paid calls from or to LSP
assigned telephone numbers:
a. LSP may elect to block the completion of
third number and calling card calls through
the use of LIDB to select ported numbers.
b. For non-sent paid calls billed to INP
assigned numbers, a separate
sub-clearinghouse billing arrangement must
be established which will provide for the
transmission of the EMR 01-01-01 billing
records, and settlement of toll revenues.
D. LIMITATIONS OF SERVICE
1. SWBT is not responsible for adverse effects on any
service, facility or equipment from the use of INP
service.
2. End-to-end transmission characteristics may vary
depending on the distance and routing necessary to
complete calls over INP facilities and
<PAGE> 295
APPENDIX PORT
PAGE 4 OF 5
the fact that another carrier is involved in the
provisioning of service. Therefore, end-to-end
transmission characteristics cannot be specified by
SWBT for such calls.
E. SERVICE DESCRIPTIONS
1. INP-REMOTE. INP-Remote is a service whereby a call
dialed to an INP-Remote equipped telephone number,
assigned to SWBT, is automatically forwarded to an
LSP-assigned, 7 or 10 digit local telephone number.
The forwarded-to-number is specified by the LSP at
the same location.
a. INP-Remote provides an initial call path and
two additional paths for the forwarding of
no more than three (3) simultaneous calls to
the LSP's specified forwarded-to number.
Additional call paths are available on a per
path basis.
b. The LSP-assigned forwarded-to number shall
be treated as two separate calls with
respect to interconnection compensation, end
user toll billing and intercompany
settlement and access billing, i.e., an
incoming call to the SWBT ported number
shall be handled like any other SWBT call
being terminated to that end office and the
ported call to the LSP assigned telephone
number in the LSP switch shall be handled as
any local calls between SWBT and the LSP.
c. Where facilities exist, SWBT will provide
identification of the originating telephone
number, via SS7 signaling, to the LSP.
2. INP-DIRECT. INP-Direct is a service which provides
for the delivery of the called (dialed) number to the
LSP's switching (central office or premises)
equipment for identification and subsequent routing
and call completion.
a. INP-Direct is available either on a per
voice grade channel basis or a per DS1 (24
equivalent voice grade channels) basis.
(1) Where the location of the LSP's
switching equipment to which SWBT is
providing voice grade or DS1
INP-Direct service reside outside
the exchange or central office
serving area from which the
INP-Direct service is purchased, LSP
shall pay applicable interoffice
mileage charges as specified in the
applicable state Special Access
Tariff.
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APPENDIX PORT
PAGE 5 OF 5
b. INP-Direct service must be established with
a minimum configuration of two (2) voice
grade channels and one unassigned telephone
number per SWBT switch. Transport facilities
arranged for INP-Direct may not be mixed
with any other type of trunk group. Outgoing
calls may not be placed over facilities
arranged for INP-Direct service.
c. SS7 Signaling is not available on the
INP-Direct facilities.
F. PRICING
1. The Parties will comply with all effective FCC,
Commission and/or court Orders governing INP cost
recovery and compensation. The Parties acknowledge
that the Telephone Number Portability Order is
subject to pending Petitions for Reconsideration and
may be subject to appeal. As such, the Number
Portability Order may be reconsidered, revised and
remanded, or vacated, subject to further proceedings
before the FCC. As such, until a final decision is
rendered on INP cost recovery, the Parties agree to
track the costs associated with the implementation
and provision of INP and to "true-up" INP-related
accruals to reflect the final terms of any such
order.
2. Neither Party waives its rights to advocate its views
on INP cost recovery, or to present before any
appropriate regulatory agency or court its views on
FCC or Commission actions pertaining to INP cost
recovery.
<PAGE> 297
Agreement No.
---------------------
MASTER AGREEMENT FOR ACCESS
TO POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY (MISSOURI)
This Agreement dated June 30,1997 is made by and between Southwestern
Bell Telephone Company ("SWBT") and the undersigned Applicant. As provided in
this Agreement, SWBT will provide Applicant nondiscriminatory access, in
accordance with the Pole Attachment Act, the Telecommunications Act of 1996, and
applicable rules, regulations, and commission orders, to poles, ducts, conduits,
and rights-of-way owned or controlled by SWBT and located in this state.
ARTICLE 1: PARTIES
1.01 Southwestern Bell Telephone Company. Southwestern Bell Telephone
Company is a corporation chartered in the State of Missouri. SWBT's principal
office is located at 1010 Pine Street, St. Louis, Missouri 63101.
1.02 Applicant. Applicant is a telecommunications carrier or cable
television system doing business or operating in this State under the following
name(s): Digital Teleport, Inc.
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------.
Applicant maintains offices in this State at the following address:
11111 Dorsett Road
- --------------------
St. Louis, MO 63043
- -------------------------------------------------------------------------------.
Applicant is more fully described in APPENDIX II ("Identification of
Applicant").
ARTICLE 2: PURPOSE OF AGREEMENT
2.01 Primary Purpose of Agreement. The primary purpose of this
Agreement is to set forth the rates, terms, conditions, and procedures under
which SWBT will provide Applicant access to SWBT's poles, ducts, conduits, and
rights-of-way located in this State.
2.02 Applicability. This Agreement applies to all poles, ducts,
conduits, and rights-of-way subject to the Pole Attachment Act, 47 U.S.C. ss.
224, as amended by the Telecommunications Act of 1996, and further amendments.
2.03 Construction in Accordance with Purpose. All provisions of this
Agreement shall be construed and applied consistently with the requirements of
the Pole Attachment Act and those provisions of the Telecommunications Act of
1996, including but not limited to 47 U.S.C. Sections 251(b)(4) and 271
(c)(2)(B)(iii), which mandate access to SWBT's poles, ducts, conduits, and
rights-of-way.
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2.04 Uniform Application and Nondiscriminatory Access. In Paragraph
1156 of the First Interconnection Order in CC Docket No. 96-98, the FCC has
ordered that "[W]here access is mandated, the rates, terms, and conditions of
access must be uniformly applied to all telecommunications carriers and cable
operators that have or seek access." In Paragraph 1157 of the First
Interconnection Order, the FCC has further stated that except as specifically
noted elsewhere in that order, "a utility may not favor itself over other
parties with respect to the provision of telecommunications or video programming
services." This Agreement has been drafted and shall be construed to effectuate
these nondiscriminatory access requirements.
2.05 Effect on Rights and Remedies under Law. This Agreement is
intended by the parties to implement, rather than abridge, their respective
rights under federal and state law. In the event of an irreconcilable conflict
between any provision of this Agreement and any applicable federal or state
laws, rules, regulations, or commission orders, the parties' rights and remedies
under such laws, rules, regulations, and orders shall take precedence over the
terms of this Agreement.
2.06 Additional Negotiations. This Agreement is one of many agreements
between SWBT and parties seeking access to SWBT's poles, ducts, conduits, and
rights-of-way in this State. Nothing contained in this Agreement shall preclude
SWBT from negotiating additional or different terms of access with third
parties. Applicant may, at any time, seek amendments to this Agreement to
conform to the terms of agreements between SWBT and third parties. In addition,
the parties acknowledge that it may be necessary to amend or supersede this
Agreement to conform to changes in the law, streamline procedures for granting
access, address issues not addressed in this Agreement, and resolve operational
concerns arising by virtue of the presence of competing providers of
telecommunications and cable television services on, within, or in the vicinity
of SWBT's poles, ducts, conduits, and rights-of-way. Each party shall,
therefore, at the request of the other party, engage in good faith negotiations
to supplement, amend or replace this Agreement.
2.07 Relationship to Interconnection Agreement. SWBT has provided
Applicant the option of executing this Agreement either as a standalone
agreement or as part of the interconnection agreement, if any, between the
parties. Applicant's election is reflected in this section, and this Agreement
shall be construed in accordance with Applicant's election. If this Agreement
has been executed as part of an interconnection agreement, Applicant shall have
the additional option of replacing this Agreement at any time with SWBT's
then-current Master Agreement for Access to Poles, Ducts, Conduits, and
Rights-of-Way.
[X] This Agreement has been entered into as a standalone
Agreement.
[X] This Agreement has been entered into, at Applicant's
request, as an appendix, attachment, or exhibit to an
interconnection agreement
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between the parties. Except otherwise specifically stated in
this Agreement, the terms of this Agreement, which are
specific to poles, ducts, conduits, and rights-of-way, shall
apply in the event of conflict between the terms of this
Agreement and the general terms and conditions set forth in
the interconnection agreement.
2.08 Access Ancillary to Arrangements for Interconnection, Collocation,
and Access to Unbundled Network Elements. Nothing contained in this Agreement
shall be construed as precluding Applicant from having such additional access to
SWBT's poles, ducts, conduits, and rights-of-way as may be necessary to
effectuate the terms of other arrangements between Applicant and SWBT relating
to interconnection, collocation, and access to unbundled network elements. To
the extent that this Agreement does not provide the access required, additional
terms of access may be included in any tariff or agreement between the parties
establishing arrangements for interconnection, collocation, or access to
unbundled network elements.
ARTICLE 3: DEFINITIONS
3.01 Definitions in general. As used in this Agreement, the terms
defined in this article shall have the meanings set forth below in Sections 3.02
to 3.48 except as the context otherwise requires.
3.02 Agreement. The term "Agreement" refers to this Master Agreement
for Access to Poles, Ducts, Conduits, and Rights-of-Way. The term "Agreement"
includes all appendices, attachments, and addenda to this Agreement, including
but not limited to addenda, if any, reflecting state-specific requirements or
Applicant-specific requirements imposed by interconnection arbitration orders.
3.03 Anchor. The term "anchor" refers to a device, structure, or
assembly which stabilizes a pole and holds it in place. An anchor assembly may
consist of a rod and fixed object or plate, typically embedded in the ground,
which is attached to a guy strand or guy wire which, in turn, is attached to the
pole. The term "anchor" does not include the guy strand which connects the
anchor to the pole.
3.04 Appendix. The capitalized term "APPENDIX" refers to one of the
following appendices to this Agreement.
APPENDIX I: Schedule of Rates, Fees, and Charges
APPENDIX II: Identification of Applicant
APPENDIX III: Administrative Forms and Notices
SW-9433: Pole Attachments
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SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole
Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of
Conduit Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by
Applicant
APPENDIX IV: Insurance Requirements
APPENDIX V: Nondisclosure Agreement
APPENDIX VI: Notices to Applicant
APPENDIX VII: Notices to SWBT
APPENDIX VIII: Identification of Utility Liaison Supervisor (ULS)
3.05 Assigned. When used with respect to pole, duct, conduit, or
right-of-way space, the term "assigned" refers to space that is occupied by, or
has been designated for occupancy by, either party or by a third party. Except
as otherwise specifically provided in this Agreement, no person or entity shall
have the right to occupy space assigned to another person or entity (other than
on a temporary basis in the event of emergency as provided in Section 15.02 of
this Agreement) until the assignment has been released or lapsed.
Assignment procedures are described in Section 8.02 of this Agreement.
3.06 Authorized contractor. "Authorized contractors" are contractors
selected by Applicant who may, subject to Applicant's direction and control,
perform facilities modification or make-ready work which would ordinarily be
performed by SWBT or persons acting on SWBT's behalf. As used in this Agreement,
the term "authorized contractor" does not refer to contractors performing
routine installation, maintenance, or repair work on Applicant's behalf or other
contractors who may be selected by Applicant to perform work on Applicant's
behalf without SWBT's approval. More specifically, the term "authorized
contractor" refers only to those contractors included on a list of contractors
mutually approved by Applicant and SWBT to perform one or more of the following
tasks within a specified SWBT construction district: (a) installation of those
sections of Applicant's ducts or facilities which connect to SWBT's conduit
system as provided in Section 6.08(c); (b) installation of inner duct as
provided in Section 10.02(b); (c) excavation work in connection with the removal
of retired or inactive (dead) cables as provided in Section 10.02(c); or (d)
make-ready work as provided in Sections 10.04 and 10.05. A person or entity
approved as an authorized contractor is only an authorized
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contractor with respect to those tasks for which such person or entity has been
approved by both parties and is an authorized contractor only in those SWBT
construction districts agreed to by both parties. Designation of an authorized
contractor for a specific category of tasks shall not be deemed to be the
designation of such person or entity as an authorized contractor for other
purposes, nor shall approval of an authorized contractor by one SWBT
construction district constitute approval of such authorized contractor for the
area served by a different SWBT construction district; provided, however, that
if a specific construction job extends beyond the boundaries of a single
construction district, an authorized contractor shall, for the purposes of that
job, be deemed to have been approved by all SWBT construction districts in
which the work is to be performed. If, by agreement of the parties or
commission order, Applicant has been approved as an authorized contractor, such
approval shall be noted by an addendum to this Agreement.
3.07 Available. When used with respect to pole, duct, conduit, and
right-of-way space, the term "available" refers to space that is not occupied or
assigned. In conduit systems owned or controlled by SWBT, maintenance ducts will
not be considered "available" for assignment. All other unassigned ducts, inner
ducts, sub-ducts, and partitioned conduits in a conduit system owned or
controlled by SWBT will be deemed available for assignment.
3.08 Cables. The term "cable" includes but is not limited to
twisted-pair copper, coaxial, and fiber optic cables. Cables are transmissions
media which may be attached to our placed in poles, ducts, conduits, and
rights-of-way but are not themselves poles, ducts, conduits, or rights-of-way.
Nothing contained in this Agreement shall be construed as a grant of access to
cables attached to SWBT's poles or placed in SWBT's ducts, conduits, or
rights-of-way.
3.09 Conduit. The term "conduit" refers to all SWBT conduits subject to
the Pole Attachment Act. In general, conduits are tubes or structures, usually
underground or on bridges, containing one or more ducts used to enclose cables,
wires, and associated transmission equipment. Except as the context otherwise
requires, the term "conduit" refers only to conduit owned or controlled by SWBT,
including the re-enterable manholes and handholes used to connect ducts and
provide access to cables, wires, and other facilities within the ducts. As used
in this Agreement, the term "conduit" refers only to conduit structures
(including ducts, manholes and handholes) and space within those structures and
does not include (a) cables and other telecommunications equipment located
within conduit structures or (b) central office vaults, controlled environment
vaults, or other SWBT structures (such as huts and cabinets) which branch off
from or are connected to SWBT's conduit.
3.10 Conduit occupancy. The term "conduit occupancy" refers to the
presence of wire, cable, optical conductors, or other equipment within any part
of SWBT's conduit system.
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3.11 Conduit system. The term "conduit system" refers to any
combination of ducts, conduits, manholes, and handholes joined to form an
integrated whole. As used in this Agreement, the term "conduit system" refers
only to conduit systems owned or controlled by SWBT and does not include (a)
cables and other telecommunications equipment located within conduit structures
or (b) central office vaults, controlled environment vaults, or other SWBT
structures (such as huts and cabinets) which branch off from or are connected to
SWBT's conduit.
3.12 Construction District. The term "construction district" refers to
the SWBT organization responsible for outside plant construction in a specified
geographic area. The term "construction district" connotes responsibility for
handling a function and not to the official name of the organization responsible
for outside plant construction matters.
3.13 Cost/Cost-based. The terms "cost" and "costs" refer to costs
determined in a manner consistent with the Pole Attachment Act and applicable
rules, regulations, and commission orders. The term "cost-based" refers to
rates, fees, and other charges which are based on costs and determined in a
manner consistent with the Pole Attachment Act and applicable rules,
regulations, and commission orders.
3.14 Duct. The term "duct" refers to all SWBT ducts subject to the Pole
Attachment Act. In general, a "duct" is a single enclosed tube, pipe, or channel
for enclosing and carrying cables, wires, and other equipment. As used in this
Agreement, the term "duct" includes "inner ducts" created by subdividing a duct
into smaller channels. Except as the context otherwise requires, the term "duct"
refers only to ducts owned or controlled by SWBT and space within those ducts
and does not include cables and other telecommunications equipment located
within such ducts.
3.15 Facilities. The terms "facility" and "facilities" refer to any
property, equipment, or items owned or controlled by any person or entity.
3.16 FCC. The acronym "FCC" refers to the Federal Communications
Commission.
3.17 First Interconnection Order. The term "First Interconnection
Order" refers to the First Report and Order adopted by the FCC on September 1,
1996, and released on September 8, 1996, in CC Docket No. 96-98, In the Matter
of Implementation of the Local Competition Provisions in the Telecommunications
Act of 1996 and CC Docket No. 95-185, In the Matter of Interconnection between
Local Exchange Carriers and Commercial Mobile Radio Service Providers. Access to
poles, ducts, conduits, and rights-of-way is addressed in the First
Interconnection Order in Paragraphs 1119-1240.
3.18 Handhole. The term "handhole" refers to a structure similar in
function to a manhole, but which is too small for personnel to enter. As used in
this Agreement, the term "handhole" refers only to handholes which are part of
SWBT's conduit system and does not refer to handholes which provide access to
buried cables not housed within
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SWBT ducts or conduits. As used in this Agreement, the term "handhole" refers
only to handhole structures owned or controlled by SWBT and does not include
cables and other telecommunications equipment located within handhole
structures.
3.19 Hazardous substances. The term "hazardous substances" refers to
hazardous and toxic substances, waste, pollutants, contaminants, and materials
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601(14), as amended, and other
federal, state, and local health, safety, and environmental laws, ordinances,
statutes, rules, and regulations applicable to sites subject to this Agreement,
including but not limited to the Occupational Safety and Health Act ("OSHA").
In general, the term "hazardous substances" refers to any substance the
presence, use, transport, abandonment or disposal of which (a) requires
investigation, remediation, compensation, fine, or penalty under health,
safety, and environmental laws, ordinances, statutes, rules, and regulations
applicable to sites subject to this Agreement or (b) poses risks to human
health, safety, or the environment and is regulated under any such laws,
ordinances, statutes, rules, and regulations. For the purposes of this
Agreement, the term "hazardous substances" shall also include petroleum,
natural gas, and other combustible or noxious liquids, gases, or solids which
may accumulate at sites subject to this Agreement.
3.20 Interconnection agreement. The term "interconnection agreement"
refers to the interconnection agreement, if any, to which this Agreement has
been made an appendix, attachment, or exhibit, or, as the context may require,
any other interconnection agreement between the parties.
3.21 Jacket. The term "jacket" refers to a single enclosed outer
covering containing communications wires, fibers, or other communications media.
As used in this Agreement, the term "jacket" refers to the outermost sheath or
jacket of a cable.
3.22 Joint user. The term "joint user" refers to any person or entity
which has entered or may enter into an agreement or arrangement with SWBT
permitting it to attach its facilities to SWBT's poles or place its facilities
in SWBT's ducts, conduits, or rights-of-way.
3.23 License. The term "license" refers to a written instrument
confirming that SWBT has granted the application of Applicant or a third party
for access to pole, duct, conduit, or right-of-way space and that, based on
Applicant's or such third party's representations (and SWBT's field inspection,
if any), it appears that no further facilities modification, capacity expansion
or make-ready work by SWBT is required before facilities described in the
application are installed in the space requested. The term "license" refers to
licenses issued by SWBT pursuant to this Agreement and may, if the context
requires, refer to licenses issued by SWBT before the date of this Agreement.
The parties' use of the term "license" in this Agreement shall not be construed
as conferring authority or discretion on SWBT's part to deny access to Applicant
in any manner inconsistent with the requirements of the Pole Attachment Act, the
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Telecommunications Act of 1996, and applicable rules, regulations, and
commission orders.
3.24 Local service provider ("LSP"). The terms "local service provider"
and "LSP" refer only to telecommunications carriers authorized by applicable
federal and state laws and regulations to provide local exchange service. As
used in this Agreement, these terms include SWBT.
3.25 Maintenance duct. The term "maintenance duct" generally refers to
a full-sized duct (typically three inches in diameter or larger) which may be
used, on a short-term basis, for maintenance, repair, or emergency restoration
activities. Maintenance ducts will be available, on a nondiscriminatory basis,
to all persons and entities (including SWBT, Applicant, other local service
providers, and other joint users) with facilities in the conduit section in
which the maintenance duct is located for (a) short-term emergency repairs as
provided in Article 15 of this Agreement and (b) short-term non-emergency
maintenance or repair activities as provided in Articles 12 and 13 of this
Agreement. No more than one full-sized duct within any given conduit section
will be designated by SWBT as the maintenance duct. In those locations where, on
the effective date of this Agreement, there is not a full-sized duct available
to be used as a maintenance duct, SWBT will designate an inner duct, if one is
available, as the maintenance duct although such inner duct may be too small to
accommodate some of the cables occupying the conduit section in which such inner
duct is located. The term "maintenance duct" does not include ducts and conduits
extending from a SWBT manhole to customer premises. Maintenance ducts will not
be considered "available" (as defined in Section 3.07) for assignment to SWBT,
Applicant, or joint users for purposes other than short-term uses contemplated
in this section; provided, however, that SWBT may assign the duct currently
designated as a maintenance duct if another suitable full-sized duct will be
made available to serve as a replacement maintenance duct and may assign an
inner duct currently designated as a maintenance duct if another inner duct will
be made available to serve as a replacement maintenance duct. Maintenance duct
designations may change from time to time and may or may not be reflected in
SWBT's outside plant records. When only one usable full-sized duct remains in a
conduit section, that duct shall be deemed to be the maintenance duct.
3.26 Make-ready work. The term "make-ready work" refers to all work
performed or to be performed to prepare SWBT's poles, ducts, conduits,
rights-of-way, and related facilities for the requested occupancy or attachment
of Applicant's facilities. Make-ready work does not include the actual
installation of Applicant's facilities. "Make-ready work" includes, but is not
limited to, clearing obstructions (e.g., by "rodding" ducts to ensure clear
passage), and rearranging, transferring, replacing, and removing existing
facilities on a pole or in a conduit system where such work is required to
accommodate Applicant's facilities (as contrasted with work performed on SWBT's
behalf in furtherance of SWBT's own business needs or convenience). "Make-ready
work" may require "dig-ups" of existing facilities and may include the repair,
enlargement or modification of SWBT's facilities (including, but not limited to,
poles,
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ducts, conduits, handholes, and manholes), consolidating services into fewer
cables, or the performance of other work required to make a pole, anchor, duct,
conduit, manhole, handhole, or right-of-way usable for the initial placement of
Applicant's facilities. As used in this Agreement, the term "make-ready work"
also includes associated planning and engineering work required to confirm or
determine the extent of make-ready work required and to plan make-ready
projects.
3.27 Manhole. The term "manhole" refers to an enclosure, usually below
ground level and entered through a hole on the surface covered with a cast iron,
cast aluminum, steel, or concrete manhole cover, which personnel may enter and
use for the purpose of installing, operating, and maintaining facilities in
ducts or conduits which are parts of SWBT's conduit system. As used in this
Agreement, the term "manhole" refers only to manhole structures owned or
controlled by SWBT and does not include cables and other telecommunications
equipment located within manhole structures.
3.28 Occupancy. The term "occupancy" refers to the presence of cables
or other facilities on a pole, in a duct or conduit, or within a right-of-way.
3.29 Overlashing. The term "overlashing" refers to the practice of
placing an additional cable or inner duct by lashing such cable or inner duct
with spinning wire over an existing cable and strand.
3.30 Person acting on Applicant's behalf. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms include both natural persons and firms and ventures of every type,
including, but not limited to, corporations, partnerships, limited liability
companies, sole proprietorships, and joint ventures. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms specifically include, but are not limited to, Applicant, its
officers, directors, employees, agents, representatives, attorneys, contractors,
subcontractors, and other persons or entities performing services at the request
of or as directed by Applicant and their respective officers, directors,
employees, agents, and representatives. An authorized contractor selected by
Applicant to perform make-ready work shall be deemed to be a person acting on
Applicant's behalf while performing such work at Applicant's request.
3.31 Person acting on SWBT's behalf. The terms "person acting on SWBT's
behalf," "personnel performing work on SWBT's behalf," and similar terms include
both natural persons and firms and ventures of every type, including but not
limited to corporations, partnerships, limited liability companies, sole
proprietorships, and joint ventures. The terms "person acting on SWBT's behalf,"
"personnel performing work on SWBT's behalf," and similar terms specifically
include, but are not limited to, SWBT, its officers, directors, employees,
agents, representatives, attorneys, contractors, subcontractors, and other
persons or entities performing services at the request of or as directed by SWBT
and their respective officers, directors, employees, agents, and
representatives. An authorized contractor selected by SWBT to perform make-ready
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work shall be deemed to be a person acting on SWBT's behalf while performing
such work at SWBT's request.
3.32 Pole. The term "pole" refers to all SWBT poles subject to the Pole
Attachment Act. Except as the context otherwise requires, the term "pole" refers
only to poles (and associated anchors) which are owned or controlled by SWBT and
does not include cables and other telecommunications equipment attached to pole
structures.
3.33 Pole Attachment. As defined in the Pole Attachment Act, 47 U.S.C.
Section 224(a)(4), the term "pole attachment" refers to "any attachment by a
cable television system or provider of telecommunications service to a pole,
duct, conduit, or right-of way owned or controlled by a utility." In this
Agreement, except as the context otherwise requires, the term "pole attachment"
refers to any attachment by a cable television system or provider of
telecommunications service to a pole (and associated anchors) owned or
controlled by SWBT. The term "pole attachment" includes all such facilities
attached to or supported by a SWBT pole, including but not limited to cables,
risers and U-guards, equipment boxes, drop wires, anchors, bolts, clamps, drive
rings, guys, hooks, strands, and other hardware affixed to the pole. Groupings
of associated pole attachments for billing purposes shall be consistent with
the Pole Attachment Act and applicable rules, regulations, and commission
orders. Except as otherwise authorized by applicable FCC rules, regulations, or
orders, Applicant's pole attachments occupying the same usable space (or
otherwise associated with facilities occupying the same usable space on a pole)
shall be treated as a single attachment for billing purposes.
3.34 Pole Attachment Act. The term "Pole Attachment Act" refers to
those provisions of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, now codified as 47 U.S.C. Section 224, as those
provisions may be amended from time to time.
3.35 Pre-license survey. The term "pre-license survey" refers to work
and activities performed or to be performed by SWBT or by persons acting on
SWBT's behalf for the primary purpose of:
(a) confirming or determining the existing availability and
capacity of a pole, duct, conduit, or right-of-way and
identifying capacity, safety, reliability, or engineering
concerns, if any, relating to Applicant's application;
(b) confirming or determining the extent, if any, to which
modifications to SWBT's poles, ducts, conduits, or
right-of-ways are required to accommodate Applicant's
facilities;
(c) confirming or determining what make-ready work, if any, will
be required to prepare SWBT's poles, ducts, conduits, or
rights-of-way to accommodate Applicant's facilities; and
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(d) estimating the costs, if any, that Applicant will be required
to pay for any such facilities modification, capacity
expansion, or make-ready work.
3.36 Pre-occupancy survey. The term "pre-occupancy survey" refers to
work and activities performed or to be performed by Applicant or persons acting
on Applicant's behalf for the primary purpose of enabling Applicant to
determine:
(a) whether SWBT's poles, ducts, conduits, or rights-of-way, in
their existing condition, are suitable for Applicant's
intended use;
(b) the extent, if any, to which modifications of SWBT's poles,
ducts, conduits, or rights-of-way will be proposed by
Applicant to expand the capacity of SWBT's poles, ducts,
conduits, or rights-of-way to accommodate Applicant's
facilities; and
(c) what other capacity expansion or make-ready work, if any,
will be proposed by Applicant to prepare SWBT's poles, ducts,
conduits, and rights-of-way to accommodate Applicant's
facilities.
3.37 Primary point of contact. The term "primary point of contact"
refers to the persons designated by Applicant and SWBT, respectively, to
coordinate arrangements for Applicant's access to SWBT's poles, ducts, conduits,
and rights-of-way and records relating to such poles, ducts, conduits, and
rights-of-way. SWBT's designated primary point of contact shall be the Utility
Liaison Supervisor unless the parties have arranged for that function to be
performed by a designated account representative who will serve as an
intermediary between Applicant and the Utility Liaison Supervisor.
3.38 Rights-of-way. The term "rights-of-way" refers to all SWBT
rights-of-way subject to the Pole Attachment Act. In general, rights-of-way are
legal rights to pass over or through property of another party for limited
purposes as defined in a statute, ordinance, easement, grant or other
conveyance. Rights-of-way include but are not limited to (a) public
rights-of-way which SWBT may occupy as permitted by law for the placement of its
facilities (e.g., rights-of-way on, under, or over streets, highways, and other
public roads) and (b) easements or servitudes granted by property owners or
obtained through the exercise of eminent domain authority authorizing SWBT to
pass over, place facilities on, and have rights of ingress and egress to the
property of such property owners. Rights-of-way may also include easements
which, at the time of land development or subdivision, were dedicated for use by
public or private utilities and are being occupied, in whole or in part, by
SWBT's facilities. Except as the context otherwise requires, the term
"rights-of-way" as used in this Agreement refers only to rights-of-way owned or
controlled by SWBT and does not include (a) cables and other telecommunications
equipment buried or located on such rights-of-way, (b) public rights of way
(which are owned by and subject to the control of governmental entities), or (c)
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any space which is owned and controlled by a third-party property owner and
occupied by SWBT with permission from such owner rather than as a matter of
legal right. As used in this Agreement, the term "right-of-way" may also include
certain fee-owned or leased property acquired by SWBT for the specific purpose
of installing poles, ducts, or conduits or burying underground cables which are
part of SWBT's network distribution facilities.
3.39 Sheath. The term "sheath" refers to an enclosed covering
containing communications wires, fibers, or other communications media. A cable
may include both inner and outer sheaths.
3.40 Spinning. The term "spinning" refers to a method of attaching a
cable or inner duct to a supporting strand. "Spinning" is sometimes referred to
as "lashing."
3.41 State. When capitalized, the term "State" (as used in terms such
as "this State") refers to the State of Missouri.
3.42 State Commission. The term "State Commission" refers to the
Missouri Public Service Commission.
3.43 Strand. The term "strand" refers to support wires, typically
stranded together, or other devices attached to a pole and connecting that pole
to an anchor or to another pole for the purpose of increasing pole stability or
supporting wires, cables, and associated facilities. The term "strand" includes,
but is not limited to, strands sometimes referred to as "anchor stands,"
"anchor/guy strands," "down guys," "guy strands," "pole-to-pole guys," and
"messengers."
3.44 Telecommunications Act of 1996. The term "Telecommunications Act
of 1996" refers to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56, enacted February 8, 1996.
3.45 Third party. The terms "third party" and "third parties" refer to
persons and entities other than the parties to this Agreement (that is, persons
and entities other than Applicant and SWBT).
3.46 Utility Liaison Supervisor ("ULS"). The terms "Utility Liaison
Supervisor" and "ULS" refer to the person or persons designated by SWBT to be
responsible for handling and processing requests for access to SWBT's poles,
ducts, conduits, and rights of-way in this State. The term "ULS" connotes
responsibility for handling a function and is not a job title. Except as
otherwise specifically provided in this Agreement or in the parties'
interconnection agreement, if any, the ULS shall serve as Applicant's single
point of contact for arranging access to SWBT's poles, ducts, conduits, and
rights-of-way and access to SWBT's records relating to SWBT's poles, ducts,
conduits, and rights-of way. The Utility Liaison Supervisor for this State is
identified in APPENDIX VIII.
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3.47 Vault. The term "vault" includes central office vaults and
controlled environment vaults ("CEVs"). Vaults may be connected to, but are not
considered part of, SWBT's conduit system. Access, if any, to vaults (and to
ducts, conduits, and risers which serve no purpose other than to provide a means
of entry to and exit from such vaults) shall be governed by the tariffs,
agreements, or commission orders, if any, establishing arrangements for
interconnection, collocation, and access to unbundled network elements, and not
by this Agreement.
3.48 "Vicinity of ...". When used in terms such as "vicinity of SWBT's
conduit system," "vicinity of SWBT's poles," "vicinity of SWBT's rights-of-way,"
or "vicinity of SWBT's poles, ducts, conduits, or rights-of-way," the term
"vicinity of ..." includes sites on, within, near to, surrounding, or adjoining
SWBT's poles, ducts, conduits, and rights-of-way. These sites include, but are
not limited to, all sites within a distance of 10 feet of any SWBT pole, duct,
conduit, or right-of-way.
ARTICLE 4: NATURE AND SCOPE OF AGREEMENT
4.01 Scope of Agreement. This Agreement establishes the rates, terms,
conditions, and procedures for access to SWBT's poles, ducts, conduits, and
rights-of way located within this State, without regard to whether such poles,
ducts, conduits, or rights-of-way are located on public or private property;
provided, however, that nothing contained in this Agreement shall be construed
as a grant of access to any facilities which are not poles, ducts, conduits, or
rights-of-way subject to the Pole Attachment Act or to any poles, ducts,
conduits, right-of-way, facilities, or property owned and controlled by parties
other than SWBT. Separate tariffs or agreements, including other portions of the
parties' interconnection agreement, and not this Agreement, shall govern
Applicant's access, if any, to the following facilities which require special
security, technical, and construction arrangements outside the scope of this
Agreement:
(a) SWBT's central office vaults and ducts and conduits which
serve no purpose other than to provide a means of entry to
and exit from SWBT's central offices;
(b) controlled environment vaults (CEVs), huts, cabinets, and
other similar outside plant structures and ducts and conduits
which serve no purpose other than to provide a means of entry
to and exit from such vaults, huts, cabinets, and structures;
(c) ducts and conduits located within buildings owned by SWBT;
and
(d) ducts, conduits, equipment rooms, and similar spaces located
in space leased by SWBT from third-party property owners for
purposes other than to house cables and other equipment in
active service as part of SWBT's network distribution
operations.
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4.02 No Transfer of Property Rights to Applicant. Nothing contained in
this Agreement or any license subject to this Agreement shall create or vest (or
be construed as creating or vesting) in either party any right, title, or
interest in or to any real or personal property owned by the other. The payment
of fees and charges as provided by this Agreement and licenses subject to this
Agreement shall not create or vest (or be construed as creating or vesting) in
either party any right, title, or interest in or to any real or personal
property owned by the other. No use, however extended, of SWBT's poles, ducts,
conduits, or rights-of-way shall create or vest (or be construed as creating or
vesting) in Applicant any right, title, or interest in or to any real or
personal property owned by SWBT, and the placement of Applicant's facilities on
or in SWBT's poles, ducts, conduits and rights-of-way shall not create or vest
in SWBT any right, title, or interest in such facilities.
4.03 No Effect on SWBT's Right to Abandon, Convey or Transfer Poles,
Ducts, Conduits, or Rights-of-Way. Except as provided in subsections (a)-(d) of
this section, nothing contained in this Agreement or any license subject to this
Agreement shall in any way affect SWBT's right to abandon, convey, or transfer
to any other person or entity SWBT's interest in any of SWBT's poles, ducts,
conduits, or rights-of-way.
(a) SWBT shall give Applicant no less than 60 days written notice
prior to abandoning, conveying or transferring any pole,
duct, conduit, or right-of-way (1) to or in which Applicant
has attached or placed facilities pursuant to this Agreement
or (2) with respect to which Applicant has been assigned pole
attachment or conduit occupancy space. The notice shall
identify the transferee, if any, to whom any such pole, duct,
conduit, or right-of-way is to be conveyed or transferred.
(b) SWBT represents that prior to the effective date of this
Agreement, and prior to enactment of the Telecommunications
Act of 1996, SWBT entered into one or more "joint use pole
agreements" with electric utilities located in this State and
that such agreements may require SWBT to transfer or convey
poles to such electric utilities from time to time. Nothing
contained in this Agreement shall abridge the rights of SWBT
or any electric utility under any contract executed prior to
the effective date of this Agreement. In the event of any
transfer or conveyance of poles to an electric utility
pursuant to such a joint pole agreement, SWBT will, at
Applicant's request, provide Applicant and the transferee
utility with such information as may be necessary to minimize
any burdens to Applicant which may arise out of or in
connection with the transfer or conveyance.
(c) Transfers of SWBT's poles, ducts, conduits, and rights-of-way
shall be subject to Applicant's rights at the time of
transfer. Applicant shall, at the request of SWBT or the
transferee, provide SWBT or the transferee with all
information required to assess Applicant's rights,
post-transfer
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intentions with respect to continued occupancy, and
willingness to negotiate new rates, terms, and conditions of
access. Applicant shall not unreasonably refuse to negotiate
with the transferee. If the transferee itself is a local
exchange carrier or other utility subject to the Pole
Attachment Act, Applicant shall, at the request of the
transferee, negotiate in good faith new rates, terms, and
conditions of access.
(d) Transfers or conveyances of poles, ducts, conduits, or
rights-of-way to any entity controlling, controlled by, or
under common control with SWBT or to any entity which
acquires or succeeds to ownership of substantially all of
SWBT's assets shall be subject to Applicant's rights under
this Agreement and licenses subject to this Agreement.
4.04 No Effect on SWBT's Rights to Manage its Poles, Ducts, Conduits,
and Rights-of-Way. Subject to Applicant's rights under this Agreement and
applicable federal and state laws, rules, regulations, and commission orders,
including, but not limited to, 47 C.F.R Section 1.1403 (requiring 60 days'
notice of contemplated modifications), SWBT may (a) locate, relocate, move,
replace, modify, maintain, and remove all poles, ducts, conduits, and
rights-of-way subject to this Agreement at any time and in any manner as SWBT
deems appropriate and (b) enter into new agreements or arrangements with other
persons or entities permitting them to attach facilities to SWBT's poles or
place facilities in or on SWBT's ducts, conduits, or rights-of-way.
4.05 No Right to Interfere. Except to the extent expressly provided by
the provisions of this Agreement, the provisions of this Agreement shall not be
construed as authorizing either party to this Agreement, or persons acting on
their behalf, to rearrange or interfere in any way with (a) the facilities of
the other party or joint users, (b) the use of or access to such facilities by
the other party or joint users, or (c) the ability of either party or joint
users to conduct normal business operations, serve their respective customers,
or avail themselves of new business opportunities.
4.06 Required Franchises, Permits, Certificates, and Licenses. This
Agreement shall not be construed as relieving either party from any obligations
it may have to obtain legal authority to construct, operate, maintain, repair,
and remove its facilities on public or private property (including but not
limited to any required franchises, permits, certificates, licenses, easements,
or the like) from all appropriate public authorities and private persons or
entities.
4.07 DISCLAIMER OF WARRANTIES. SWBT MAKES NO REPRESENTATIONS THAT
SWBT'S POLES, DUCTS, CONDUITS, OR RIGHTS-OF-WAY ARE SUITABLE FOR APPLICANT'S
INTENDED USES. SWBT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN THIS AGREEMENT, SWBT MAKES NO IMPLIED
WARRANTIES OF ANY KIND.
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4.08 Third-party Beneficiaries. Except as may be specifically set forth
in this Agreement, this Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
ARTICLE 5: ACCESS TO RIGHTS-OF-WAY
5.01 Public Rights-of-Way. SWBT and Applicant agree that neither party
has the right to restrict or interfere with the other party's lawful access to
and use of public rights-of-way, including public rights-of-way which pass over
property owned by either party. Except as otherwise specifically provided in
this Agreement, SWBT and Applicant shall each be responsible for obtaining their
own rights-of-way and permission to use real or personal property owned or
controlled by any governmental body.
5.02 Private Rights-of-Way Not Owned or Controlled by Either Party.
SWBT and Applicant agree that neither party shall restrict or interfere with the
other party's access to or right to occupy property owned by third-parties which
is not subject to the other party's control, including property as to which
either party has access subject to non-exclusive rights-of-way. Subject to the
procedures set forth in Section 5.04 below, each party shall make its own,
independent legal assessment of its right to enter upon or use the property of
third-party property owners and shall bear all expenses, including legal
expenses, involved in making such determinations.
5.03 Access to Rights-of-Way Generally. Each pole attachment and
conduit occupancy assignment or license made, issued, or subject to this
Agreement shall include access to and use of all associated rights-of-way
including, but not limited to, rights-of way required by Applicant for ingress,
egress, or other access to any sites where SWBT's poles or any part of SWBT's
conduit system are located, but only to the extent, if any, that SWBT has the
legal authority to grant such access and use. At locations where SWBT has access
to third-party property pursuant to non-exclusive rights-of-way, SWBT shall not
interfere with Applicant's negotiations with third-party property owners for
similar access or with Applicant's access to such property pursuant to easements
or other rights-of-ways obtained by Applicant from the property owner; provided,
however, that neither party shall conduct activities on such right-of-way which
interfere with the facilities of the other party or with the other party's
access to and use of its own facilities. At locations where SWBT has obtained
exclusive rights-of-way from third-party property owners or otherwise controls
the right-of-way, SWBT shall, to the extent space is available, and subject to
reasonable safety, reliability, and engineering conditions, provide access to
Applicant and third parties on a nondiscriminatory, first-come, first-served
basis, provided that the underlying agreement with the property owner permits
SWBT to provide such access, and provided further that Applicant agrees to
indemnify, on request defend, and hold SWBT harmless from any injury, loss,
damage, claim, or liability arising out of or in connection with such access or
use. Such access shall be granted, on a case-by-case basis, in the form of a
license, sublicense, sub-easement, or other mutually acceptable writing. Except
as otherwise agreed to by the parties, SWBT's
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charges for such access (obtained from SWBT rather than from the third-party
property owner) shall include (a) a pro rata portion of the charges (including
but not limited to one-time charges and recurring charges), if any, paid by SWBT
to obtain the right-of way plus (b) any other documented legal, administrative,
and engineering costs incurred by SWBT in obtaining the right-of-way and
processing Applicant's request for access. Applicant's pro rata portion of the
charge paid by SWBT shall be negotiated on a case-by-case basis and shall take
into account the size of the area used by Applicant and the number of users
occupying the right-of-way.
5.04 Special Procedures for Obtaining Access to Third-party Property.
Although SWBT will afford access to rights-of-way owned or controlled by it and
permit Applicant to utilize SWBT's rights-of-way to the extent that SWBT has
legal authority to do so, Applicant acknowledges that SWBT may not own or
control certain rights-of-way to the extent necessary to permit Applicant full
access to such rights-of-way. The following general principles shall be applied
with respect to access to rights-of-way on third-party property in those
situations in which SWBT does not have authority to permit Applicant access or
either party has a good faith belief that SWBT does not have such authority:
(a) Applicant will first attempt to obtain right-of-way directly
from the property owner.
(b) If Applicant has the right of eminent domain under state law,
Applicant will independently attempt to obtain the
right-of-way it seeks through the exercise of that right.
(c) If Applicant is unable to obtain access to a right-of-way
under subsections (a) or (b) above, Applicant may request in
writing that SWBT exercise its right of eminent domain to
condemn the right-of way for Applicant's use and SWBT will
respond to Applicant's written request within 45 days. SWBT
will exercise its right of eminent domain on Applicant's
behalf only if permitted to do so under applicable state law,
and only if Applicant agrees to bear all costs and expenses,
including but not limited to legal fees, arising out of or in
connection with the condemnation proceedings.
5.05 Access to Rights-of-Way Incident to the Use of CEVs and Similar
Structures. SWBT will provide Applicant nondiscriminatory access, consistent
with the requirements of the Pole Attachment Act and Telecommunications Act of
1996, and as provided in Sections 5.03 and 5.04 above, to rights-of-way
containing Controlled Environment Vaults (CEVs), huts, cabinets, and other
similar structures. SWBT will place no restrictions on access to such
rights-of-way that are more restrictive than those SWBT places on itself;
provided, however, that neither party shall conduct activities on such
rights-of-way which interfere with the facilities of the other party, with the
privacy of communications carried over the other party's network, or with the
other party's
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access to and use of its own facilities. This section relates only to access to
rights-of-way and shall not be construed as granting access to the CEVs, huts,
cabinets, and similar structures located on such rights-of-way. Access, if any,
to CEVs, huts, cabinets, and similar structures, and to ducts, conduits, and
risers which serve no purpose other than to provide a means of entering or
exiting such structures, shall be governed by the tariff, agreement, or order,
if any, granting Applicant access to such structures.
5.06 Access to Building Entrance Facilities, Building Distribution
Facilities, and Equipment Rooms. The parties acknowledge that ownership and
control of building entrance and distribution ducts, building entrance and
distribution conduits, building entrance and building distribution space,
equipment rooms, equipment closets, mechanical rooms, telephone communications
rooms, and similar spaces will vary from location to location and that the
respective rights of third-party property owners, tenants in buildings owned by
third-party property owners, telecommunications carriers, cable television
systems, and other providers of telecommunications services with respect to such
ducts, conduits, and spaces must be determined on a case-by-case basis. Each
party shall, when feasible, directly obtain from third-party property owners
such access to building entrance and building distribution ducts, building
entrance and building distribution conduits, building entrance and distribution
space, equipment rooms, equipment closets, mechanical rooms, telephone
communications rooms, and other similar areas as may be needed by such party to
serve the building owner and tenants located within buildings owned by third
parties or to access other space in the building occupied or to be occupied by
such party. In those situations in which Applicant cannot obtain from the
building owner access on terms satisfactory to Applicant, Applicant may request
access from SWBT as provided in Sections 5.03-5.04 of this Agreement; provided,
however, that a separate, building-specific notice of intent to occupy under
Section 8.02(b) or license application under Section 9.02, including such
additional information as may be necessary to identify the space to be occupied
and the facilities to be placed in such space, shall be required for access to
the facilities and space subject to this section. Any such notice or application
shall conspicuously note on its face that access to building entrance or
building distribution facilities or space is being sought. Applicant
acknowledges that SWBT must, before providing access to building space and
facilities located on or within third-party property, review applicable legal
documents and physical arrangements relating to the property, including physical
arrangements within the building. Upon completion of that review, SWBT will
notify Applicant whether Applicant's request can be granted under this
Agreement, will require access arrangements under a tariff or other applicable
agreement, or will require other special handling (e.g., direct negotiations
with the third-party property owner). Pending such notice, Applicant may not
occupy any duct, conduit, or space subject to this section pursuant to Section
8.03 without SWBT's express written consent but may exercise occupancy rights
obtained directly from the building owner. If SWBT has lawful authority to
provide such access and is required by the Pole Attachment Act to do so, SWBT
shall provide Applicant access under this Agreement. Such access shall be
negotiated on a case-by-case basis taking into account any special legal,
technical, security, or construction considerations applicable to the ducts,
conduits, or space which
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Applicant seeks to access. Such access, when provided, shall only include access
to ducts, conduits, and available space (as distinguished from access to cables
and other equipment not subject to the Pole Attachment Act). Such access shall
be subject to such reasonable terms and conditions as may be appropriate to
protect the equipment and other property of the parties and third parties, the
reliability of the parties' networks and the networks of third parties, and the
privacy of communications carried over the parties' networks and networks of
third parties.
(a) Applicant's access, if any, to building entrance ducts and
building entrance conduits entering SWBT-owned buildings
(including but not limited to central offices) and access, if
any, to other building entrance and building distribution
facilities and space located within such buildings shall be
arranged under and shall be subject to tariffs, agreements,
and, if applicable, commission or court orders establishing
such access rights rather than this Agreement.
(b) Applicant's access to and use of building entrance ducts,
building entrance conduits, building entrance space, and
other building entrance facilities owned and controlled by
third-parties shall be obtained by Applicant through direct
negotiations between Applicant and the third-party property
owners who own and control access to such facilities. If SWBT
owns a building entrance duct, building entrance conduit, or
other building entrance space, or if SWBT has sufficient
control over a building entrance duct, building entrance
conduit, or other building entrance space to permit other
telecommunications carriers or cable television systems to
have access to such ducts, conduits, or space without
approval or consent from the third-party property owner, SWBT
shall, if adequate capacity is available, and subject to
reasonable safety, reliability, and engineering conditions,
provide access to Applicant and other telecommunications
carriers and cable television systems on a nondiscriminatory,
first-come, first-served basis; provided, however, that
Applicant agrees to indemnify, on request defend, and hold
SWBT harmless from any injury, loss, damage, claim or
liability arising out of or in connection with Applicant's
access to or use of such building entrance ducts, building
entrance conduits, or other building entrance space. Such
access shall be granted, on a case-by-case basis, in the form
of a license, sublicense, easement, sub-easement, or other
mutually acceptable writing and shall not include access to
or the right to use SWBT's cables or other SWBT
telecommunications equipment occupying such ducts, conduits,
or space. Except as otherwise agreed to by the parties,
SWBT's charge for such access (obtained from SWBT rather than
from the third-party property owner) shall include (1) a pro
rata portion of all charges (including but not limited to
one-time charges and recurring charges), if any, paid by SWBT
to obtain the building entrance duct, building entrance
conduit, or building entrance space and
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(2) any other documented legal, administrative, engineering
costs and construction costs incurred by SWBT to obtain such
duct, conduit, or space, process Applicant's request for
access, or prepare the facilities for Applicant's occupancy
or use. SWBT's charges to Applicant under this subsection
shall be calculated and negotiated on a case-by-case basis.
(c) Applicant's access to and use of building distribution ducts,
building distribution conduits, building distribution space,
and other building distribution facilities owned and
controlled by third-parties shall be obtained by Applicant
through direct negotiations between Applicant and the
third-party property owners who own and control access to
such facilities. If SWBT owns a building distribution duct,
building distribution conduit, or other building distribution
space, or if SWBT has sufficient control over a building
distribution duct, building distribution conduit, or other
building distribution space to permit other
telecommunications carriers or cable television systems to
have access to such duct, conduit, or space without approval
or consent from the third-party property owner, SWBT shall,
if adequate capacity is available, and subject to reasonable
safety, reliability, and engineering conditions, provide
access to Applicant and other telecommunications carriers and
cable television systems on a nondiscriminatory, first-come,
first-served basis; provided, however, that Applicant agrees
to indemnify, on request defend, and hold SWBT harmless from
any injury, loss, damage, claim or liability arising out of
or in connection with Applicant's access to or use of such
building distribution ducts, building distribution conduits,
or other building distribution space. Such access shall be
granted, on a case-by-case basis, in the form of a license,
sublicense, easement, sub-easement, or other mutually
acceptable writing and shall not include access to or the
right to use SWBT's cables or other SWBT telecommunications
equipment occupying such ducts, conduits, or space. Except as
otherwise agreed to by the parties, SWBT's charges for such
access (obtained from SWBT rather than from the third-party
property owner) shall include ( 1) a pro rata portion of all
charges (including but not limited to one-time charges and
recurring charges) paid by SWBT to obtain the building
distribution duct, building distribution conduit, or building
distribution space and (2) any other documented legal,
administrative, engineering costs and construction costs
incurred by SWBT to obtain such duct, conduit, or space,
process Applicant's request for access, or prepare the
facilities for Applicant's occupancy or use. SWBT's charges
to Applicant under this subsection shall be calculated and
negotiated on a case-by-case basis.
(d) Access to equipment rooms, equipment closets, mechanical
rooms, telephone communications rooms, and similar areas
located in buildings owned and controlled by third-parties
shall be subject to access as
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provided in subsection (c); provided, however, that when any
such room or space is leased to SWBT on an exclusive basis
(as may be the case if the room or space will be used to
house remote switching equipment, pair gain equipment, or
other network equipment used to provide or support
telecommunications services to customers at locations outside
the building in which such room is located), access, if any,
shall be also subject to facilities collocation tariffs,
agreements, or arrangements.
(e) Nothing contained in this section shall be construed as
authorizing Applicant to occupy space owned or controlled by
third parties or to utilize third-party facilities or
property without permission or authority from the owner of
such property, where such permission or authority is
required. Neither this section nor any license or permission
granted under or subject to this section shall be construed
as a representation by SWBT to Applicant that Applicant has
the right to have access to or occupy any duct, conduit, or
space owned and controlled by a third-party property owner or
to utilize any telecommunications equipment owned or
controlled by SWBT or any third party (including but not
limited to owner- or tenant-owned cables, wires, and
equipment located on the customer side of any network
interface device).
(f) If Applicant has been granted access to a building entrance
or building distribution duct, conduit, or space pursuant to
this section, Applicant shall, at SWBT's request, relinquish
such access to SWBT if it is subsequently determined that
Applicant's use of such space will preclude SWBT from meeting
carrier- or provider-of-last-resort obligations to customers
on the premises affected.
ARTICLE 6: SPECIFICATIONS
6.01 Compliance with Requirements, Specifications, and Standards.
Applicant agrees that Applicant's facilities attached to SWBT's poles or
occupying space in SWBT's ducts, conduits, and rights-of-way shall be attached,
placed, constructed, maintained, repaired, and removed in full compliance with
the requirements, specifications, and standards specified in this Agreement.
6.02 Design to Minimize the Need for Access to SWBT's Poles, Ducts, and
Conduits. The parties shall each design their facilities to minimize the need
for the parties to access SWBT's poles, ducts, and conduits.
6.03 Infrequent Construction Techniques and Connectivity Solutions.
Unless precluded by documented engineering criteria or written guidelines SWBT
applied to itself as of January 1, 1996, and consistent with considerations of
safety, reliability, and sound engineering practice, SWBT will permit Applicant
at its own expense to utilize the following techniques to avoid high or unusual
expenditures: (a) placement of pole
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attachments on both the "field" side and "road" side of a pole; (b) placement of
extension arms or stand-off brackets on poles; and (c) building conduit branches
into SWBT's conduit systems. Applicant acknowledges that use of the above
techniques will be rare, will be permitted only on a case-by-case basis, and
must be performed in a manner which does not jeopardize the structural integrity
of SWBT's facilities, the safety of personnel working on or in SWBT's poles,
ducts, or conduits, and does not render unusable other available space on the
pole or in the duct or conduit. Except as otherwise agreed to by the parties in
writing, extension arms or stand-off brackets, if utilized, shall be installed
as make-ready work in accordance with SWBT's specifications and at Applicant's
expense. Once installed, extension arms and stand-off brackets shall become part
of the pole and shall be owned by SWBT. Unused capacity on any such extension
arms or stand-off brackets shall be deemed "available" (as defined in Section
3.07) for assignment.
6.04 Published Standards. SWBT and Applicant agree that the following
standards equally apply to either party with respect to facilities attached to
or placed in SWBT's poles, ducts, conduits, and rights-of-way and further agree
that facilities shall be placed, constructed, maintained, repaired, and removed
in accordance with current (as of the date when such work is performed) editions
of the following publications:
(a) the Blue Book Manual of Construction Procedures, Special
Report SR-TAP-001421, published by Bell Communications
Research, Inc. ("Bellcore"), and sometimes referred to as the
"Blue Book";
(b) the National Electrical Safety Code ("NESC"), published by
the Institute of Electrical and Electronic Engineers, Inc.
("IEEE"); and
(c) the National Electrical Code ("NEC"), published by the
National Fire Protection Association ("NFPA").
6.05 Additional Electrical Design Specifications: Conduit. The parties
agree that, in addition to the specifications and requirements referred to in
Sections 6.01-6.04 above, facilities placed in SWBT's conduit system after the
effective date of this Agreement shall meet the electrical design specifications
set forth in this section.
(a) No facilities shall be placed in SWBT's conduit system in
violation of FCC regulations, including regulations relating
to electrical interference. In addition, neither party shall
place any facility in SWBT's conduit system which causes or
may cause electrical interference with the facilities of the
other party or joint users sufficient to jeopardize network
integrity or degrade the quality of any communications
services offered by either party or a joint user. If either
party is notified by the other party or a joint user that its
facilities are causing, or have the potential to cause,
unacceptable levels of electrical interference, the party
notified shall either correct the problem, remove the
facility, or initiate good
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faith negotiations with the complaining party or joint user
to resolve the issue.
(b) Facilities placed in SWBT's conduit system shall not be
designed to use the earth as the sole conductor for any part
of the circuits.
(c) Facilities placed in SWBT's conduit system and carrying more
than 50 volts AC (rms) to ground or 135 volts DC to ground
shall be enclosed in an effectively grounded sheath or
shield.
(d) No coaxial cable shall be placed in SWBT's conduit system
unless such cable meets the voltage limitations of Article
820 of the National Electrical Code.
(e) Coaxial cable placed in SWBT's conduit system may carry
continuous DC voltages up to 1800 volts to ground where the
conductor current will not exceed one-half ampere and where
such cable has two separate grounded metal sheaths or shields
and a suitable insulating jacket over the outer sheath or
shield. The power supply shall be so designed and maintained
that the total current carried over the outer sheath shall
not exceed 200 microamperes under normal conditions.
Conditions which would increase the current over this level
shall be cleared promptly.
(f) The integrity of SWBT's conduit system and overall safety of
personnel require that "dielectric cable" be used within
SWBT's conduit system when a cable facility utilizes a duct
or route shared in the same trench by any electric
transmission facilities such as the facilities of a power
utility.
6.06 Additional Physical Design Specifications: Conduit. Facilities
placed in SWBT's conduit system following the effective date of this Agreement
shall meet all of the following physical design specifications:
(a) Except as otherwise specifically agreed in this Agreement or
licenses subject to this Agreement, Applicant's facilities
shall enter SWBT's conduit system at locations consistent
with the physical design specifications that SWBT applies to
itself (typically through a manhole) or at such other
designated locations agreed upon in writing (e.g., through
the licensing process) by the parties in accordance with
Section 6.03 (infrequent construction techniques and
connectivity solutions).
(b) Cables bound or wrapped with cloth or having any kind of
fibrous coverings or impregnated with an adhesive material
shall not be placed in SWBT's conduit or ducts.
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(c) Neither party shall circumvent the corrosion mitigation
measures of the other party or joint users.
(d) New construction splices in cables (including but not limited
to fiber optic and twisted pair cables) shall be located in
manholes, pull boxes or handholes.
6.07 Efficient Use of Conduit. To ensure efficient use of conduits,
SWBT will, when cable diameters permit, install inner ducts in multiples that
fully utilize duct space (typically three or four inner ducts in a full
four-inch duct) as needed for SWBT's own business purposes and to accommodate
Applicant and other joint users; provided, however, that SWBT will not be
required to install inner duct in advance of need or in anticipation of
potential future requests for access by Applicant and other joint users. In
addition, the parties shall, in accordance with SWBT's duct selection standards,
install cables in inner duct when cable diameters permit.
6.08 Specifications Applicable to Connections: Conduit. Except as
otherwise specifically agreed in this Agreement or licenses subject to this
Agreement, or as mutually agreed upon by the parties in writing, the following
specifications apply to connections of Applicant's ducts and conduits to SWBT's
conduit system:
(a) Applicant shall not bore, make, or enlarge any hole in, or
otherwise structurally modify or alter any manhole, handhole,
duct, conduit, or other facility which is part of SWBT's
conduit system except as provided in this Agreement, in
licenses subject to this Agreement, or as mutually agreed
upon by the parties in writing.
(b) Nothing contained in subsection (a) shall be construed as
precluding Applicant or qualified personnel acting on
Applicant's behalf from reattaching cable racks or performing
similar routine work which is minor in nature and associated
with the placement and splicing of Applicant's cable.
(c) Where Applicant's duct or facility physically connects with
SWBT's conduit system, the section of Applicant's duct or
facility which connects to SWBT's conduit system shall be
installed by SWBT or its contractor at Applicant's expense
(which will be SWBT's actual costs or the price charged SWBT
by the contractor performing such work). SWBT will perform
this work in an interval consistent with the intervals SWBT
performs the same or similar types of work for itself. If
SWBT's interval for beginning or completing this work does
not meet Applicant's needs, Applicant may arrange for the
work to be performed by an authorized contractor selected by
Applicant from a list, jointly developed by Applicant and
SWBT, of mutually agreed contractors qualified to perform
such work. Work performed by an authorized
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contractor selected by Applicant to perform work under this
subsection shall be performed in accordance with both
parties' specifications and in accordance with both parties'
standards and practices. Each party shall indemnify, on
request defend, and hold the other party harmless from any
injuries, losses, damages, claims, or liabilities resulting
from the performance of work by the indemnifying party or by
persons acting on the indemnifying party's behalf under this
subsection.
(d) SWBT will have the option to monitor the entrance and exit of
Applicant's facilities into SWBT's conduit system and the
physical placement of Applicant's facilities in and removal
of such facilities from any part of SWBT's conduit system.
Notice requirements for such monitoring are addressed in
Section 6.11 of this Agreement.
(e) If Applicant constructs or utilizes a duct (other than a duct
owned or controlled by SWBT) which is connected to SWBT's
conduit system, the duct and all connections between that
duct and SWBT's conduit system shall be sealed to prevent the
entry of gases or liquids into SWBT's conduit system. If
Applicant's duct enters a building, it shall also be sealed
where it enters the building and at all other locations
necessary to prevent the entry of gases and liquids into
SWBT's conduit system.
6.09 General Requirements Relating to Personnel, Equipment, Materials,
and Public Safety. Except as otherwise specifically provided in this Agreement,
Applicant shall be responsible for selecting the employees and contractors who
will perform work on Applicant's behalf on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way. Applicant, its contractors,
subcontractors, and other vendors acting on Applicant's behalf shall also be
responsible for selecting the personnel who perform work on Applicant's behalf
at such sites, directing the work performed by such personnel, compensating
their respective employees, and complying with all applicable laws, rules,
regulations, and agency orders relating to withholding taxes, social security
taxes, and other employment-related taxes. The provisions of this section are
intended to protect the integrity of the networks, facilities and operations of
SWBT, Applicant and joint users, to protect the health and safety of persons
working on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, to assure the financial responsibility of all persons and
entities performing work on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way, and to protect the public at large. The
requirements of this section (other than the provisions of subsection (h)) shall
be reciprocal and shall apply to SWBT and personnel acting on SWBT's behalf to
the same extent they apply to Applicant.
(a) Contractors, subcontractors, and other vendors, including
authorized contractors, performing work on Applicant's behalf
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way shall meet
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the same financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and vendors performing work on SWBT's behalf
on, within, or in the vicinity of such poles, ducts,
conduits, or rights-of-way. SWBT shall advise Applicant of
SWBT's requirements and any changes in such requirements.
Applicant shall be solely responsible for assuring compliance
with such requirements by contractors, subcontractors, and
other vendors acting on Applicant's behalf and shall be
liable to SWBT for any injury, loss, or damage suffered by
SWBT as a result of its failure to do so.
(b) Only properly trained persons shall work on, within, or in
the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Applicant shall be responsible for determining
that all such persons acting on Applicant's behalf have
proper training.
(c) Neither Applicant nor any person acting on Applicant's behalf
shall permit any person to climb or work on SWBT's poles or
in the vicinity of SWBT's poles, or enter SWBT's manholes or
work within or in the vicinity of SWBT's conduit system,
unless such person has the training, skill, and experience
required to recognize potentially dangerous conditions
relating to the pole or conduit system and to perform the
work safely.
(d) Neither Applicant nor any person acting on Applicant's behalf
shall permit any person acting on Applicant's behalf to
perform any work on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of way without first
verifying, to the extent practicable, on each date when such
work is to be performed, that conditions at the work site
(including but not limited to the physical condition of the
pole or any part of SWBT's conduit system) are sufficiently
safe for the work to be performed. If Applicant or any person
acting on Applicant's behalf determines that the condition of
any pole, duct, conduit, conduit system or right-of-way is
not safe enough for the work to be performed, Applicant shall
notify SWBT of conditions at the site and shall not proceed
with the work until Applicant is satisfied that the work can
be safely performed.
(e) Neither Applicant nor any person acting on Applicant's behalf
shall knowingly permit defective equipment or materials to be
used on, within or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way.
(f) When Applicant or personnel performing work on Applicant's
behalf are working on, within, or in the vicinity of SWBT's
poles, ducts,
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conduits, or rights-of-way located within, under, over,
adjacent to, or in the vicinity of streets, highways, alleys
or other traveled rights-of-way, such personnel shall follow
procedures which Applicant deems appropriate for the
protection of persons and property. Applicant and its
contractors shall be responsible, at all times, for
determining and implementing the specific steps required to
protect persons and property at the site. Applicant and its
contractors shall provide all traffic control and warning
devices required to protect pedestrian and vehicular traffic,
workers, and property from danger. Applicant and its
contractors shall have sole responsibility for the safety of
all personnel performing work on Applicant's behalf, for the
safety of bystanders, and for insuring that all operations
performed by persons acting on Applicant's behalf conform to
current OSHA regulations and all other governmental rules,
ordinances or statutes.
(g) Neither Applicant nor any persons acting on Applicant's
behalf shall engage in any conduct which damages public or
private property in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way, interferes with the use or
enjoyment of such public or private property except as
expressly permitted by the owner of such property, or creates
a hazard or nuisance on such property (including but not
limited to a hazard or nuisance resulting from any
abandonment of Applicant's facilities, failure to remove such
facilities or any construction debris from the property,
failure to erect warning signs or barricades as may be
necessary to exclude others from the premises or give notice
to others of unsafe conditions on the premises while work
performed on Applicant's behalf is in progress, or failure to
restore the property to a safe condition after such work has
been completed).
(h) Applicant shall promptly suspend activities on, within, or in
the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way (other than sites owned or controlled by
Applicant) if notified by SWBT that such activities create an
unreasonable risk of injury to persons or property (including
unreasonable risks of service interruptions). Applicant shall
not resume such activities on or in the vicinity of SWBT's
poles or rights of-way until Applicant is satisfied that the
work may safely proceed and that any hazardous conditions at
the site have been rectified and shall not resume such
activities within or in the vicinity of SWBT's conduit system
until both Applicant and SWBT are satisfied that the work may
safely proceed and that hazardous conditions at the site have
been rectified. In the event that SWBT requires Applicant to
suspend work activities and it is later determined that there
was no reasonable basis for the work suspension, SWBT shall
reimburse Applicant for actual costs resulting from the
delay.
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(i) All personnel on Applicant's behalf shall, while working on
or in SWBT's poles, ducts, conduits, or rights-of-way, carry
with them suitable identification and shall, upon the request
of any SWBT employee or representative, produce such
identification.
(j) Applicant and persons acting on Applicant's behalf are
encouraged to report unsafe conditions on, within, or in the
vicinity of SWBT's poles or conduit system to SWBT.
(k) Applicant shall establish sufficient controls and safeguards
to assure compliance with all provisions of this section.
6.10 Specific Requirements Relating to Personnel. Equipment, Materials,
and Construction Practices Within or in the Vicinity of SWBT's Conduit Systems.
When Applicant, its contractors, and other persons acting on Applicant's behalf
perform work for Applicant within or in the vicinity of SWBT's ducts, conduits,
and rights-of-way where such ducts or conduits are located, they will be guided
by the following:
(a) Except as may be mutually agreed upon by the parties in
writing, Applicant shall not "rod" or clear any duct or inner
duct in SWBT's conduit system other than a duct or inner duct
assigned to Applicant. Following the assignment of a specific
duct or inner duct to Applicant, Applicant may request that
SWBT rod or clear the duct or inner duct. If the duct or
inner duct cannot be cleared, SWBT will assign the next
available duct or inner duct to Applicant. Applicant's
request for assignment of the next available duct shall be in
writing, may be transmitted to SWBT via fax or other
transmission media mutually agreed upon by the parties, and
shall be processed within the same intervals applicable to
the processing of similar requests by SWBT's own personnel.
(b) Personnel performing work within SWBT's conduit system on
either party's behalf shall not climb on, step on, or
otherwise disturb the cables, air pipes, equipment, or other
facilities located in any manhole or other part of SWBT's
conduit system.
(c) Personnel performing work within or in the vicinity of SWBT's
conduit system (including any manhole) on either party's
behalf shall, upon completing their work, make reasonable
efforts to remove all tools, unused materials, wire
clippings, cable sheathing and other materials brought by
them to the work site.
(d) All of Applicant's facilities shall be firmly secured and
supported in accordance with Bellcore and industry standards
and any applicable
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construction standards adopted by SWBT and applicable to
SWBT's own facilities.
(e) Applicant's facilities shall be plainly identified with
Applicant's name in each manhole with a firmly affixed
permanent tag that meets the identification standards set by
SWBT for its own facilities.
(f) Manhole pumping and purging required in order to allow
Applicant's work operations to proceed shall be performed by
Applicant or its contractor in accordance with the
requirements of Sections 6.14 and 6.15 of this Agreement.
(g) Planks or other types of platforms shall be supported only by
cable racks.
(h) Any leak detection liquid or device used by Applicant or
personnel performing work on Applicant's behalf within or in
the vicinity of SWBT's conduit system shall be of a type
approved by SWBT and included on SWBT's then-current list of
approved types of leak-detection liquids and devices;
provided, however, that Applicant may use any type of leak
detection liquid or device which meets Bellcore's published
standards if SWBT has not provided Applicant SWBT's list of
approved types of leak detection liquids or devices at least
60 days in advance of Applicant's work.
(i) Applicant and its contractors shall be responsible for
providing proper ventilation while work is being performed in
SWBT's conduit system on Applicant's behalf. Except for
protective screens, no temporary cover shall be placed over
an open manhole unless it is at least four feet above the
surface level of the manhole opening.
(j) Smoking or the use of any open flame is prohibited in
manholes, in any other portion of the conduit system, or
within 10 feet of any open manhole entrance.
(k) Artificial lighting, when required by Applicant, will be
provided by Applicant. Only explosion-proof lighting fixtures
shall be used.
(l) Neither Applicant nor personnel performing work on
Applicant's behalf shall allow any combustible gas, vapor,
liquid, or material to accumulate in SWBT's conduit system
(including any manhole) during work operations performed
within or in the vicinity of SWBT's conduit system.
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(m) Applicant shall comply with the standards set by SWBT for its
own personnel restricting the use of spark producing tools,
equipment, and devices (including but not limited to such
tools as electric drills and hammers, meggers, breakdown
sets, induction sets, and the like) in manholes and other
portions of SWBT's conduit system, provided that such
standards have been communicated in writing to Applicant at
least 60 days in advance of the construction, installation,
or placement of Applicant's facilities within SWBT's conduit
system.
(n) Cable lubricants used in conduit systems shall be of a type
or types approved by SWBT and included on SWBT's then-current
list of approved types of cable lubricants; provided,
however, that Applicant may use any type of cable lubricant
which meets Bellcore's published standards if SWBT has not
provided Applicant SWBT's list of approved types of cable
lubricants at least 60 days in advance of Applicant's work.
6.11 Opening of Manholes and Access to Conduit. The following
requirements apply to the opening of SWBT's manholes and access to SWBT's
conduit system.
(a) Applicant will notify SWBT not less than 48 hours in advance
before entering SWBT's conduit system to perform
non-emergency work operations. Such operations shall be
conducted during normal business hours except as otherwise
agreed by the parties. The notice shall state the general
nature of the work to be performed. As a courtesy, Applicant
shall, when feasible, provide SWBT with 10 working days
advance notice before entering SWBT's conduit system. SWBT
shall, within 10 working days after the effective date of
this Agreement, advise Applicant of the manner in which
notices required by this section shall be given.
(b) An authorized employee or representative of SWBT may be
present as a construction inspector at any time when
Applicant or personnel acting on Applicant's behalf enter or
perform work within SWBT's conduit system. Such inspectors
may inspect the performance and quality of the work and
monitor the work for compliance with the terms, conditions,
and specifications of this Agreement or, in the case of
facilities modification, capacity expansion or make-ready
work, the plans and specifications of the facilities
modification, capacity expansion, or make-ready project. When
SWBT inspectors are present, Applicant and its contractors
shall have sole authority, responsibility, and control over
the method or manner by which the work is to be performed.
SWBT's inspectors may call violations to Applicant's
attention but shall have no authority to direct or advise
Applicant or personnel acting on Applicant's behalf
concerning the method or manner by which the work
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is to be performed; provided, however, that nothing
contained in this subsection shall relieve Applicant from
complying with any requirements of this Agreement.
(c) The parties contemplate that Applicant may need to perform
operations in SWBT's conduit system other than during normal
business hours and may on occasion require access to manholes
on shorter notice than contemplated in subsection (a) above.
Under these circumstances, Applicant shall notify SWBT as
soon as is reasonably possible of its intent to enter and
perform work in the conduit system and SWBT shall not,
without due cause and justification, insist on literal
compliance with scheduling requirements of subsection (a).
SWBT will establish procedures enabling SWBT to receive
notices from Applicant under this subsection 24 hours a day,
seven days a week.
(d) Each party must obtain any necessary authorization from
appropriate authorities to open manholes for such party's own
conduit work and operations therein.
(e) Applicant shall reimburse SWBT for costs associated with the
presence of construction inspectors only as specified in
APPENDIX I and only as permitted by applicable laws, rules,
regulations, and commission orders. SWBT shall not charge
Applicant for more than one such construction inspector per
site at any given time.
(f) If the presence of SWBT personnel at the site is requested by
Applicant or, in Applicant's opinion, is integral to
successful completion of the work, Applicant shall pay the
costs of having such personnel present.
6.12 OSHA Compliance. The parties agree that:
(a) facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way shall be constructed,
placed, maintained, repaired, and removed in accordance with
the Occupational Safety and Health Act (OSHA) and all rules
and regulations promulgated thereunder;
(b) all persons acting on such party's behalf shall, when working
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way, comply with OSHA and all rules
and regulations thereunder; and
(c) Applicant shall establish appropriate procedures and controls
to assure compliance with all requirements of this section.
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6.13 Hazardous Substances. Applicant acknowledges that, from time to
time, hazardous substances (as defined in Section 3.19 of this Agreement) may
enter SWBT's conduit system and accumulate in manholes or other conduit
facilities and that hazardous substances may be present at other sites where
SWBT's poles, ducts, conduits, or rights-of-way are located.
(a) Applicant may, at its expense, perform such inspections and
tests at the site of any pole, duct, conduit, or right-of-way
occupied by or assigned to Applicant as Applicant may deem
necessary to determine the presence at such sites of
hazardous substances. SWBT will assist Applicant, at
Applicant's request and expense, in the performance of such
inspections and tests.
(b) SWBT makes no representations to Applicant or personnel
performing work on Applicant's behalf that SWBT's poles,
ducts, conduits, or rights-of-way will be free from hazardous
substances at any particular time. Before entering a manhole
or performing any work within or in the vicinity of SWBT's
conduit system or any other site subject to access under this
Agreement, Applicant or personnel acting on Applicant's
behalf shall independently determine, to their satisfaction,
whether such hazardous substances are present and conduct
their work operations accordingly.
(c) Each party shall promptly notify the other of hazardous
substances known by such party to be present within or in the
vicinity of poles, ducts, conduits, or rights-of-way occupied
by or assigned to Applicant pursuant to this Agreement if, in
the sole judgment of such party, such hazardous substances
create a serious danger to (1) the health or safety of
personnel working within or in the vicinity of the conduit or
(2) the physical condition of the other party's facilities
placed or to be placed within the conduit.
(d) Nothing contained in this Agreement (including but not
limited to the acknowledgments and representations set forth
in this section) shall relieve either party from its
responsibility to comply with all applicable environmental
laws or its responsibility for any liability arising out of
such party's failure to comply with such laws. Nothing
contained in this Agreement shall be construed as relieving
SWBT of liability for hazardous substances present at any
site subject to this Agreement or as relieving either party
of liability for introducing hazardous substances to the site
or causing or contributing to the release of any such
substances. Failure to comply with the requirements of this
section may, however, be considered in determining issues
relating to negligence, causation of injury, and comparative
responsibility for injuries to persons, property, and the
environment.
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6.14 Compliance with Environmental Laws and Regulations. Applicant and
SWBT agree to comply with the following provisions relating to compliance with
environmental laws and regulations.
(a) Facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way following the effective
date of this Agreement shall be constructed, placed,
maintained, repaired, and removed in accordance with all
applicable federal, state, and local environmental statutes,
ordinances, rules, regulations, and other laws.
(b) All persons acting on Applicant's or SWBT's behalf, including
but not limited to the parties' employees, agents,
contractors, and subcontractors, shall, when working on,
within or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way, comply with all applicable federal, state,
and local environmental laws, including but not limited to
all environmental statutes, ordinances, rules, and
regulations. Applicant and personnel acting on Applicant's
behalf are expected to be familiar with their obligations
under environmental laws such as the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. Sections 9601 et seq.), the Toxic Substance Control
Act (15 U.S.C. Sections 2601-2629), the Clean Water Act (33
U.S.C. Sections 1251 et seq.), and the Safe Drinking Water
Act (42 U.S.C. Sections 300f-300j).
(c) The parties shall each establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
(d) From and after the effective date of this Agreement, neither
party nor personnel acting on either party's behalf shall
discharge or release hazardous substances onto or from the
site of any SWBT pole, duct, conduit, or right-of-way.
Neither Applicant nor SWBT nor personnel acting on either
party's behalf shall discharge water or any other substance
from any SWBT manhole or other conduit facility onto public
or private property, including but not limited to any storm
water drainage system, without first determining that such
discharge would not violate any environmental law, create any
environmental risk or hazard, or damage the property of any
person. Applicant will be expected to test such water or
substance for hazardous substances in accordance with
then-applicable SWBT standards and practices.
(e) Applicant and SWBT and all personnel performing work on
Applicant's or SWBT's behalf shall, when working on, within,
or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, comply with such additional standards,
practices, and requirements as SWBT may from time to time
adopt to comply with environmental laws, provided that
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such standards are communicated in writing to Applicant at
least 60 days in advance of Applicant's work.
6.15 Compliance with Other Governmental Requirements (Including
Aeronautical Navigation Safeguards). Facilities attached to SWBT's poles or
placed in SWBT's ducts, conduits, and rights-of-way shall be constructed,
placed, maintained, repaired, and removed in accordance with the ordinances,
rules, and regulations of any governing body having jurisdiction of the subject
matter (including but not limited to any valid ordinances, rules, and
regulations requiring permits, certificates, licenses or the like). Applicant
and SWBT shall comply with all statutes, ordinances, rules, regulations, and
other laws requiring the marking and lighting of aerial wires, cables, and other
structures to ensure that such wires, cables, and structures are not a hazard to
aeronautical navigation.
6.16 Differences in Specifications. To the extent that there may be
differences in the specifications, the most stringent specification will apply
except as otherwise specifically provided by SWBT in writing. Applicant will
consult with SWBT when Applicant is uncertain as to which specification is to be
followed.
6.17 Responsibility for the Condition of Facilities. Each party will be
responsible at all times for the condition of its facilities (including but not
limited to those extending from SWBT's poles, ducts, conduits, or rights-of-way
directly to any other location) and for its compliance with the requirements and
specifications of this article and all applicable laws, rules, regulations, and
ordinances.
ARTICLE 7: PRIMARY POINTS OF CONTACT, ACCESS TO RECORDS,
AND PRE-OCCUPANCY INSPECTIONS
7.01 Designation of Primary Points of Contact. Each party will, at the
request of the other party, designate a primary point of contact to facilitate
communications between the parties and the timely processing of Applicant's
applications for access to SWBT's poles, ducts, conduits, and rights-of-way
located within this State. Designations of primary points of contact will be
made by written notices including the name, title, address, phone number, and
fax number of the person designated as the primary point of contact; provided,
however, that unless and until a different designation is made, SWBT's primary
point of contact shall be the Utility Liaison Supervisor identified in APPENDIX
VIII. Designation of primary points of contact pursuant to this section will not
affect notice requirements or other legal requirements set forth in other
provisions of this Agreement.
7.02 Determinations by Applicant of Suitability and Availability.
Applicant shall make its own, independent assessment of the suitability of
SWBT's poles, ducts, conduits, and rights-of-way for Applicant's intended
purposes.
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7.03 Access to Records Relating to SWBT's Poles, Ducts, Conduits, and
Rights-of-Way. This section establishes procedures through which certain records
and information relating to SWBT's poles, ducts, conduits, and rights-of-way
will be made available to Applicant for planning and other purposes. Access to
such records and information will be conditioned on Applicant's execution of a
nondisclosure agreement equivalent in substance to the Nondisclosure Agreement
attached to this Agreement as APPENDIX V or such other nondisclosure agreement
as shall be mutually acceptable to the parties, and no person acting on
Applicant's behalf will be granted access to such records and information
without first signing such a nondisclosure agreement. Applicant will reimburse
SWBT for all reasonable costs incurred by SWBT in granting Applicant's requests
for access to records and information under this section.
(a) Applicant may, at any time after the effective date of this
Agreement, request permission to inspect SWBT's pole and
conduit maps and records, cable plat maps, and other plant
location records, if any, recording or logging assignments of
pole, duct, and conduit space. Applicant will be permitted to
examine these records during regular business hours at a
location where copies of such records are maintained or at
such other location as may be mutually agreed upon by the
parties. Access to such maps and records will be by
appointment only, and SWBT will make such maps and records
available for inspection by Applicant on two business days
advance notice; provided, however, that Applicant will, as a
courtesy, when feasible, provide SWBT with 10 business days
advance notice of its intent to examine such records.
(b) The access described in subsection (a) shall include the
right to make copies, at Applicant's expense, except for
cable plat maps, which shall be made available for inspection
only. In all instances, such access shall include the ability
to take notes and make drawings with references to those maps
and records. No references to cable counts or circuit
information may be included in any such copies, notes, or
drawings. With respect to other cable-specific or
customer-specific information, Applicant's copies, notes, or
drawings may include only such information as needed for bona
fide engineering and construction purposes (e.g., proposing
cable consolidations and identifying plant discrepancies)
and not for sales, marketing, competitive intelligence,
competitive analysis, strategic planning, and similar
activities. Applicant's copies, notes, and drawings may
include estimates regarding the physical characteristics
(such as size and weight) of cables when necessary to make
engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits
and rights-of-way for Applicant's intended uses.
(c) SWBT will provide Applicant the best information available
from SWBT's current pole and conduit maps and records, cable
plat maps,
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and other outside plant and construction records. SWBT
represents that such records reflect approximate geographical
locations of the facilities depicted and may not accurately
reflect information such as:
(1) the exact location of the facilities depicted;
(2) the physical size, characteristics, or condition of the
facilities depicted;
(3) the ducts or inner ducts presently occupied, assigned,
or available within any particular conduit segment or
manhole;
(4) the arrangement of facilities attached to a pole, the
position of facilities suspended between poles or their
relationship to each other and to the ground, or the
positioning of cables and other facilities housed within
ducts, conduits, manholes or other portions of SWBT's
conduit system; and
(5) other information which must be assessed before it can
be determined that space is available on or in a pole,
duct, or conduit for the attachment or occupancy of
Applicant's facilities or that the poles, ducts, or
conduits depicted are suitable for Applicant's intended
use.
7.04 Pre-occupancy Inspection of Poles Ducts, Conduits, and
Rights-of-Way. Applicant shall be permitted to view and inspect specified poles,
ducts, conduits, and rights-of-way on a pre-occupancy basis as provided in this
section.
(a) After the effective date of this Agreement, Applicant may
view specified poles, ducts, conduits, and rights-of-way on a
pre-occupancy basis. Nothing contained in this section shall
preclude Applicant from visually inspecting SWBT's poles,
ducts, conduits, or rights-of-way from any vantage point
lawfully accessible to Applicant without SWBT's permission.
(b) Applicant shall not enter any SWBT manhole for the purpose of
performing a pre-occupancy inspection without complying with
all applicable requirements set forth in Article 6 of this
Agreement, including but not limited to the provisions of
Section 6.11 relating to the opening of manholes.
ARTICLE 8: POLE, DUCT, AND CONDUIT SPACE ASSIGNMENTS
8.01 Selection of Space. Applicant will select the space Applicant will
occupy on SWBT's poles or in SWBT's conduit systems. Applicant's selections will
be based
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on the same criteria SWBT applies to itself. To enable Applicant to make such
selections in accordance with SWBT's criteria, SWBT will provide Applicant
information about the network guidelines and engineering protocols used by SWBT
in determining the placement of facilities on SWBT's poles and in SWBT's conduit
systems. In conduit systems owned or controlled by SWBT, maintenance ducts (as
defined in Section 3.25) shall not be considered available for Applicant's use
except as specifically provided elsewhere in this Agreement. All other ducts,
inner ducts, sub-ducts, and partitioned conduits which are not assigned or
occupied shall be deemed available for use by SWBT, Applicant, and third parties
entitled to access under the Pole Attachment Act.
8.02 Pole, Duct, and Conduit Space Assignments. Pole, duct, and conduit
space selected by Applicant will be assigned to Applicant as provided in this
section. Information received by SWBT in connection with this section shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
(a) After Applicant's application for a pole attachment or
conduit occupancy license has been received by SWBT, the
pole, duct, and conduit space selected by Applicant in such
application will be assigned to Applicant for a pre-occupancy
period not to exceed 12 months. The assignment (and date and
time of assignment) will be logged and recorded in the
appropriate SWBT records. If such space has been
provisionally assigned to Applicant as authorized below in
subsection (b), the 12-month pre-occupancy assignment period
will begin on the date the provisional assignment is recorded
in SWBT's records or the date of SWBT's receipt of
Applicant's notice of intent to occupy under subsection (b),
whichever date first occurs.
(b) SWBT shall, within 60 days after the effective date of this
Agreement, adopt interim procedures which will enable pole,
duct, and conduit space to be provisionally assigned to
Applicant and other applicants prior to the submission of
formal applications required pursuant to Section 9.02 of this
Agreement. Where indicated below, the interim procedures will
apply to the assignment of space to SWBT as well as to
Applicant and other applicants. SWBT may, on 60 days advance
notice to Applicant, revise such interim procedures if such
procedures prove to be unworkable, in which event Applicant
may challenge SWBT's decision in accordance with procedures
available to Applicant under applicable federal and state
laws and regulations. The procedures will enable Applicant
and other applicants, by written notice, to advise SWBT of
their intent to occupy unassigned space which appears, from
SWBT's records, to be available for assignment. Upon receipt
of such notice, SWBT shall date-and-time stamp the notice and
provisionally assign the space selected by Applicant or such
other applicant by logging and recording the assignment (and
date and time of assignment) in the appropriate SWBT records,
which records will be available for
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inspection as provided in Section 7.03 of this Agreement.
Space provisionally assigned to Applicant or such other
applicant will not be available for assignment to any other
person or entity, including SWBT. Notwithstanding such
provisional assignment, Applicant shall not occupy such space
without first obtaining a license, except as provided in
Section 8.03. The following additional requirements shall
apply.
(1) Before giving SWBT notice of its intent to occupy
unassigned space, Applicant shall make a good faith
determination that it actually plans to occupy such
space. The assignment process shall not be used by
either party for the purpose of holding or reserving
space which such party does not plan to use or for the
purpose of precluding SWBT or any other person or entity
from utilizing or having access to SWBT's poles, ducts,
conduits, or rights-of-way.
(2) With respect to unassigned conduit occupancy space, the
notice must include all information required to enable
SWBT and joint users, including other persons or
entities which may from time to time seek space in the
same ducts and conduits, to determine the specific space
which Applicant desires to occupy. The notice must,
therefore, include, at a minimum, the following
information:
(i) the specific conduit sections, and each manhole,
to be occupied;
(ii) the number of ducts, and number of inner ducts, to
be occupied by Applicant within each conduit
section;
(iii) the physical size (diameter) of the cables to be
placed in such duct, if known, or the maximum and
minimum sizes of the cables which may be placed if
more than one size cable is being considered for
the space to be occupied;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or
unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete construction
at the sites specified in the notice;
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section 8.03
of this Agreement; and
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(vii) if applicable, a conspicuous statement, as
required by Section 5.06 of this Agreement, that
the notice pertains to a building entrance or
building distribution duct or conduit or other
space within a building.
(3) With respect to unassigned pole space, such notice must
include all information required to enable SWBT and
other joint users, including other persons or entities
seeking space on the same poles, to determine the
specific space which Applicant desires to occupy. The
notice must, therefore, include, at a minimum, the
following information:
(i) the specific poles to be occupied;
(ii) the specific space on each pole to be occupied,
including the height (distance from the ground) of
the attachment and the side (road or field) where
the attachment is to be made;
(iii) the anticipated number and types of cables to be
attached, together with the anticipated physical
size (diameter) and weight (weight per foot) of
such cables, and the anticipated number and types
of strands, if any, to be used to support the
cables, such information to be sufficient to give
notice to SWBT and other joint users of the
remaining space on the pole available and what
facilities modification, capacity expansion, or
make-ready work may be required of subsequent
applicants as a result of the provisional
assignment of space to Applicant;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or
unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete construction
at the sites specified in the notice; and
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section 8.03
of this Agreement.
(4) No later than 30 days after giving such notice,
Applicant shall file an application under Section 9.02
or the provisional assignment will lapse.
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(5) As stated in Section 7.03(c), SWBT does not represent
that its records accurately reflect the information
necessary to enable Applicant to rely upon a
records-based assignment process. SWBT shall have no
duty to verify that space provisionally assigned
pursuant to this subsection is actually available.
(c) Assignments made prior to the issuance of a license will be
provisional assignments and will be subject to modification
if it is subsequently determined that the space selected by
or assigned to Applicant is already occupied or that a
different assignment is required to comply with SWBT's
standards for assigning pole, duct, and conduit occupancy
space.
(d) Applicant's obligation to pay semiannual pole attachment or
conduit occupancy fees will commence from the date of
assignment or provisional assignment, as logged and recorded
in the appropriate SWBT records.
(e) During the 12-month assignment period following the date
space is assigned to Applicant and entered into the
appropriate SWBT record, SWBT shall not occupy or use such
space without Applicant's permission, shall not assign such
space to any party other than Applicant, and shall not
knowingly permit any party other than Applicant to occupy or
use such space without Applicant's permission except as
otherwise specifically provided in this Agreement. The
assignment to Applicant will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if Applicant has not occupied such
assigned space within such 12-month period; provided,
however, that if Applicant's failure to occupy the space
within such 12-month period results from SWBT's failure to
perform make-ready work on schedule, the parties shall
negotiate a single extension of the assignment period, which
extension shall not extend the assignment period beyond three
months from the date of completion of SWBT's make-ready work;
and, provided further, that if Applicant can demonstrate that
its failure to occupy the space within such 12-month period
results from the actions of SWBT or third parties other than
persons acting on Applicant's behalf, or from acts of God,
the assignment may be extended for a period no longer than
three months from the date Applicant is first able to
commence construction activities at the site involved.
Assignments to third parties shall be subject to the same
rules applicable to Applicant under this subsection.
Extensions permitted under this subsection must be requested
in writing before expiration of the original 12-month period
and shall be recorded on the appropriate SWBT records
available for inspection under Section 7.03.
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(f) SWBT may assign space to itself by making appropriate entries
in the same records used to log assignments to Applicant and
third parties. If SWBT assigns pole, duct, or conduit space
to itself, such assignment will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if SWBT has not occupied such
assigned space within such 12-month period; provided,
however, that if SWBT's failure to occupy the space within
such 12-month period results from the actions of Applicant or
third parties other than persons acting on SWBT's behalf, or
from acts of God, SWBT's assignment may be extended for a
period no longer than three months from the date SWBT is able
to commence construction at the site involved. Extensions
permitted under this subsection must be recorded before
expiration of the original 12-month period on the appropriate
SWBT records available for inspection under Section 7.03.
(g) If facilities modifications, capacity expansions, or other
make-ready work are required due to the assignment of space
to either party under this section, the party to whom such
space has been assigned will reimburse the person or entity
incurring the costs for such facilities modifications,
capacity expansions, or make-ready work if the party to whom
such space has been assigned fails to occupy the assigned
space within the 12-month assignment period or any extension
thereof.
(h) Except as provided in subsections (e)-(f) above, assignments
shall not be extended, renewed, or sequentially repeated in
any manner (other than by actual occupancy) that enables
Applicant, SWBT, or any joint user to preclude access by
others to unused pole attachment or conduit occupancy space
for any period greater than 12 months after the date of
initial assignment.
(i) At Applicant's election, Applicant may file an application
for access which specifically requests that the space sought
by Applicant not be assigned to Applicant immediately and not
be recorded immediately in the SWBT records available for
inspection by other telecommunications carriers, cable
television systems, or other providers of telecommunications
services under Section 7.03 of this Agreement. In that event,
the space sought by Applicant will not be assigned to
Applicant and will remain available for assignment to others
without restriction until such time as such space is formally
assigned to Applicant in accordance with Applicant's written
instructions and the assignment is recorded in the records
available for inspection under Section 7.03. The assignment
shall be made no later than the date of issuance to Applicant
of a license confirming that Applicant has the right to
occupy the space described in the license. In the event that
Applicant elects to proceed under this subsection,
Applicant's obligation
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to pay pole attachment and conduit occupancy fees shall not
commence until the date the assignment is recorded in the
appropriate SWBT records and Applicant shall bear the risks
that (1) the space sought by Applicant will be assigned to
and occupied by another person or entity or (2) circumstances
will occur which may require that SWBT reevaluate Applicant's
application and repeat the field inspection portion of the
pre-license survey at Applicant's expense.
(j) Notices and applications including assignment requests will
be date- and time-stamped on receipt. Because space will be
selected and further assignments made based on entries logged
and recorded in the appropriate SWBT records, the date and
time of assignment will be the date and time when the
assignment is recorded rather than the date and time of
receipt of the application or notice requesting such
assignment. Although SWBT's clerical personnel will promptly
process assignment requests included in applications and
notices transmitted to SWBT by mail, courier, fax, or other
transmission media, SWBT shall not be liable for any failure
by Applicant to obtain the space desired by Applicant due to
delay in logging assignment requests. Applicant acknowledges
that, to maximize the probability that Applicant will be
assigned the space Applicant desires, Applicant should, when
possible, submit applications and notices including
assignment requests in person to SWBT at the site where the
applicable records are maintained and should countersign the
entry reflecting the assignment and time of assignment.
8.03 Immediate Occupancy. SWBT shall, within 60 days after the
effective date of this Agreement, adopt interim procedures which will provide
Applicant the ability to attach or place facilities on or in SWBT's poles,
ducts, conduits, and rights-of-way on an immediate basis when such space is
available for Applicant's use and no make-ready work or infrequent construction
techniques or connectivity solutions are required. SWBT may, on 60 days advance
notice to Applicant, revise or terminate such interim procedures if they prove
to be unworkable, in which event Applicant may seek renegotiation of this
Agreement or challenge SWBT's decision in accordance with procedures available
to Applicant under applicable federal and state laws, regulations, and
commission orders. The special procedures established under this section shall
supplement, rather than replace, the regular assignment and licensing procedures
set forth in Articles 8-10 of this Agreement, are intended to be used only under
special circumstances (e.g., when the regular procedures allow insufficient time
to meet customer service commitments or resolve non-routine construction or
network contingencies), shall not be used on a routine basis, and shall be
consistent with subsections (a)-(f) below.
(a) Upon giving SWBT the notice required by this subsection,
Applicant may immediately occupy space assigned or
provisionally assigned to
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Applicant pursuant to Section 8.02 of this Agreement. The
notice shall be contained in either a notice of intent to
occupy as provided in Section 8.02(b) or a license
application under Section 9.02. Applicant shall not give such
notice or occupy such space without first reviewing SWBT's
records and determining that the records reflect that the
space sought is available.
(b) Applicant shall not occupy space which has not been assigned
or provisionally assigned to Applicant. The assignment must
be recorded on the appropriate SWBT records, as provided in
Section 8.02, prior to Applicant's occupancy. If Applicant
subsequently determines that the records are inaccurate and
that the space assigned to Applicant is not available, or
that the space assigned is not suitable for Applicant's
intended use, Applicant shall, within one business day,
notify SWBT in writing that it no longer intends to occupy
the space earlier assigned and is releasing the assignment.
Except as otherwise provided in this subsection, Applicant
shall not occupy other space on the pole or in the duct or
conduit without first obtaining an assignment or provisional
assignment of the space which Applicant will occupy. To avoid
high or unusual expenditures resulting from unanticipated
conditions at the site, Applicant may occupy space not
assigned to Applicant subject to the following terms and
conditions.
(1) Applicant may occupy the next available space shown on
SWBT's records as available at the time of Applicant's
last review of the records. Applicant shall not
knowingly occupy space occupied by or assigned to SWBT
or any third party without consent of the party to whom
the space has been assigned.
(2) Within one business day after occupying such space,
Applicant shall submit to SWBT a written notice of
intent to occupy or an application for the space
occupied showing the reason for Applicant's use of the
space occupied.
(3) Applicant shall bear the risk that space occupied by
Applicant pursuant to this section was assigned to SWBT
or a third party during the period between Applicant's
last review of the records and Applicant's occupancy of
such space. After occupying space not previously
assigned to Applicant, Applicant shall review the
records and promptly notify the affected party if
Applicant determines that it has occupied space assigned
to such party. At the request of the party to whom such
space has been assigned, Applicant shall, within 24
hours, or within such other period of time mutually
agreed to by the parties affected, remove its facilities
from the space in question if the parties affected
cannot reach an acceptable alternative solution.
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SWBT and Applicant anticipate that all parties affected
will act in good faith to work out acceptable solutions
and that the parties affected will not insist on strict
adherence to the 24-hour removal requirement unless
there is a legitimate business need for compelling
removal within such time period.
(4) SWBT shall be entitled to recover from Applicant actual
costs, if any, directly incurred by SWBT as a result of
Applicant's decision under this subsection to occupy
subject to a valid prior assignment to SWBT. Applicant
shall indemnify, on request defend, and save SWBT
harmless from any injury, loss, damage, liability, or
claim asserted against SWBT by any third party resulting
from Applicant's decision under this subsection to
occupy space assigned to such third party.
(c) Nothing in this section authorizes Applicant to place its
facilities on or in any pole, duct, or conduit space already
occupied by the facilities of SWBT or a third party, even if
the presence of such facilities is not reflected on SWBT's
records.
(d) Nothing in this section authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires make-ready work (other than third-party make-ready
work arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity solution
described in Section 6.03.
(e) If Applicant has not done so already, within 24 hours after
occupying space pursuant to this section, Applicant will
submit to SWBT an application for the space occupied as
provided in Section 9.02 of this Agreement. The application
may be submitted by fax.
(f) Applicant will bear all risks resulting from the possibility
that assigned space which appears from the records to have
been available is not available or in suitable condition to
be used by Applicant and shall indemnify, on request defend,
and hold SWBT harmless from any injury, loss, damage, claim,
or liability (including but not limited to third-party
claims) resulting from Applicant's occupancy of space in
violation of this section.
ARTICLE 9: APPLICATIONS AND PRE-LICENSE SURVEYS
9.01 Licenses Required. Except as otherwise specifically permitted in
this Agreement, Applicant shall apply in writing for and receive a license
before attaching facilities to specified SWBT poles or placing facilities within
specified SWBT ducts,
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conduits, manholes, or handholes. License applications and information received
by SWBT in connection with such applications shall be subject to the provisions
of Article 28 of this Agreement (Confidentiality of Information).
9.02 Application Form. To apply for a pole attachment or conduit
occupancy license under this Agreement, Applicant shall submit to SWBT two
signed copies of the appropriate application forms. SWBT represents that the
forms specified in subsections (a)-(b) are forms in use prior to the effective
date of this Agreement and that SWBT is in the process of revising such forms to
conform to the provisions of this Agreement and to streamline the application
process. The parties therefore agree that the forms specified in subsections (a)
and (b) will be interim forms only. SWBT reserves the right to change the format
and content of these forms upon 60 days written notice to Applicant.
(a) To apply for a pole attachment license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9433 ("Pole Attachments "). An
application for a pole attachment license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9433 and SW-9434 are
attached to this Agreement as parts of APPENDIX III.
(b) To apply for a conduit occupancy license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9435 ("Conduit Occupancy"). An
application for a conduit occupancy license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9434 and SW-9435 are
attached to this Agreement as parts of APPENDIX III.
(c) Each application for a license under this Agreement shall
include, at a minimum, the following information:
(1) the poles, ducts, and conduits (including all manholes)
along Applicant's proposed route to or within which
Applicant desires to attach or place its facilities;
(2) a description of the facilities to be attached to SWBT's
poles and a description of the facilities to be placed
within each component of
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SWBT's conduit system (including but not limited to
ducts, conduits, manholes, and handholes) along the
proposed route;
(3) for poles, the proposed points of attachment;
(4) for building entrance or building distribution ducts or
conduits or other space within a building, a conspicuous
statement, as required by Section 5.06 of this
Agreement, that the application pertains to a building
entrance or building distribution duct or conduit or
other space within a building;
(5) if applicable, a conspicuous notation that the space
requested is not to be assigned (or billed) to Applicant
until SWBT has received Applicant's written instruction
to make such assignment or issued a license authorizing
Applicant to occupy the space requested; and
(6) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement.
(d) Facilities descriptions which apply to multiple pole
attachments or conduit occupancies need only be described
once on any form. Facilities descriptions shall include, at a
minimum, the following information:
(1) the number and types of cables, including the physical
size (diameter) and weight (weight per foot);
(2) the number and types of strands, if any, which will be
used to support the cables, including the rated holding
capacity expressed in thousand pound increments (e.g.,
2.2M of such strands; and
(3) sufficient information to identify and describe the
physical characteristics (size, dimensions, and weight)
of apparatus enclosures and other facilities to be
attached to SWBT's poles or placed in SWBT's conduit
system.
(e) When it appears to Applicant that facilities modification,
capacity expansion, or make-ready work may be required to
accommodate Applicant's access requests, Applicant shall
describe the facilities modification, capacity expansion, or
make-ready work which Applicant proposes. Applicant shall
also describe its plans, if any, to use any infrequent
construction technique or connectivity solution authorized
under Section 6.03 to avoid high or unusual expenditures and
state its reasons for the use of such technique or solution.
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(f) Applicant acknowledges that the poles along a particular pole
line or route may include poles owned by firms (such as
electric utilities) other than SWBT, that it may be necessary
for SWBT to rearrange its facilities or perform other
make-ready work on poles other than poles it owns or controls
in order to accommodate Applicant's request for access to
SWBT's poles and that, at the time an application is
submitted, it may be difficult for Applicant to determine
with certainty whether a particular pole is owned or
controlled by SWBT or by another entity. Accordingly, the
application shall, to the extent feasible, identify all poles
utilized by SWBT (without regard to ownership) along
Applicant's proposed route.
(g) Each application for a license under this Agreement shall be
accompanied by a construction schedule showing Applicant's
projected dates for beginning and completing construction at
the sites specified in the application. Information on this
schedule may be used by SWBT's engineering and outside plant
construction personnel in scheduling work required to process
Applicant's applications and scheduling such capacity
expansions, make-ready work, and facilities modifications, if
any, as may be necessary to accommodate Applicant's
facilities.
(h) Applicant may include multiple cables in a single license
application and may provide multiple services (e.g., CATV and
non-CATV services) under the same cable sheath or jacket.
When both CATV and non-CATV services are provided under the
same cable sheath or jacket, or CATV and non-CATV services
are provided using different cables attached or lashed to the
same strand or otherwise occupying the same space on a pole
or the same duct or inner duct within a conduit, Applicant
will so advise SWBT and SWBT shall, if permitted by law,
adjust its charges to enable SWBT to charge Applicant the
rate applicable to telecommunications carriers rather than
the rate applicable to cable television systems solely to
provide cable service.
9.03 Cooperation in the Application Process. The orderly processing of
applications submitted by Applicant and other firms seeking access to SWBT's
poles, ducts, conduits, and rights-of-way requires good faith cooperation and
coordination between SWBT's personnel and personnel acting on behalf of
Applicant and other firms seeking access. The parties therefore agree to the
following transitional procedures which will remain in effect during the term of
this Agreement unless earlier modified by mutual agreement of the parties.
(a) Before submitting a formal written application for access to
SWBT's poles, ducts, conduits, and rights-of-way, the firm
submitting the application shall make a good faith
determination that it actually plans
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to attach facilities to or place facilities within the poles,
ducts, conduits, or rights-of-way specified in the
application. Applications shall not be submitted for the
purpose of holding or reserving space which the applicant
does not plan to use or for the purpose of precluding SWBT or
any other provider of telecommunications or cable television
services from using such poles, ducts, conduits, or
rights-of-way.
(b) Applicant shall only submit applications for access to poles,
ducts, conduits, and rights-of-way which it plans to use
within one year following the date access is granted and
shall use its best efforts to submit applications in an
orderly manner in accordance with Applicant's needs. If
Applicant contemplates the need to submit more than 10
applications within any 45-day period with respect to poles,
ducts, conduits, and rights-of-way within the territory of
any single SWBT construction district, Applicant shall give
SWBT advance notice as promptly as is reasonably practicable.
(c) No more than 300 poles shall be the subject of any single
pole attachment license application.
(d) No more than 20 manholes shall be the subject of any single
conduit occupancy license application.
9.04 Applicant's Priorities. When Applicant has multiple applications
on file within a single SWBT construction district, Applicant shall, at SWBT's
request, designate its desired priority of completion of pre-license surveys,
facilities modifications, capacity expansions, and make-ready work with respect
to all such applications.
9.05 Pre-license Survey. A pre-license survey (including a review of
records and field inspection, if necessary) will be completed by SWBT after
Applicant has submitted its written license application as specified in Section
9.02 of this Agreement. SWBT shall not, without due cause and justification,
repeat pre-occupancy survey work performed by Applicant.
(a) The field inspection portion of the pre-license survey, which
includes the visual inspection of existing pole and conduit
facilities, shall be performed by SWBT or its authorized
representative. Primary purposes of the field inspection will
be to enable SWBT to (1) confirm or determine the facilities
modification, capacity expansion, and make-ready work if any,
necessary to accommodate Applicant's facilities; (2) plan and
engineer the facilities modification, capacity expansion, and
make-ready work, if any, required to prepare SWBT's poles,
ducts, conduits, rights-of-way, and associated facilities for
Applicant's proposed attachments or occupancy; and (3)
estimate the costs
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associated with such facilities modification, capacity
expansion, or make-ready work. SWBT may dispense with the
field inspection if it appears that the information necessary
to process Applicant's license application is already
available from existing sources, including the application
forms and such other information as may be available to SWBT.
If Applicant has occupied the space requested before the
issuance of a license, a post-installation inspection of
Applicant's facilities may be performed, in place of the
field inspection portion of the pre-license survey, to
determine whether such facilities are in compliance with the
specifications of Article 6 and other provisions of this
Agreement. In performing such inspection, SWBT will not,
without due cause and justification, repeat pre-occupancy
survey work performed by Applicant.
(b) The administrative processing portion of the pre-license
survey (which includes processing the application and
reviewing records) will be performed by SWBT.
(c) Before performing any portion of the pre-license survey, SWBT
shall obtain Applicant's written authorization to perform
such work. Authorization may be given, when possible, when
the application is submitted. No authorization shall be
required for post-installation inspections of Applicant's
facilities when installation has occurred before the issuance
of a license.
ARTICLE 10: ISSUANCE AND DENIAL OF LICENSES
(INCLUDING FACILITIES MODIFICATIONS,
CAPACITY EXPANSIONS, AND MAKE-READY WORK)
10.01 Response Within 45 Days. Within 45 days of Applicant's submission
of a license application pursuant to Section 9.02 of this Agreement, or within
such other period of time as may be mutually agreed upon in writing by the
parties, SWBT shall respond to the application. The response shall state whether
the application is being granted or denied. If denial is anticipated, or if SWBT
personnel involved in the processing of Applicant's request for access become
aware of hazardous substances at the site requested by Applicant, SWBT shall
promptly advise Applicant and shall, at Applicant's request, discuss
alternatives to denial and issues associated with the presence of such hazardous
substances. Additional state-specific response and notice requirements, if any,
shall be addressed by an addendum to this Agreement.
(a) If access is granted, SWBT shall, no later than 45 days after
Applicant's submission of the license application, further
advise Applicant in writing (1) what facilities
modifications, capacity expansions, or make-ready work, if
any, will be required to prepare SWBT's pole or conduit
facilities, (2) provide Applicant an estimate of charges for
such facilities
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modifications, capacity expansions, or make-ready work and
(3) disclose to Applicant any hazardous substances known by
SWBT to be present at the site.
(b) SWBT may take into account issues of capacity, safety,
reliability, and engineering when considering requests for
access, provided the assessment of such factors is done in a
nondiscriminatory manner. If access is denied, SWBT shall
confirm the denial in writing by the 45th day after the
receipt by SWBT of Applicant's completed application. A
denial of access shall be specific, shall include all
relevant evidence and information supporting the denial, and
shall explain how such evidence and information relates to a
denial of access for reasons of lack of capacity, safety,
reliability, or generally applicable engineering purposes. If
Applicant in its completed application sets forth in writing
specific proposals for expanding capacity, the denial
statement shall specifically address such proposals.
(c) Applicant agrees that if, at any time prior to the 45th day,
it has determined that it no longer seeks access to specific
poles, ducts, or conduit facilities, Applicant shall promptly
withdraw or amend its application, thereby minimizing the
administrative burdens on SWBT of processing and responding
to the application.
(d) Notwithstanding the 45-day deadline, SWBT will, pursuant to
Section 8.03 of this Agreement, make available to Applicant
for immediate occupancy any pole, duct, or conduit space
which is not currently assigned, not designated as a
maintenance duct, and not subject to applicable make-ready
requirements.
(e) If SWBT fails to respond in writing within 30 days of SWBT's
documented receipt of a license application pursuant to
Section 9.02 of this Agreement, or within such other period
of time as may be mutually agreed upon in writing by the
parties, Applicant may by written notice inquire whether SWBT
intends to deny Applicant's request for access. After such
notice has been given and receipt by SWBT of a properly
submitted license application has been confirmed, SWBT's
failure to respond in writing within 15 days after receipt of
the notice shall be deemed to constitute approval of the
request for access. In such event, Applicant shall be
entitled to occupy the space requested without the formality
of a license; provided, however, that nothing contained in
this subsection shall authorize Applicant to occupy space
already occupied or subject to a prior valid space assignment
to SWBT or any third-party; and provided further that nothing
in this subsection authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires
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make-ready work (other than third-party make-ready work
arranged directly by Applicant) or (2) utilize any infrequent
construction technique or connectivity solution described in
Section 6.03.
10.02 Obligation to Construct or Modify Facilities; Capacity
Expansions. SWBT may grant access subject to Applicant's approval of such
make-ready work (including facilities modifications) as may be required to
expand capacity to accommodate Applicant's request, in which event Applicant
shall either accept such conditions, initiate good faith negotiations to
explore other potential accommodations, or withdraw its request for access. If
SWBT does not offer to expand capacity and denies Applicant's request for
access, SWBT shall promptly notify Applicant of such determination. SWBT shall
not deny Applicant's request for access on lack of capacity grounds when
capacity can be expanded as provided in this section and in Section 6.03
(infrequent construction techniques and connectivity solutions).
(a) At Applicant's request, SWBT will replace, expand, or modify
its poles and conduit system, or otherwise expand the
capacity of such facilities to accommodate the placement of
Applicant's facilities; provided, however, that such
modifications shall be consistent with the capacity, safety,
reliability, and engineering considerations which SWBT would
apply to itself if the work were performed for SWBT's own
benefit. Outside plant facilities modifications and capacity
expansions contemplated by this subsection include, but are
not limited to, installation of inner duct, cable
consolidations and the removal of cables that are retired or
inactive (dead). Except as otherwise specifically provided in
this section, SWBT may recover from Applicant the costs of
facilities modifications and capacity expansions to make
space available for Applicant's facilities and charges for
such modifications and expansions shall be determined and
billed as provided in APPENDIX I of this Agreement.
(b) SWBT will, at its own expense, install inner duct in SWBT's
conduit system as necessary to make Space available for
Applicant's facilities. Inner duct installations to
accommodate Applicant's facilities will be performed by SWBT
within the same time intervals which would apply if SWBT were
performing such installations for itself. If SWBT's intervals
for beginning or completing inner duct installation do not
meet Applicant's needs, Applicant may arrange for the inner
duct installation to be performed by an authorized contractor
selected by Applicant from a list, jointly developed and
maintained by the parties, of contractors mutually approved
as qualified to perform inner duct installations. Applicant
may install the inner duct itself if Applicant is on the list
of mutually approved contractors at the time the work is
performed. When inner duct is installed in SWBT's conduit
system by Applicant or an authorized contractor selected by
Applicant, SWBT will provide the
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inner-ducting materials to be installed and Applicant shall
bear all other installation expenses. Applicant shall give
SWBT sufficient advance notice of the materials needed to
enable SWBT to provide such materials to Applicant on a
timely basis. Applicant shall return all unused materials,
including unused inner duct and reels, to SWBT or purchase
them from SWBT. Inner duct installed by Applicant or an
authorized contractor selected by Applicant shall be
installed in accordance with SWBT's specifications and in
accordance with the same standards and practices which would
be followed if the inner duct were being installed by SWBT or
SWBT's contractors. Applicant shall indemnify, on request
defend, and hold SWBT harmless for any injuries, losses,
damages, claims, or liabilities directly resulting from the
installation of inner duct by Applicant or any authorized
contractor selected by Applicant under this subsection.
Applicant shall not, without SWBT's prior written approval,
arrange for inner duct installation to be performed by
subcontractors who are not authorized contractors.
(c) SWBT shall, at its expense, remove cables that are retired or
inactive (dead) to free-up requested duct and pole space,
provided that such removal is reasonably feasible (i.e.,
cable pulls easily without incident). If a section of cable
is "frozen" in a duct and would require excavation to remove,
Applicant may, at its option, request that SWBT excavate the
obstruction or, in the alternative, arrange for excavation of
the obstruction to be performed by an authorized contractor
selected by Applicant from a list, jointly developed and
maintained by the parties, of contractors mutually approved
as qualified to perform such excavations. Applicant may
excavate the obstruction itself if Applicant is on the list
of mutually approved contractors at the time the work is
performed. Such excavations will be at Applicant's expense.
Removal of the remainder of the cable will be at SWBT's
expense. Excavation work performed by Applicant or an
authorized contractor selected by Applicant shall be
performed in accordance with SWBT's specifications and in
accordance with the same standards and practices which would
be followed if such excavation work were being performed by
SWBT or SWBT's contractors. Neither Applicant nor any
authorized contractor selected by Applicant to perform
excavation work under this subsection shall conduct facility
excavation activities in any manner which jeopardizes or
degrades the integrity of SWBT's structures or interferes
with any existing use of the facilities. Applicant shall
indemnify, on request defend, and hold SWBT harmless for any
injuries, losses, damages, claims, or liabilities directly
resulting from the performance of excavation work by
Applicant or any authorized contractor selected by Applicant
under this subsection. Applicant shall not, without SWBT's
prior written approval, arrange for excavation work to be
performed
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under this subsection by subcontractors who are not qualified
contractors.
10.03 Issuance of Licenses and Immediate Access When No Make-ready Work
is Required. If, on the basis of Applicant's representations or SWBT's field
inspection, if any, SWBT determines that no make-ready work is necessary to
accommodate Applicant's facilities, SWBT will issue a license without performing
make-ready work and pole attachment or conduit occupancy space will be made
available to Applicant for immediate occupancy. Immediate occupancy prior to the
issuance of a license shall be governed by Section 8.03.
10.04 Make-ready Work. If SWBT determines that make-ready work will be
necessary to accommodate Applicant's facilities, SWBT shall promptly notify
Applicant of the make-ready work proposed to enable the accommodation of
Applicant's facilities.
(a) The notice shall be given in writing no later than 45 days
after the receipt by SWBT of Applicant's completed
application pursuant to Section 9.02 of this Agreement or
within such other period of time as may be mutually agreed
upon in writing by the parties.
(b) The notice will include SWBT's estimate of make-ready
charges, which estimate shall be stated on SWBT Form SW-9434
("Access Application and Make-Ready Authorization"), a copy
of which is attached hereto as part of APPENDIX III.
(c) Applicant shall have 20 days (the "acceptance period") after
receiving SWBT's estimate of make-ready charges to authorize
completion of the make-ready work proposed by SWBT or to
advise SWBT of is willingness to perform the proposed
make-ready work itself. If Applicant advises SWBT that it is
willing to perform the make-ready work proposed by SWBT in
accordance with SWBT's plans and specifications, SWBT will
not, without due cause and justification, refuse to accept
Applicant's offer to perform the work. Authorization shall be
accomplished by Applicant's signing the estimate and
returning it to SWBT within the 20-day acceptance period.
(d) Within the 20-day acceptance period, the parties may
negotiate modifications of the make-ready work to be
performed. If the parties reach agreement through
negotiation, a new estimate shall be prepared and
authorization shall be accomplished by Applicant's signing
the revised estimate and returning it to SWBT within the
original 20-day acceptance period, or within such period of
time as may be mutually agreed upon by the parties.
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(e) If Applicant does not sign and return the estimate within the
20-day acceptance period, or within such other period of time
as may be mutually agreed upon in writing by the parties,
Applicant shall notify SWBT in writing by the 20th day
whether Applicant is withdrawing its application, electing to
perform the make-ready work itself as provided in subsection
(c) or electing to treat SWBT's make-ready requirements as a
denial of access.
(1) If no such notice is given by the 20th day, or such
later date as may be mutually agreed upon by the
parties, SWBT shall contact Applicant to determine
whether Applicant intends to withdraw its application.
Applicant shall be deemed to have withdrawn its
application if, in response to SWBT's inquiry, Applicant
does not immediately sign and return the estimate to
SWBT.
(2) If Applicant timely notifies SWBT that it is electing to
treat SWBT's make-ready requirements as a denial of
access, SWBT shall, within 20 days after receiving the
notice, provide Applicant with a written statement
explaining its decision to grant access only if the
specified make-ready work is performed. The statement
shall be specific, shall include all relevant evidence
and information supporting SWBT's decision to grant
access only if the specified make-ready work is
performed, and shall explain how such evidence and
information relates to SWBT's decision for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. The statement shall
also set forth the basis for SWBT's make-ready proposals
and specifically address SWBT's rationale for rejecting
Applicant's alternative written proposals, if any.
10.05 Performance of Make-ready Work. Except as otherwise specifically
provided in Section 10.02 and in this section, make-ready work shall be
performed by SWBT or by contractors, subcontractors, or other persons acting on
SWBT's behalf and shall be performed by SWBT in accordance with the same time
intervals which would be applicable if SWBT were performing the work for itself.
(a) Applicant and SWBT will mutually establish and maintain for
each SWBT construction district lists of authorized
contractors which may be selected by Applicant to perform
make-ready work when SWBT's interval for beginning or
completing such make-ready work does not meet Applicant's
needs. At Applicant's request, Applicant will be included on
such lists upon Applicant's demonstrating that (1) its
personnel are qualified to perform such work in accordance
with SWBT's specifications and (2) Applicant meets the
financial responsibility (insurance and bonding) requirements
generally applicable to contractors, subcontractors, and
other vendors performing
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the same or similar work on SWBT's behalf or the
self-insurance requirements of Section 23.02.
(b) If SWBT's interval for beginning or completing make-ready
work does not meet Applicant's needs, Applicant may (1)
perform the make-ready work itself, if Applicant is on the
applicable list of authorized contractors at the time the
work is to be performed or (2) arrange for the work to be
performed by an authorized contractor selected by Applicant
from the applicable list of authorized contractors. Subject
to the availability of personnel, Applicant may also request
that SWBT perform the work on an expedited basis; provided,
however, that make-ready work will not be performed on an
expedited basis unless Applicant first approves any overtime
or premium rates or charges associated with performance of
the work on an expedited basis.
(c) From time to time, additional contractors, subcontractors or
other vendors may be jointly approved by Applicant and SWBT
to perform specific make-ready work in the event that the
work load exceeds the capacity of the authorized contractors
on the approved list to perform the make-ready work in a
timely manner.
(d) Make-ready work performed by Applicant, by an authorized
contractor selected by Applicant, or by a contractor,
subcontractor, or other vendor jointly approved by the
parties under subsection (c) shall be performed in accordance
with SWBT's specifications and in accordance with the same
standards and practices which would be followed if such
excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor authorized contractors
selected by Applicant to perform make-ready work under this
section shall conduct such work in any manner which
jeopardizes or degrades the integrity of SWBT's structures or
interferes with any existing use of SWBT's facilities.
Applicant and any authorized contractor selected by Applicant
to perform make-ready work shall indemnify, on request
defend, and hold SWBT harmless from any and all injuries,
losses, damages, claims, or liabilities directly resulting
from their activities under this section.
(e) Nothing contained in this section authorizes Applicant, any
authorized contractor selected by Applicant, or any other
person acting on Applicant's behalf to consolidate SWBT's
cables.
10.06 Multiple Applications. Applications shall be processed on a
first-come, first-served basis. Applications filed on the same date shall be
treated as having been filed simultaneously and shall be processed accordingly.
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10.07 Payments to Others for Expenses Incurred in Transferring or
Arranging Their Facilities. Applicant shall make arrangements with the owners of
other facilities attached to SWBT's poles or occupying space in SWBT's conduit
system regarding reimbursement for any expenses incurred by them in transferring
or rearranging their facilities to accommodate the attachment or placement of
Applicant's facilities to or in SWBT's poles, ducts, and conduits.
10.08 Reimbursement for the Creation or Use of Additional Capacity. As
a result of facilities modification, capacity expansion, or other make-ready
work performed to accommodate Applicant's facilities, additional capacity may
become available on SWBT's poles or in its conduit system. In such event,
Applicant shall not have a preferential right to utilize such additional
capacity in the future and shall not be entitled to any pole attachment or
conduit occupancy fees subsequently paid to SWBT for the use of such additional
capacity. SWBT shall, however, establish procedures for giving Applicant notice
of the subsequent use by SWBT or third parties of additional space or capacity
created at Applicant's expense. If SWBT utilizes additional space or capacity
created at Applicant's expense, SWBT will reimburse Applicant on a pro-rata
basis for SWBT's share, if any, of Applicant's capacity expansion costs, to the
extent reimbursement is required by the Pole Attachment Act and applicable
rules, regulations, and commission orders. If any third party later utilizes any
such additional space or capacity, SWBT shall, at the request of Applicant or
such third party, provide such information as may be available to SWBT to assist
Applicant and such third party in determining the amount, if any, which such
third party may owe Applicant as its pro-rata share of Applicant's capacity
expansion costs. Nothing contained in this section shall be construed as
conferring or imposing on SWBT any right or duty to determine the amounts owing
by a third party to Applicant, to collect or remit any such amounts to
Applicant, to resolve or adjudicate disputes over reimbursement between
Applicant and third parties, to deny a third party access to SWBT's poles,
ducts, conduits, or rights-of-way due to such third party's failure to satisfy
Applicant's reimbursement demands, or to take any other action to enforce
Applicant's reimbursement rights against any third party. In like manner, for
additional capacity created by SWBT from and after the date of enactment of the
Telecommunications Act of 1996, SWBT shall be entitled to recover from Applicant
and third parties, to the full extent permitted by law, their pro-rata shares of
such capacity expansion costs incurred by SWBT. To the extent that either party
seeks to avail itself of this cost-saving mechanism, such party shall be
responsible for maintaining adequate records documenting the costs subject to
reimbursement, including but not limited to costs incurred for facilities
modification and capacity expansion work performed directly by such party or
contractors performing work on such party's behalf.
10.09 License and Attachment. After all required make-ready work is
completed, SWBT will issue a license confirming that Applicant may attach
specified facilities to SWBT's poles or place specified facilities in SWBT's
conduit system. Applicant shall have access to attach or place only those
facilities specifically described in licenses subject to this Agreement, and no
others, except as otherwise specifically provided in (a) Sections 8.03 and 12.03
or other provisions of this Agreement, (b) any other written
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agreement between the parties providing for such access, or (c) the provisions
of any applicable tariffs or commission orders.
ARTICLE 11: CONSTRUCTION OF APPLICANT'S FACILITIES
11.01 Responsibility for Attaching and Placing Facilities. Each party
shall be responsible for the actual attachment of its own facilities to SWBT's
poles and the placement of such facilities in SWBT's ducts, conduits, and
rights-of-way and shall be solely responsible for all costs and expenses
incurred by it or on its behalf in connection with such activities. In this
regard, each party and its contractors shall be solely responsible for (a)
paying all persons and entities who provide materials, labor, access to real or
personal property, or other goods or services in connection with the
construction and attachment of its facilities and (b) directing the activities
of all personnel acting on such party's behalf while they are physically present
on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way.
11.02 Construction Schedule. After the issuance of a license, Applicant
shall provide SWBT with an updated construction schedule and thereafter keep
SWBT informed of anticipated changes in the construction schedule. Construction
schedules received by SWBT shall be subject to the provisions of Article 28 of
this Agreement (Confidentiality of Information). Construction schedules required
by this section shall include, at a minimum, the following information:
(a) the name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
(b) the names of each contractor and subcontractor which will be
involved in the construction activities;
(c) the estimated dates when construction will begin and end; and
(d) the approximate dates when Applicant or personnel working on
Applicant's behalf will be performing construction work in
connection with the attachment of Applicant's facilities to
SWBT's poles or the placement of Applicant's facilities in
any part of SWBT's conduit system.
ARTICLE 12: USE AND ROUTINE MAINTENANCE
OF APPLICANT'S FACILITIES
12.01 Use of Applicant's Facilities. Each license subject to this
Agreement authorizes Applicant to have access to Applicant's facilities on or
within SWBT's poles, ducts, and conduits as needed for the purpose of serving
Applicant's customers.
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12.02 Routine Maintenance of Applicant's Facilities. Each license
subject to this Agreement authorizes Applicant to engage in routine maintenance
of facilities located on or within SWBT's poles, ducts, and conduits. Routine
maintenance does not include the replacement or modification of Applicant's
facilities in any manner which results in Applicant's facilities differing
substantially in size, weight, or physical characteristics from the facilities
described in Applicant's license.
12.03 Installation of Drive Rings and J-Hooks. Applicant may install
drive rings and J-hooks on SWBT's poles for the attachment of drop wires as
specified in this section.
(a) Drive rings and J-hooks may be installed as specified in pole
attachment licenses issued to Applicant.
(b) If attachment space has already been licensed to Applicant on
a given SWBT pole, Applicant may install drive rings and
J-hooks within the space assigned to Applicant (typically six
inches above and six inches below Applicant's point of
attachment on the pole if the point of attachment is in the
center of the space assigned to Applicant) without applying
for or obtaining a new or amended license. No additional
attachment charges shall apply with respect to drive rings
and J-hooks installed in Applicant's licensed attachment
space.
(c) Applicant's first choice for placement of drive rings and
J-hooks shall be the licensed attachment space assigned to
Applicant as provided in subsection (b) above; provided,
however, that if attachment space already licensed to
Applicant on a given SWBT pole is not adequate for
Applicant's drive rings or J-hooks, Applicant may, when
necessary, and without applying for or obtaining a new or
amended license, install such drive rings and J-hooks above
or below Applicant's licensed attachment space as described
in subsection (b) above. No additional attachment charges
shall apply with respect to drive rings and J-hooks installed
outside Applicant's licensed attachment space as permitted in
this subsection.
(d) If Applicant has not already been licensed attachment space
on a given SWBT pole, Applicant may, when necessary, install
drive rings and J-hooks to unassigned space on such pole
without first obtaining a license for such attachment and
shall, promptly following such installation, notify SWBT of
the attachment. Such notification shall be made on a form to
be developed by SWBT for this purpose and shall constitute an
application for a license. Such application may be
conditionally granted without a pre-license survey or other
inquiry by SWBT, and SWBT shall not be required to process
the application, log the attachment as an assignment in its
outside plant records, or issue a permanent license for
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the attachment unless specifically requested by Applicant
to do so; provided, however, that a conditionally granted
application under this subsection shall be subject to
revocation if it is subsequently determined that such
attachment has been made in violation of subsection (e) of
this section or other provisions of this Agreement.
Drive-rings and J-hooks installed pursuant to this subsection
are pole attachments and charges for such attachments shall
be determined in accordance with the Pole Attachment Act and
applicable rules, regulations, and commission orders.
(e) Notwithstanding the provisions of subsections (c)-(d) above,
Applicant may not install drive rings and J-hooks in space
assigned to SWBT or another joint user without the approval
of SWBT or such other joint user and may not install drive
rings and J-hooks in unassigned space in any manner which
will block or preclude the subsequent occupancy or use of
space by SWBT or other joint users. If the presence of
Applicant's facilities in space not assigned to Applicant
will block or preclude the use of assigned or otherwise
assignable space by SWBT or other joint users, Applicant
shall, on SWBT's request, promptly relocate the facilities in
order to accommodate the facilities of other users and shall
bear all expenses associated with such relocation.
(f) SWBT may not install drive rings or J-hooks in space assigned
to Applicant without Applicant's approval and shall, at
Applicant's request, and at SWBT's expense, promptly relocate
or, if necessary, remove, any drive rings or J-hooks
installed in violation of this subsection. If SWBT drive
rings or J-hooks have been installed in space subsequently
assigned to Applicant, or if the presence of SWBT drive rings
or J-hooks blocks or precludes the use of otherwise
assignable space on SWBT's poles, SWBT shall, at Applicant's
request, relocate such facilities, if it is feasible to do
so, as make-ready work.
(g) Applicant shall, at the request of SWBT or another joint
user, at Applicant's expense, promptly relocate or, if
necessary, remove any drive rings and J-hooks placed on
SWBT's poles other than as permitted in this section.
12.04 Short-term Use of Maintenance Ducts for Repair and Maintenance
Activities. Maintenance ducts shall be available, on a nondiscriminatory basis,
for short-term (not to exceed 30 days) non-emergency maintenance or repair
activities by any person or entity (including but not limited to SWBT,
Applicant, other local service providers, and other joint users) with facilities
in the conduit section in which the maintenance duct is located; provided,
however, that use of the maintenance duct for non-emergency maintenance and
repair activities must be scheduled by SWBT. A person or entity using the
maintenance duct for non-emergency maintenance or repair
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activities shall immediately notify SWBT of such use and must either vacate the
maintenance duct within 30 days or, with SWBT's consent, which consent shall not
be unreasonably withheld, rearrange its facilities to ensure that at least one
full-sized replacement maintenance duct (or, if the designated maintenance duct
was an inner duct, a suitable replacement inner duct) is available for use by
all occupants in the conduit section within 30 days after such person or entity
occupies the maintenance duct. Cables temporarily placed in the maintenance duct
on a non-emergency basis shall be subject to such accommodations as may be
necessary to rectify emergencies which may occur while the maintenance duct is
occupied.
12.05 Responsibility for Maintenance of Facilities. Each party shall be
solely responsible for maintaining its own facilities and (a) paying all persons
and entities who provide materials, labor, access to real or personal property,
or other goods or services in connection with the maintenance of such party's
facilities and (b) directing the activities of all such personnel while they are
physically present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
12.06 Information Concerning the Maintenance of Applicant's Facilities.
Promptly after the issuance of a license, Applicant shall provide SWBT with the
name, title, business address, and business telephone number of the manager
responsible for routine maintenance of Applicant's facilities and shall
thereafter notify SWBT of changes to such information. The manager responsible
for routine maintenance of Applicant's facilities shall, on SWBT's request,
identify any contractor, subcontractor, or other person performing maintenance
activities on Applicant's behalf at a specified site.
ARTICLE 13: MODIFICATION OF APPLICANT'S FACILITIES
13.01 Notification of Planned Modifications. Applicant shall notify
SWBT in writing at least 30 days before adding to, relocating, replacing or
otherwise modifying its facilities already attached to a SWBT pole or located in
any SWBT duct or conduit. The notice shall contain sufficient information to
enable SWBT to determine whether the proposed addition, relocation, replacement,
or modification is within the scope of Applicant's present license or requires a
new or amended license. No notice shall be required for such routine
modifications as the installation or placement of drive rings or J-hooks,
terminals, and other ancillary apparatus routinely used in providing service to
customers, having no effect on the structural integrity of SWBT's poles, ducts,
or conduits, and having no effect on the ability of SWBT or joint users to use
or have access to SWBT's poles, ducts, conduits, or rights-of-way.
13.02 New or Amended License Required. A new or amended license will be
required if the proposed addition, relocation, replacement, or modification:
(a) requires that Applicant occupy additional space on SWBT's
poles (except on a temporary basis in the event of an
emergency);
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(b) requires that Applicant occupy additional space (other than
space in the maintenance duct in accordance with Sections
12.04, 13.03, and 15.02 of this Agreement) in any SWBT duct
or conduit except on a temporary basis in the event of an
emergency;
(c) results in the facilities attached to SWBT's poles or placed
in SWBT's ducts or conduits being different from those
described in Applicant's current license (e.g., different
duct or size increase causing a need to recalculate storm
loadings, guying, or pole class); or
(d) requires additional holding capacity on a permanent basis.
13.03 Use of Maintenance Duct in Connection with Facility Modifications
and Replacements. Non-emergency access to the maintenance duct in connection
with facilities modifications and replacements shall be subject to the
provisions of Section 12.04 of this Agreement.
13.04 Replacement of Facilities and Spinning/Overlashing Additional
Cables. Applicant may replace existing facilities with new facilities occupying
the same pole, duct, or conduit space, and may spin or overlash additional
cables to its own existing facilities; provided, however, that such activities
shall not be considered to be routine maintenance and shall be subject to the
requirements of this article.
13.05 Streamlined Procedures for the Issuance of Amended Licenses. SWBT
may streamline procedures for the issuance of amended licenses with respect to
proposed additions, relocations, replacements, or modifications of Applicant's
facilities when it appears to SWBT that the proposed additions, relocations,
replacements, or modifications will not require make-ready work by SWBT, will
not interfere with SWBT's use of its poles, conduit systems, or facilities
attached or connected thereto or contained therein, and will not interfere with
the use of existing facilities attached or connected thereto or contained
therein by joint users.
ARTICLE 14: REQUIRED REARRANGEMENTS
OF APPLICANT'S FACILITIES
14.01 Notice of Planned Modifications. The parties acknowledge that the
Pole Attachment Act recites in part that "Whenever the owner of a pole, duct,
conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or
right-of-way, the owner shall provide written notification of such action to any
entity that has obtained an attachment to such conduit or right-of-way so that
such entity may have a reasonable opportunity to add to or modify its existing
attachment." The parties further acknowledge that the FCC, in the First
Interconnection Order in CC Docket No. 96-98, recites that "... absent a private
agreement establishing notification procedures, written notification of a
modification must be provided to parties holding attachments on the facility to
be modified at least 60 days prior to the commencement of the physical
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modification itself." This article is intended by the parties to alter the
above-described notification requirements only as provided in Section 14.02(b)
below.
14.02 Required Rearrangement of Applicant's Facilities. Applicant
acknowledges that, from time to time, it may be necessary or desirable for SWBT
to rearrange facilities on or within its poles or conduit systems, change out
poles, add poles to a pole line, relocate or reconstruct poles, pole lines,
conduit segments, or conduit runs, enlarge manholes, reinforce conduit, or
otherwise modify poles, pole lines, or portions of its conduit system and that
such changes may be necessitated by SWBT's own business needs or by factors
outside of SWBT's control, such as the decision by a municipality to widen
streets or the decision by a third party to seek access to SWBT's poles, ducts,
conduits, or rights-of-way.
(a) Applicant agrees that Applicant will cooperate with SWBT and
joint users in making such rearrangements as may be necessary
to enable such changes to be made and that costs incurred by
Applicant in making such rearrangements shall, in the absence
of a specific agreement to the contrary, be borne by the
parties in accordance with then applicable statutes, rules,
regulations, and commission orders, including the Pole
Attachment Act, rules, regulations, and commission orders
thereunder.
(b) Whenever feasible, SWBT shall give Applicant not less than 60
days prior written notice of the need for Applicant to
rearrange its facilities pursuant to this section. The notice
shall state the date by which such rearrangements are to be
completed. Applicant shall complete such rearrangements
within the time prescribed in the notice. SWBT may request
that such modification be made within a shorter period of
time, in which event Applicant shall not refuse to comply
such request without due cause and justification. In
determining due cause and justification, the following
factors, among others, may be considered:
(1) the circumstances under which the rearrangements are
sought (e.g., street-widening project, request by a
competing provider for access);
(2) the timeliness of SWBT's request to Applicant;
(3) the nature and number of rearrangements sought;
(4) the impact on the ability of the parties and joint users
to meet customer service needs; and
(5) risks of service interruption to customers of the
parties and joint users.
(c) Nothing contained in this article shall preclude Applicant
from advising
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SWBT, within 60 days from the date of the notice, of
its desire to add to or modify its existing
attachment.
ARTICLE 15: EMERGENCY REPAIRS AND POLE REPLACEMENTS
15.01 Applicability. The parties acknowledge that in the event of an
emergency, services provided by the parties and joint users to their respective
customers may be interrupted, that it may not be possible for all service
providers with facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, or rights-of-way to restore service to all customers at the same time,
that disputes may arise between the parties concerning the manner in which
emergency repairs shall be made, that it is essential that decisions be made
quickly, and that it is highly desirable that all service providers utilizing
SWBT's poles, ducts, conduits, and rights-of-way enter into appropriate
arrangements relating to emergency repairs and service restoration. In the
absence of prearranged agreements, it is expected that disputes will be
immediately resolved at the site by the affected parties present based upon the
criteria set forth in Section 15.05 of this Agreement. The provisions of this
article shall apply in the absence of more comprehensive agreements relating to
emergency repairs.
15.02 Responsibility for Emergency Repairs; Access to Maintenance Duct.
In general, each party shall be responsible for making emergency repairs to its
own facilities and for formulating appropriate plans and practices enabling such
party to make such repairs.
(a) Nothing contained in this Agreement shall be
construed as requiring either party to perform any
repair or service restoration work of any kind with
respect to the other party's facilities or the
facilities of joint users.
(b) Maintenance ducts shall be available, on a
nondiscriminatory basis, for emergency repair
activities by any person or entity (including but not
limited to SWBT, Applicant, other local service
providers, and other joint users) with facilities in
the conduit section in which the maintenance duct is
located; provided, however, that a person or entity
using the maintenance duct for emergency repair
activities shall immediately notify SWBT of such use
and must either vacate the maintenance duct within 30
days or, with SWBT's consent, which consent shall not
be unreasonably withheld, rearrange its facilities to
ensure that at least one full-sized replacement
maintenance duct (or, if the designated maintenance
duct was an inner duct, a suitable replacement inner
duct) is available for use by all occupants in the
conduit section within 30 days after such person or
entity occupies the maintenance duct. The parties
agree not to exceed 30 days' use except in unusual
emergencies that may require longer than 30 days to
rectify.
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(c) If necessary, other unoccupied ducts or inner ducts
may be used on a short-term basis when the
maintenance duct is unavailable. Any such use shall
be subject to the same rules applicable to the
maintenance duct and shall be subject to the rights
of any party or joint user to whom such duct or inner
duct has been assigned.
15.03 Designation of Emergency Repair Coordinators and Other
Information. For each SWBT construction district, Applicant shall provide SWBT
with the emergency contact number of Applicant's designated point of contact for
coordinating the handling of emergency repairs of Applicant's facilities and
shall thereafter notify SWBT of changes to such information.
15.04 Reporting of Conditions Requiring Emergency Repairs. As a
courtesy, each party shall endeavor to notify the other party at the earliest
practicable opportunity after discovering any condition on or in any of SWBT's
poles, ducts, conduits, or rights-of-way requiring emergency repairs to the
other party's facilities.
15.05 Order of Precedence of Work Operations; Access to Maintenance
Duct and Other Unoccupied Ducts in Emergency Situations. When notice and
coordination are practicable, SWBT, Applicant, and other affected parties shall
coordinate repair and other work operations in emergency situations involving
service disruptions. Disputes will be immediately resolved at the site by the
affected parties present in accordance with the following principles.
(a) Emergency service restoration work requirements shall
take precedence over other work operations.
(b) Except as otherwise agreed upon by the parties,
restoration of lines for emergency services providers
(e.g., 911, fire, police, and hospital lines) shall
be given the highest priority and temporary occupancy
of the maintenance duct (and, if necessary, other
unoccupied ducts) shall be assigned in a manner
consistent with this priority. Secondary priority
shall be given to restoring services to the local
service providers with the greatest numbers of local
lines out of service due to the emergency being
rectified. The parties shall exercise good faith in
assigning priorities, shall base their decisions on
the best information then available to them at the
site in question, and may, by mutual agreement at the
site, take other factors into consideration in
assigning priorities and sequencing service
restoration activities.
(c) SWBT shall determine the order of precedence of work
operations and assignment of duct space in the
maintenance duct (and other unoccupied ducts) only if
the affected parties present are unable to reach
prompt agreement; provided, however, that these
decisions shall be made by
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SWBT on a nondiscriminatory basis in accordance with
the principles set forth in this section.
15.06 Unilateral Corrective Action. When either party reasonably
believes that, due to the condition of the other party's facilities placed on,
within, or in the vicinity of SWBT's poles, ducts, conduits, or rights-of-way,
there is an immediate or imminent threat to the safety or health of employees or
any other person, to the physical integrity or functioning of either party, or
either party's ability to meet its service obligations, either party may
unilaterally perform such limited corrective work as may be necessary to prevent
or mitigate against the injury threatened. For example, if facilities of the
other party have become detached or partially detached from a pole, or detached
or partially detached from supporting racks or wall supports within a manhole,
either party may reattach them as provided in this section but shall not be
obligated to do so.
(a) Before performing any corrective work involving
facilities of the other party, SWBT or Applicant
shall first attempt to notify the other party. After
such notice has been given, the parties shall
coordinate corrective work.
(b) When an emergency situation exists such that advance
notice and coordination are not practicable, either
party may perform corrective work without first
giving notice to the other party and shall promptly
notify the other party of the corrective work
performed and the reason why notice was not given.
15.07 Emergency Pole Replacements. Applicant will cooperate fully with
SWBT when emergency pole replacements are required.
(a) When emergency pole replacements are required, SWBT
shall promptly make a good faith effort to contact
Applicant to notify Applicant of the emergency and to
determine whether Applicant will respond to the
emergency in a timely manner.
(b) If notified by SWBT that an emergency exists which
will require the replacement of a pole, Applicant
shall transfer its facilities immediately, provided
such transfer is necessary to rectify the emergency.
If the transfer is to a SWBT replacement pole, the
transfer shall be in accordance with SWBT's placement
instructions.
(c) If Applicant is unable to respond to the emergency
situation immediately, Applicant shall so advise SWBT
and thereby authorize SWBT (or any joint user sharing
the pole with SWBT) to perform such
emergency-necessitated transfers (and associated
facilities rearrangements) on Applicant's behalf.
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15.08 Expenses Associated with Emergency Repairs. Each party shall bear
all reasonable expenses arising out of or in connection with emergency repairs
of its own facilities and transfers or rearrangements of such facilities
associated with emergency pole replacements made in accordance with the
provisions of this article.
(a) Each party shall be solely responsible for paying all
persons and entities who provide materials, labor,
access to real or personal property, or other goods
or services in connection with any such repair,
transfer, or rearrangement of such party's
facilities.
(b) Applicant shall reimburse SWBT for the costs incurred
by SWBT for work performed by SWBT on Applicant's
behalf in accordance with the provisions of this
article; provided, however, that when the costs
incurred by SWBT are for work performed in part for
Applicant and in part for SWBT and third parties,
Applicant shall only reimburse SWBT for Applicant's
pro-rata share of the costs.
ARTICLE 16: INSPECTION BY SWBT OF APPLICANT'S FACILITIES
16.01 SWBT's Right to Make Periodic or Spot Inspections. SWBT shall
have the right, but not the duty, to make periodic or spot inspections at any
time of any or all facilities attached to SWBT's poles or placed within SWBT's
poles, ducts, conduits, or rights-of-way. Inspections of Applicant's facilities
may be conducted for the purpose of determining whether facilities attached to
SWBT's poles or placed in SWBT's conduit system are in compliance with the terms
of this Agreement and conform to licenses subject to this Agreement. Charges for
inspections shall be allocated among all parties benefiting from the inspection
in accordance with the Pole Attachment Act and applicable rules, regulations,
and commission orders. When an inspection is conducted for the specific purpose
of auditing or investigating Applicant's compliance with this Agreement, SWBT
may charge Applicant for inspection expenses only if the inspection reflects
that Applicant is in substantial noncompliance with the terms of this Agreement.
If the inspection reflects that Applicant's facilities are not in compliance
with the terms of this Agreement, Applicant shall bring its facilities into
compliance promptly after being notified of such noncompliance and shall notify
SWBT in writing when the facilities have been brought into compliance.
16.02 Report of Inspection Results. SWBT will provide Applicant the
results of any inspection of Applicant's facilities performed under Section
16.01 of this Agreement.
16.03 Post-installation Inspections. This article does not apply to
post-installation inspections performed as part of a pre-license survey in those
cases when Applicant has occupied space on or in SWBT's poles, ducts, conduits,
or rights-of-way prior to the issuance of a license pursuant to Section 8.03 of
this Agreement.
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ARTICLE 17: TAGGING OF FACILITIES AND
UNAUTHORIZED ATTACHMENTS
17.01 Facilities to Be Marked. Applicant shall tag or otherwise mark
all of Applicant's facilities placed on or in SWBT's poles, ducts, conduits, and
rights-of-way in a manner sufficient to identify the facilities as Applicant's
facilities.
17.02 Removal of Untagged Facilities. Subject to the provisions of
subsections (a)-(d) of this section, SWBT may, without notice to any person or
entity, remove from SWBT's poles or any part of SWBT's conduit system any
untagged or unmarked facilities, including any such facilities owned or used by
Applicant, if SWBT determines that such facilities are not the subject of a
current license authorizing their continued attachment to SWBT's poles or
occupancy of SWBT's conduit system and are not otherwise lawfully present on
SWBT's poles or in SWBT's conduit system.
(a) Before removing any such untagged or unmarked
facilities, SWBT shall first attempt to determine
whether the facilities are being used by Applicant or
any other firm, are authorized by any license subject
to this Agreement, or are otherwise lawfully present
on SWBT's poles or in SWBT's conduit system.
(b) SWBT shall not remove untagged or unmarked facilities
which are thought to be operational without first
making reasonable efforts to (1) determine the
identity of the owner or other person or entity
thought to be responsible for the facilities and (2)
give advance written notice to such person or entity.
(c) If the facilities appear to be facilities of
Applicant described in a current license or
application subject to this Agreement, SWBT shall
give written notice to Applicant requesting Applicant
to tag or mark the facilities within 60 days and
Applicant shall either tag the facilities within the
60-day period, advise SWBT in writing of its schedule
for tagging the facilities, or notify SWBT in writing
that it disclaims ownership of or responsibility for
the facilities. If Applicant disclaims ownership of
or responsibility for the facilities, Applicant shall
disclose to SWBT the identity of the owner or other
person or entity, if any, thought by Applicant to be
responsible for the facilities.
(d) If the facilities appear to be facilities used by
Applicant but not subject to a current license
granted under this Agreement, the provisions of
Sections 17.05-17.12 shall apply.
17.03 Verification That Presently Attached Facilities Are Subject to
Existing Licenses. Applicant warrants and represents that, to the best of its
information and belief, all facilities presently owned or used by Applicant and
attached to SWBT's poles
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or occupying space within any part of SWBT's conduit system in this State have
been disclosed to SWBT and are subject to current licenses or are otherwise
lawfully present on or in SWBT's poles, ducts, and conduits. If Applicant
determines that any such facilities are not the subject of current licenses,
Applicant shall so advise SWBT and promptly apply for licenses for such
facilities or remove the facilities from SWBT's poles or conduits. Nothing
contained in this section shall be construed as requiring Applicant to make a
field audit of its existing facilities to confirm the licensing status of its
facilities as a prerequisite to entering into this Agreement.
17.04 Updating of Plant Location Records. Applicant shall furnish SWBT,
upon request, with such information as may from time to time be necessary for
SWBT to correct and update SWBT's pole and conduit maps and records, cable plat
maps, and other plant location records recording or logging assignments of pole,
duct, and conduit space.
17.05 Notice to Applicant. If any of Applicant's facilities for which
no license is presently in effect are found attached to SWBT's poles or anchors
or within any part of SWBT's conduit system, SWBT, without prejudice to other
rights or remedies available to SWBT under this Agreement, and without prejudice
to any rights or remedies which may exist independent of this Agreement, shall
send a written notice to Applicant advising Applicant that no license is
presently in effect with respect to the facilities and that Applicant must,
within 60 days, respond to the notice as provided in Section 17.06 of this
Agreement.
17.06 Applicant's Response. Within 60 days after receiving a notice
under Section 17.05 of this Agreement, Applicant shall acknowledge receipt of
the notice and submit to SWBT, in writing, either:
(a) a denial or disclaimer of ownership or other interest
in the facilities, together with an explanation of
the factual and claimed legal basis for such denial
or disclaimer;
(b) a statement that the facilities are the subject of a
current license, together with an explanation of the
factual and claimed legal basis for Applicant's
assertion that the facilities are currently licensed,
or a statement that no license is required, and an
explanation of the factual and claimed legal basis
for that assertion; or
(c) an application for a new or amended license with
respect to such facilities, together with a full and
complete explanation of the circumstances under which
such facilities were attached to, placed within, or
allowed to remain on or in SWBT's poles or any part
of SWBT's conduit system. Such explanation shall
include, at a minimum, the following:
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(1) the date (or estimated date) when such
facilities were attached to SWBT's poles or
placed in SWBT's conduit system, and the
factual basis supporting Applicant's
selection of such date (or estimated date);
and
(2) the factual basis for Applicant's assertion,
if any, that decisions to attach, place or
allow the facilities to remain on or in
SWBT's poles or conduit system were made in
good faith and without intent to circumvent
SWBT's pole attachment or conduit occupancy
licensing requirements.
17.07 Denial or Disclaimer of Ownership or Other Interest. Applicant's
submission to SWBT of a denial or disclaimer of ownership or other interest in
the facilities shall constitute Applicant's waiver of any objection Applicant
may have to SWBT's removal of the facilities. Submission of such a denial or
disclaimer shall not be construed as an agreement by Applicant to pay any
charges associated with removal of the facilities and shall be deemed to be a
denial of any such responsibility; provided, however, that nothing contained in
this section shall prohibit SWBT from invoking the dispute resolution process or
filing suit, in a court of competent jurisdiction, to establish that Applicant
is liable to SWBT for the costs of removal notwithstanding its denial or
disclaimer.
17.08 Review by SWBT of Licensing Status. Within 15 business days after
receiving Applicant's statement that the facilities are the subject of a current
license or that no license is required, SWBT shall review Applicant's
explanation of the factual and claimed legal basis for Applicant's assertions
and shall advise Applicant, in writing, whether it agrees or disagrees with
Applicant's assertions. If SWBT agrees with Applicant's assertions, the parties
may amend the applicable license and no further action shall be required of
Applicant. If SWBT does not accept Applicant's position, Applicant shall, within
15 business days, apply for a new or amended license as provided by Section
17.06(c) of this Agreement.
17.09 Approval of License and Retroactive Charges. If SWBT approves
Applicant's application for a new or amended license, Applicant shall be liable
to SWBT for all fees and charges associated with the unauthorized attachments as
specified in Section 17.10 of this Agreement. The issuance of a new or amended
license as provided by this article shall not operate retroactively or
constitute a waiver by SWBT of any of its rights or privileges under this
Agreement or otherwise.
17.10 Fees and Charges. This section applies to fees and charges with
respect to Applicant's facilities placed on or in SWBT pole, duct, or conduit
space which has not been assigned to Applicant. Applicant shall be liable to
SWBT for all fees and charges associated with any such unauthorized pole
attachments or conduit occupancy for which it is responsible. Attachment and
occupancy fees and charges shall continue to accrue until the unauthorized
facilities are removed from SWBT's poles or conduit system and
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shall include, but not be limited to, all fees and charges which would have been
due and payable if Applicant and its predecessors had continuously complied with
all applicable SWBT licensing requirements. Such fees and charges shall be due
and payable 30 days after the date of the bill or invoice stating such fees and
charges. The parties shall engage in good faith discussions to reach a mutually
agreed determination as to the amount due and owing. In some cases, it may be
impractical, unduly difficult, or uneconomical to determine the actual amount of
fees which would have been due and payable if all licensing requirements had
been met. Therefore, if the parties, through good faith discussions fail to
reach agreement on the amount due and owing, and if the amount due and owing
cannot be determined due to Applicant's inability to provide the information
required to determine the correct amount, the amount owing with respect to each
unauthorized attachment or occupancy shall be equal to three times the annual
attachment and occupancy fees in effect on the date Applicant is notified by
SWBT of the unauthorized attachment or occupancy. Payment of such fees shall be
deemed liquidated damages and not a penalty. In addition, Applicant shall
rearrange or remove its unauthorized facilities at SWBT's request to comply with
applicable placement standards, shall remove its facilities from any space
occupied by or assigned to SWBT or another joint user, and shall pay SWBT for
all costs incurred by SWBT in connection with any facilities rearrangements,
modifications, or replacements necessitated as a result of the presence of
Applicant's unauthorized facilities.
17.11 Removal of Unauthorized Attachments. If Applicant does not apply
for a new or amended pole attachment license with respect to unauthorized
facilities within the specified period of time, or if such application is
received and specifically disapproved, SWBT shall by written notice request to
Applicant to remove its unauthorized facilities not less than 60 days from the
date of notice and Applicant shall remove the facilities within the time
specified in the notice; provided, however, that SWBT may request Applicant to
remove such facilities at an earlier date if such earlier removal is necessary
for reasons beyond SWBT's control. If the facilities have not been removed
within the time specified in the notice, SWBT may, at SWBT's option, remove
Applicant's facilities at Applicant's expense.
17.12 No Ratification of Unlicensed Attachments or Unauthorized Use of
SWBT's Facilities. No act or failure to act by SWBT with regard to any
unlicensed attachment or occupancy or unauthorized use of SWBT's facilities
shall be deemed to constitute a ratification by SWBT of the unlicensed
attachment or occupancy or unauthorized use, nor shall the payment by Applicant
of fees and charges for unauthorized pole attachments or conduit occupancy
exonerate Applicant from civil or criminal liability for any deliberate trespass
or other illegal or wrongful conduct in connection with the placement or use of
such unauthorized facilities.
ARTICLE 18: REMOVAL OF APPLICANT'S FACILITIES
18.01 Responsibility for Removing Facilities. Applicant shall be
responsible for and shall bear all expenses arising out of or in connection with
the removal of its
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facilities from SWBT's poles, ducts, conduits, and rights-of-way. Such removals
shall be performed in accordance with the provisions of this article.
(a) When practicable, Applicant shall give SWBT at least
30 days' advance notice in writing of its intent to
remove facilities from any part of SWBT's conduit
system and the proposed method of removal. The notice
shall include the locations of the facilities to be
removed, the name and telephone number of the manager
responsible for removal of the facilities, and the
estimated dates when removal of the facilities will
begin and end.
(b) Applicant shall, if requested by SWBT to do so, place
a pull mandrel (slug) through all or any specified
part of the duct which was occupied by Applicant.
(c) Except as otherwise agreed upon in writing by the
parties, Applicant must, after removing its
facilities, plug all previously occupied ducts at the
entrances to SWBT's manholes (if SWBT would itself
plug the ducts under the same circumstances) in
accordance with the standards set by SWBT for its own
operations, provided that such standards have been
communicated in writing to Applicant at least 60 days
in advance of the removal of Applicant's facilities.
(d) Applicant shall be solely responsible for the removal
of its own facilities from SWBT's poles, ducts,
conduits, and rights-of-way and for (1) paying all
persons and entities which provide materials, labor,
access to real or personal property, or other goods
or services in connection with the removal of
Applicant's facilities from SWBT's poles, ducts,
conduits, or rights-of-way and (2) directing the
activities of all such personnel while they are
physically present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way.
(e) When Applicant no longer intends to occupy space on a
SWBT pole or in a SWBT duct or conduit, Applicant
will provide written notification to SWBT that it
wishes to terminate the license with respect to such
space and will remove its facilities from the space
described in the notice. Upon removal of Applicant's
facilities, the license shall terminate and the space
shall be available for reassignment.
18.02 Removal of Facilities Not in Active Use. At SWBT's request,
Applicant shall remove from SWBT's poles, ducts, conduits, and rights-of-way any
of Applicant's facilities which are no longer in active use; provided, however,
that Applicant shall not be required to remove such facilities when due cause
and justification exists for allowing them to remain in place. Applicant shall
not be required to remove retired or inactive (dead) cables that have been
overlashed by other facilities which remain in active use
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unless removal expenses are paid by the person or entity requesting removal of
such facilities. Applicant shall not be required to remove cables that would
require excavation to remove unless the person or entity requesting removal of
such cables bears the expenses of such excavation in a manner analogous to the
provisions of Section 10.02(c) of this Agreement. Applicant shall not abandon
any of its facilities by leaving them on SWBT's poles, in SWBT's ducts,
conduits, or rights-of-way, at any location where they may block or obstruct
access to SWBT's poles or any part of SWBT's conduit system, or on any public or
private property (other than property owned or controlled by Applicant) in the
vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
18.03 Removal Following Termination of License. Applicant shall remove
its facilities from SWBT's poles, ducts, conduits, or rights-of-way within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after termination of the license authorizing the attachment of such
facilities to SWBT's poles or the placement of such facilities in SWBT's ducts,
conduits, or rights-of-way.
18.04 Removal Following Replacement of Facilities. Applicant shall
remove facilities no longer in service from SWBT's poles or conduit system
within 60 days, or within such other period of time as shall be mutually
agreeable to the parties, after the date Applicant replaces existing facilities
on a pole or in a conduit with substitute facilities on the same pole or in the
same conduit; provided, however, that removal of facilities from the maintenance
duct shall be governed by Sections 12.04, 13.03, and 15.02 of this Agreement and
not by this section.
18.05 Removal to Avoid Forfeiture. If the presence of Applicant's
facilities on SWBT's poles or in SWBT's ducts, conduits, or rights-of-way would
cause a forfeiture of the rights of SWBT to occupy the property where such pole,
duct, conduit, or right-of-way is located, SWBT will promptly notify Applicant
in writing and Applicant shall not, without due cause and justification, refuse
to remove its facilities within such time as may be required to prevent such
forfeiture. SWBT will give Applicant not less than 60 days from the date of
notice to remove Applicant's facilities unless prior removal is required to
prevent the forfeiture of SWBT's rights. At Applicant's request, the parties
will engage in good faith negotiations with each other, with joint users, and
with third-party property owners and cooperatively take such other steps as may
be necessary to avoid the unnecessary removal of Applicant's facilities in the
face of a threatened forfeiture.
18.06 Notice of Completion of Removal Activities. Applicant shall give
written notice to SWBT stating the date on which the removal of its facilities
from SWBT's poles, ducts, conduits, and rights-of-way has been completed.
Charges shall continue to accrue with respect to such facilities until
Applicant's facilities have been removed, pull mandrels (slugs) have been pulled
if required by Section 18.01(b) of this Agreement, Applicant has plugged all
previously occupied ducts at the entrances to SWBT's manholes as required by
Section 18.01(c) of this Agreement, and the notice required by this section has
been given.
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18.07 Removal of Facilities by SWBT; Notice of Intent to Remove. If
Applicant fails to remove its facilities from SWBT's poles, ducts, or conduits
in accordance with the provisions of Sections 18.01-18.06 of this Agreement,
SWBT may remove such facilities and store them at Applicant's expense in a
public warehouse or elsewhere without being deemed guilty of trespass or
conversion and without becoming liable to Applicant for any injury, loss, or
damage resulting from such actions. SWBT shall give Applicant not less than 60
days prior written notice of its intent to remove Applicant's facilities
pursuant to this section. The notice shall state:
(a) the date when SWBT plans to commence removal of
Applicant's facilities, and that Applicant may remove
the facilities at Applicant's sole cost and expense
at any time before the date specified;
(b) SWBT's plans with respect to disposition of the
facilities removed; and
(c) that Applicant's failure to remove the facilities or
make alternative arrangements with SWBT for removal
and disposition of the facilities shall constitute an
abandonment of the facilities and of any interest
therein.
18.08 Removal of Facilities by SWBT. If SWBT removes any of Applicant's
facilities pursuant to this article, Applicant shall reimburse SWBT for SWBT's
costs in connection with the removal, storage, delivery, or other disposition of
the removed facilities.
18.09 Reattachment or Subsequent Attachment Following Removal. After
Applicant's facilities have been properly removed pursuant to the provisions of
this article, neither the removed facilities nor replacement facilities shall be
attached to SWBT's poles or placed in SWBT's conduit system until Applicant has
first submitted new applications for the facilities and complied with the
provisions of this Agreement.
ARTICLE 19: RATES, FEES, CHARGES, AND BILLING
19.01 Rates, Charges and Fees Subject to Applicable Laws, Regulations,
Rules, and Commission Orders. All rates, charges and fees set forth in this
Agreement, including rates, charges and fees set forth in APPENDIX I (Schedule
of Rates, Fees, and Charges), shall be subject to all applicable federal and
state laws, rules, regulations, and commission orders, including but not limited
to (a) the Pole Attachment Act and rules, regulations, and commission orders
issued thereunder and (b) applicable orders of the State Commission in
interconnection arbitration proceedings.
19.02 Schedule of Rates, Fees, and Charges. SWBT's current schedule of
rates, fees, and charges is attached to this Agreement as APPENDIX I and
incorporated herein as an integral part of this Agreement.
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19.03 Pole Attachment and Conduit Occupancy Fees. Until such time as
the FCC authorizes the charging of different rates to cable television systems
and telecommunications carriers, SWBT's annual rates for access to poles, ducts,
conduits, and rights-of-way shall be the same for cable television systems and
telecommunications carriers. For all attachments to SWBT's poles and occupancy
of SWBT's ducts and conduits, Applicant will pay SWBT's semiannual pole
attachment and conduit occupancy fees as specified in APPENDIX I. Pole
attachment and conduit occupancy fees shall be assessed and billed with respect
to (a) occupied space whether or not subject to a current license and (b)
assigned space as well as occupied space. Fees for pole attachments shall be
based on the number of Applicant's pole attachments as of the date of billing by
SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders. Fees for conduit occupancy shall be based on the number
of duct feet occupied by or assigned to Applicant as of the date of billing by
SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders.
19.04 Billing for and Payment of Pole Attachment and Conduit Occupancy
Fees. Pole Attachment and conduit occupancy fees under this Agreement and
licenses subject to this Agreement shall be payable semiannually in advance.
(a) Bills shall be submitted to Applicant for two
semiannual billing periods, the first period
including charges for the months of January through
June and the second including charges for the months
of July through December.
(b) Charges associated with newly licensed pole
attachments and conduit occupancy shall be prorated
on a daily basis and billed with the next semiannual
bill.
(c) Charges shall be adjusted and retroactively prorated
on a daily basis following the removal of Applicant's
facilities and shall be retroactively adjusted as a
credit on the next semiannual bill.
19.05 Application Fees. SWBT does not currently charge application fees
in connection with requests for access to poles, ducts, conduits, and
rights-of-way. SWBT does, however, impose charges, on a case-by case basis, for
work performed in processing applications for access and preparing SWBT's poles,
ducts, conduits, and rights-of-way to accommodate the facilities of parties
seeking access.
19.06 Charges for Pre-license Survey Work. Subject to applicable
commission orders, Applicant will pay SWBT's charges for pre-license survey work
associated with the processing of Applicant's request for access. SWBT's
pre-license survey charges are not set on a fixed fee basis and will vary from
case-to-case depending on such factors as the number and location of the poles,
ducts, conduits, and rights-of-way subject to Applicant's access request, the
completeness and quality of information submitted by the
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Applicant in its application, the nature of the facilities to be placed by
Applicant, and the nature and extent of facilities modification, capacity
expansion, and make-ready work proposed by Applicant.
19.07 Charges for Facilities Modifications, Capacity Expansions, and
Make-ready Work. Subject to applicable commission orders, Applicant will pay
SWBT's charges for facilities modification, capacity expansion, and make-ready
work performed by SWBT, or by persons acting on SWBT's behalf, as provided in
other provisions of this Agreement and APPENDIX I.
19.08 Contract Administration Fee. Subject to applicable commission
orders, SWBT may charge Applicant a one-time contract administration as provided
in APPENDIX I. This fee, if applicable, shall be assessed for work performed in
the initial processing of this Agreement and shall be non-refundable upon
acceptance of this Agreement by SWBT.
19.09 Administrative Record-keeping Fees. Subject to applicable
commission orders, SWBT may charge Applicant cost-based administrative
record-keeping fees (e.g., fees associated with records and billing changes
resulting from the sale, consolidation, or other transfer of Applicant's
business or facilities, name changes, and the like) as provided in APPENDIX I.
19.10 Charges for Work Performed by SWBT Employees. Except as otherwise
specifically required by applicable commission orders, SWBT's charges to
Applicant for worked performed by SWBT employees pursuant to this Agreement
shall be computed by multiplying the fully loaded hourly rates for such
employees times the number of hours required to perform the work. Disputes over
SWBT's charges for work performed by SWBT employees, including disputes between
the parties concerning the number of hours required to perform the work, shall
be subject to the dispute resolution procedures of Article 30. Notwithstanding
the execution of this Agreement, Applicant shall have the right to challenge the
methodology utilized by SWBT to determine hourly rates for SWBT employees at any
time in any forum having jurisdiction over the subject matter.
19.11 Due Date for Payment, Interest on Past Due Invoices, Remedies for
Nonpayment, and Procedures for Disputing Charges. For fees and charges other
than charges for make-ready work, each bill or invoice submitted by SWBT to
Applicant shall state the date that payment is due, which date shall be not less
than 60 days after the date of the bill or invoice. Applicant will pay each such
bill or invoice on or before the stated due date. For make-ready work, the
payment due date shall be not less than 30 days after the date of the bill or
invoice.
(a) Interest on past due bills and invoices shall accrue
at the rate of 12% per annum, or the maximum rate
allowed by law, whichever is less.
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(b) Applicant's failure to pay SWBT's fees and charges
shall be grounds for terminating this Agreement and
licenses subject to this Agreement.
(c) If Applicant fails to pay, when due, any fees or
charges billed to Applicant under this Agreement, and
any portion of such fees or charges remains unpaid
more that 15 calendar days after the due date, SWBT
may send Applicant a written notice advising
Applicant that this Agreement, or specified licenses
subject to this Agreement, may be terminated if such
fees or charges are not paid within 15 calendar days
after the date of the notice. Applicant must remit to
SWBT all such unpaid fees or charges, whether
disputed or undisputed, within 15 days after the date
of the notice. If Applicant pays disputed fees under
protest, and it is later determined that such fees or
any portion thereof should be refunded, the portion
of fees to be refunded shall be refunded with
interest at the rate of 12% per annum or the maximum
rate allowed by law, whichever is less.
(d) Applicant may dispute any fees or charges billed by
SWBT to Applicant under this Agreement by invoking
the dispute resolution procedures set forth in
Article 30 of this Agreement.
(e) If Applicant does not dispute such fees or charges
and any portion of such undisputed fees or charges
remains unpaid 30 calendar days after the date of the
notice, SWBT may, to the extent permitted by the Pole
Attachment Act and applicable rules, regulations, and
commission orders, terminate this Agreement and
licenses subject to this Agreement, suspend the
processing of pending applications for access to
SWBT's poles, ducts, conduits, and rights-of-way
located in this State, and refuse to accept further
applications for access until such undisputed fees or
charges, together with accrued interest thereon, have
been paid in full.
19.12 Modification of Rates, Fees and Charges. Subject to applicable
federal and state laws, rules, regulations, and commission orders, SWBT shall
have the right to modify all rates, charges and fees set forth in this
Agreement, including but not limited to those listed in APPENDIX I, as provided
in this section.
(a) Upon written notice to Applicant, SWBT may change, on
a going-forward basis, the amounts of any rates, fees
or charges assessed under this Agreement. Pole
attachment and conduit occupancy rates shall not be
increased more than once annually.
(1) The notice shall state the effective date of
the changes, which, in the event of a rate
increase, shall be no earlier than the 60th
day after the notice is given.
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(2) The changes shall be effective on the
effective date stated in the notice unless
stayed or prohibited by a court or agency of
competent jurisdiction.
(3) The changes shall be reflected on the first
semiannual bill issued on or after the
effective date specified in the notice.
(b) If the rates, fees and charges set forth in the
notice are not acceptable to Applicant, Applicant
may, notwithstanding any other provisions of this
Agreement, at Applicant's option (1) seek the
renegotiation of this Agreement, (2) terminate this
Agreement, or (3) seek relief through the dispute
resolution process or before a court or agency of
competent jurisdiction.
19.13 Disputes Over Charging Methodologies. The parties acknowledge
that the Pole Attachment Act grants the FCC regulatory authority over the rates,
terms, and conditions of access to poles, ducts, conduits, and rights-of-way.
The parties further acknowledge that, as of the date of this Agreement, this
State has not elected to assume reverse preemptive regulatory authority over
such rates, terms, and conditions by certifying to the FCC that it has made such
election. Accordingly, complaints concerning and challenges to SWBT's charging
methodologies shall be brought, in the first instance, before the FCC in
accordance with FCC procedural rules unless this State elects to preempt FCC
regulation of pole attachment rates, terms, and conditions of access; provided,
however, that nothing contained in this section shall be construed as affecting
the right of either party to seek relief from any court or agency of competent
jurisdiction in connection with the negotiation, arbitration, and approval of
interconnection agreements under 47 U.S.C. ss. 252.
ARTICLE 20: PERFORMANCE AND PAYMENT BONDS
20.01 Bond May Be Required. SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to execute
performance and payment bonds (or provide other forms of security) in amounts
and on terms sufficient to guarantee the performance of their respective
obligations arising out of or in connection with this Agreement only as provided
in subsections (a)-(b) of this section and Section 20.02. Bonds shall not be
required for entities meeting all self-insurance requirements of Section 23.02
of this Agreement.
(a) If Applicant elects to perform make-ready or
facilities modification work under Section 6.08(c) or
Sections 10.02-10.05 of this Agreement, SWBT may
require Applicant, authorized contractors, and other
persons acting on Applicant's behalf to execute bonds
equivalent to those which would be required by SWBT
if the work had been performed by contractors,
subcontractors, or other persons selected directly by
SWBT. No bonds shall be required of Applicant,
authorized contractors, or other
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persons acting on Applicant's behalf except in those
situations where a bond would be required if the work
were being performed on SWBT's behalf.
(b) No other bond shall be required of Applicant to
secure obligations arising under this Agreement in
the absence of due cause and justification.
(c) If a bond or similar form of assurance is required of
Applicant, an authorized contractor, or other person
acting on Applicant's behalf, Applicant shall
promptly submit to SWBT, upon request, adequate proof
that the bond remains in full force and effect and
provide certification from the company issuing the
bond that the bond will not be cancelled, changed or
materially altered without first providing SWBT 60
days written notice.
(d) SWBT may communicate directly with the issuer of any
bond required by SWBT pursuant to this section to
verify the terms of the bond, to confirm that the
bond remains in force, and to make demand on the
issuer for payment or performance of any obligations
secured by the bond.
20.02 Payment and Performance Bonds in Favor of Contractors and
Subcontractors. Applicant shall be responsible for paying all employees,
contractors, subcontractors, mechanics, materialmen and other persons or
entities performing work or providing materials in connection with (a) the
performance of facilities modification, capacity expansion, or make-ready work
by Applicant, authorized contractors, or other persons acting on Applicant's
behalf under Sections 6.08(c) and 10.02-10.05 of this Agreement or (b) the
construction, attachment, use, inspection, maintenance, repair, rearrangement,
modification, and removal of any of Applicant's facilities attached or to be
attached to SWBT's poles or placed or to be placed within SWBT's ducts,
conduits, or rights-of-way. In the event any claim or demand is made on SWBT by
any such employee, contractor, subcontractor, mechanic, materialman, or other
person or entity providing such materials or performing such work, SWBT may
require, in addition to any security provided under Section 20.01 of this
Agreement, that Applicant execute payment or performance bonds, or provide such
other security, as SWBT may deem reasonable or necessary to protect SWBT from
any such claim or demand.
ARTICLE 21: INDEMNIFICATION
21.01 Risks Associated with Outside Plant Operations. The parties
acknowledge that SWBT's outside plant facilities include thousands of miles of
pole lines, conduits, and rights-of-way located on public and private property
throughout SWBT's service area, that SWBT cannot control or continuously monitor
activities that occur at these sites, and that the risks associated with outside
plant operations and facilities are not
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similar to the risks associated with operations occurring inside SWBT's central
offices and other secure SWBT buildings and structures. The parties further
acknowledge that the presence of multiple firms on or in poles, ducts, conduits,
and rights-of-way owned or controlled by SWBT requires that liability risks be
fairly allocated between the parties and that it is the parties' intent to
allocate such risks in a just, reasonable, and nondiscriminatory manner which
addresses known risks associated with the outside plant environment and
activities and conditions at outside plant locations.
21.02 Control of Premises. Applicant acknowledges that its employees
and other persons acting on Applicant's behalf, and employees of joint users and
other persons acting on behalf of joint users, will be present, without
supervision or control by SWBT, and in many cases without SWBT's knowledge, on,
within, and in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way.
During those times when Applicant's employees and personnel are present at such
sites, Applicant shall be deemed, for the purpose of allocating liabilities
between the parties, to be an independent contractor in control of the premises
except as otherwise provided in this section. Although SWBT inspectors may be
present at the site of work being performed by Applicant or persons acting on
Applicant's behalf, such inspectors shall have no authority to direct Applicant
or personnel acting on Applicant's behalf concerning the method or manner by
which the work is to be performed, and the presence of a SWBT inspector shall
not result in SWBT's being deemed to be in control of the premises. When both
parties are present and performing work operations at a site subject to this
section, SWBT and Applicant shall be deemed to be jointly in control of the
premises. When poles, ducts, conduits, or rights-of-way occupy property owned by
third parties, neither party shall be deemed to be in control of the premises,
except as otherwise provided by law, at times when such party's work operations
are not in progress. Work operations shall be considered to be in progress from
the time work commences until such work is completed whether or not employees of
a party or persons acting on such party's behalf are actually present at the
site.
21.03 INDEMNITY AGAINST AND LIMITATIONS OF LIABILITY WITH RESPECT TO
CERTAIN NEGLIGENT ACTS AND OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS
INDEMNIFYING EACH PARTY FROM LIABILITIES ARISING OUT OF OR IN CONNECTION WITH
CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY. THIS ARTICLE ALSO INCLUDES
PROVISIONS LIMITING THE LIABILITIES OF EACH PARTY ARISING OUT OF OR IN
CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY.
21.04 Indemnities Excluded. Except as otherwise specifically provided
in this article, neither party (as an "indemnifying party") shall be required to
indemnify or defend the other party (as an "indemnified party") against, or hold
the indemnified party harmless from, any suit, claim, demand, loss, damage,
liability, fine, penalty, or expense arising out of:
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(a) any breach by the indemnified party of any provision
of this Agreement or any breach by the indemnified
party of the parties' interconnection agreement, if
any;
(b) the violation of any law by any employee of the
indemnified party or other person acting on the
indemnified party's behalf;
(c) willful or intentional misconduct or gross negligence
committed by any employee of the indemnified party or
by any other person acting on the indemnified party's
behalf; or
(d) any negligent act or acts committed by any employee
of the indemnified party or other person acting on
the indemnified party's behalf, if such negligent act
or acts are the sole producing cause of the injury,
loss, or damage giving rise to the suit, claim,
demand, loss, damage, liability, fine, penalty, or
expense for which indemnity is requested.
21.05 Workplace Injuries. The parties acknowledge that injuries may
occur at sites where work is being performed by or for either party and that
primary responsibility for preventing workplace injuries shall be placed on the
party controlling work operations at the site. Workplace injuries may result
from any of variety of causes, including but not limited to electrocution
associated with contact with electric power lines on poles or use of defective
equipment, falls from poles resulting from the negligence of the injured person
or co-workers or due to the existence of unsafe conditions on or in the vicinity
of the pole, cave-ins and other accidents at excavation sites, explosion of
combustible gases within or in the vicinity of a conduit system, exposure to
hazardous substances or noxious gases at the site, acts of God, and acts and
omissions of third parties over whom neither party has control. Except as
expressly provided in this Agreement to the contrary, each party shall
indemnify, on request defend, and hold the other party harmless from any and all
suits, claims, demands, losses, damages, liabilities, fines, penalties, or
expenses of every kind and character, on account of or in connection with any
injury, loss, or damage suffered by any person, which arises out of or in
connection with the personal injury or death of any employee of the indemnifying
party (or other person acting on the indemnifying party's behalf) if such injury
or death results, in whole or in part, from any occurrence or condition on,
within, or in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way;
provided, however, that Applicant's indemnification duties under this section
shall arise only if the person injured is present at such site in connection
with the performance or anticipated performance of any act required or permitted
to be performed by Applicant or by persons acting on Applicant's behalf pursuant
to this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with any injury, sickness, disease, or death of any employee of
the indemnifying party or any person acting on the indemnifying party's behalf
attributable or allegedly attributable to occurrences or conditions on, within,
or in the vicinity of
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SWBT's poles, ducts, conduits, and rights-of-way. EXCEPT AS PROVIDED ABOVE IN
SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS
UNDER THIS SECTION SHALL ARISE EVEN IF THE INJURY, SICKNESS, DISEASE, OR DEATH
WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED
PARTY.
21.06 Other Claims Brought Against Either Party by Employees and Other
Persons Acting on the Other Party's Behalf. Nothing contained in this Agreement
shall create any contractual liability or other liability on the part of either
party to any employee, contractor, or subcontractor of the other party or any
other person acting on the other party's behalf. Each party shall indemnify, on
request defend, and hold the other party harmless from any and all suits,
claims, demands, losses, damages, liabilities, or expenses of every kind and
character (other than workplace injury claims subject to Section 21.05 above)
made, brought, or sought against the indemnified party by any employee,
contractor, or subcontractor of the indemnifying party or by any other person
acting on the indemnifying party's behalf; provided, however, that this section
shall apply only to suits, claims, demands, losses, damages, liabilities, or
expenses related to the subject matter of this Agreement. Indemnities provided
by this section shall be subject to the exclusions set forth in Section 21.04
and include but are not limited to indemnities arising out of or in connection
with claims arising from or in any way connected with the employment
relationship or other claimed relationship between the indemnifying party and
the employee, contractor, subcontractor, or other person acting on the
indemnifying party's behalf; claims arising out of disputes over payments due or
allegedly due to any employee, contractor, subcontractor, or other person acting
on the indemnifying party's behalf; and claims arising out of other contract
disputes between the indemnifying party and the employee, contractor,
subcontractor, or other person acting on the indemnifying party's behalf. EXCEPT
AS PROVIDED ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL ARISE EVEN IF THE INJURY,
LOSS, OR DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN
PART TO NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTY.
21.07 Claims Brought Against Either Party by Vendors, Suppliers,
Customers, and other Persons in Privity of Contract with the Other Party. The
parties acknowledge that neither party controls the contractual relationships
between the other party and vendors, suppliers, customers, and other persons in
privity of contract with the other party and that nothing contained in this
Agreement shall create any contractual or other liability of either party to any
vendor, supplier, customer, or other person or entity in privity of contract
with the other party. Each party shall indemnify, on request defend, and hold
the other party harmless from any and all suits, claims, demands, losses,
damages, liabilities, or expenses of every kind and character, made, brought, or
sought against the indemnified party by any vendor, supplier, or customer of the
indemnifying party or by any other person or entity in privity with the
indemnifying party; provided, however, that this section shall apply only to
suits, claims, demands, losses, damages,
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liabilities, or expenses related to the subject matter of this Agreement or
Applicant's use of SWBT's poles, ducts, conduits, or rights-of-way. The
indemnifying party may not, as a defense to any obligations of the indemnifying
party under this section, assert that the indemnified party's claims against the
indemnifying party are barred by any tariff or contract limitation of liability
applicable to the indemnifying party's vendor, supplier, or customer or to such
other person in privity of contract with the indemnifying party. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities for claims against either
party arising out of or in connection with the failure by the other party to
meet its obligations (including but not limited to contract and tariff
obligations) to such other party's customers and suppliers. EXCEPT AS PROVIDED
ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION
OBLIGATIONS UNDER THIS SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE
GIVING RISE TO THE INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT
ACTS OR OMISSIONS OF THE INDEMNIFIED PARTY.
21.08 Claims Brought Against Either Party by Such Party's Own
Employees, Contractors, Subcontractors, or Other Persons Acting on Such Party's
Behalf, and Claims Brought Against Either Party by Such Party's Own Vendors,
Suppliers, Customers, or Other Persons in Privity of Contract with Such Party.
Neither party shall be entitled to indemnity, contribution, or subrogation from
or by the other party with respect to any suits, claims, demands, losses,
damages, liabilities, or expenses, of any kind or character, made, brought, or
sought against such party by any employee, contractor, or subcontractor of such
party, by any other person acting on behalf of such party, by any vendor,
supplier, or customer of such party, or by any other person or entity in privity
of contract with such party, if such suit, claim, demand, loss, damage,
liability, or expense arises directly out of or in connection with the subject
matter of this Agreement or the use by Applicant of SWBT's poles, ducts,
conduits, or rights-of-way. Indemnities excluded by this section include, but
are not limited to, indemnities for claims against either party arising out of
or in connection with employment-related disputes between either party and its
employees; claims against either party by contractors, subcontractors, and
suppliers performing work or supplying materials to SWBT sites at the request of
such party; and other failures by either party to meet its obligations
(including but not limited to contract and tariff obligations) to such party's
own customers and suppliers. THE INDEMNIFICATION EXCLUSIONS OF THIS SECTION
SHALL APPLY EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO THE NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFYING PARTY BUT SHALL NOT APPLY IF THE INJURY, LOSS, OR
DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM AROSE FROM WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR ANY OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF
OR AROSE FROM ANY NEGLIGENT ACT OR ACTS COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY
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OR OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF, IF SUCH NEGLIGENT ACT
OR ACTS ARE THE SOLE PRODUCING CAUSE OF THE INJURY, LOSS, OR DAMAGE GIVING RISE
TO THE SUIT, CLAIM, DEMAND, LOSS, DAMAGE, LIABILITY, FINE, PENALTY, OR EXPENSE
FOR WHICH INDEMNITY IS REQUESTED.
21.09 Injuries to Third Parties and Third-party Property Owners
Resulting from the Parties' Conduct. Each party shall indemnify, on request
defend, and hold the other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or expenses, of every
kind and character, on account of or in connection with the personal injury or
death of any third party or physical damage to real or personal property owned
by a third party, arising, in whole or in part, out of or in connection with the
conduct of employees of the indemnifying party or other persons acting on the
indemnifying party's behalf while such employees or other persons are present
on, within, or in the vicinity of any SWBT pole, duct, conduit, or right-of-way
in connection with the performance or anticipated performance of any act
required or authorized to be performed pursuant to this Agreement. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities arising out of or in
connection with personal injury, death, and property damage claims by third
parties based on willful or intentional misconduct and negligent acts and
omissions of the indemnifying party.
21.10 Indemnification for Environmental Claims. The parties acknowledge
that hazardous substances may be present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way; that employees and other
persons acting on the parties' behalf working on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way should be familiar with
environmental laws and environmental concerns which arise in outside plant
contexts; that all such employees and other persons should be prepared to
recognize and deal with environmental contingencies existing at specific sites;
and that liabilities associated with environmental claims arising out of or in
connection with the subject matter of this Agreement shall be allocated between
the parties as set forth in this section.
(a) Each party shall indemnify, on request defend, and
hold the other party harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character,
on account of or in connection with any injury, loss,
or damage to any person or property, or to the
environment, arising out of or in connection with the
violation or breach, by any employee of the
indemnifying party or other person acting on the
indemnifying party's behalf, of (1) any federal,
state, or local environmental statute, rule,
regulation, ordinance, or other law or (2) any
provision or requirement of this Agreement dealing
with hazardous substances or protection of the
environment.
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(b) Each party shall indemnify, on request defend, and
hold the other party harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character,
on account of or in connection with any injury, loss,
or damage to any person or property, or to the
environment, arising out of or in connection with the
release or discharge, onto any public or private
property, of any hazardous substances, regardless of
the source of such hazardous substances, by any
employee of the indemnifying party, or by any person
acting on the indemnifying party's behalf, while
present on, within, or in the vicinity of any SWBT
pole, duct, conduit, or right-of-way. Indemnities
provided by this subsection include but are not
limited to indemnities arising out of or in
connection with the release or discharge of water and
other substances from SWBT's manholes or other
conduit facilities.
(c) Each party shall indemnify, on request defend, and
hold the other party harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines,
penalties, or expenses, of every kind and character,
on account of or in connection with any injury, loss,
or damage to any person or property, or to the
environment, arising out of or in connection with the
removal or disposal of any hazardous substances by
the indemnifying party or by any person acting on the
indemnifying party's behalf, or arising out of or in
connection with the subsequent storage, processing or
other handling of such hazardous substances by any
person or entity after they have been removed by the
indemnifying party or persons acting on the
indemnifying party's behalf from the site of any SWBT
pole, duct, conduit, or right-of-way. For the
purposes of this subsection, any person or entity
removing or disposing of hazardous substances at the
request of the indemnifying party or at the request
of any person acting on the indemnifying party's
behalf, and any person or entity subsequently
receiving, storing, processing, or otherwise handling
such hazardous substances shall be considered to be a
person acting on the indemnifying party's behalf.
(d) Except as otherwise specifically provided in this
section, neither party shall be required to indemnify
or defend the other party against, or hold the other
party harmless from any loss, damage, claim, demand,
suit, liability, fine, penalty or expense for which
the other party may be liable under any federal,
state, or local environmental statute, rule,
regulation, ordinance, or other law.
21.11 Miscellaneous Claims. Applicant shall indemnify, on request
defend, and hold SWBT harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, and expenses, of every kind and
character, made, brought, or
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sought against SWBT by any person or entity, arising out of or in connection
with the subject matter of this Agreement and based on either:
(a) claims for taxes, municipal fees, franchise fees,
right-to-use fees, and other special charges assessed
on SWBT due to the placement or presence of
Applicant's facilities on or within SWBT's poles,
ducts, conduits, or rights-of-way; or
(b) claims based on the violation by Applicant of any
third party's intellectual property rights, including
but not limited to claims for copyright infringement,
patent infringement, or unauthorized use or
transmission of television or radio broadcast
programs or other program material.
21.12 Applicant's General Indemnity Obligations to SWBT. This section
applies only in those situations not expressly covered by Sections 21.05-21.11
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from Applicant's enforcement of its rights against SWBT pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
and subject to the exclusions set forth in Section 21.04, Applicant shall
indemnify, on request defend, and hold SWBT harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, and expenses,
of every kind and character, on account of or in connection with any injury,
loss, or damage to any person or property, or to the environment, arising out of
or in connection with Applicant's access to or use of SWBT's poles, ducts,
conduits, or rights-of-way, Applicant's performance of any acts authorized under
this Agreement, or the presence or activities of Applicant's employees or other
personnel acting on Applicant's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
21.13 SWBT's General Indemnity Obligations to Applicant. This section
applies only in those situations not expressly covered by Sections 21.05-21.10
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from SWBT's enforcement of its rights against Applicant pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
SWBT shall indemnify, on request defend, and hold Applicant harmless from any
and all suits, claims, demands, losses, damages, liabilities, fines, penalties,
and expenses, of every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the environment,
arising out of or in connection with SWBT's access to or use of SWBT's poles,
ducts, conduits, or rights-of-way, SWBT's performance of any acts authorized
under this Agreement, or the presence or activities of SWBT's employees or other
personnel acting on SWBT's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
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21.14 No Rights, Claims, Causes of Action, or Remedies for the Benefit
of Third Parties. Nothing contained in this article is intended to create any
rights, claims, causes of action, or remedies for the benefit of any third
party.
21.15 Assertion of Limitation of Liability Defenses. Each party shall
diligently assert the limitation of liability provisions of any applicable
tariff or contract in any case involving injury, loss, or damage to any customer
of such party for which the other party is not exempt from indemnification
liabilities to the indemnified party under this Agreement.
21.16 Indemnity Liabilities Not Subject to Article 22 Limitations of
Liability. Indemnity liabilities under this article shall not be subject to
Article 22 limitations of liability.
21.17 Defense of Suits. Upon request by the indemnified party, the
indemnifying party shall defend any suit brought against the indemnified party
for any injury, loss, or damage subject to indemnification under this Agreement.
The indemnified party shall notify the indemnifying party promptly in writing of
any written claims, lawsuits, or demands for which the indemnifying party may be
responsible under this Agreement. The indemnified party shall cooperate in every
reasonable way to facilitate defense or settlement. The indemnifying party shall
have the right to control and conduct the defense and settlement of any action
or claim subject to consultation of the indemnified party. The indemnifying
party shall not be responsible for any settlement unless the indemnifying party
approved such settlement in advance and agrees to be bound by the settlement
agreement.
ARTICLE 22: LIABILITIES AND LIMITATIONS OF LIABILITY
22.01 LIMITATIONS OF LIABILITY WITH RESPECT TO NEGLIGENT ACTS AND
OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS LIMITING THE LIABILITIES OF EACH
PARTY ARISING OUT OF OR IN CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS
OF SUCH PARTY.
22.02 LIMITATIONS OF LIABILITY IN GENERAL. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN SECTIONS 21.16 AND 22.05, NEITHER PARTY'S LIABILITY TO THE
OTHER PARTY FOR DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY NEGLIGENT ACT
OR OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT OR
TORT, SHALL EXCEED IN THE AGGREGATE FOR ANY CALENDAR YEAR THE GREATER OF
$250,000, OR THE TOTAL AMOUNT CHARGED BY SWBT TO APPLICANT UNDER THIS AGREEMENT
FOR THE CALENDAR YEARS WHEN THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY
OCCURRED. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS LIMITING
EITHER PARTY'S LIABILITY FOR ACTS OR OMISSIONS
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CONSTITUTING WILLFUL OR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE BY SUCH
PARTY.
22.03 EXCLUSION OF LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE LIABLE 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 ANY ACT OR FAILURE TO ACT PURSUANT TO THIS
AGREEMENT, EVEN IF THE OTHER PARTY HAS ADVISED SUCH PARTY OF THE POSSIBILITY OF
SUCH DAMAGES. THIS SECTION LIMITS EACH PARTY'S LIABILITY FOR INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION
WITH NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF SUCH PARTY BUT
DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR INTENTIONAL MISCONDUCT.
22.04 SWBT Not Liable to Applicant for Acts of Third Parties or Acts of
God. By affording Applicant access to poles, ducts, conduits, and rights-of-way
owned or controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by Applicant. Except as specifically
provided in Section 22.05 of this Agreement, Applicant assumes all risks of
injury, loss, or damage (and the consequences of any such injury, loss, or
damage) to Applicant's facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, or rights-of-way, and SWBT shall not be liable to Applicant for
any damages to Applicant's facilities other than as provided in Section 22.05.
In no event shall SWBT be liable to Applicant under this Agreement for any
injury, loss, or damage resulting from the acts or omissions of (1) any joint
user or any person acting on a joint user's behalf, (2) any governmental body or
governmental employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invitee, trespasser, or
other person present at the site or in the vicinity of any SWBT pole, duct,
conduit, or right-of-way in any capacity other than as a SWBT employee or person
acting on SWBT's behalf. In no event shall SWBT be liable to Applicant under
this Agreement for injuries, losses, or damages resulting from acts of God
(including but not limited to storms, floods, fires, and earthquakes), wars,
civil disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than SWBT's
employees or persons acting on SWBT's behalf, or other causes beyond SWBT's
control which occur at sites subject to this Agreement.
22.05 Damage to Facilities. Except as otherwise specifically provided
in this section, neither party shall be liable to the other party for any
injury, loss, or damage (or for the direct or indirect consequences of any such
injury, loss, or damage) to such other party's facilities attached to SWBT's
poles or placed within or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way.
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(a) Each party (the "responsible party"), and persons
acting on behalf of the responsible party, shall
exercise due care to avoid damaging the facilities of
the other party (the "injured party"). In the event
such damage occurs, the responsible party or persons
acting on behalf of the responsible party shall
immediately report such damages to the injured party,
and the injured party shall promptly make such
arrangements as may be necessary to restore service
to its customers using the facilities affected.
(b) The responsible party shall reimburse the injured
party for the actual costs incurred by the injured
party for repair of facilities damaged by the willful
misconduct, grossly negligent acts, grossly negligent
omissions, and negligent acts (but not negligent
omissions other than grossly negligent omissions) of
employees of the responsible party.
(c) The responsible party shall reimburse the injured
party for the actual costs incurred by the injured
party for repair of facilities damaged by the willful
misconduct, grossly negligent acts or omissions, and
negligent acts (but not negligent omissions other
than grossly negligent omissions) of independent
contractors acting on the responsible party's behalf;
provided, however, that the injured party shall be
limited to recovery of those costs which cannot be
recovered from the independent contractor causing the
damage. The responsible party shall not be liable to
the injured party under this section until the
injured party's claims against the independent
contractor causing the damage have been adjudicated
or settled and the amount of the injured party's
claim against the responsible party is determinable.
(d) NEITHER PARTY SHALL BE REQUIRED BY THIS SECTION TO
REIMBURSE THE OTHER PARTY FOR COSTS INCURRED AS A
RESULT OF NEGLIGENT OMISSIONS OTHER THAN GROSSLY
NEGLIGENT OMISSIONS COVERED BY SUBSECTIONS (c)-(d) OF
THIS SECTION.
(e) THIS SECTION LIMITS, BUT DOES NOT EXCLUDE, THE
RESPONSIBLE PARTY'S LIABILITY TO THE INJURED PARTY
FOR DAMAGES CAUSED BY NEGLIGENT (INCLUDING GROSSLY
NEGLIGENT) ACTS OF THE RESPONSIBLE PARTY AND PERSONS
ACTING ON THE RESPONSIBLE PARTY'S BEHALF.
22.06 No Limitations of Liability in Contravention of Federal or State
Law. Nothing contained in this article shall be construed as exempting either
party from any liability, or limiting such party's liability, in contravention
of federal law or in contravention of the laws of this State.
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22.07 Claims Against Third Parties. Nothing contained in this article
shall be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to contractors,
subcontractors, or persons (other than the other party's employees) acting on
the other party's behalf.
ARTICLE 23: INSURANCE
23.01 Insurance Required. Applicant shall comply with the insurance
requirements specified in this section.
(a) Unless Applicant has provided proof of self-insurance
as permitted in Section 23.02 below, Applicant shall
obtain and maintain in full force and effect, for so
long as this Agreement remains in effect, insurance
policies specified in APPENDIX IV of this Agreement.
Each policy shall name SWBT as an additional insured
and shall include provisions requiring the insurer to
give SWBT notice of any lapse, cancellation, or
termination of the policy or any modification to the
policy affecting SWBT's rights under the policy,
including but not limited to any decrease in coverage
or increase in deductibles.
(b) Except as provided in this subsection, exclusions
from coverage or deductibles, other than those
expressly permitted in APPENDIX IV, must be approved
in writing by SWBT. For authorized contractors and
other contractors performing work on, within, or in
the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way on Applicant's behalf, exclusions from
coverage or deductibles, other than those expressly
permitted in APPENDIX IV, must be approved in writing
by Applicant.
(c) Authorized contractors and other contractors
performing work on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way on
Applicant's behalf shall be required to meet the same
insurance requirements applicable to contractors
performing similar work on SWBT's behalf. Applicant
shall be responsible for securing compliance by its
contractors with this requirement and shall be liable
to SWBT for any damages resulting from its failure to
do so.
(d) Self-insurance shall be permitted for persons and
entities (including but not limited to Applicant and
authorized contractors) meeting the self-insurance
requirements set forth in Section 23.02.
23.02 Proof of Insurance or Self-insurance. Proof of insurance or
self-insurance shall be made pursuant to the provisions of this section.
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(a) Applicant shall submit to SWBT adequate proof (as
determined by SWBT) that the companies insuring
Applicant are providing all coverages required by
this Agreement. Applicants insurers shall provide
SWBT with certifications that required coverages will
not be cancelled, changed or materially altered
(e.g., by increasing deductibles or altering
exclusions from coverage) except after 30 days
written notice to SWBT.
(b) SWBT will accept certified proof of a person or
entity's qualification as a self-insurer for Workers'
Compensation and Employers Liability, where
self-insurance is permitted, upon receipt of a
current copy of a Certificate of Authority to
Self-insure issued by the Workers' Compensation
Commission of this State. SWBT will accept
self-insurance by a person or entity in lieu of other
Commercial General Liability and Automobile Liability
Coverage if such person or entity warrants that its
net worth, as shown by its most recent audited
financial statement with no negative notes, is at
least 10 times the minimum liability limits set forth
in APPENDIX IV and SWBT is satisfied that such entity
will be able to meet its liability obligations under
this Agreement.
(c) Applicant shall be responsible for determining
whether contractors and other persons present on
Applicant's behalf on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way meet
the self-insurance requirements of this subsection.
Applicant may accept certified proof of any such
person's or entity's qualification as a self-insurer
for Workers' Compensation and Employers Liability,
where self-insurance is permitted, upon receipt of a
current copy of a Certificate of Authority to
Self-insure issued by the Workers' Compensation
Commission of this State. Applicant may accept proof
of self-insurance by a person or entity in lieu of
other Commercial General Liability and Automobile
Liability Coverage if such person or entity warrants
that its net worth, as shown by its most recent
audited financial statement with no negative notes,
is at least 10 times the minimum liability limits set
forth in APPENDIX IV and Applicant is satisfied that
such entity will be able to meet its liability
obligations with respect to activities performed on,
within, and in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
23.03 Licensing Contingent on Proof of Insurance. All insurance
required in accordance with APPENDIX IV, or self-insurance as permitted in
Section 23.02, must be in effect before SWBT will issue pole attachment or
conduit occupancy licenses under this Agreement and shall remain in force until
all of Applicant's facilities have been removed from SWBT's poles, ducts,
conduits, and rights-of-way.
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23.04 Failure to Obtain or Maintain Coverage. Applicant's failure to
obtain and maintain the required levels and types of insurance coverage required
under this Agreement shall be grounds for termination of this Agreement and
licenses subject to this Agreement. If an insurance carrier shall at any time
notify Applicant or SWBT that any policy or policies of insurance required under
this Agreement will be cancelled or changed in any manner which will result in
Applicant's failure to meet the requirements of this Agreement, SWBT may
terminate this Agreement and all licenses subject to this Agreement not less
than 60 days after giving Applicant written notice of its intention to do so,
and such termination shall be effective on the termination date specified in the
notice unless Applicant has obtained (or made arrangements satisfactory to SWBT
to obtain) the required coverage from another source. In the alternative, SWBT
may, in its sole discretion, elect to take such action as may be necessary to
keep such policy in effect with the required coverages.
ARTICLE 24: ASSIGNMENT OF RIGHTS
24.01 Assignment Permitted. Neither party may assign or otherwise
transfer its rights or obligations under this Agreement except as provided in
this section.
(a) SWBT may assign its rights, delegate its benefits,
and delegate its duties and obligations under this
Agreement, without Applicant's consent, to any entity
controlling, controlled by, or under common control
with SWBT or which acquires or succeeds to ownership
of substantially all of SWBT's assets.
(b) Applicant may assign its rights, delegate its
benefits, and delegate its duties and obligations
under this Agreement, without SWBT's consent, to: any
telecommunications carrier or cable system operator
which (1) is entitled to access to SWBT's poles,
ducts, conduits, and rights-of-way under the Pole
Attachment Act and (2) controls, is controlled by, or
is under common control with Applicant or acquires
and succeeds to ownership of substantially all of
Applicant's assets; provided, however, that such
assignment shall not be effective until Applicant has
given SWBT written notice of the assignment pursuant
to Section 24.03 and guaranteed the performance of
Applicant's assignee or successor. Applicant's
assignee or successor shall assume all outstanding
obligations of Applicant under this Agreement,
including but not limited to all liabilities and
contingent liabilities of Applicant arising out of or
in connection with this Agreement.
(c) Applicant may, ancillary to a bona fide loan
transaction between Applicant and any lender, and
without SWBT's consent, grant security interests or
make collateral assignments in substantially all of
Applicant's assets, including Applicant's rights
under this Agreement, subject to the express terms of
this Agreement. In the event Applicant's
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lender, in the bona fide exercise of its rights as a
secured lender, forecloses on its security interest
or arranges for a third party to acquire Applicant's
assets through public or private sale or through an
Agreement with Applicant, Applicant's lender or the
third party acquiring Applicant's rights under this
Agreement shall assume all outstanding obligations of
Applicant under the agreement and provide proof
satisfactory to SWBT that such lender or third party
has complied or will comply with all requirements
established under this Agreement. Notwithstanding any
provisions of this Agreement to the contrary, such
foreclosure by Applicant's lender or acquisition of
assets by such third party shall not constitute a
breach of this Agreement and, upon such foreclosure
or acquisition, Applicant's lender or such third
party shall succeed to all rights and remedies of
Applicant under this Agreement (other than those
rights and remedies, if any, which have not been
transferred and, if Applicant is a debtor under the
Federal Bankruptcy Code, those rights, if any, which
remain a part of the debtor's estate notwithstanding
an attempted foreclosure or transfer) and to all
duties and obligations of Applicant under the
Agreement, including liability to SWBT for any act,
omission, default, or obligation that arose or
occurred under the Agreement prior to the date on
which such lender or third party succeeds to the
rights of Applicant under the Agreement, as
applicable.
(1) In the event Applicant or Applicant's lender
requests that SWBT, in connection with a
bona fide loan transaction between Applicant
and Applicant's lender, sign any additional
consents, or make other accommodations to
protect such lender's interest, Applicant or
Applicant's lender shall reimburse SWBT for
all expenses incurred by SWBT in connection
with such requests and accommodations,
including but not limited to in-house or
outside legal expenses incurred by SWBT in
processing the request.
(2) In the event Applicant or Applicant's lender
desires that SWBT provide notices to
Applicant's lender or permit Applicant's
lender, in the event of a breach, to cure
any default or termination event if
Applicant fails to do so, Applicant shall
notify SWBT's authorized agent, as
designated in Article 29 of this Agreement,
that such notices may be sent to Applicant's
lender as well to Applicant. Nothing
contained in this subsection shall be
construed as imposing any duty on SWBT in
favor of Applicant's lender, and this
section shall not be construed to provide
Applicant's lender or any other third
parties with any rights, claims, causes of
action of any kind. Applicant waives any and
all claims or causes of action, of every
kind and character, past, present, or
future, arising out of or in
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connection with the giving of any notice to
Applicant's lender pursuant to this section or
any failure to give such notice.
(d) Either party may assign or transfer rights or
obligations under this Agreement on such terms and
conditions as are mutually acceptable to the other
party and with such other party's prior written
consent, which consent may be withheld only for due
cause and justification.
(e) No assignment or transfer by Applicant of rights
under this Agreement, licenses subject to this
Agreement, or authorizations granted under this
Agreement shall be effective until Applicant, its
successors, and assigns have complied with the
provisions of this article, secured SWBT's prior
written consent to the assignment or transfer, if
necessary, and given SWBT notice of the assignment or
transfer pursuant to Section 24.03.
(f) Except as otherwise expressly provided in this
article, neither this Agreement, nor any licenses or
authorizations subject to this Agreement, shall inure
to the benefit of Applicant's successors or assigns
without SWBT's prior written consent.
24.02 Incorporations, Mergers, Acquisitions and Other Changes in
Applicant's Legal Identity. When the legal identity or status of Applicant
changes, whether by incorporation, reincorporation, merger, acquisition, or
otherwise, such change shall be treated as an assignment subject to the
provisions of this article.
24.03 Notice of Assignment. Applicant shall provide SWBT with 60 days
advance notice in writing of any assignment.
24.04 Assignment Shall Not Relieve Applicant of Prior Obligations.
Except as otherwise expressly agreed by SWBT in writing, no assignment permitted
by SWBT under this Agreement shall relieve Applicant of any obligations arising
under or in connection with this Agreement, including but not limited to
indemnity obligations under Article 21 of this Agreement or the interconnection
agreement, if any.
24.05 Satisfaction of Existing Obligations and Assumption of Contingent
Liabilities. SWBT may condition its approval of any requested assignment or
transfer on the assignee's or successor's payment or satisfaction of all
outstanding obligations of Applicant under this Agreement and the assignee's or
successor's assumption of any liabilities, or contingent liabilities, of
Applicant arising out of or in connection with this Agreement.
24.06 Satisfaction of All Other Licensing Requirements. Applicant's
assignee or successor must, within 60 days following the assignment, provide
proof satisfactory to SWBT that such assignee or successor has complied or will
comply with all licensing requirements established under this Agreement,
including but not limited to requirements
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that such assignee or successor verify, to the best of its information and
belief, as provided in Section 17.03, that all facilities owned or used by such
assignee or successor and presently attached to SWBT's poles or placed within
any portion of SWBT's conduit system within this State have been disclosed to
SWBT and are subject to existing licenses and that such assignee or successor
has complied with the insurance requirements set forth in Article 23 of this
Agreement.
24.07 Additional Post-Assignment Requirements. Applicant's assignee or
successor shall, within 60 days following the assignment:
(a) sign this Agreement as an assignee or successor
expressly agreeing to be bound by all provisions of
this Agreement and licenses subject to this
Agreement;
(b) provide proof, satisfactory to SWBT, of such
assignee's assumption of the obligations of this
Agreement; and
(c) pay a one-time contract administration fee, as
provided in APPENDIX I of this Agreement, if no
Master Agreement for Access to SWBT's Poles, Ducts,
Conduits, or Rights-of-Way between SWBT and such
assignee is in effect for this State, or an
administrative record-keeping fee as provided in
APPENDIX I of this Agreement, if there is a Master
Agreement in effect for this State.
24.08 Sublicenses Prohibited. Nothing contained in this Agreement shall
be construed as granting Applicant the right to sublicense any rights under this
Agreement or licenses subject to this Agreement to any third party. Except as
otherwise expressly permitted in this Agreement, Applicant shall not allow third
party to attach or place facilities to or in pole or conduit space occupied by
or assigned to Applicant or to utilize such space.
ARTICLE 25: TERMINATION OF AGREEMENT OR LICENSES;
REMEDIES FOR BREACHES
25.01 Termination Due to Non-Use of Facilities or Loss of Required
Authority. Applicant shall, by written notice to SWBT, terminate this Agreement
and all licenses subject to this Agreement if Applicant ceases to have authority
to do business or ceases to do business in this State, ceases to have authority
to provide or ceases to provide cable television services in this State (if
Applicant is cable television system having access to SWBT's poles, ducts,
conduits or rights-of-way solely to provide cable television service), ceases to
have authority to provide or ceases to provide telecommunications services in
this State (if Applicant is a telecommunications carrier which does not also
have authority to provide cable television service in this State), or ceases to
make active use of SWBT's poles, ducts, conduits, and rights-of-way in this
State. Applicant shall, by written notice to SWBT, terminate individual licenses
subject to this Agreement if (a)
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Applicant ceases to utilize the pole attachment or conduit occupancy space
subject to such licenses or (b) Applicant's permission to use or have access to
particular poles, ducts, conduits, or rights-of-way has been revoked, denied, or
terminated for reasons of safety or any other lawful reason by any federal,
state, or local governmental authority or third-party property owner having
authority to revoke, deny, or terminate such use or access. Responsibility for
terminating this Agreement or individual licenses under the circumstances set
forth in this section shall be a contractual obligation imposed on Applicant,
and the failure by Applicant to terminate this Agreement or individual licenses
pursuant to this section shall be a material breach of this Agreement.
25.02 Limitation, Termination, or Refusal of Access for Certain
Material Breaches. Applicant's access to SWBT's poles, ducts, conduits, and
rights-of-way shall not materially interfere with or impair service over any
facilities of SWBT or any joint user, cause material damage to SWBT's plant or
the plant of any joint user, impair the privacy of communications carried over
the facilities of SWBT or any joint user, or create serious hazards to the
health or safety of any persons working on, within, or in the vicinity of SWBT's
poles, ducts, rights-of-way or to the public. Upon reasonable notice and
opportunity to cure, SWBT may limit, terminate or refuse access if Applicant
violates this provision; provided, however, that such limitation, termination or
refusal will be limited to Applicant's access to poles, ducts, conduits, and
rights-of-way located in the SWBT construction district in which the violation
occurs, shall be as narrowly limited in time and geographic scope as may be
necessary to enable Applicant to adopt suitable controls to prevent further
violations, and shall be subject to review, at Applicant's request, pursuant to
the dispute resolution procedures set forth in this Agreement (or, if
applicable, the parties' interconnection agreement) or, as permitted by law,
before any court, agency, or other tribunal having jurisdiction over the subject
matter. In the event Applicant invokes dispute resolution procedures or seeks
review before a court, agency, or other tribunal having jurisdiction of the
subject matter, the limitation, termination, or refusal of access may be stayed
or suspended by agreement of the parties or by order of the tribunal having
jurisdiction over the parties' dispute.
25.03 Notice and Opportunity to Cure Breach. In the event of any
claimed breach of this Agreement by either party, the aggrieved party may give
written notice of such claimed breach as provided in this section.
(a) The notice shall set forth in reasonable detail:
(1) the conduct or circumstances complained of,
together with the complaining party's legal
basis for asserting that a breach has
occurred;
(2) the action believed necessary to cure the
alleged breach; and
(3) any other matter the complaining party
desires to include in the notice.
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(b) Except as provided in Section 25.02 and subsection
(c) of this section, the complaining party shall not
be entitled to pursue any remedies available under
this Agreement or relevant law unless such notice is
given and (1) the breaching party fails to cure the
breach within 30 days of such notice, if the breach
is one which can be cured within 30 days, or (2) the
breaching party fails to commence promptly and pursue
diligently a cure of the breach, if the required cure
is such that more than 30 days will be required to
effect such cure; provided, however, that nothing
contained in this section shall preclude either party
from invoking the dispute resolution procedures set
forth in Article 30 of this Agreement, or any
complaint or dispute resolution procedures offered by
the FCC or State Commission, at any time.
(c) Nothing contained in this section shall preclude
either party from filing a complaint or bringing suit
in any court, agency, or other tribunal of competent
jurisdiction to restrain or enjoin any conduct of the
other party which threatens the complaining party
with irreparable injury, loss or damage without first
giving the notice otherwise required by subsection
(b).
25.04 Remedies for Breach. Subject to the provisions of this article
and the dispute resolution procedures of Article 30, either party may terminate
this Agreement in the event of a material breach by the other party or exercise
any other legal or equitable right which such party may have to enforce the
provisions of this Agreement. Except as otherwise specifically provided in
Section 30.07, in any action based on an alleged breach of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred by
such party, including but not limited to reasonable attorneys' fees.
ARTICLE 26: FAILURE TO ENFORCE
26.01 No Waiver. The failure by either party to take action to enforce
compliance with any of the terms or conditions of this Agreement, to give notice
of any breach, or to terminate this Agreement or any license or authorization
subject to this Agreement shall not constitute a waiver or relinquishment of any
term or condition of this Agreement, a waiver or relinquishment of the right to
give notice of breach, or waiver or relinquishment of any right to terminate
this Agreement. Notwithstanding any such failure, all terms and conditions of
this Agreement and all rights of either party hereunder shall be and remain at
all times in full force and effect.
ARTICLE 27: EFFECTIVE DATE, TERM, AND ELECTIVE TERMINATION
27.01 Effective Date. This Agreement shall be effective as of the 30th
day of June, 1997, or, if this Agreement has been entered into as an appendix,
attachment, or exhibit to an interconnection agreement between the parties, the
date of
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approval by the State Commission of the interconnection agreement, whichever
date first occurs.
27.02 Initial Term. Unless sooner terminated as herein provided, the
initial term of this Agreement shall run from the effective date until the end
of the calendar year which includes the effective date.
27.03 Automatic Renewal. Unless sooner terminated as herein provided,
this Agreement shall be automatically renewed for successive one-year terms
beginning on the first day of each calendar year after the effective date.
27.04 Elective Termination. Either party may terminate this Agreement
by giving the other party at least six months prior written notice as provided
in this section.
(a) Applicant may terminate this Agreement with or
without cause.
(b) The parties acknowledge that the Pole Attachment Act,
47 U.S.C. s.224(e), as added by the
Telecommunications Act of 1996, expressly directs the
FCC to promulgate new regulations governing charges
to telecommunications carriers for access to poles,
ducts, conduits, and rights-of-way and that such new
regulations are to take effect five years after the
date of enactment of the Telecommunications Act of
1996 (that is, February 8, 2001). The parties further
acknowledge that due to nondiscrimination
requirements, it is desirable that formal attachment
agreements establishing rates, terms, and conditions
of access be revised simultaneously, to the extent
possible. Accordingly, the parties agree that SWBT
may terminate this Agreement only for cause during
the period beginning with the effective date of this
Agreement through February 8, 2001. Thereafter, SWBT
may terminate this Agreement with or without cause,
subject to the provisions of subsection (d) and
Section 27.05 below.
(c) The notice of termination shall state the effective
date of termination, which date shall be no earlier
than the last to occur of the following dates: the
last day of the current term of this Agreement or six
months after the date the notice is given.
(d) The elective termination of this Agreement by SWBT
under this section shall not require immediate
removal of Applicant's facilities from poles, ducts,
conduits, and rights-of-way owned or controlled by
SWBT and shall be subject to the provisions of
Section 27.05 below; provided, however, that
Applicant shall, within 60 days after the effective
date of the termination, either initiate negotiations
for continued access to SWBT's poles, ducts,
conduits, and rights-of-way or remove its
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facilities in accordance with the provisions of
Article 18 of this Agreement.
27.05 Effect of Elective Termination. Elective termination of this
Agreement by Applicant, as permitted under Section 27.04 of this Agreement,
shall not affect Applicant's liabilities and obligations incurred under this
Agreement prior to the effective date of termination and shall not entitle
Applicant to the refund of any advance payment made to SWBT under this
Agreement. Elective termination of this Agreement by SWBT shall not affect
SWBT's obligations to afford access to SWBT's poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT as required by the Pole Attachment
Act, the Telecommunications Act of 1996, and other applicable laws, regulations,
and commission orders.
ARTICLE 28: CONFIDENTIALITY OF INFORMATION
28.01 Information Provided by Applicant to SWBT. Except as otherwise
specifically provided in this Agreement, all company-specific and
customer-specific information submitted by Applicant to SWBT in connection with
this Agreement (including but not limited to information submitted in connection
with Applicant's applications for the assignment of pole attachment and
occupancy space and for pole attachment and conduit occupancy licenses) shall be
deemed to be "confidential" or "proprietary" information of Applicant and shall
be subject to the terms set forth in this article. Confidential or proprietary
information specifically includes information or knowledge related to
Applicant's review of records regarding a particular market area, or relating to
assignment of space to Applicant in a particular market area, and further
includes knowledge or information about the timing of Applicant's request for or
review of records or its inquiry about SWBT facilities. This article does not
limit the use by SWBT of aggregate information relating to the occupancy and use
of SWBT's poles, ducts, conduits, and rights-of-way by firms other than SWBT
(that is, information submitted by Applicant and aggregated by SWBT in a manner
that does not directly or indirectly identify Applicant).
28.02 Access Limited to Persons with a Need to Know. Confidential or
proprietary information provided by Applicant to SWBT in connection with this
Agreement shall not be disclosed to, shared with, or accessed by any person or
persons (including but not limited to personnel involved in sales, marketing,
competitive intelligence, competitive analysis, strategic planning, and similar
activities) other than those who have a need to know such information for the
limited purposes set forth in Sections 28.03-28.06.
28.03 Permitted Uses of Applicant's Confidential Information.
Notwithstanding the provisions of Sections 28.01 and 28.02 above, SWBT and
persons acting on SWBT's behalf may utilize Applicant's confidential or
proprietary information for the following purposes: (a) posting information, as
necessary, to SWBT's outside plant records; (b) placing, constructing,
installing, operating, utilizing, maintaining, monitoring, inspecting,
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repairing, relocating, transferring, conveying, removing, or managing SWBT's
poles, ducts, conduits, and rights-of-way and any SWBT facilities located on,
within, or in the vicinity of such poles, ducts, conduits, and rights-of-way;
(c) performing SWBT's obligations under this Agreement and similar agreements
with third partis; (d) performing SWBT's general obligations to afford
nondiscriminatory access to telecommunications carriers and cable television
systems under the Pole Attachment Act; (e) determining which of SWBT's poles,
ducts, conduits, and rights-of-way are (or may in the future be) available for
SWBT's own use, and making planning, engineering, construction, and budgeting
decisions relating to SWBT's poles, ducts, conduits, and rights-of-way; (f)
preparing cost studies; (g) responding to regulatory requests for information;
(h) maintaining SWBT's financial accounting records; and (i) complying with
other legal requirements relating to poles, ducts, conduits, and rights-of-way.
28.04 Access by Third Parties. Information reflecting the assignment of
pole attachment and conduit occupancy space to Applicant may be made available
to personnel of third parties seeking access to SWBT's records under provisions,
and subject to protections, equivalent to those contained and required by
Section 7.03 of this Agreement.
28.05 Defense of Claims. In the event of a dispute between SWBT and any
person or entity, including Applicant, concerning SWBT's performance of this
Agreement, satisfaction of obligations under similar agreements with third
parties, compliance with the Pole Attachment Act, compliance with the
Telecommunications Act of 1996, or compliance with other federal, state, or
local laws, regulations, commission orders, and the like, SWBT may utilize
confidential or proprietary information submitted by Applicant in connection
with this Agreement as may be reasonable or necessary to demonstrate compliance,
protect itself from allegations of wrongdoing, or comply with subpoenas, court
orders, or reasonable discovery requests; provided, however, that SWBT shall not
disclose Applicant's proprietary or confidential information without first, at
SWBT's option: (a) obtaining an agreed protective order or nondisclosure
agreement that preserves the confidential and proprietary nature of Applicant's
information; (b) seeking such a protective order as provided by law if no agreed
protective order or nondisclosure agreement can be obtained; or (c) providing
Applicant notice of the subpoena, demand, or order and an opportunity to take
affirmative steps of its own to protect such proprietary or confidential
information.
28.06 Response to Subpoenas, Court Orders, and Agency Orders. Nothing
contained in this article shall be construed as precluding SWBT from complying
with any subpoena, civil or criminal investigative demand, or other order issued
or entered by a court or agency of competent jurisdiction; provided, however,
that SWBT shall not disclose Applicant's proprietary or confidential information
without first, at SWBT's option: (a) obtaining an agreed protective order or
nondisclosure agreement that preserves the confidential and proprietary nature
of Applicant's information; (b) seeking such a protective order as provided by
law if no agreed protective order or nondisclosure agreement can be obtained; or
(c) providing Applicant notice of the subpoena, demand,
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or order and an opportunity to take affirmative steps of its own to protect such
proprietary or confidential information.
28.07 Other Uses of Confidential Information. No other uses of
confidential information received from Applicant pursuant to this Agreement are
authorized or permitted without Applicant's express written consent.
ARTICLE 29: NOTICES
29.01 Notices to Applicant. Except as otherwise provided in APPENDIX VI
("Notices to Applicant"), all written notices required to be given to Applicant
shall be delivered or mailed to Applicant's duly authorized agent or attorney,
as designated in this section.
(a) Such notice may be delivered to Applicant's duly
authorized agent or attorney in person or by agent or
courier receipted delivery.
(b) Such notice may be mailed to Applicant's duly
authorized agent or attorney by registered or
certified mail, return receipt requested. When notice
is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid,
properly addressed wrapper, in a post office or
official depository under the care and control of the
United States Postal Service and shall be deemed to
have been given three days after the date of deposit.
(c) Applicant may authorize delivery of the notice by
telephonic document transfer to the Applicant's duly
authorized agent or attorney. Notice by telephonic
document transfer after 5:00 p.m. local time of the
recipient shall be deemed given on the following day.
(d) Notices to Applicant shall be sent to the authorized
agent or attorney designated below:
Name: RICHARD D. WEINSTEIN
------------------------------
Title: PRESIDENT
-----------------------------
Firm: DIGITAL TELEPORT, INC.
------------------------------
Address: 11111 DORSETT ROAD
---------------------------
City/State/Zip: ST. LOUIS, MO 63043
--------------------
29.02 Notices to SWBT. Except as otherwise provided in APPENDIX VII
("Notices to SWBT"), all written notices required to be given to SWBT shall be
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delivered or mailed to SWBT's duly authorized agent or attorney, as designated
in this section.
(a) Such notice may be delivered to SWBT's duly
authorized agent or attorney in person or by agent or
courier receipted delivery.
(b) Such notice may be mailed to SWBT's duly authorized
agent or attorney by registered or certified mail,
return receipt requested. When notice is given by
mail, such notice shall be complete upon deposit of
the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official
depository under the care and control of the United
States Postal Service and shall be deemed to have
been given three days after the date of deposit.
(c) SWBT may authorize delivery of the notice by
telephonic document transfer to SWBT's duly
authorized agent or attorney. Notice by telephonic
document transfer after 5:00 p.m. local time of the
recipient shall be deemed given on the following day.
(d) On the effective date of this Agreement, and until
further notice to Applicant, SWBT's duly authorized
agent shall be the Utility Liaison Supervisor ("ULS")
designated in APPENDIX VIII.
29.03 Changes in Notice Requirements. Either party may, from time to
time, change notice addressees and addresses by giving written notice of such
change to the other party. Such notice shall state, at a minimum, the name,
title, firm, and full address of the new addressee.
ARTICLE 30: DISPUTE RESOLUTION
30.01 Purpose. The provisions of this article are intended to minimize
litigation between the parties with respect to disputes arising in connection
with this Agreement and shall be construed accordingly. Any dispute between the
parties arising under this Agreement may be submitted by either party for
resolution under this article.
30.02 Exclusive Remedy for Monetary Claims under $25.000. Except for
actions seeking injunctive relief related to the purposes of this Agreement or
suits to compel compliance with the dispute resolution processes set forth in
this article, the parties agree to use the dispute resolution processes set
forth in this Agreement as their sole remedy with respect to any monetary claim
of $25,000 or less which arises out of or in connection with this Agreement.
30.03 Prerequisite to Litigation. The provisions of this article shall
also apply to all disputes, without regard to the amount in controversy, in
which Applicant contests charges billed by SWBT to Applicant under the terms of
this Agreement. No suit, except
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for actions seeking injunctive relief related to the purposes of this Agreement
or suits to compel compliance with the dispute resolution processes set forth in
this article, shall be filed by either party against the other with respect to
such contested charges until the parties have engaged in good faith negotiations
as provided in Section 30.04, and, if the parties agree, in mediation under
Section 30.05.
30.04 Good Faith Negotiation. Good faith negotiation as provided in
this section shall be the first step in the dispute resolution process.
(a) With respect to any dispute subject to the provisions
of this article, either party may initiate
negotiation proceedings by writing a certified or
registered letter to the other party setting forth
the particulars of the dispute, the terms of the
Agreement that are involved, and a suggested
resolution of the problem.
(b) The recipient of the letter shall respond within 21
days to the proposed solution. The recipient shall
either agree to the proposed solution or explain its
disagreement.
(c) If the correspondence does not resolve the dispute,
each party, at the request of either party, will
appoint a knowledgeable, responsible representative
to meet and negotiate in good faith to resolve the
dispute. The location, form, frequency, duration, and
conclusion of these discussions shall be left to the
discretion of the representatives. Upon agreement,
the representatives may utilize other alternative
dispute resolution procedures such as mediation to
assist in the negotiations.
(d) Discussions and correspondence among the
representatives as provided by this section are for
purposes of settlement, are exempt from discovery and
production, and shall not be admissible in
arbitration, judicial, regulatory, or other
proceedings in any forum.
30.05 Mediation. If the parties agree to mediation, the mediation may
be conducted as provided in this section or in such other manner as may be
mutually agreeable to the parties.
(a) If agreed to by the parties, the dispute shall be
referred to the nearest office of the American
Arbitration Association, or such other mediator as
may be selected by agreement of the parties, for
mediation, that is, an informal, non-binding
conference or conferences between the parties in
which a mediator will seek to guide the parties to a
resolution of the dispute.
(b) If the dispute is referred to the American
Arbitration Association, the parties are free to
select any mutually acceptable panel member from the
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list of mediators at the American Arbitration
Association. If the parties cannot agree or have no
particular choice of a mediator and simply request
that the American Arbitration Association assign a
mediator to the dispute, then a list and resumes of
available mediators, numbering one more than there
are parties, will be sent to the parties, each of
whom may strike one name leaving the remaining name
as the mediator. If more than one name remains, the
designated mediator shall be selected by the
Administrator of the American Arbitration Association
from the remaining names.
(c) Mediation sessions shall be private.
(d) All records, reports or other documents considered by
the mediator shall be confidential.
(e) The parties agree that the mediator shall not be
compelled to divulge confidential materials or to
testify about the mediation in arbitration,
regulatory, judicial, or other proceedings in any
forum.
(f) The parties agree to maintain the confidentiality of
the mediation and shall not rely on, or introduce as
evidence in any arbitration, judicial, or other
proceeding:
(1) views expressed or suggestions made by the
other party with respect to a possible
settlement of the dispute;
(2) admissions made by the other party during
the mediation proceedings;
(3) proposals made or views expressed by the
mediator; or
(4) the fact that the other party had or had not
indicated willingness to accept a proposal
for settlement made by the mediator.
(g) Subsections (e) and (f) of this section shall apply
to anything said, done or occurring in the course of
the mediation, including any private caucus or
discussions between the mediator and any party or
counsel before or after the joint mediation session.
There shall be no stenographic record of the
mediation process, except to memorialize a settlement
record.
(h) The mediation process shall be considered settlement
negotiation for the purpose of all state and federal
rules protecting disclosures made during such
conferences from later discovery or use in evidence.
All conduct, statements, promises, offers, views, and
opinions, oral or written, made during the mediation
by any party or a party's agent, employee, or
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attorney are confidential and, where appropriate, are
to be considered work product and privileged. Such
conduct, statements, promises, offers, views, and
opinions shall not be subject to discovery or
admissible for any purpose, including impeachment, in
any litigation or other proceeding involving the
parties; provided, however, that evidence otherwise
subject to discovery or admissible is not excluded
from discovery or admission in evidence simply as a
result of its having been used in connection with
this settlement process.
30.06 Arbitration. If negotiations and mediations do not resolve the
dispute within 90 days after the initiation of dispute resolution proceedings as
provided in subsection (a) of Section 30.04 of this Agreement, the dispute shall
be submitted to binding arbitration by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association if the
dispute involves any monetary claim of $25,000 or less which arises out of or in
connection with this Agreement. The parties may voluntarily elect to arbitrate
disputes in which the amount in controversy exceeds $25,000, but they shall not
be required by this Agreement to do so.
(a) Either party may demand such arbitration in
accordance with the procedures set out in the
Commercial Arbitration Rules.
(b) Discovery shall be controlled by the arbitrator and
shall be permitted to the extent set out in this
subsection.
(1) Each party may submit in writing to any
other party, and such other party shall so
respond, to a maximum of any combination of
35 of the following: interrogatories,
document production requests, and requests
for admissions. The interrogatories,
document production requests, and requests
for admissions shall not have subparts.
(2) Additional discovery may be permitted upon
mutual agreement of the parties or upon
order of the arbitrator on a showing of good
cause.
(c) The arbitrator shall control the scheduling so as to
process the matter expeditiously. The times set forth
in this subsection shall apply unless extended upon
mutual agreement of the parties or by the arbitrator
on a showing of good cause.
(1) The arbitration hearing shall commence
within 60 days of the demand for arbitration
and shall be held, in the absence of
agreement by the parties to a different
venue, in St. Louis, Missouri.
(2) The parties shall submit written briefs five days
before the hearing.
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(3) The arbitrator shall rule on the dispute by
issuing a written opinion within 30 days
after the close of hearings.
(4) The arbitrator shall have no authority to
order punitive or consequential damages.
(5) Judgment upon the award rendered by the
arbitrator may be entered in any court of
competent jurisdiction.
30.07 Costs. Except as specifically provided in this section, each
party shall bear its own costs of all dispute resolution procedures under this
article.
(a) A party seeking discovery shall reimburse the
responding party for the costs incurred by the
responding party in producing documents.
(b) The parties shall equally split the fees of the
arbitration and the arbitrator.
30.08 No Abridgment of Rights under the Communications Act of 1934 or
the Pole Attachment Act. Nothing contained in this article shall abridge the
rights of either party to seek relief from the FCC with respect to any dispute
subject to the jurisdiction of the FCC under the Communications Act of 1934 or
the Pole Attachment Act, or from the State Commission with respect to any
dispute subject to its jurisdiction, except that the parties may not seek relief
from the FCC or the State Commission with respect to any dispute that has
already been resolved by mediation under Section 30.05 or by binding arbitration
under Section 30.06.
ARTICLE 31: ACCESS TO APPLICANT'S
POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY
31.01 No Reciprocal Access to Applicant's Facilities. This Agreement
does not include provisions for reciprocal access by SWBT to Applicant's poles,
ducts, conduits, and rights-of-way.
ARTICLE 32: GENERAL PROVISIONS
32.01 Entire Agreement. This Agreement, together with the
interconnection agreement, if any, to which this Agreement is an appendix,
attachment, or exhibit, sets forth the entire understanding and agreement of the
parties.
32.02 Prior Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, whether written or oral, between Applicant and
SWBT relating to the placement and maintenance of Applicant's facilities on and
within SWBT's poles, ducts, and conduits within this State.
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32.03 Amendments Shall Be in Writing. Except as otherwise specifically
provided to the contrary by other provisions of this Agreement, the terms and
conditions of this Agreement shall not be amended, changed or altered except in
writing and with approval by authorized representatives of both parties.
32.04 Survival of Obligations. Any liabilities or obligations of either
party for acts or omissions prior to the termination of this Agreement, any
obligations of either party under provisions of this Agreement relating to
confidential and proprietary information, indemnification, limitations of
liability, and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or be performed after) termination of this Agreement,
will survive the termination of this Agreement.
32.05 Multiple Counterparts. This Agreement may be executed in
multiple counterparts.
32.06 Effect on Licenses Issued Under Prior Agreements. All currently
effective pole attachment and conduit occupancy licenses granted to Applicant
shall, on the effective date of this Agreement, be subject to the rates, terms,
conditions, and procedures set forth in this Agreement.
32.07 Force Majeure. Except as otherwise specifically provided in this
Agreement, neither party will be liable for any delay or failure in performance
of any part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, disputes,
freight embargoes, earthquakes, volcanic actions, wars, civil disturbances,
cable cuts, or other causes beyond the reasonable control of the party claiming
excusable delay or other failure to perform; provided, however, that Force
Majeure will not include acts of any governmental authority relating to
environmental, health, or safety conditions at work locations. If any Force
Majeure condition occurs, the party whose performance fails or is delayed
because of such Force Majeure condition will give prompt notice to the other
party, and, upon cessation of such Force Majeure condition, will give like
notice and commence performance hereunder as promptly as reasonably practicable.
32.08 Severability. If any article, section, subsection, or other
provision or portion of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not materially alter
the essence of this Agreement as to either party, the invalidity of such
provision shall not render this entire Agreement unenforceable and this
Agreement shall be administered as if it did not contain the invalid provision.
32.09 Choice of Law. Except to the extent that federal law controls any
aspect of this Agreement, the validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and duties of the
parties will be governed by
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the laws of this State, applied without regard to the provisions of this State's
laws relating to conflicts-of-laws.
32.10 Changes in the Law. Because the primary purpose of this Agreement
is to provide access to poles, ducts, conduits, and rights-of-way in accordance
with the Pole Attachment Act, as amended by the Telecommunications Act of 1996
and subsequent amendments, the parties contemplate that changes in this
Agreement may from time to time be necessary or desirable to conform to changes
in the Pole Attachment Act as that Act is amended, interpreted, and applied.
This Agreement is based in large part on regulatory decisions by the FCC, which
has jurisdiction over the rates, terms, and conditions of access to poles,
ducts, conduits, and rights-of-way (except to the extent that such jurisdiction
has been pre-empted by individual states) and decisions by the State Commission.
More specifically, this Agreement is based in large part on the FCC's First
Interconnection Order in CC Docket No. 96-98, on FCC rules announced with the
First Interconnection Order, and on Arbitration Orders by the State Commission.
[X] Applicant desires to have access to SWBT's poles,
ducts, conduits, and rights-of-way on terms that are
not less favorable than those obtained by firms
participating in interconnection arbitration
proceedings before the State Commission. Applicant
also desires to have access to SWBT's poles, ducts,
conduits, and rights-of-way to the full extent
permitted under the FCC's First Interconnection Order
in CC Docket No. 96-98. SWBT is entering into this
Agreement for the purpose of providing
nondiscriminatory access in compliance with the Pole
Attachment Act and regulatory decisions thereunder,
including decisions by the State Commission in
interconnection arbitration proceedings in which
Applicant is not a party. Each party is entering into
this Agreement based on current interpretations of
the law by the FCC and State Commission. In the event
of any changes in the Pole Attachment Act, changes in
applicable FCC or State Commission rulings, or
judicial determinations that such rulings are
erroneous or invalid, each party shall, at the
request of the other, engage in good faith
negotiations to supplement, amend or replace any
provisions of this Agreement affected by such changes
or determinations and to conform this Agreement to
changes in the underlying laws on which the Agreement
is based.
[ ] This Agreement has been entered into as a result of
private negotiation between the parties and
arbitration by the State Commission, acting pursuant
to the Telecommunications Act of 1996. If the actions
of any legislative bodies, courts, or regulatory
agencies of competent jurisdiction invalidate,
modify, or stay the enforcement of laws, rules,
regulations, or commission orders that were the basis
for a provision of this Agreement (including but not
limited to any provision of this Agreement required
by any arbitration
PAGE 107
<PAGE> 404
award approved by the State Commission), the affected
provision shall be invalidated, modified, or stayed
as required by action of the legislative body, court,
or regulatory agency. In the event of such a change
in the law, each party shall expend diligent efforts
to arrive at an agreement respecting the
modifications to the Agreement required by the law or
requested in good faith by the other party. If
negotiations fail, disputes between the parties
concerning interpretation of the actions required or
provisions affected by such governmental actions
shall be resolved pursuant to the dispute resolution
process provided for in the interconnection agreement
or this Agreement; provided, however, that this
section shall not be construed as precluding either
party from seeking appropriate relief from the FCC in
connection with the parties' rights and obligations
under the Pole Attachment Act. In the event of any
material change in the law, each party agrees to
enter into good faith negotiations to conform this
Agreement to the changes in the law.
PAGE 108
<PAGE> 405
THIS AGREEMENT IS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
SOUTHWESTERN BELL TELEPHONE COMPANY
By: /s/ Daniel Goodwin
-------------------------------------------------------------
Signature of SWBT's Authorized Officer/Employee
Daniel Goodwin
-------------------------------------------------------------
Name of SWBT's Authorized Officer/Employee (Printed or Typed)
Utilities Liasion Supervisor
-------------------------------------------------------------
Position/Title of SWBT's Authorized Officer/Employee
7-2-97
-------------------------------------------------------------
Date
St. Louis, MO 63101
-------------------------------------------------------------
City and State of Execution by SWBT
DIGITAL TELEPORT. INC.
- ----------------------------------------------------------------
Applicant's Name (Printed or Typed)
By: /s/ Richard D. Weinstein
-------------------------------------------------------------
Signature of Applicant's Authorized Officer/Employee
RICHARD D. WEINSTEIN
-------------------------------------------------------------
Name of Authorized Officer/Employee (Printed or Typed)
PRESIDENT
-------------------------------------------------------------
Position/Title of Authorized Officer/Employee
6/30/97
-------------------------------------------------------------
Date
St. Louis, MO
-------------------------------------------------------------
City and State of Execution by Applicant
PAGE 109
<PAGE> 406
Agreement No.________________________
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (MISSOURI)--PAGE 1 OF 5
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and sets forth
the rates, fees and charges to be paid by Applicant to SWBT pursuant to the
Master Agreement and licenses subject to the Master Agreement. The rates, fees,
and charges set forth in this Appendix shall be subject to all applicable laws,
rules, regulations, and commission orders as provided in Section 19.01 of the
Master Agreement and shall be subject to revision as provided in Section 19.12
of the Master Agreement.
A) Pole Attachment Fees
1) General
a) For billing purposes, pole attachments shall be
considered i) to have commenced on the first to occur
of the following dates: the date of assignment (or
provisional assignment) of pole attachment space, the
date a license for such pole attachment is issued, or
the date of actual attachment and ii) to have ended
on the last to occur of the following dates: the date
Applicant's assignment lapses or is relinquished, the
date of actual removal of the attached facilities
from SWBT's pole, or the date of termination of
Applicant's license.
b) Fees shall be payable semiannually in advance on the
first days of January and July and shall be prorated
on a daily basis as provided in Section 19.04. Fees
for pole attachments shall be based on the number of
pole attachments as of the date of billing. If
Applicant occupies more than one usable space on a
pole, separate attachment fees shall apply to each
space occupied. For billing purposes, a single pole
attachment includes the point of attachment and all
facilities located in the usable space on the pole in
the space assigned to Applicant (typically six inches
above and six inches below the point of attachment),
together with routine ancillary apparatus such as
anchors, anchor/guy strands, drive rings, J-hooks,
dead-end clamps, and other apparatus which does not
interfere with the ability of SWBT to occupy or
assign usable space on the pole other than the usable
space licensed to Applicant. Fees for pole space
assignments and unauthorized pole attachments shall
be billed in the same manner as if a license had been
issued.
2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Pole Attachment Fees Annual Semiannual
------------------------------- ------ ----------
<S> <C> <C>
Per pole attachment (cable service only) $ 2.35 $1.175
------ ------
Per pole attachment (telecommunications carriers) $ 2.35 $1.175
------ ------
Per pole attachment (other) $ N/A $ N/A
------ ------
</TABLE>
<PAGE> 407
APPENDIX I
SCHEDULE OF FEES AND CHARGES (MISSOURI) - PAGE 2 OF 5
B) Conduit Occupancy Fees
(1) General
a) For billing purposes, conduit occupancy shall be
considered to have i) begun on the first to occur of
the following dates: the date of assignment (or
provisional assignment) of conduit occupancy space,
the date a license for such conduit occupancy is
issued, or the date of actual occupancy; and ii)
ended on the last to occur of the following dates:
the date Applicant's assignment lapses or is
relinquished, the date of actual removal of the
attached facilities from SWBT's conduit, or the date
of termination of Applicant's license. Occupancy ends
when facilities have been removed from SWBT's conduit
system and required post-removal procedures (e.g.,
plugging ducts) have been completed. Fees for
conduit space assignments and unauthorized conduit
occupancy shall be billed in the same manner as if a
license had been issued.
b) Fees shall be payable semiannually in advance on the
first days of January and July.
(2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Per Foot Conduit Occupancy Fees Annual Semiannual
------------------------------------------ ------ ----------
<S> <C> <C>
Full duct/duct foot (cable service only) $ 0.40/ft $ 0.20/ft
--------- ---------
Full duct/duct foot (telecommunications carriers) $ 0.40/ft $ 0.20/ft
--------- ---------
Full duct/duct foot (other) $ N/A $ N/A
--------- ---------
Half duct/duct foot(cable service only)* $ 0.20/ft $ 0.10/ft
--------- ---------
Half duct/duct foot (telecommunications carriers)* $ 0.20/ft $ 0.10/ft
--------- ---------
Half duct/duct foot (other)* $ N/A $ N/A
--------- ---------
</TABLE>
*Each inner duct is billed at the half duct rate.
a) Facility footage shall be measured i) from the center
of one manhole to the center of an adjacent manhole
if the facility runs between two manholes, ii) from
the center of a manhole to the end of a duct not
terminated in a manhole, or iii) from the center of a
manhole to the property line if the duct is connected
at the property line to a duct owned and controlled
by a third-party property owner.
b) Semiannual full duct conduit occupancy fees will
apply to the first facility placed in a previously
unoccupied duct except as provided in c)-d) below.
<PAGE> 408
APPENDIX I
SCHEDULE OF FEES AND CHARGES (MISSOURI) - PAGE 3 OF 5
c) If two or more facilities occupy a duct that has not
been subdivided by inner duct, a semiannual half duct
conduit occupancy fee will be charged for each
facility placed in the duct.
d) A semiannual half duct occupancy fee will apply to
the first facility placed by Applicant in a
previously unoccupied duct that has not been
subdivided by inner duct if and only if the presence
of Applicant's facility does not render the other
half of the duct unusable by others.
e) When Applicant's facilities are installed within
inner duct, a single semiannual one-half duct conduit
occupancy fee will apply to each inner duct occupied.
C) Application Fees. No application fees shall be charged for the
submission of access applications or provisional space assignments.
D) Pre-license Survey Work. Charges for pre-license survey work are not
set on a fixed fee basis and will be determined on a case-by-case. If
pre-license survey work is performed by SWBT's contractors, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by
SWBT for such work. If pre-license survey work is performed by SWBT
employees, pre-license survey charges shall be computed by multiplying
the applicable hourly rates times the number of hours reasonably spent
by SWBT's employees on pre-license survey work.
E) Facilities Modification, Capacity Expansion, and Make-ready Work.
Charges for facilities modification, capacity expansion, and make-ready
work are not set on a fixed fee basis and will be determined in a
case-by-case basis. In all cases, except as otherwise specifically
provided to the contrary in the Master Agreement, such charges shall
include the costs of materials required to perform the work. If such
work is performed by SWBT's contractors, Applicant shall reimburse SWBT
for the actual out-of-pocket costs incurred by SWBT for such work. If
such work is performed by SWBT employees, charges for such work shall
be computed by multiplying the applicable hourly rates times the number
of hours reasonably spent by SWBT's employees on the work. No later
than 45 days after receipt by SWBT of Applicant's completed
application, or within such other period as may be mutually agreed upon
in writing by the parties, SWBT will furnish Applicant an estimate of
the charges for facilities modification, capacity expansion, and
make-ready work. Except as otherwise specifically provided in other
parts of this Agreement, Applicant will pay half of SWBT's estimated
charges at 50 percent job completion and the remainder at 100 percent
completion. SWBT may, at its election, require Applicant to pay SWBT's
out-of-pocket costs for materials as those costs are incurred and may
require Applicant to pay outside contractor costs on the same schedule
SWBT pays such outside contractors. Bills and invoices submitted by
SWBT to Applicant for make-ready charges shall be due and payable 30
days after the date of the bill or invoice.
<PAGE> 409
APPENDIX I
SCHEDULE OF FEES AND CHARGES (MISSOURI)--PAGE 4 OF 5
F) Construction Inspectors. Subject to all applicable commission orders,
where work is being performed on Applicant's behalf in SWBT's manholes
or other portions of SWBT's conduit system, Applicant and SWBT shall
equally share the costs attributable to having a construction inspector
present when SWBT considers it necessary to have such an inspector
present. SWBT shall not charge Applicant for more than one such
construction inspector per site at any given time. If the construction
inspector is a SWBT contractor, Applicant shall reimburse SWBT for
one-half the actual out-of-pocket costs incurred by SWBT in connection
with the presence of such inspector. If the construction inspector is a
SWBT employee, charges for the construction inspector shall be computed
by multiplying the applicable hourly rate times the number of hours
reasonably spent by the employee as a construction inspector in
connection with the project.
G) Other Work Performed Pursuant to the Master Agreement. For all other
work performed by SWBT's contractors pursuant to this Agreement,
including but not limited to work performed in opening manholes and
participating in work operations at Applicant's request, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by
SWBT in connection with the performance of such work. For all other
work performed by SWBT's employees pursuant to this Agreement,
including but not limited to work performed in opening manholes,
providing access to and copies of records, and participating in work
operations at Applicant's request, SWBT's charges shall be computed by
multiplying the applicable hourly rates times the number of hours
reasonably spent by SWBT's employees on such work.
H) Contract Administration Fee and Administrative Record-keeping Fees.
Subject to applicable commission orders, and pending the establishment
of permanent cost-based rates, a one-time contract administration fee
of $250.00 shall be due and payable at the time of the execution of the
Master Agreement. Subject to applicable commission orders, SWBT may
charge administrative record-keeping fees not exceeding $125.00 in
connection with records and billing changes resulting from the sale,
consolidation, or other transfer of Applicant's business or facilities,
name changes, and the like. SWBT shall provide Applicant, on
Applicant's request, a statement of the basis for the fees.
I) Other Administrative and Ancillary Fees. No other administrative or
ancillary fees are charged by SWBT on a fixed fee basis.
J) Hourly Rates. Except as otherwise provided by any applicable law, rule,
regulation, or commission order, hourly rates charged for SWBT
employees shall be such employees' fully loaded hourly rates.
K) Payment Date. For fees and charges other than charges for make-ready
work, each bill or invoice submitted by SWBT to Applicant shall state
the date that payment is due, which
<PAGE> 410
APPENDIX I
SCHEDULE OF FEES AND CHARGES (MISSOURI)--PAGE 5 OF 5
date shall be not less than 60 days after the date of the bill or
invoice. For make-ready work, the payment due date shall be not less
than 30 days after the date of the bill or invoice. Interest on past
due charges shall accrue as provided in Section 19.11(a) of the Master
Agreement.
<PAGE> 411
Agreement No.____________________________
APPENDIX II
IDENTIFICATION OF APPLICANT (MISSOURI)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Applicant's legal name is: Digital Teleport Inc.
Applicant's principal place of business is located in the State of MISSOURI
Applicant does business under the following assumed names: NONE
Applicant is:
[ ] a corporation organized under the laws of the State of _______
charter no. ________________________;
[ ] a partnership organized under the laws of the State of ______;
or
[ ] another entity, as follows:__________________________________
Applicant represents that Applicant is:
[ ] (1) a cable system (as defined in 47 U.S.C. s. 153(37)
and 522(7)) seeking a pole attachment or conduit
occupancy license solely to provide cable service (as
defined in 47 U.S.C. s. 522(6);
[X] (2) a telecommunications carrier, as defined in 47 U.S.C.
s. 153(49), as modified by 47 U.S.C. s. 224; or
[ ] (3) a person or entity which is neither (1) nor (2) above,
as follows:
<PAGE> 412
Agreement No.
-------------------------
APPENDIX II
IDENTIFICATION OF APPLICANT (MISSOURI)
- --------------------------------------------------------------------------------
<PAGE> 413
Agreement No.
-------------------------
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES (MISSOURI)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and contains
administrative forms referred to in the Master Agreement or used in connection
with the provision of access to SWBT's poles, ducts, conduits, and
rights-of-way. The forms are forms presently in use and have not been conformed
to the Master Agreement. The forms may be further revised by SWBT to conform to
the Master Agreement and revised from time to time to reflect changes in the
applicable law, changes in the Master Agreement, and changes in the procedures
through which access to poles, ducts, conduits, and rights-of-way is afforded by
SWBT to Applicant and others.
SW-9433: Pole Attachments
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole
Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of Conduit
Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by Applicant
<PAGE> 414
<TABLE>
<S><C>
[LOGO]
Southwestern Bell Telephone
Retention Period: Active, Plus Five Years Pole Attachments PAGE ___ OF ____
FIRM'S NAME:_____________________________ [ ] Provisional, Records Based Assignment TYPE:__________
AGREEMENT No.___________________________ [ ] Pre-Occupancy Survey
APPLICATION No:__________________________ (CATV, Telecom, Other)
Make Ready Pole Mind
Description Apparatus
Height
Item Record Pole Ownership Street Proposed Guy Make Ready
# # # SWBT or Address Attachment Rq'd Work
Power Height Y or N Y or N
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
TOTAL
Number of Cables_____________________ Other Notes:_________________________________
Weight/per ft. and Size/O.D. ____________ _____________________________________________
Number and Types of Strands____________ _____________________________________________
Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:____________________________________
SWBT Representative Applicant's Representative
/ / Official File Copy, If Checked in Red
</TABLE>
<PAGE> 415
SW9433
POLE ATTACHMENTS
FORM INSTRUCTIONS
From SW9433 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete the
SW9433 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring pole attachment space
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant elects
to a Provisional, Records Based Assignment. The form will be signed and dated at
the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or the SWBT mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company based on SWBT's records.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Not required for Provisional, Records Based assignment.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based assignment.
Pole Mntd Apparatus Height: Not required for Provisional, Records Based
assignment.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs
that the Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the Provisional,
Records Based Assignment was made.
<PAGE> 416
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by SWBT.
[ ] Pre-Occupancy Survey: This would be checked when this form is being used as
a Pre-Occupancy Survey. The form would be completed in its entirety and signed
by the applicant and submitted to SWBT for review in obtaining pole attachment
space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Record #: The SWBT paper record or mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company.
Street Address: Applicant will provide street address or geographical reference
point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Applicant will state if a guy is required. (Yes or No).
Make Ready Work: Applicant will state if make ready work is required. (Yes or
No).
Make Ready Description: Applicant will give description of make ready
work required.
Pole Mntd Apparatus Height: Applicant will state any proposed apparatus that
would be placed on the pole. (Terminal, etc.)
Number of Cables: Applicant will state the number of cables that will be placed
on the pole.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 417
<TABLE>
<CAPTION>
Southwestern Bell Telephone Access Application and Make-Ready Authorization
Retention Period, Active , plus 5 years (Request for Access to Poles, Ducts, Conduit)
<S> <C> <C>
Name of Applicant______________________________________________________________
Agreement No._________________________________________________________________
Application No.________________________________________________________________
Provisional Assignment
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for a provisional assignment of space in anticipation of a
nonexclusive license of communication facilities to access the quantity of SWBT
facilities indicated below:
______ SWBT poles _____ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant desires immediate assignment of space and acknowledges that the
effective date is ____________________. Applicant agrees to provide an
application for assignment/access/occupancy of the assigned space within 30 days
from the date of the assignment, or forfeit the assignment.
Expiration Date:___________________
Assignment/Access/Occupancy
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for occupancy of space through a nonexclusive license of
communication facilities to access the quantity of SWBT facilities indicated
below:
______ SWBT poles ______ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Application authorizes SWBT to perform the required pre-licensing survey
including any field inspections required to evaluate capacity, safety,
reliability, and engineering standards; and to determine the cost, if any, of
required modifications or make-ready work.
Expiration Date:_____________________
Applicant's Estimated Construction Start Date:________________________
Applicant's Estimated Construction Completion Date:___________________
Authorized by Applicant:________________________________________
Signature Title
Date:____________________________
Make-Ready Work
Estimated Costs Hours Rate Total
Constr. Labor ____ x $ $
Material XXX x $ XXX $
---
Engr. Design ____ x $ $
Total $
Estimated SWBT Completion Date
/ / No Make-Ready Work Required / / No Make-Ready Work Required under 8.03(a)
/ / Make-Ready Work will be completed by applicant's authorized contractor.
/ / I authorize SWBT to complete the required make-ready work. Payments due upon 50% completion and 100%
completion. Costs will be based upon actual costs incurred by SWBT. (This may vary depending on state)
___________________________________________________ Date:_____________________________
Applicant's Signature Title
License No. Authorized by SWBT:_____________________________
Date:_________________________ Signature Title
/ / Official File Copy, If Checked In Red
</TABLE>
<PAGE> 418
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
Form SW-9434 is used to request access to poles, ducts, and conduit; to transmit
notice of Provisional Assignments; and to provide other information required in
the access process.
REQUIRED INFORMATION
NAME OF APPLICANT. Name of firm requesting space on poles or in conduit.
AGREEMENT NO. Number obtained from the Master Agreement Number.
APPLICATION NO. Will be provided by applicant in sequential ascending order.
PROVISIONAL ASSIGNMENT BOX DATA
"ATTACHED DOCUMENTS" Copies of the Assignment Of Space Logs showing the
applicant's entries for the requested space or completed Forms SW-9433
or SW-9435 if appropriate. Assignment is not official until the
required data is entered in the Assignment Of Space Log.
_____ SWBT POLES The number of poles for which space is
requested.
_____ FEET SWBT WHOLE DUCT The accumulated Center-to-Center
measurements for the Whole Duct to be occupied. To be used
ONLY FOR CABLES TOO LARGE IN DIAMETER (Typically copper
conductor cables.) to fit in SWBT standard innerduct
_____ FEET SWBT INNERDUCT The accumulated Center-to-Center
measurements for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
PROVISIONAL ASSIGNMENT EXPIRATION DATE: 30 calendar days from the date
entered in the Assignment of Space Log (i.e., Date Application
must be submitted to hold the assignment of space.)
ASSIGNMENT/ACCESS/OCCUPANCY BOX DATA
"ATTACHED DOCUMENTS" Completed Forms SW-9433 and/or SW-9435.
_____ SWBT POLES The number of poles to be accessed.
_____ FEET SWBT WHOLE DUCT The accumulated Center-to-Center
measurements for the Whole Duct to be occupied. To be used
ONLY FOR CABLES TOO LARGE IN DIAMETER (Typically copper
conductor cables.) to fit in SWBT standard innerduct
_____ FEET SWBT INNERDUCT The accumulated Center-to-Center
measurements for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
ASSIGNMENT EXPIRATION DATE: 12 Months from the date entered in
Assignment Of Space Log (Date facilities must be placed to avoid
forfeiture of assigned space.)
PAGE 1
<PAGE> 419
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
APPLICANT'S ESTIMATED CONSTRUCTION START DATE: Current "best estimate" of the
date project construction will begin. "ASAP" IS NOT AN ACCEPTABLE DATE.
APPLICANT'S ESTIMATED CONSTRUCTION COMPLETION DATE: Current "best estimate" of
the date placements and splicing will be completed. "ASAP" IS NOT AN ACCEPTABLE
DATE.
AUTHORIZED BY APPLICANT: Signature and Title of the Applicant's representative
authorizing the request for access and payment (if any) of related SWBT
engineering charges in connection with such access.
DATE: Date of authorization by Applicant's representative.
MAKE-READY WORK BOX DATA
ESTIMATED COSTS: SWBT will calculate data for Construction Labor,
Material, and Engineering Design hours and summarize the TOTAL
estimated SWBT Make-Ready Costs.
ESTIMATED SWBT COMPLETION DATE: SWBT Engineering will provide the
estimated completion date of SWBT Make-Ready Work based upon current
scheduling loads.
[ ] NO MAKE-READY WORK REQUIRED. Applicant should check this box if it
has determined that fully code/specifications-compliant access can be
granted without any work or modifications by SWBT or other parties. If
inner duct must be placed, box should not be checked.
[ ] MAKE-READY WORK WILL BE COMPLETED BY APPLICANT'S AUTHORIZED
CONTRACTOR. If Applicant plans to utilize a mutually approved
authorized contractor to perform ALL the Make-Ready work, this box only
should be checked.
[ ] I AUTHORIZE SWBT TO COMPLETE THE REQUIRED MAKE-READY WORK.... If
Applicant wants SWBT to perform all the Make-Ready Work, this box only
should be checked.
IF SOME MAKE-READY WORK MUST BE DONE BY SWBT AND SOME WILL BE DONE BY
THE APPLICANT'S AUTHORIZED CONTRACTOR, THE LAST TWO BOXES SHOULD BE
CHECKED. A DETAILED DESCRIPTION OF THE WORK TO BE DONE BY SWBT MUST BE
INCLUDED.
APPLICANT'S SIGNATURE, TITLE AND DATE:
If the No Make-Ready Work Required box is checked by
Applicant, Applicant's Signature confirms the accuracy of the
current Applicant construction schedule. If the Not Make-Ready
Work Required under 8.03(a) box is checked, Applicant confirms
conditions under 8.03 Immediate Occupancy apply.
If Make-Ready Work will be completed by Applicant's Authorized
contractor is checked, Applicant's signature concurs with any
changes in proposed Make-Ready work identified by SWBT and
confirms the accuracy of the current schedule.
If SWBT will perform any Make-Ready Work, Applicant's
signature authorizes payment to SWBT of actual cost to perform
the required make-ready work.
LICENSE NO. ______ AUTHORIZED BY SWBT: The SWBT State ULS will authorize, date,
and issue the License No. on the SW-9434 which becomes the Applicant's
License For Access.
<PAGE> 420
<TABLE>
<S><C>
[LOGO]
Southwestern Bell Telephone
Retention Period: Active, Plus 5 Years Conduit Occupancy PAGE ___ OF ____
FIRM'S NAME:____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT NO.___________________________ [ ] Pre-Occupancy Survey TYPE:__________
APPLICATION NO:_________________________
(CATV, Telecom, Other)
ITEM OPER. RECORD MANHOLE STREET DISTANCE TO PROPOSED MAKE READY MAKE READY
# # # # ADDRESS NEXT MANHOLE DUCT OR WORK DESCRIPTION
1 (CTR TO CTR) INNERDUCT Y OR N
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
TOTAL
NUMBER OF CABLES___________________ SPLICE INFORMATION MANHOLE # ___________________, DETAILS ________________
SIZE OF CABLE (O.D. INCHES)______________ SPLICE INFORMATION MANHOLE # ____________________, DETAILS ________________
SLACK LOOP INFO. MANHOLE # ____________________, DETAILS ________________
SLACK LOOP INFO. MANHOLE # ____________________, DETAILS ________________
Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:_________________________________
SWBT Representative Applicant's Representative
/ / Official File Copy, If Checked in Red
SW-9435
</TABLE>
<PAGE> 421
SW9435
CONDUIT OCCUPANCY
FORM INSTRUCTIONS
Form SW9435 may be used for the following two purposes, Provisional,
Records Based Assignment or as the Pre-Occupancy Survey. The applicant may
complete the SW9435 and submit this to SWBT while reviewing the records and make
a Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring duct and/or inner duct space.
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant would
make a Provisional, Records Based Assignment. The form will be signed and dated
at the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: Applicant indicates that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Proposed Duct or Inner duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based assignment.
Number of Cables: Applicant will enter the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Not required for Provisional, Records Based
assignment. Details: Not required for Provisional, Records Based assignment.
Slack Loop Info. Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the Provisional,
Records Based Assignment was made.
<PAGE> 422
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Pre-Occupancy Survey: Applicable when this form is used as a Pre-Occupancy
Survey. The form would be completed in its entirety by the applicant and
submitted to SWBT for review in obtaining conduit space.
Type: Applicant indicates that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Oper. #: Applicant will provide the operation number when required. The same
operation number may very well be referenced on an attached map.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Distance to Manhole: Applicant will state the distance from manhole to manhole
in feet.
Proposed Duct or Inner duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Applicant will state if make ready work is required.
(Yes or No)
Make Ready Description: Applicant will give description of make ready work
required.
Number of Cables: Applicant will indicate the number of cables.
Size of Cable (O.D. Inches): Applicant will indicate size of cable.
Splice Information Manhole #: Applicant will enter any relevant splice
information.
Details: Applicant will provide any relevant details regarding splice
information.
Slack Loop Info. Manhole #: Applicant will provide.
Details: Applicant will provide any relevant Slack Loop Information.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 423
[LOGO]
SOUTHWESTERN BELL SW-9436A
TELEPHONE (Rev. 5-89)
Ref: 002-011-900SW
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
Page ____ of _____
Agreement Number _____________________
_____________________________________
(Licensee)
_____________________________________
(Address)
_____________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the License Agreement between us,
dated ________, 19__, notice is hereby given that the licenses covering
attachments to the following poles and/or anchors and/or utilization of
anchor/guy strand is surrendered (or modified as indicated in Licensee's prior
notification to Licensor, dated ___________________, 19___,) effective
_______________________.
<TABLE>
<CAPTION>
DATE FAC.
ANCHOR A/GS RMVD. OR
POLE NO. (ASSOC. POLE NO.) LIC. NO. & DATE SURRENDEER OR MODIFICATION MODIFIED
<S> <C> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Date Notification Received _____________________
_____________________________________________________
Date Modification Accepted _____________________ Name of Licensee
By _____________________________________________
Discontinued: By ________________________________________________
Poles _______________ Title _______________________________________________
Anchors_______________________
Anchor/Guy Strands_____________________
</TABLE>
REF: SW002-011-900
<PAGE> 424
[LOGO]
SOUTHWESTERN BELL
Telephone
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY APPLICANT
Page ____ of _____
License Agreement #
_________________________________________
(Applicant)
_________________________________________
(Address)
_________________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the Licensing Agreement between
us, dated ________, 19__, notice is hereby given that the licenses covering
occupancy of the following conduit are surrendered (or modified as indicated in
Applicant's prior notification to SWBT, dated ___________________, 19___,)
effective _________.
<TABLE>
<CAPTION> DATE
FAC. RMVD. OR
CONDUIT LOCATION LIC. NO. & DATE SURRENDER OR MODIFICATION MODIFIED
<S> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Date Notification Received _____________________ ______________________________________
S Date Modification Accepted _____________________ (Applicant)
W By _____________________________________________
B Discontinued: __________________________________ By ___________________________________
T (Name of Authorized Agent)
Total duct footage ___________ Title _____________________________
(Title of Authorized Agent)
</TABLE>
Ref: SW002-011-900SW SW-9436B
(Rev. 6-96)
<PAGE> 425
[LOGO]
SOUTHWESTERN BELL
Telephone
NOTIFICATION OF UNAUTHORIZED
ATTACHMENTS BY APPLICANT
Applicant Name ________________________________
In accordance with the terms and conditions of the License Agreement between us,
dated _____, 19__, notice is hereby given that the license covering
attachments to the following is unauthorized (as indicated in Applicant's prior
agreement to SWBT, dated ______________________, 19___,) effective
____________________.
SOUTHWESTERN BELL TELEPHONE
By: _______________________
Title: ____________________
<TABLE>
<CAPTION>
POLE NO. LOCATION DATE FAC.
OR (ASSOC. POLE NO.) RMVD. OR
CONDUIT # MANHOLES involved LIC. NO. & DATE UNAUTHORIZED ATTACHMENT MODIFIED
<S> <C> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
_________________________________
SKETCH OF NAME OF APPLICANT
UNAUTHORIZED
ATTACHMENTS / / BY _____________________________
ATTACHED
DATE NOTIFICATION TITLE __________________________
SENT ____________________
</TABLE>
REF: SW002-011-900 SW-9436C
(Rev. 6-96)
<PAGE> 426
Agreement No. _________________
APPENDIX IV
INSURANCE REQUIREMENTS (MISSOURI) -- PAGE 1 OF 4
This Appendix IV is an integral part of the Master Agreement for Access
to Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
l) Premises. As used in this Appendix, the term "premises" refers to
any site located on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way and any location where Applicant or any person acting
on Applicant's behalf may be physically present while traveling to or departing
from any such site.
2) Requirements Applicable to Applicant and All Persons and Entities
Acting on Applicant's Behalf. Applicant shall maintain, at all times during the
term of this Master Agreement, all insurance and coverages set forth below. Such
insurance and coverages shall not only cover Applicant but all contractors,
subcontractors, and other persons or entities acting on Applicant's behalf at
the premises described in 1) above. Applicant should require that all
contractors, subcontractors, and other persons or entities acting on Applicant's
behalf at premises described in 1) above obtain the same insurance and
coverages.
3) Workers' Compensation Insurance. Applicant shall maintain, at all
times during the term of this Agreement, Workers' Compensation Insurance and
Employer's Liability Insurance with minimum limits of $100,000 for bodily
injury-each accident, $100,000 for bodily injury by disease-each employee, and
$500,000 for bodily injury by disease-policy limits, for all employees
performing work or otherwise present on the premises described in 1) above. Such
insurance must comply with the Workers' Compensation laws of this State and
shall provide coverage, at a minimum, for all benefits required by such Worker's
Compensation laws. Applicant shall require any contractor, subcontractor, or
other person or entity acting on Applicant's behalf to provide Workers'
Compensation Insurance and Employer's Liability Insurance for their respective
employees unless such employees are covered by the protection afforded by
Applicant.
4) General Liability Insurance. To protect SWBT and any joint user from
any liability for bodily injury or property damage, Applicant shall maintain, at
all times during the term of this Agreement, General Liability insurance
satisfactory to SWBT. SWBT shall be added as an additional insured in the
standard policy or an endorsement thereto. Applicant shall also require any
contractor, subcontractor, or other person or entity acting on Applicant's
behalf to provide General Liability coverage with the same limits and with SWBT
added as an additional insured unless such contractor, subcontractor, or other
person or entity is covered by the General Liability protection afforded by
Applicant.
a) The following coverages must be included in (and may
not be excluded from) the policy or policies obtained
to satisfy the General Liability insurance
requirements of Applicant and any contractor,
subcontractor, or other person or entity acting on
Applicant's behalf. The coverages may be provided by
the
<PAGE> 427
APPENDIX IV
INSURANCE REQUIREMENTS (MISSOURI) -- PAGE 2 OF 4
standard policy or endorsements thereto. Exclusion
endorsements deleting these coverages will
not be accepted.
1) Personal Injury and Advertising Injury coverage.
2) Premises/Operations coverage, including also
coverage for any newly acquired ownership or
controlled premises or operations.
3) Independent Contractors coverage to provide
protection for Applicant's contractors,
subcontractors, and other persons or entities
acting on Applicant's behalf.
4) Explosion, Collapse, and Underground Hazard (XCU)
coverage.
5) Completed Operations coverage providing for
bodily injury and property damage liabilities
which may occur once the operations have been
completed or abandoned.
6) Contractual Liability coverage to provide
financial responsibility for the Applicant to
meet its indemnification obligations.
7) Broad Form Property Damage (BFPD) coverage for
damage to property in the care or custody of
Applicant and damage to work performed by or on
behalf of the Applicant.
b) Minimum policy limits shall be as follows:
General Aggregate Limit: $1,000,000.
Sublimit for all bodily injury, property damages, or
medical expenses incurred in any one occurrence:
$1,000,000.
Sublimit for personal injury and advertising:
$1,000,000.
Products/Operations Aggregate Limit: $1,000,000.
Each occurrence sublimit for Products/Operations:
$1,000,000.
c) No coverage shall be deleted from the standard policy
without notification of individual exclusions being
attached for review and acceptance.
<PAGE> 428
APPENDIX IV
INSURANCE REQUIREMENTS (MISSOURI) -- PAGE 3 OF 4
d) Policy language or endorsements adding SWBT as an
additional insured shall not include exclusions or
exceptions which defeat the purpose of protecting
SWBT
<PAGE> 429
APPENDIX IV
INSURANCE REQUIREMENTS (MISSOURI) -- PAGE 4 OF 4
from any liability for bodily injury or property damage
arising out of Applicant's operations.
5) Automobile Liability insurance. The parties contemplate that
Applicant and personnel acting on Applicant's behalf will utilize automobiles,
trucks, and other motor vehicles on public and private property, including
public rights of way, in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Accordingly, Applicant shall maintain, at all times during the
term of this Agreement, Automobile Liability insurance with minimum limits of
$1,000,000 combined single limits per occurrence for bodily injury and property
damage which may arise out of the operation or use of motor vehicles of any
type. Coverage shall extend to "any auto" -- that is, coverage shall be extended
to all owned, non-owned, and hired vehicles used by Applicant or by any person
or entity acting on Applicant's behalf in connection with any work performed, or
to be performed, on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way.
6) Layering of General Liability and Automobile Liability coverages.
Applicant's insurance may be written via a primary policy with either an excess
or umbrella form over the primary policy. If coverage is written in this manner,
the total of the combined policy limits must meet or exceed the minimum limits
specified in this Agreement.
7) Deductibles. No deductibles shall be allowed without the express
written consent of SWBT.
8) Claims Made Policies. Claims Made Policies will not be accepted.
9) Proof of Insurance. Certificates of Insurance stating the types of
insurance and policy limits provided the insured, or other proof of insurance
satisfactory to SWBT, must be received by SWBT prior to the issuance of any
licenses pursuant to this Agreement and before Applicant or any person acting on
Applicant's behalf performs any work on the premises described in 1) above.
a) Certificates of Insurance using the insurance
industry standard ACORD form are preferred.
b) Certificates provided with respect to General
Liability policies and certificates provided with
respect to Automobile Liability policies shall
indicate SWBT as an Additional Insured.
c) Deductibles, if permitted, shall be listed on the
Certificate of Insurance.
d) The cancellation clause on the certificate of
insurance shall be amended to read
<PAGE> 430
APPENDIX IV
INSURANCE REQUIREMENTS (MISSOURI)--PAGE 5 OF 4
as follows:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES
BE CANCELLED OR MATERIALLY CHANGED BEFORE THE
EXPIRATION DATE, THE ISSUING COMPANY WILL
MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT."
A certificate which does not include the phrase "or
materially changed" does not meet SWBT's
requirements. A certificate reciting that the issuing
company will "endeavor to" mail 30 days written
notice to the certificate holder does not meet SWBT's
requirements. The language "but failure to mail such
notice shall impose no obligation or liability of any
kind upon the company, its agents, or
representatives" or similar language must be deleted
from the certificate.
e) The certificate holder shall be:
Southwestern Bell Telephone Company
12930 Olive Street Road, Floor 2
Creve Couer, Missouri 63141
ATTENTION: Utility Liaison Supervisor
f) Failure to object to any coverage described in a
certificate shall not constitute written permission
from SWBT to any variance from or alteration of any
requirement set forth in this Appendix and shall not
be construed as a waiver by SWBT of any rights under
this Agreement.
10) Rating of Insurers. SWBT requires that companies affording
insurance coverage have a B+VII or better rating, as rated in the current A.M.
Best Key Rating Guide for Property and Casualty Insurance Companies.
11) Self-insurance. If authorized in the Master Agreement,
self-insurance shall be allowed in lieu of the above requirements upon
Applicant's submission of proof that it has met the self-insurance requirements
stated in the Master Agreement.
<PAGE> 431
Agreement No. ______________________
APPENDIX V
NONDISCLOSURE AGREEMENT (MISSOURI) -- PAGE 1 OF 4
Nondisclosure Agreement (SWBT Pole, Duct, Conduit, and Right-of-Way)
This Nondisclosure Agreement, effective as of the ____ day of
_______________, 19___, has been entered into by and between Southwestern Bell
Telephone Company ("SWBT"), a Missouri corporation, and the undersigned person
or firm ("Recipient") as a condition of access to certain records and
information maintained by SWBT. The parties stipulate and agree as follows:
1) SWBT maintains records and information, including but not limited to
outside plant engineering and construction records, which relate to poles,
ducts, conduits, and rights-of-way which SWBT owns or controls. SWBT represents
that such records and information are not made generally available for
inspection or copying by the public and include business, economic, and
engineering information (including but not limited to plans, designs, maps,
diagrams, cable counts and cable-specific information, circuit records, and
other competitively sensitive information) which SWBT intends to keep secret and
which has economic value by virtue of not being generally known to or readily
ascertainable by the public, including SWBT's competitors.
2) SWBT has agreed to make certain of its records and information
relating to poles, ducts, conduits, and rights-of-way available to cable
television systems and telecommunications carriers who are presently entitled
under federal law to have access to the poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT.
3) Recipient represents that Recipient is a cable television system or
telecommunications carrier entitled under federal law to access to poles, ducts,
conduits, and rights-of-way owned or controlled by SWBT, or, if an individual,
that he or she is acting on behalf of _______________________________________,
which is such a cable television system or telecommunications carrier.
Recipient further represents that Recipient is seeking access to SWBT's records
and information relating to poles, ducts, conduits, and rights-of-way for the
limited purpose of enabling engineering and construction personnel employed by
or acting on behalf of such cable television system or telecommunications
carrier to make engineering and construction decisions necessary to utilize
SWBT's poles, ducts, conduits, and rights-of-way.
4) SWBT agrees that permitted uses of records and information
concerning SWBT's poles, ducts, conduits, and rights-of-way are (a) determining
which poles, ducts, conduits, and rights-of-way owned or controlled by SWBT are
available for use by such cable television systems or telecommunications
carriers as permitted by federal law, (b) designing, engineering, constructing,
installing, maintaining, and removing equipment which is to be attached to or
placed within such poles, ducts, conduits, and rights-of-way, and (c) contesting
decisions, if any, by SWBT not to provide access to such poles, ducts, conduits,
and rights-of-
<PAGE> 432
APPENDIX V
NONDISCLOSURE AGREEMENT (MISSOURI) -- PAGE 2 OF 4
way as requested. No other uses of such records or information are authorized
or permitted under this Agreement.
5) Recipient agrees that Recipient will not use, or permit any other
person or entity to use or have access to SWBT's records and information
relating to poles, ducts, conduits, or rights-of-way or information for any
purpose other than the limited purposes stated in 4) above and that such records
and information shall not be disclosed or shared with any person or persons
other than those who have a need to know such information for such limited
purposes. Recipient specifically agrees that such records and information shall
not be used or accessed by any person involved in sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and similar activities.
Recipient further agrees that Recipient shall not furnish copies of such records
or disclose information contained in such records to any person or entity which
has not executed and delivered to SWBT a counterpart of this Agreement prior to
receipt of such copies or information.
6) Recipient agrees that Recipient will not without SWBT's express
written authorization copy, duplicate, sketch, draw, photograph, download,
photocopy, scan, replicate, transmit, deliver, send, mail, communicate, or
convey any of SWBT's records relating to poles, ducts, conduits, or
rights-of-way. Recipient further agrees that Recipient will not conceal, alter,
or destroy any SWBT records furnished to Recipient pursuant to this Agreement.
7) Notwithstanding the provisions of 6) above, and except as provided
in 8) below, Recipient may copy, take notes from, make, and use (for the limited
purposes specified herein) drawings with reference to the following records
provided by SWBT to Recipient for inspection: pole and conduit route maps, cable
plat maps, and plant location records reflecting approximate locations of SWBT's
existing poles, ducts, conduits, and rights-of-way. All such copies, notes, and
drawings (whether in hardcopy or electronic form) shall be marked with the
legend: "PROPRIETARY INFORMATION: NOT FOR USE BY OR DISCLOSURE TO ANY PERSON WHO
HAS NOT EXECUTED A NONDISCLOSURE AGREEMENT (SWBT POLE, DUCT, CONDUIT, AND
RIGHT-OF-WAY)."
8) No references to cable counts, cable designations or cable-specific
information, circuit information, or customer-specific information of any kind
may be included in any copies, notes, or drawings made pursuant to 7) above;
provided, however, that Recipient may make estimates regarding the physical
characteristics (such as size and weight) of the cables being surveyed when
necessary to make engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits, or rights-of-way
for Recipient/Applicant's intended uses.
<PAGE> 433
9) All records and information relating to poles, ducts,
conduits, and rights-of-way provided to Recipient/Applicant by SWBT (whether in
writing, orally, or in electronic or other formats) shall be deemed to be
proprietary information subject to this Agreement without regard to whether such
information, at the time of disclosure, has been marked with restrictive
notations such as "Proprietary," "Restricted Proprietary," "Confidential," "Not
to Be Copied or Reproduced," or the like.
10) This Agreement applies only to records and
information provided to Recipient by SWBT and does not apply to records and
information obtained by Recipient from other lawful sources.
11) This Agreement does not prohibit the disclosure
of records or information in response to subpoenas and/or orders of a
governmental agency or court of competent jurisdiction. In the event Recipient
receives an agency or court subpoena requiring such disclosure, Recipient shall
immediately, and in no event later than five calendar days after receipt, notify
SWBT in writing.
12) The Parties agree that, in the event of a breach
or threatened breach of this Agreement, SWBT may seek any and all relief
available in law or in equity as a remedy for such breach, including but not
limited to monetary damages, specific performance, and injunctive relief. The
Parties acknowledge that SWBT's records and information relating to poles,
ducts, conduits, and rights-of-way include valuable and unique information and
that disclosure of such information (including circuit information) will result
in irreparable injury to SWBT. In the event of any breach of this Agreement for
which legal or equitable relief is sought, SWBT shall be entitled to recover
from Recipient all reasonable attorney's fees and other reasonable costs
(including but not limited to fees of expert witnesses) incurred by SWBT in
connection with the prosecution of its claims against Recipient.
13) This Agreement shall be effective on the
effective date shown above and shall remain in full force and effect until
terminated by either party as provided herein. Either party may, at any time,
with or without cause, terminate this Agreement by giving the other party 60
days' advance written notice of its decision to terminate. The parties further
agree that termination of this Agreement shall have no effect on the duty of any
person or entity, including Recipient, to abide by all terms of this Agreement
with respect to records and information received by Recipient while this
Agreement is in effect.
14) This Agreement shall benefit and be binding on
the parties below and their respective heirs, successors, and assigns.
15) This Agreement will be governed by the laws of
the State of Missouri.
<PAGE> 434
APPENDIX V
NONDISCLOSURE AGREEMENT (MISSOURI) -- PAGE 4 OF 4
16) This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter hereof, and none of the
terms of this Agreement may be amended or modified except by written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by their duly authorized representatives,
in duplicate, as of the dates set forth below.
___________________________________ Southwestern Bell Telephone Company
Recipient (Print or Type Name)
By ________________________________ By _______________________________
Signature of Recipient Signature
or Representative
___________________________________ ___________________________________
Name (Printed or Typed) Name (Printed or Typed)
___________________________________ ___________________________________
Address Address
___________________________________ ___________________________________
City, State and Zip Code City, State and Zip Code
___________________________________ ___________________________________
Phone Phone
___________________________________ ___________________________________
Date Date
<PAGE> 435
Agreement No. __________________________
APPENDIX VI
NOTICES TO APPLICANT (MISSOURI)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Notices in general. Except as otherwise stated in this Appendix, all
notices to Applicant shall be given to Applicant's duly authorized agent or
attorney as specified in Section 29.01 of the Master Agreement.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by Applicant from time to time in accordance
with the provisions of Section 29.03 of the Master Agreement.
Special notice provisions. The following special notice provisions, if
any, shall apply:
<PAGE> 436
Agreement No. ______________________
APPENDIX VII
NOTICES TO SWBT (MISSOURI) -- PAGE 1 OF 3
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Utility Liaison Supervisor (ULS). Except as otherwise stated in this
Appendix, all notices to SWBT shall be given to the Utility Liaison Supervisor
(ULS) designated in APPENDIX VIII of the Master Agreement. The Utility Liaison
Supervisor is generally responsible for coordinating applications for access to
SWBT's poles, ducts, conduits, and rights-of-way and serving as Applicant's
initial point of contact for matters arising out of or in connection with the
administration of the Master Agreement. Notices to the ULS shall be given in
writing in the manner prescribed in Section 29.02. Notices to be sent to the ULS
include, but are not limited to, notices under the following provisions of the
Master Agreement.
7.01 Notification of Designation of Primary Point of Contact
7.03(a) Notification of intent to review records
8.XX All Notifications in Article 8
9.XX All Notifications in Article 9
10.04(e) Notification Regarding Make-Ready Work
12.03(d) Notification of placing J-hook on non-licensed pole
12.04 Notification of occupation of maintenance duct for
short-term use
12.06 Notification of Applicant's maintenance contact
13.01 Notification of planned modifications
14.02(c) Notification of Applicant's desire to add to or modify its
existing attachment
15.02(b) Notification of occupation of maintenance duct for
short-term emergency use
15.03 Notification of emergency repair coordinators
16.01 Notification that facilities have been brought into
compliance
17.02(c) Disclaimer of ownership or responsibility for untagged
facilities
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APPENDIX VII
NOTICES TO SWBT (MISSOURI) -- PAGE 2 OF 3
17.06 Notification of Applicant's response to ownership of
facilities in question
18.01(a) Notice of intent to remove facilities
18.01(e) Notice of intent to terminate license
18.06 Notification of completion of removal of facilities
20.01(c) Notification of change of bond
21.17 Notification of claims
23.XX All notifications of insurance coverage in Article 23
24.03 Notification of assignment
25.01 Notification of termination
25.03 Notification of cure of breach
27.04 Notice of elective termination
29.03 Notification of change in notice requirements
Other notices. The following notices may be given orally or in writing
(including fax) and shall be given to SWBT's Local Service Provider Center
(LSPC) at 1-800-486-5598 instead of the ULS.
6.05(a) Notifications relating to electrical interference
6.09(d) Notifications of unsafe conditions
6.11(a) Notification of manhole entry
6.13(c) Notification of environmental contaminants
10.02(b) Notification of materials required for self-provisioning of
inner duct
15.04 Notification of conditions requiring emergency repair
<PAGE> 438
APPENDIX VII
NOTICES TO SWBT (MISSOURI) -- PAGE 3 OF 3
15.06(a) Notification of performing corrective work on emergency
repair. (advanced notice)
<PAGE> 1
EXHIBIT 10.20
INDEX
SWBT/Digital Teleport, Inc. (Arkansas) Tab 1
800 Tab 2
911 Tab 3
AIN Tab 4
BCR Tab 5
CH Tab 6
CNAM Tab 7
DCO Tab 8
DA Tab 9
FGA Tab 10
HOST Tab 11
ITR Tab 12
LIDB-AS Tab 13
LIDB-V Tab 14
MAP Tab 15
OSS Tab 16
OS Tab 17
NIM/Physical Collocation Agreement Tab 18
SS7 Tab 19
RECORDING Tab 20
RESALE Tab 21
UNE Tab 22
WIRELESS Tab 23
WP Tab 24
TP Tab 25
PORT Tab 26
Poles, Ducts, Conduits & ROW Tab 27
<PAGE> 2
GENERAL TERMS AND CONDITIONS
DTI-ARKANSAS
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
BY AND BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
<PAGE> 3
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 1 OF 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
1.0 DEFINITIONS......................................................................................................1
2.0 INTERPRETATION AND CONSTRUCTION..................................................................................5
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES.....................................................5
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)....................................................................6
4.1 Scope...................................................................................................6
4.2 Interconnection Coverage................................................................................6
4.3 Methods for Interconnection.............................................................................7
4.4 Physical Architecture...................................................................................8
4.5 Technical Specifications................................................................................9
4.6 Interconnection in Additional Metropolitan Exchange Areas...............................................9
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO SECTION 251(c)(2)...................10
5.1 Scope of Traffic.......................................................................................10
5.2 Responsibilities of the Parties........................................................................10
5.3 Reciprocal Compensation for Termination of Local Traffic...............................................11
5.4 Reciprocal Compensation for Transit Traffic............................................................12
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange Traffic.............................13
5.6 Compensation for Origination and Termination of Switched Access Service Traffic
to or From an IXC (Meet-Point Billing (MPB) Arrangements)..............................................13
5.7 Billing Arrangements for Compensation for Termination of IntraLATA, Local, Transit, and Optional
Calling Area Traffic...................................................................................15
5.8 Compensation for "Porting" Optional Calling Area Numbers...............................................16
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT
TO 251(c)(2)....................................................................................................16
6.1 Scope of Traffic.......................................................................................16
6.2 Trunk Group Architecture Traffic Routing...............................................................16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC.............................................................17
7.1 Information Services Traffic...........................................................................17
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic.......................................17
7.3 Wireless Traffic.......................................................................................17
8.0 SIGNALING.......................................................................................................18
9.0 NUMBERING.......................................................................................................18
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv).......................................19
</TABLE>
<PAGE> 4
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 2 OF 3
<TABLE>
<CAPTION>
<S> <C> <C>
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B) (ii),(iv),(v),(vi),(x)............................20
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)..........................................................................20
13.0 COLLOCATION -- SECTION 251(c)(6)................................................................................20
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2)and 271(c)(2)(B)(xi)....................................................21
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2)...........................................21
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271(c)(2)(B)(iii)..............................................21
17.0 DATABASE ACCESS -- SECTION 271(c)(2)(B)(x).....................................................................21
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS................................................................................21
19.0 COORDINATED REPAIR CALLS........................................................................................22
20.0 OTHER SERVICES 271(c)(B)(2)(vii) and 271(c)(2)(B)(viii)................................................22
20.1 White Pages............................................................................................22
20.2 Calling Name Information...............................................................................22
20.3 Billing/Collecting/Remitting .........................................................................23
20.4 911/E911 Service .....................................................................................23
20.5 Directory Assistance (DA)..............................................................................23
20.6 Operator Services......................................................................................23
20.7 Clearinghouse Services ................................................................................23
20.8 Hosting................................................................................................23
20.9 Signaling System 7 Interconnection.....................................................................23
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES.........................................................................23
22.0 EFFECTIVE DATE, TERM, AND TERMINATION...........................................................................25
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES....................................................................26
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION...................................................26
25.0 SEVERABILITY....................................................................................................27
26.0 INTELLECTUAL PROPERTY...........................................................................................27
27.0 INDEMNIFICATION.................................................................................................27
</TABLE>
<PAGE> 5
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 3 OF 3
<TABLE>
<CAPTION>
<S> <C> <C>
28.0 LIMITATION OF LIABILITY.........................................................................................28
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES.....................................................................29
29.1 Certain Definitions....................................................................................29
29.2 Specified Performance Breach...........................................................................30
29.3 Liquidated Damages.....................................................................................30
29.4 Limitations............................................................................................31
29.5 Sole Remedy............................................................................................31
29.6 Records................................................................................................31
30.0 REGULATORY APPROVAL.............................................................................................31
31.0 MISCELLANEOUS...................................................................................................32
31.1 Authorization..........................................................................................32
31.2 Compliance and Certification...........................................................................32
31.3 Law Enforcement........................................................................................32
31.4 Independent Contractor.................................................................................33
31.5 Force Majeure..........................................................................................33
31.6 Confidentiality........................................................................................33
31.7 Governing Law..........................................................................................35
31.8 Taxes..................................................................................................36
31.9 Non-Assignment.........................................................................................37
31.10 Non-Waiver.............................................................................................37
31.11 Audits.................................................................................................37
31.12 Disputed Amounts.......................................................................................38
31.13 Disputed Resolutions...................................................................................38
31.14 Notices................................................................................................39
31.15 Publicity and Use of Trademarks or Service Marks.......................................................39
31.16 Section 252(i) Obligations.............................................................................40
31.17 Joint Work Product.....................................................................................40
31.18 Intervening Law........................................................................................40
31.19 No Third Party Beneficiaries; Disclaimer of Agency.....................................................41
31.20 No License.............................................................................................41
31.21 Survival...............................................................................................41
31.23 Scope of Agreement.....................................................................................41
31.24 Entire Agreement.......................................................................................41
</TABLE>
<PAGE> 6
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 1 OF 42
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Bell Telephone Company, a Missouri Corporation ("SWBT"), and Digital Teleport,
Inc. ("DTI").
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 Arkansas; and
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 DTI, a competitive local
exchange carrier, is certified by the Arkansas Public Service Commission, as
required.
NOW, THEREFORE, DTI 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 number 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:
<PAGE> 7
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 2 OF 42
(i) "End Office Switches" which are Class 5 switches
where end user Exchange Services are directly
connected and offered; and
(ii) "Tandem Office Switches" or "Tandems" which are
Class 4 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 (combination Class 5/Class 4).
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 includes, but is not limited to, collocation of 38 GHz basic
transmission equipment, provided it complies with the guidelines in SWBT's
current Physical Collocation 02/14/97 Technical Publication provided to DTI.
1.9 "Commission" means the Arkansas Public Service Commission.
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 cross
connect rate element which is used to designate 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 DTI 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.
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 3 OF 42
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. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps
third-level in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS3 is defined as the third
level of multiplexing.
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,
directly or indirectly, interLATA or intraLATA Telephone 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 in order to
originate or terminate traffic to/from DTI's end users.
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that
are not defined as Local Traffic in this Agreement.
<PAGE> 9
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 4 OF 42
1.25 "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.
1.26 "Local Traffic," for purposes of intercompany compensation, is if
(i) the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "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).
1.28 "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 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.
1.29 "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.
1.30 "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.
1.31 "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.
1.32 "Network Element Bona Fide Request" means the process described
[in Appendix BFR 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.
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 5 OF 42
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 "Telephone Exchange Services"
1.35 "Synchronous Optical Network" or "SONET" means an optical
interface standard that allows inter-networking of transmission products from
multiple vendors. The base rate is 51.84 Mbps (OC-1/STS-1) and higher rates are
direct multiples of the base rate, up to 13.22 Gpbs.
1.36 "Telephone Exchange Service" is as defined in the Act.
1.37 "Wire Center" means an occupied structure or portion thereof in
which a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative,
regulatory, judicial order, rule or regulations, or other legal action that
revises or reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and
95-185 or any applicable order or arbitration award purporting to apply the
provisions of the federal Act, the Parties reserve all of their rights and
remedies, including those to amend, alter, or revise this Agreement.
3.0 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 by modifying or updating Appendix DCO.
<PAGE> 11
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 6 OF 42
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 sub-section
7.2).
4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and
shall interconnect their facilities as stated below:
4.2.1 DTI shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which DTI chooses to
offer local exchange service, DTI, 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 DTI will terminate its traffic will be called
SWBT Interconnection Wire Centers and are identified in
Appendix DCO. As DTI initiates Exchange Service
operations in additional SWBT exchange areas, SWBT and
DTI shall agree upon additional SWBT Interconnection
Wire Centers in each new exchange area. DTI agrees that
if SWBT establishes additional tandems in an exchange
area within which DTI offers local exchange service,
DTI will interconnect to the additional tandems.
b. Interconnection to a SWBT local tandem(s) will provide
DTI local access to the SWBT end offices and NXXs which
subtend that tandem(s), and to other Local Exchange
Carriers ("LECs") (subject to sub-section 5.4) which
are connected to that tandem(s). Interconnection to
SWBT EO(s) will provide DTI access only to the NXXs
served by that individual EO(s) to which DTI
interconnects.
c. Interconnection to a SWBT access tandem will provide
DTI interexchange access to SWBT, IXCs, LECs and CRMS
providers (subject to sub-section 7.3) which are
connected to that tandem. Where an access tandem also
<PAGE> 12
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 7 OF 42
provides local tandem functions, interconnection to a
SWBT access tandem serving that exchange will also
provide DTI access to SWBT's EOs with the same
functionality described in (b) above.
d. Where DTI requires ancillary services (e.g., Directory
Assistance, Operator Assistance, E911/911) 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 DTI's facilities under terms and
conditions no less favorable than those identified in sub-section 4.2.1, above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods 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 DTI provides
fiber cable and connects to its equipment located in the SWBT Wire Center. DTI
owns and maintains DTI's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where DTI provides
fiber cable to SWBT for connection to DTI-designated basic transmission
equipment dedicated solely for DTI'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 DTI provides fiber
cable to SWBT for connection to SWBT-designated basic transmission equipment
located at the SWBT Interconnection Wire Center and dedicated solely for DTI'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 network
facilities exist, either Party may lease facilities from the other Party at
rates no greater than SWBT Access Tariff rates.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties agree
to interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix MSFI attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 8 OF 42
4.3.6 The Parties may agree to utilize another Interconnection Method
as may be determined to be technically feasible in the future.
4.4 PHYSICAL ARCHITECTURE. 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 above. 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.
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.
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GENERAL TERMS AND CONDITIONS
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4.5 TECHNICAL SPECIFICATIONS
4.5.1 DTI and SWBT shall work cooperatively to install and maintain a
reliable network. DTI 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 DTI 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 and incorporated by reference. Appendix TP will herein assist
the Parties in meeting their respective Interconnection responsibilities. Copies
of the publications listed in Appendix TP have been or shall be provided to DTI
by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If DTI decides to offer Telephone Exchange Services in any other
Metropolitan Exchange and Areas in which SWBT also offers Telephone Exchange
Services, DTI 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 DTI has designated in the Metropolitan Exchange Area; (ii)
DTI's requested Interconnection Activation Date; and (iii) a non-binding
forecast of DTI's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall
designate the Wire Center that DTI has identified as its initial Routing Point
in the Metropolitan Exchange Area as DTI 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 (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 the one-hundred
and fiftieth (150th) day following the date on which DTI delivered notice to
SWBT of the need to establish Interconnection pursuant to Section 4.6.1 above.
Within ten (10) business days of SWBT's receipt of DTI's notice, SWBT and DTI
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.
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5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE
TRAFFIC PURSUANT TO SECTION 251(c)(2)
5.1 SCOPE OF TRAFFIC
This Section 5.0 prescribes parameters for Traffic Exchange trunk groups
the Parties shall establish over the Interconnections specified in Section
4.0. The Parties shall employ the Traffic Exchange trunk groups specified in
this Section 5.0 and in Appendix ITR. The Parties shall employ for the
transmission and routing of all Local and IntraLATA Toll Traffic between the
Parties' respective Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between DTI 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.
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.
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 Toll Traffic in direct proportion to the
minutes of use (MOU) of calls exchanged with CPN information. If the percentage
of calls passed with CPN is less than ninety percent (90%), all calls passed
without CPN will be billed as switched access.
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
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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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 sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section 5.3 apply
only to the termination of Local Traffic, except as
explicitly noted.
ii) The Parties agree to compensate each other for the
termination of Local Traffic on a minute of use (MOU)
basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem 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 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.
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5.3.4 Local Traffic Interconnection Rates
Serving Method Prices Per MOU
Tandem Served $.00975
End Office Served $.00720
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 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 MOUs between a Party and third party networks that
transit the other Party's tandem switch. The originating Party is responsible
for the appropriate rates unless otherwise specified. The Transit Traffic rate
element is only applicable when calls do not originate with (or terminate to)
the transit Party's end user. 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 third
party incumbent LECs 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, which is attached hereto and incorporated by
reference, may traverse the SWBT tandem and terminate in other third
party LEC exchange areas. Although direct connections could be used for
this traffic, SWBT agrees to transit this traffic for the rate of
$0.006 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 $0.003
Optional Area Transit $0.004
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5.4.2 All other traffic which transits a tandem shall be
treated as Meet-Point Billing Traffic as described in Section 5.6 below or as
intraLATA interexchange traffic as described in Section 5.5.3 below, unless
otherwise agreed.
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.
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 $0.016 per MOU. This terminating
compensation rate applies to all traffic to and from the exchange(s) listed in
Appendix Map, and the associated metropolitan area and is independent of any
retail service arrangement established by either DTI or SWBT.
5.5.2 The parties also agree to apply the OCA compensation
rate of $0.016 per MOU for traffic terminating to DTI end users in other
incumbent LEC exchange 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 or as otherwise mutually agreed.
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 or as otherwise mutually
agreed.
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. DTI's Meet Points with SWBT shall be
those identified in Appendix DCO and any supplements thereto.
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GENERAL TERMS AND CONDITIONS
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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/multiple 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, DTI is the Initial Billing Company (IBC) and SWBT is the Subsequent
Billing Company (SBC). The assignment of revenues, by rate element, and the
Meet-Point Billing percentages applicable to this Agreement are set forth in
Appendix DCO. The actual rate values for each element shall be the rates
contained in that Party's own applicable access rates.
5.6.4 The Parties, as applicable, 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/multiple tariff method, as described in the MECAB
document. Each Party will render a bill to the IXC in accordance with its own
rate structure 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 BAR/BACR
number.
5.6.9 Each Party will provide the other with the Exchange
Access detailed usage data within thirty (30) days of the end of the billing
period. SWBT will perform assembly and editing, messages processing and
provision of Access Usage Records in accordance with
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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Appendix Recording, attached hereto and incorporated by reference. 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 DTI provides SWBT with Access Usage Records, SWBT will
compensate DTI on the same terms as DTI 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 DTI's request, SWBT will
negotiate a mutual and reciprocal charge for provision of Summary Usage Data
Records.
5.6.10 Errors may be discovered by DTI, the IXC or SWBT. Both
SWBT and DTI 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 sub-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 DTI. Reference to this technical publication is included in Appendix
TP.
(a) Where DTI 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 DTI Less
Direct End Office Terminating MOUs Recorded
By SWBT Equals Total MOUs To Be Compensated
As Tandem Traffic
(b) Where DTI has direct/high usage trunks to a
third party with overflow trunking through
a SWBT tandem, DTI must differentiate the
originating MOU records for the Parties to
ascertain how many MOUs should be
compensated as Transit Traffic. If DTI is
unable to so differentiate the originating
MOU
<PAGE> 21
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 16 OF 42
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.
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 Optional Calling Area telephone number is
ported, DTI will compensate SWBT $12.00 monthly, per ported number.
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 above, for the transmission and routing of Exchange Access
traffic between DTI 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 will jointly provide
tandem-transported Switched Exchange Access Services to IXCs to enable DTI's end
users to originate and terminate traffic to/from such IXCs.
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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6.2.2 Access Toll Connecting Trunks shall be used solely for
the transmission and routing of Switched Exchange Access to allow DTI end users
to originate and terminate traffic to/from any IXCs which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow DTI's end users to
connect to, or be connected to, the 800 Services of any Telecommunications
Carrier connected to the SWBT Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA
Information Services Traffic to one another, they shall agree to exchange rating
and billing information to effectively allow the Parties to 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 to 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.
7.3 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. 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 such CMRS providers,
and the other Party shall be obligated to enter into an agreement with such CMRS
provider for the termination of wireless to landline traffic.
7.3.2 DTI shall pay the Local Transit Traffic rate to SWBT for
calls that originate on DTI's network and are sent to SWBT for termination to a
CMRS Provider as long as such Traffic can be identified as wireless traffic.
SWBT shall pay the Local Transit Traffic rate to DTI for such calls that
originate on SWBT's network are sent through DTI for termination on a CMRS
Provider's network. Each Party shall be responsible for interconnection
agreements
<PAGE> 23
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 18 OF 42
with CMRS providers for terminating compensation regarding traffic
originating on the Party's network and terminating on the CMRS provider's
network.
7.3.3 When traffic is originated by either Party to a CMRS
Provider, and the traffic cannot be specifically identified as wireless traffic
for purposes of compensation between SWBT and DTI, the traffic will be rated
either as Local, Optional or Access and the appropriate compensation rate shall
be paid by the originating Party to the transiting Party. The originating Party
agrees to indemnify the transiting Party for any claims of compensation that may
be made by the CMRS provider against the transiting Party regarding compensation
for such traffic.
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 DTI.
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(1), 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.
9.2 At a minimum, in those Metropolitan Exchange Areas where DTI
intends to provide local exchange service, DTI 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 DTI 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.
_________________
(1) 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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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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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 DTI 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 per NXX to the Party formerly assigned the NXX.
10.0 RESALE -- SECTIONS 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 DTI 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 DTI RETAIL TELECOMMUNICATION SERVICES FOR RESALE
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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DTI 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 DTI 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 DTI shall make available to SWBT 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.
13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 SWBT shall provide to DTI 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 that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
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 DTI and SWBT, Physical Collocation shall be available at a
Central Office Switch
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GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
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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 DTI 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 Local Dialing Parity to each
other as required under Section 251(b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) 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 and/or standard
agreements.
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 DTI 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, DTI will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
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
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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 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.
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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 alternated billed
local message 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 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.
20.7 CLEARINGHOUSE SERVICES. To the extent requested by DTI, 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.
20.8 HOSTING. At DTI's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an DTI for distribution to the appropriate billing and/or
processing location or for delivery to an DTI of such data via SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference
20.9 SIGNALING SYSTEM 7 INTERCONNECTION. At DTI's request, SWBT shall
perform SS7 interconnection services for DTI pursuant to Appendix SS7, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and DTI shall each use their best efforts to meet the
Interconnection Activation Dates.
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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 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 26.0, each
Party shall provide, in its tariffs and contracts with its end users that relate
to any Telecommunications Service provided or contemplated under this Agreement,
that in no case shall such Party or any of its agents, contractors or others
retained by such parties be liable to any end user or third party for (i) any
Loss relating to or arising out of this Agreement, whether in contract or tort,
that exceeds the amount such Party would have charged the applicable end user
for the service(s) or function(s) that gave rise to such Loss, and (ii) any
Consequential Damages.
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
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GENERAL TERMS AND CONDITIONS
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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 DTI 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 ten (10) days after approval by
the Commission when it has determined that the Agreement complies with Sections
251 and 252 of the Act ("Effective Date").
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, below.
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.
22.4 If pursuant to Section 22.2, above, 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, below. 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, below.
22.5 Upon termination or expiration of this Agreement in accordance
with this Section 22.0, above:
(a) each Party shall comply immediately with its
obligations set forth in Section 30.6, below; and
(b) each Party shall promptly pay all amounts (including
any late payment charges) owed under this Agreement;
and
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(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, below, 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 DTI 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.
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. The Parties shall make authorization available to each other 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 DTI 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 the end user's
authorized agent. Further, when an end user abandons the premise, SWBT is free
to reclaim the unbundled network element facilities for use by another customer
and is free to issue service orders required to reclaim such facilities.
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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 INTELLECTUAL PROPERTY
LSP is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. SWBT will
provide a list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a request for
such a list by LSP. SWBT agrees to use its best efforts to facilitate the
obtaining of any necessary license or right to use agreement. SWBT makes no
warranties, express or implied, concerning LSP's (or any third party's) rights
with respect to intellectual property (including with limitation, patent,
copyright, and trade secret rights) or contract rights associated with LSP's
rights to interconnect with SWBT's network and to Unbundled Network Elements.
27.0. INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices,
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 service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
27.2 Except as otherwise provided herein or in specific appendices, 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 connection with the indemnifying provision of services or
functions under this Agreement.
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GENERAL TERMS AND CONDITIONS
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27.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by the Indemnified
Party, unless the Loss was caused by the gross negligence or intentional
misconduct of the other (Indemnified) Party.
27.4 LSP agrees to indemnify, defend and hold harmless SWBT from any
Loss arising out of SWBT's provision of 911 services or out of LSP's end users'
use of the 911 service, whether suffered, made, instituted, or asserted by LSP
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.
27.5 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from a
Party's own communications or the communications of its end users.
27.6 SWBT shall be indemnified, defended, and held harmless by the LSP
for claims for patent, trademark, infringement or other infringement or
intellectual property rights, arising from the LSP's use of services or
unbundled elements provided under this Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against
the Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation of
the Indemnified Party. The Indemnifying Party shall not be responsible for any
settlement unless the Indemnifying Party approved such settlement in advance and
agrees to be bound by the settlement agreement.
28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, or except
as otherwise provided in specific appendices, each Party's liability to the
other Party for any Loss relating to or arising out of any negligent act or
omission in its performance under this Agreement, whether in contract or tort,
shall not exceed in total the amount SWBT or LSP has to or would have charged
the other Party for the affected service(s) or function(s) which were not
performed or were otherwise improperly performed.
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28.2 Except for Losses alleged or made by an end user of either Party,
or except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under this
section shall be limited to, that portion (as mutually agreed to by the Parties)
of the resulting expense caused by its own negligence or willful misconduct or
that of its agents, servants, contractors, or others acting in aid or concert
with it.
28.3 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
indemnify, 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 attorney's fees) and
Consequential Damages of such third party.
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
29.1 CERTAIN DEFINITIONS. When used in this Section 29.0, the
following terms shall have the meanings indicated:
29.1.1 "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.
29.1.2 "Specified Activity" means any of the following
activities:
(i) the installation by SWBT of unbundled
elements associated with DTI end user Lines;
(ii) SWBT's provision of Interim Number
Portability; or
(iii) the repair of out of service problems for
DTI ("Out of Service Repairs").
29.1.3 "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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PERFORMANCE INTERVAL DATE
SPECIFIED ACTIVITY
(i) DTI 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
29.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss
of end user opportunities, revenues and goodwill which DTI might sustain in
the event of a Specified Performance Breach; (2) the uncertainty, in the
event of such a Specified Performance Breach, of DTI having available
to it customer opportunities similar to those opportunities currently
available to DTI; and (3) the difficulty of accurately ascertaining the
amount of damages DTI would sustain in the event of such a Specified
Performance Breach, SWBT agrees to pay DTI, subject to Section 29.4 below,
damages as set forth in Section 29.3 below in the event of the occurrence of a
Specified Performance Breach.
29.3 LIQUIDATED DAMAGES. The damages payable by SWBT to DTI as a
result of a Specified Performance Breach shall be $75,000 for each Specified
Performance Breach (collectively, the "Liquidated Damages"). DTI 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 DTI
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 DTI would sustain if its damages were readily ascertainable; and (c)
DTI shall not be required to provide any proof of the Liquidated Damages.
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29.4 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 DTI 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 DTI; (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.
29.5 SOLE REMEDY. The Liquidated Damages shall be the sole and
exclusive remedy of DTI for SWBT's breach of the Performance Criteria or
a Specified Performance Breach as described in this Section 29.0 and shall be
in lieu of any other damages or credit DTI 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.
29.6 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 DTI such records in a self-reporting format on a monthly
basis. Notwithstanding Section 31.6.1, below, the Parties agree that such
records shall be deemed "Proprietary Information" under Section 31.6, below.
30.0 REGULATORY APPROVAL
30.1 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.
30.2 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. DTI 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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31.0 MISCELLANEOUS
31.1 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) DTI 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
its obligations hereunder.
. 31.2 COMPLIANCE AND CERTIFICATION
31.2.1 Each Party shall comply with all federal, state, and
local laws, rules, and regulations applicable to its performance under this
Agreement.
31.2.2 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.
31.2.3 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.
31.3 LAW ENFORCEMENT
31.3.1 SWBT and DTI 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
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intercept on the Party's facilities, in which
case that Party shall comply with any valid
request.
(b) Subpoenas: If a Party receives a subpoena for
information concerning an end user the Party
knows to be an end user of the other Party, it
shall refer the subpoena to the requesting
party with an indication that the other Party
is the responsible company, unless the subpoena
requests records for a period of time during
which the Party was the end user's service
provider, in which case the Party will respond
to any valid request.
(c) Emergencies: If a Party receives a request from
a law enforcement agency for temporary number
change, temporary disconnect, or one-way denial
of outbound calls for an end user of the other
Party by the receiving Party's switch, that
Party will comply with an valid emergency
request. However, neither Party shall be held
liable for any claims or damages arising from
compliance with such requests on behalf of the
other Party's end user and the Party serving
such end user agrees to indemnify and hold the
other Party harmless against any and all such
claims.
31.4 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.
31.5 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.
31.6 CONFIDENTIALITY
<PAGE> 39
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 34 OF 42
31.6.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic disks, magnetic tapes,
drawings, sketches, models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data; (i) furnished by one
Party (the "Disclosing Party") to the other Party (the "Receiving Party")
dealing with customer-specific, facility-specific, or usage-specific
information, other than customer information communicated for the purpose of
publication or directory database inclusion, 911, call processing, billing or
settlement or as otherwise mutually agreed upon; or (ii) in written, graphic,
electromagnetic, or other tangible form and marked at the time of delivery as
"Confidential" or "Proprietary;" or (iii) communicated orally and declared to
the Receiving Party at the time of delivery, or by written notice given to the
Receiving Party within ten (10) days after declaration to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the Disclosing Party.
31.6.2 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.
31.6.3 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.
31.6.4 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;
<PAGE> 40
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 35 OF 42
(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;
(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 31.6 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.
31.6.5 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.
31.6.6 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.
31.7 GOVERNING LAW. For all claims under this Agreement that are
based upon issues within the jurisdiction (primary or otherwise) of the FCC,
the exclusive jurisdiction and remedy for all such claims shall be as
provided for by the FCC and the Act. For all claims under this Agreement
that are based upon issues within the jurisdiction (primary or otherwise) of
the Commission, the exclusive jurisdiction for all such claims shall be
with such Commission, and the exclusive remedy for such claims shall be as
provided for by such Commission. In all other respects, this Agreement shall
be governed by the domestic laws of the State of Missouri without reference to
conflict of law provisions.
<PAGE> 41
GENERAL TERMS AND CONDITIONS
DTI-ARKANSAS
PAGE 36 OF 42
31.8 TAXES
31.8.1 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") imposed on or with respect to the services provided by or to such Party,
except for any Tax on either party's corporate existence, status, or income.
Whenever possible, these amounts shall be billed as a separate item on the
invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing party shall furnish the providing party a proper resale tax exemption
certificate as authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Failure to timely provide said
resale tax exemption certificate will result in no exemption being available to
the purchasing Party until such time as the purchasing Party presents a valid
certification. Failure to timely provide said resale tax exemption certificate
will result in no exemption being available to the purchasing Party until such
time as the purchasing Party presents a valid certificate.
31.8.2 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.
31.8.3 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.
31.8.4 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.
31.8.5 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
<PAGE> 42
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 37 OF 42
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.
31.9 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 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.
31.10 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.
31.11 AUDITS. Each Party to this Agreement will be responsible
for the accuracy and quality of its data as submitted to the
respective Parties involved.
31.11.1 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.
<PAGE> 43
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 38 OF 42
31.12 DISPUTED AMOUNTS.
31.12.1 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.
31.12.2 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.
31.12.3 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 31.12.2, above,
then either Party may file a complaint with the Commission to resolve such
issues or proceed with any other remedy pursuant to law or equity. The
Commission may direct release of any or all funds (including any accrued
interest) in the escrow account, plus applicable late fees, to be paid to either
Party.
31.12.4 The Parties agree that all negotiations pursuant to
this Section 31.12 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.
31.12.5 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.
31.13 DISPUTE RESOLUTION.
31.13.1 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.
31.13.2 For disputes other than disputed amounts under this
Agreement or its Appendices, each Party shall appoint a designated
representative as set forth in Section 31.12.2, above, and if unable to resolve
the dispute, proceed as set forth in Section 31.12.3, above.
<PAGE> 44
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 39 OF 42
31.14 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/DTI 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.
<TABLE>
<S> <C> <C>
NOTICE CONTACT DTI CONTACT SWBT CONTACT
NAME/TITLE Richard Weinstein Jeffrey Fields
STREET ADDRESS 11111 Dorsett Rd. One Bell Plaza, 525.07
CITY, STATE, ZIP CODE St. Louis, MO 63043 Dallas, TX 75202
TELEPHONE NUMBER 314-253-6600 214-464-5676
FAX NUMBER 314-253-6699 214-464-1486
24-HOUR NETWORK MGMT CONTACT DTI CONTACT SWBT CONTACT
NAME/TITLE NSMC Control
TELEPHONE NUMBER 1-800-792-2662
FAX NUMBER
</TABLE>
31.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
31.15.1 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.
31.15.2 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.
<PAGE> 45
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 40 OF 42
31.16 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); 252(d)(1); and
271(c)(2)(B(i) of the Act; or
(b) Exchange Access - Section 251(c)(2) and 271(c)(2)(B)(ii) of
the Act; or
(c) Unbundling - Section 251(c)(3) and 271(c)(2)(B)(ii) of the
Act; or
(d) Resale - Section 251(c)(4) and 271(c)(2)(B)(xiv) of the Act;
or
(e) Collocation - Section 251(c)(6) and 271(c)(2)(B)(i) of the
Act; or
(f) Number Portability - Section 251(b)(2) and 271(c)(2)(B)(xi) 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) and
271(c)(2)(B)(iii) 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).
31.17 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.
31.18 INTERVENING LAW. This Agreement is entered into as a result of both
private negotiation between the Parties and the incorporation of some of the
results of arbitration by the Commission. If the actions of Arkansas 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 fail, disputes between the Parties
<PAGE> 46
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 41 OF 42
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.
31.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This Agreement is
for the sole benefit of the Parties and their permitted assigns, and nothing
herein express or implied shall create or be construed to create any third-party
beneficiary rights hereunder. Except for provisions herein expressly authorizing
a Party to act for another, nothing in this Agreement shall constitute a Party
as a legal representative or agent of the other Party, nor shall a Party have
the right or authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in the name or on behalf
of the other Party unless otherwise expressly permitted by such other Party.
Except as otherwise expressly provided in this Agreement, no Party undertakes to
perform any obligation of the other Party, whether regulatory or contractual, or
to assume any responsibility for the management of the other Party's business.
31.20 NO LICENSE. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
31.21 SURVIVAL. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
31.23 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.
31.24 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.
<PAGE> 47
GENERAL TERMS AND CONDITIONS
DTI - ARKANSAS
PAGE 42 OF 42
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of this 21 day of AUGUST, 1997.
DIGITAL TELEPORT, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
Signature: /s/ J. W. Sheehy Signature: /s/ Larry B. Cooper
------------------------ -----------------------
Name: J.W. Sheehy Name: Larry B. Cooper
--------------------------- -----------------------
(Print or Type) (Print or Type)
Title: Vice President IC Support Title: General Manager-Competitive
--------------------------- Provider Account Team
(Print or Type) ----------------------------
(Print or Type)
<PAGE> 48
APPENDIX 800
Page 2 of 7
APPENDIX 800
ACCESS TO THE TOLL FREE CALLING DATABASE
This Appendix sets forth the terms and conditions under which SWBT provides
Access to the Toll Free Calling Database.
I. DESCRIPTION
A. SWBT's 800 database, an ANSI SS7 call-related database system,
receives updates processed from the national Service
Management System (SMS). Customer records in the SMS are
created or modified by entities known as Responsible
Organizations (RespOrg) who obtain access to the SMS via the
800 Service Management System, Tariff F.C.C. No. 1. 800
Service Providers must either become their own RespOrg or use
the services of an established RespOrg. The services of a
RespOrg includes creating and updating 800 records in the SMS
to download in the 800 database(s). SWBT does not, either
through a tariff or contract, provide RespOrg service.
B. After the 800 customer record is created in the SMS, the SMS
downloads the records to the appropriate databases, depending
on the area of service chosen by the 800 subscriber. An 800
customer record is created in the SMS for each 800 number to
be activated. The SMS initiates all routing changes to update
information on a nationwide basis.
C. Access to the Toll Free Calling Database allows an LSP to
access SWBT's 800 database for the purpose of switch query and
database response. Access to the Toll Free Calling Database
supports the processing of toll free calls (e.g., 800 and 888)
where identification of the appropriate carrier (800 Service
Provider) to transport the call is dependent upon the full ten
digits of the toll free number (e.g., 1+800+NXX+XXXX). Access
to the Toll Free Calling Database includes all 800-type
dialing plans (i.e., 800 and 888 [and 877, 866, 855, 844, 833,
822, when available]).
D. Access to the Toll Free Calling Database provides the carrier
identification function required to determine the appropriate
routing of an 800 number based on the geographic origination
of the call, from a specific or any combination of NPA/NXX,
NPA or LATA.
E. There are three optional features available with 800 service:
Designated 10-Digit Translation, Call Validation and Call
Handling and Destination.
1. The Designated 10-Digit Translation feature converts
the 800 number into a designated 10-digit number. If
the 800 Service
<PAGE> 49
APPENDIX 800
Page 3 of 7
Provider provides the designated 10-digit number
associated with the 800 number and requests delivery of
the designated 10-digit number in place of the 800
number, SWBT will deliver the designated 10-digit
number.
2. The Call Validation feature limits calls to an 800
number to calls originating only from an 800
Subscriber's customized service area. Calls originating
outside the area will be screened and an out of band
recording will be returned to the calling party.
3. The Call Handling and Destination feature allows
routing of 800 calls based on one or any combination of
the following: time of day, day of week, percent
allocation and specific 10 digit ANI.
II. TERMS AND CONDITIONS
A. Access to the Toll Free Calling Database provided under these
terms and conditions is only available for use in the
provision of telephone exchange and exchange access
telecommunications services as specified in the
Telecommunications Act of 1996 and any effective rules and
regulations of the Federal Communications Commission and the
state Public Service Commission.
B. Access to the Toll Free Calling Database is offered separate
and apart from other unbundled network elements necessary for
operation of the network routing function addressed in these
terms and conditions, e.g., end office 800 SSP functionality
and CCS/SS7 signaling. This appendix is separate from the
prices, terms, conditions and billing for such related
elements, and in no way shall this appendix be construed to
circumvent the prices, terms, conditions or billing as
specified for such related elements.
C. LSP shall address its queries to SWBT's database to the alias
point code of the STP pair identified by SWBT. LSP's queries
shall use subsystem number 0 in the calling party address
field and a translations type of 254 with a routing indicator
set to route on global title. LSP acknowledges that such
subsystem number and translation type values are necessary for
SWBT to properly process queries to its 800 database.
D. Each Party warrants to the other that it shall send queries
and SS7 messages conforming to the ANSI approved standards for
SS7 protocol and pursuant to the Specifications and Standards
documents attached and incorporated herein in Exhibit I. Both
Parties acknowledge that transmission in said protocol is
necessary for each Party to provision Access to the Toll Free
Calling Database (or the equivalent thereof). Each Party
reserves the right to modify its network pursuant to other
<PAGE> 50
APPENDIX 800
Page 4 of 7
specifications and standards, which may include Bellcore
Specifications defining specific service applications, message
types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications
industry. All such changes shall be announced in accordance
with the then prevailing industry standard procedures. Each
party shall work cooperatively to coordinate any necessary
changes.
E. LSP acknowledges and agrees that CCS/SS7 network overload due
to extraordinary volumes of queries and/or other SS7 network
messages can and will have a detrimental effect on the
performance of SWBT's CCS/SS7 network and its 800 database.
LSP further agrees that SWBT, at its sole discretion, may
employ certain automatic and/or manual overload controls
within SWBT's CCS/SS7 network to guard against these
detrimental effects. SWBT shall report to the LSP any
instances where overload controls are invoked due to the LSP's
CCS/SS7 network. LSP shall take immediate, corrective actions
as are necessary to cure the conditions causing the overload
situation.
F. During periods of 800 database system congestion, SWBT shall
utilize an automatic code gapping procedure to control
congestion that may affect the service of all customers of
SWBT's 800 database. The automatic code gapping procedure used
by SWBT shall tell LSP's switch the gap (how long LSP's switch
should wait before sending another query) and the duration
(how long the switch should continue to perform gapping). For
example, during an overload condition, the automatic code
gapping procedure shall tell SWBT's 800 database when to begin
to drop one out of three queries received. This code gapping
procedure shall be applied uniformly to all users of SWBT's
800 database. SWBT reserves the right to manually invoke the
automatic code gapping procedure to control congestion.
G. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour query volumes.
LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the
preceding year. LSP shall provide such updates each year for
the first three (3) years of this Appendix. If, prior to the
establishment of a mutually agreeable service effective date,
in writing, SWB, at its discretion, determines that it lacks
adequate processing capability to provide Access to the Toll
Free Calling Database to LSP, SWBT shall notify LSP of SWBT's
intent not to provide the services under this Appendix and
this Appendix will be void and have no further effect.
H. LSP shall from time to time at SWBT's request, provide
additional forecasted information as deemed necessary by SWBT
for network planning in connection with this offering.
<PAGE> 51
APPENDIX 800
Page 5 of 7
I. SWBT shall test the Access to the Toll Free Calling Database in
conjunction with CCS/SS7 Interconnection Service (e.g., SS7
Appendix) as outlined in Bellcore Technical References
TR-NWT-000533, TR-NWT-000954, TR-TSV-000905, and TP 76638.
J. LSP shall only use Access to the Toll Free Calling Database to
determine the routing requirements for originating 800 calls.
Neither the LSP nor carrier customers of the LSP if the LSP is
acting on behalf of other carriers, shall use the database
information to copy, store, maintain or create any table or
database of any kind or for any purpose. If the LSP acts on
behalf of other carriers to access SWBT's Toll Free Calling
Database, LSP shall prohibit such carriers from copying,
storing, maintaining, or creating any table or database of any
kind from any response provided by SWBT after a query to SWBT's
Toll Free Calling Database. LSP shall only use this network
element in connection with the provision of telephone exchange
and exchange access services.
K. LSP shall ensure that it has sufficient link capacity and
related facilities to handle its signaling and toll free
traffic without adversely affecting other network subscribers.
L. SWBT shall provide Access to the Toll Free Calling Database as
set forth in this Appendix only as such elements are used for
LSP's activities on behalf of its Arkansas local service
customers where SWBT is the incumbent local exchange carrier.
LSP agrees that any other use of SWBT's Toll Free Calling
Database for the provision of 800 database service by LSP will
be pursuant to the terms, conditions, rates, and charges of
SWBT's effective tariffs, as revised, for 800 database
services.
M. This Appendix shall become effective on _______________________
and shall continue for one (1) year from the effective date of
implementation of Access to the Toll Free Calling Database.
Thereafter, this Appendix shall remain in effect unless
terminated by either party upon written notice given sixty (60)
days in advance of the termination date.
N. Ordering and billing inquiries for the elements described
herein shall be directed to the Local Service Provider Service
Center (LSPSC). Ordering shall be done through the LSPSC using
the standard LSP order form and SWBT CCS7-2 Form, if
applicable.
III. RATE REGULATIONS
A. LSP shall pay a Local Service Order Request Charge for each LSP
request for service order activity to establish Access to the
Toll Free Calling Database.
<PAGE> 52
APPENDIX 800
Page 6 of 7
B. LSP shall pay the rates for Access to the Toll Free Calling
Database, as described in Section III D. These rates and
charges will apply for one (1) year from the service effective
date for each exchange. After one (1) year, SWBT may change the
rates upon sixty (60) days' notice. SWBT may first give such
notice sixty days before the end of the first year.
C. LSP shall pay a nonrecurring charge when an LSP establishes or
changes a signaling point code. The rates and charges for
Signaling Point Code(s) are described in the SS7 Appendix.
This charge also applies to point code information provided by
LSPs allowing other telecommunications providers to use the
LSP's SS7 signaling network.
D. Prices for the four rate elements associated with Access to
the Toll Free Calling Database are as follows:
1. Toll Free Database Query Rate Element $0.001020
2. Designated 10-Digit Translation Rate Element NC
3. Call Validation Rate Element NC
4. Call Handling and Destination Rate Element $0.000140
E. LSP shall pay the Toll Free Database query rate for each query
received and processed by SWB's database. When applicable, the
charge for the additional features (Designated 10-Digit
Translation, Call Validation and Call Handling and
Destination) are per query and in addition to the Toll Free
Database query charge, and will also be paid by LSP.
IV. MONTHLY BILLING
SWBT shall render monthly billing statements to the LSP, and
remittance in full will be due within thirty (30) days of receipt.
<PAGE> 53
APPENDIX 800
Page 7 of 7
APPENDIX 800
EXHIBIT I
SPECIFICATIONS AND STANDARDS
Description of Subject Area
and Issuing Organization Document Number
- ---------------------------- ---------------
Bellcore, SS7 Specifications
TR-NWT-000246
TR-NWT-000271
TR-NWT-000533
Bellcore, CCS Network Interface Specifications
TR-TSV-000905
TP 76638
TR-NWT-000954
<PAGE> 54
APPENDIX 991- MOKA
Page 2 of 4
APPENDIX 911 - ARKANSAS
Terms and Conditions for Providing Connection
to E911 Universal Emergency Number Service
This appendix between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide LSP's connection to E911 Universal Emergency Number
Service.
DEFINITIONS
The following definition is in addition to those in the Arkansas General
Exchange Tariffs referenced below:
Independent Exchange Company (IEC): A local exchange telephone company,
including Local Service Providers (LSPs) who are certified by the state
commission, other than Southwestern Bell Telephone Company. An IEC may
also be a customer for Universal Emergency Number Service in order to
provide that service or elements of that service to legally authorized
agencies within the IEC's serving area.
TERMS AND CONDITIONS
The following is in addition to those terms and conditions in the Arkansas
General Exchange Tariff referenced below:
The Universal Emergency Number Service may be provided by Southwestern
Bell Telephone Company or jointly by Southwestern Bell Telephone
Company and an IEC.
SWBT shall provide LSP with a file containing the Master Street Address
Guide (MSAG) for the exchanges or communities specified in Exhibit I,
in accordance with the methods and procedures described in the document
"Operating Methods for Downloading and Maintaining End User Records in
SWBT's DBMS". SWBT shall provide LSP additional files with the entire
MSAG, including subsequent additions or updates to the MSAG in
accordance with the intervals specified in Exhibit I. In addition, SWBT
shall provide LSP with a statistical report in a timely fashion and in
accordance with the methods and procedures described in the above
mentioned document, for each file downloaded by LSP to SWBT's DBMS, so
that LSP may ensure the accuracy of the end user records. LSP will
attest it has been provided a copy of the document referenced above.
<PAGE> 55
APPENDIX 991- MOKA
Page 3 of 4
At a reasonable time prior to the establishment of E911 Service, LSP
shall download and maintain thereafter all information required to
establish records necessary for furnishing connection to E911 Service
and shall promptly notify SWBT in writing of any changes to be made to
such records. LSP shall adopt and comply with operating methods
applicable to downloading and maintaining LSP's end user records in
SWBT's DBMS, as set forth in the document referenced in the paragraph
above.
LSP acknowledges that its end users in a single local calling scope may
be served by different PSAPs, and LSP shall be responsible for
providing facilities to route calls from its end users to the proper
E911 Control Office(s).
LSP shall connect its switches to the E911 Control Office by one-way
outgoing CAMA trunks dedicated for originating 911 emergency service
calls.
The parties agree that the E911 service is provided for the use of the
E911 Customer, and recognizes the authority of the E911 Customer to
establish service specifications and grant final approval (or denial)
of service configurations offered by SWBT and the LSP. The terms and
conditions of this appendix represent a plan for providing E911
service, for which LSP must obtain documentation of approval from the
appropriate E911 Customer(s) which have jurisdiction in the area(s) in
which LSP's customers are located. LSP shall provide such documentation
to SWBT prior to the use of LSP's E911 connection for actual emergency
calls.
Both parties agree to designate a representative who shall have the
authority to execute additional exhibits to this Appendix when
necessary to accommodate expansion of the geographic area of LSP into
the jurisdiction of additional PSAPs or to increase the number of CAMA
trunks. The designated representative for SWBT is Jeff Fields and for
LSP is Richard Weinstein.
The terms and conditions of this appendix are subject to renegotiation
in the event that the E911 Customer orders changes to the E911 service
that necessitate revision of this appendix.
RATES, TERMS AND CONDITIONS
E911 Universal Emergency Number Service will be provided utilizing the rates,
terms and conditions set forth in the following Arkansas tariff, in addition to
those terms and conditions described previously in this Appendix:
SWBT's General Exchange Tariff Section 44 - Universal Emergency Number
Service (911)
<PAGE> 56
APPENDIX 991- MOKA
Page 4 of 4
EXHIBIT 1 TO APPENDIX 9-1-1
<TABLE>
<CAPTION>
LSP SERVING AREA DESCRIPTION AND E9-1-1
INTERCONNECTION DETAILS
<S> <C> <C> <C> <C>
LSP NAME & CONTACTS LSP "OCN" LSP Switch Name & Addr. Switch Type LSP NPA/NXX(s) included
CLLI Code # 9-1-1 Trunks Requested
E9-1-1 Manager LSP Telco ID
"Connect Signal" Digits (4) "Default" PSAP
1 - 1
Database Administrator Estimated # of EAAs ETST Code
LSP Service Area Definition:
Switch Site Contact
SWBT E9-1-1 SYSTEM CONFIGURATION ASSOCIATED
WITH DESIGNATED E9-1-1 CONTROL OFFICE
E9-1-1 CONTROL OFFICE: PSAPs INCLUDED IN COMMUNITY E9-1-1 CUSTOMER and
CLLI Code: 9-1-1 SERVICE PLAN for MSAG PULL (3) AGENCY TYPE (see legend below)
E9-1-1 Features Required:
# of 9-1-1 Trunks from LSP:
MSAG Update Interval: Monthly
FOOTNOTES: (1)
(2)
(3) MSAG will only include
addresses within SWBT
exchanges, unless
specifically stated otherwise.
(4) Refer to network
interface specifications
in Exhibit III.
"TYPE of AGENCY" LEGEND:
HRC = Home Rule City
ECD = Emergency Communications District
COG = Council of Governments or Regional
Planning Commission
GLC = General Law City
Cnty = County with special
provisions (only applies
to Dallas County)
Date Prepared
</TABLE>
PAGE 1
<PAGE> 57
APPENDIX AIN
Page 2 of 2
APPENDIX AIN
AIN CALL RELATED DATABASE
AIN is a Network Architecture that uses distributed intelligence in centralized
databases to control call processing and manage network information, rather than
performing those functions at every switch.
SWBT will provide LSP access to the SWBT's Service Creation Environment (SCE) to
design, create, test and deploy AIN-based features, equivalent to the access it
provides to itself, providing that security arrangements can be made. LSP
requests to use the SWBT SCE will be subject to request and review procedures to
be agreed upon by the Parties.
When LSP utilizes SWBT's Local Switching network element and requests SWBT to
provision such network element with a technically feasible AIN trigger, SWBT
will provide access to the appropriate AIN Call Related Database for the purpose
of invoking either an SWBT AIN feature or a LSP developed AIN feature as per
previous section.
When LSP utilizes its own local switch, SWBT will provide access to the
appropriate AIN Call Related Database for the purpose of invoking either an SWBT
AIN feature or a LSP developed AIN feature as per previous section.
SWBT will provide access to AIN Call Related databases in a nondiscriminatory
and competitively neutral manner. Any mediation, static or dynamic, will only
provide network reliability, protection, security and network management
functions consistent with the access service provided. Any network management
controls found necessary to protect the AIN SCP from an overload condition will
be applied based on non-discriminatory guidelines and procedures either (1)
resident in the SWBT STP that serves the appropriate AIN SCP or (2) via manual
controls that are initiated from SWBT Network Elements. Such management controls
will be applied to the specific problem source, where ever that source is,
including SWBT, and not to all services unless a problem source cannot be
identified.
As requested by LSP, SWBT will provide specifications and information reasonably
necessary for LSP to utilize SWBT SCE as provided above.
SWBT SCP will partition and take reasonable steps to protect LSP service logic
and data from unauthorized access, execution or other types of compromise, where
technically feasible.
<PAGE> 58
APPENDIX BCR
Page 2 of 5
APPENDIX BCR
BILLING, COLLECTING AND REMITTING
This Appendix sets forth the terms and conditions that apply to those
telecommunications services for which charges are billed and collected by one
Local Exchange Carrier (LEC) or LSP but earned by another LEC; and to establish
procedures for the billing, collecting and remitting of such charges and for
compensation for the services performed in connection with the billing,
collecting and remitting of such charges.
I. DEFINITIONS
A. BellCore Client Company Calling Card and Third Number Settlement (BCC
CATS) System - Nationwide system used to produce information reports
that are used in the settlement of LEC revenues recorded by one BCC
(or LEC) and billed to an end user of another BCC (or LEC) as
described in accordance with the BellCore Practice BR 981-200-110.
B. Charges - the amount approved or allowed by the appropriate
regulatory authority to be billed to an end user for any of the
services described in Section II., rendered by a LEC to an end user.
C. Compensation - the amount to be paid by one Party to the other Party
for billing, collecting and remitting of charges as set forth in
Section IV.
D. IntraLATA - within a Local Access Transport Area (LATA) - IntraLATA
messages are those messages, either intrastate or interstate, which
originate and terminate within a LATA. The term "IntraLATA messages,"
as used herein, shall only include those that qualify for the
BellCore Client Company BCC CATS process.
E. InterLATA - between Local Access and Transport Areas (LATAs) as
defined in the FCC's CC Docket No. 78-72. InterLATA messages are
those messages which originate in one LATA and terminate in a
different LATA. The term "InterLATA messages" as used herein, shall
only include those that qualify for the BellCore Client Company BCC
CATS process.
F. Local Exchange Carrier (LEC) - as used in this Appendix shall mean
those Local Exchange Carriers or Local Service Providers using BCC
CATS as a message tracking system.
G. Local Message - Local messages . are those messages which originate
and terminate within the area defined as the local service area of
the station from which the message originates.
H. Revenues - the sum of all or part of the charges as defined above.
<PAGE> 59
APPENDIX BCR
Page 3 of 5
II. SCOPE OF APPENDIX
This Appendix shall apply to procedures for the billing, collecting and
remitting of revenues (and compensation to either Party for billing,
collecting and remitting of such revenues) derived from the following
services:
A. LEC-carried (traffic transported by facilities belonging to a LEC)
local messages of the following types:
1. Local Message Service Charges Billed to a Calling Card or
to a Third Number.
2. Directory Assistance Calls Charged to a Calling Card or to
a Third Number.
3. Public Land Mobile Radiotelephone Transient-Unit Local Message
Service (Mobile Channel Usage Link Charge).
4. Maritime Mobile Radiotelephone Service and Aviation
Radiotelephone Service (Marine, Aircraft, High Speed Train
Radio Link Charges).
B. LEC-carried Interstate IntraLATA and Interstate InterLATA
telecommunications services that qualify for and flow through the BCC
CATS process as addressed in the BellCore Practice BR 981-200-110, of
the following types:
1. Interstate IntraLATA Toll Service carried by an LEC and
charged to a Calling Card or a Third Number.
2. Interstate InterLATA Toll Service carried by an LEC and
charged to a Calling Card or a Third Number.
3. Radio Link Charges where service is provided by one LEC and
billed by another LEC.
III RESPONSIBILITIES OF THE PARTIES
A. LSP agrees to bill, collect and remit to SWBT the charges for
the services described in Section II. which charges are earned
by any LEC (including SWBT), but which are to be billed to end
users of the LSP.
B. In those cases in which the charges for the services listed in
Section II. are due any LEC other than SWBT, SWBT will arrange
to transfer these and charges to the appropriate company in
accordance with accepted industry standards.
<PAGE> 60
APPENDIX BCR
Page 4 of 5
C. Charges for the services listed in Section II. to be billed,
collected and by LSP for SWBT's benefit, shall be remitted by
LSP to SWBT within 30 days of the date of SWBT's bill to LSP
for such services.
D. SWBT agrees to bill and collect (or to have another LEC bill
and collect, where the appropriate), and to remit to LSP, the
charges for the services described in Section II., which
charges are earned by LSP, but which are to be billed by
another LEC (including SWBT) to the end users of that LEC.
E. Charges for the services listed in Section II. to be billed,
collected and remitted by SWBT or another LEC for LSP's
benefit, shall be remitted by SWBT to LSP within 30 days of
the date of LSP's bill to SWBT for such services.
F. The full amount of the charges transmitted to either Party for
billing, collecting and remitting shall be remitted by the
other Party, without setoff, abatement or reduction for any
purpose, other than to deduct the compensation, as described
in Section IV, due the Party for performing the end user
billing function. The Party billing the end user shall be
responsible for all uncollectible amounts related to the
services described remitted in Section II. Notwithstanding
this paragraph, SWBT may net amounts due to LSP under this
Appendix against amounts owed to SWBT when SWBT renders a bill
to LSP hereunder.
G. Each Party will furnish to the other such information as may
be required for monthly billing and remitting purposes.
IV. COMPENSATION
A Party performing the services described in Section II. A. will
compensate the other Party in the amount of $.08 for each charge billed
for any service described in Section II.A. and subsequently remitted
pursuant to this Appendix by such other Party to the Party performing
the services described in Section II. A. A Party performing the
services described in Section II. B. will compensate the other Party in
the amount of $.05 for each charge billed for any service described in
Section II. B. and subsequently remitted pursuant to this Appendix by
such other Party to the Party performing the services described in
Section II. B. Such compensation shall be paid (unless a Party has
collected such compensation as described in Section III.F. above)
within 30 days of the date of a bill for such compensation by the Party
performing (or which has another LEC perform for it), the billing,
collecting and remitting functions described in Section III.
V. SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE
<PAGE> 61
APPENDIX BCR
Page 5 of 5
CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND
USED BY A THIRD PARTY.
<PAGE> 62
APPENDIX CH
Page 2 of 4
APPENDIX CLEARINGHOUSE (CH)
WHEREAS, SWBT operates a Clearinghouse (CH), as described below, for its own
behalf and that of participating LECs and LSPs, including LSP; and
WHEREAS, LSP wants to participate in the CH on the terms set forth herein;
The Parties agree to the following:
1. CLEARINGHOUSE DESCRIPTION
SWBT operates a CH for the purpose of facilitating the exchange of
certain alternatively billed intrastate intraLATA message toll call
records and the reporting of settlement revenues owed by and among
participating LECs and LSPs, including SWBT and LSP.
2. QUALIFYING MESSAGE CRITERIA
The only toll call messages that qualify for submission to SWBT for CH
processing are: (a) intrastate intraLATA sent collect (including
calling card, collect and third number) messages which are originated
in one LEC or LSP exchange, exclusively carried by a LEC or LSP over
LEC or LSP facilities and billed to a customer located in a second
LEC's or LSP exchange within the same state; or (b) intrastate
intraLATA sent collect (but limited to calling card and third number)
messages originated in one of SWBT's operating areas (located in parts
of Texas, Arkansas, Kansas, Missouri or Oklahoma), exclusively carried
by a LEC or LSP over LEC or LSP facilities, and billed to a customer
located in a second LEC's or LSP exchange and not in the originating
State.
3. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees that it will provide SWBT with billing records for CH
processing that are in an industry standard format acceptable to SWBT
and at a minimum will display the telephone number of the end user to
whom the call is to be billed, and data about the call sufficient for a
carrier to comply with all applicable state regulatory requirements.
For purposes of this Attachment, these records ("CH Records") will
detail intraLATA toll calls which were originated by use of the single
digit access code (i.e., 0+ and 0-) in one LEC or LSP exchange but are
to be billed to an end user in a second LEC's or LSP exchange. Such
records are referred to as category 92 records for CH processing
purposes. The term "CH Record" will mean the call detail attributed to
a single completed toll message.
LSP agrees that all CH Records it generates will display indicators
denoting whether category 92 Records should be forwarded to SWBT's CH.
LSP will retain its originating
<PAGE> 63
APPENDIX CH
Page 3 of 4
records for ninety (90) days such that the category 92 Records can be
retransmitted to SWBT for CH processing, if needed.
B. SWBT will provide and maintain such systems as it believes are required
to furnish the CH service described herein. SWBT, in its capacity as
operator of the CH, agrees to retain all CH Records processed through
the CH for two (2) years.
C. LSP will timely furnish to SWBT all CH Records required by SWBT to
provide the CH service in accordance with the Technical Exhibit
Settlement Procedures (TESP) dated DD/MM/YEAR, or as otherwise mutually
agreed upon by the Parties. SWBT will provide the CH service in
accordance with the TESP, and such modifications as are subsequently
agreed upon.
D. Presently, in operating the CH, SWBT relies upon NXX codes to identify
messages for transmission to participating billing companies. To the
extent any subprocesses are required to settle CH messages due to the
use of ported numbers, such subprocessing will be the responsibility of
the porting entity.
4. PROCESSING CHARGE
LSP agrees to pay SWBT a processing charge in consideration of SWBT's
performance of CH services. This charge is $.02 per originated CH
Record processed on behalf of LSP .
5. BILLING CHARGE
LSP agrees to pay a $.05 per message charge to the LEC or LSP
responsible for billing the message, including SWBT, when SWBT bills
the message.
6. SETTLEMENT REPORT
SWBT will issue monthly reports containing the results of the
processing of CH Records to each participating LEC and LSP. These
reports list the (a) amounts owed by LSP for billing messages
originated by others; (b) amounts due to LSP for LSP-originated
messages billed by others; (c) applicable billing charges; and (d)
processing charges.
7. RETROACTIVE AND LOST MESSAGES
The Parties agree that processing of retroactive messages through the
CH is acceptable, if such messages utilize the industry standard format
for call records, pursuant to Section 3 of this Attachment. The Parties
agree that lost messages are the complete responsibility of the
originating LEC or LSP. If messages are lost by any Party, and cannot
be recreated or retransmitted, the originating LEC or LSP will estimate
messages, minutes, and associated revenues based on the best available
data. No estimate will be made for
<PAGE> 64
APPENDIX CH
Page 4 of 4
messages which are more than two years old at the time the estimate is
made. The estimates will be off-line calculations (i.e., not part of
the routine CH processing) and will be included as a supplement to the
monthly settlement report.
8. LIMITATION OF LIABILITY
By agreeing to operate the CH, SWBT assumes no liability for any LEC's
or LSP's receipt of appropriate revenues due to it from any other
entity. LSP agrees that SWBT will not be liable to it for damages
(including, but not limited to, lost profits and exemplary damages)
which may be owed to it as a result of any inaccurate or insufficient
information resulting from any entity's actions, omissions, mistakes,
or negligence and upon which SWBT may have relied in preparing
settlement reports or performing any other act under this Attachment.
LSP agrees to indemnify and hold SWBT harmless against and with respect
to any and all third party claims, demands, liabilities or court
actions arising from any of its actions, omissions, mistakes or
negligence occurring during the course of SWBT's performance of CH
processing pursuant to this Attachment.
SWBT will not be liable for any losses or damages arising out of
errors, interruptions, defects, failures, or malfunction of the CH
services provided pursuant to this Attachment, including those arising
from associated equipment and data processing systems, except such
losses or damages caused by the sole negligence of SWBT. Any losses or
damage for which SWBT is held liable under this Attachment will in no
event exceed the amount of processing charges incurred by LSP for the
CH services provided hereunder during the period beginning at the time
SWBT receives notice of the error, interruption, defect, failure or
malfunction, to the time service is restored.
9. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 65
APPENDIX CNAM
Page 2 of 11
APPENDIX CNAM
This appendix contains the terms and conditions under which SWBT and LSP shall
provide CNAM Service Query service (or equivalent service):
1. Definitions
A. A-links mean a diverse pair of facilities connecting local end
office switching centers with Signaling Transfer Points.
B. Calling Name Delivery (CNAM) service enables the terminating end
user to identify the calling party by a displayed name before the call is
answered. The calling party's name, date and time of the call are retrieved from
an SCP database and delivered to the end user's premise between the first and
second ring for display on compatible customer premise equipment (CPE).
C. CNAM Service Query is SWBT's service that allows LSP to query SWBT's
Calling Name database for Calling Name information in order to deliver that
information to LSP's local subscribers.
D. Calling Name database means a Party's database containing current
Calling Name information of all working lines served or administered by that
Party, including the Calling Name information of any telecommunications company
participating in that Party's Calling Name database.
E. Calling Name information means telecommunications companies' records
of all their subscribers' names associated with one or more assigned ten-digit
telephone numbers.
F. Service Control Point (SCP) is a CCS network node where the Calling
Name database resides.
G. Service Point (SP) means a CCS network interface element capable of
initiating and/or terminating SS7 messages from an end office.
H. Service Switching Point (SSP) means the software capability within a
switching point that provides the SP with SS7 message preparation/interpretation
capability plus SS7 transmission/reception access ability.
I. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to SWBT's SS7 network,
LSP or a third party initiating LSP's Calling Name Queries must connect with an
SWBT STP in order to connect to SWBT's SCP.
<PAGE> 66
APPENDIX CNAM
Page 3 of 11
J. Common Channel Signaling (CCS) Network is an out-of-band,
packet-switched, signaling network used to transport supervision signals,
control signals, and data messages. CNAM Queries and Response messages are
transported across the CCS network.
K. Signaling System 7 (SS7) is the signaling protocol used by the CCS
network.
L. CNAM Service Query Rate applies to each CNAM Query received at the
SCP where a Party's Calling Name database resides.
M. Query Transport Rate applies to each CNAM Query transported through
a Party's interconnecting STP and between the STP and the Calling Name database.
SWBT and LSP shall list their STP locations in the National Exchange Carrier
Association, Inc. Tariff FCC No. 4.
N. Query means a message in American National Standards Institute's
(ANSI) standard SS7 signaling protocol which represents a request to a Calling
Name database for Calling Name information.
O. Response means an SS7 message which when appropriately interpreted
represents an answer to a Query.
P. Name Record Administering Companies means telecommunications
companies that administer telephone number assignments to the public and which
make their Calling Name information available in a Party's Calling Name
database.
2. Description of Service
A. SWBT shall provide LSP Calling Name information whenever LSP
initiates a Query from an SSP for such information associated with a call
terminating to a CNAM subscriber.
B. All Queries to SWBT's Calling Name database shall use subsystem
number (the designation of application) value of 000 with a translation type of
005 and a subsystem number in the calling party field mutually agreed upon by
the Parties. LSP acknowledges that such subsystem number and translation type
values are necessary for SWBT to properly process Queries to its Calling Name
database.
C. LSP warrants to SWBT that it shall send Queries conforming to the
ANSI approved standards for SS7 protocol and pursuant to the specification
standards documents identified in Exhibit A. Both Parties acknowledge that
transmission in said protocol is necessary for each party to provision CNAM
Service Query. (Or the equivalent thereof). Both Parties warrant that they shall
send SS7 Messages that comply with ANSI approved standards for SS7 protocol and
pursuant to the specification standards documents identified in Exhibit A. Each
party reserves the right to modify its network pursuant to other specifications
standards, which may include Bellcore specifications defining specific service
applications, message types and
<PAGE> 67
APPENDIX CNAM
Page 4 of 11
formats, that may become necessary to meet the prevailing demands within the
U.S. telecommunications industry. All such changes shall be announced a minimum
of 180 days in advance of implementation through industry standard procedures.
Each party will work cooperatively to coordinate any necessary changes.
D. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's CCS/SS7 network. LSP
further agrees that SWBT, in its sole discretion, shall employ certain automatic
and/or manual overload controls within its CCS/SS7 network to guard against
these detrimental effects. SWBT shall report to LSP any instances where overload
controls are invoked due to LSP's CCS/SS7 network and LSP agrees in such cases
to take immediate corrective actions as are necessary to cure the conditions
causing the overload situation.
E. Prior to initiating service under this Agreement, LSP shall provide
to SWBT an initial forecast of busy hour Query volumes. If, prior to the
establishment of a mutually agreeable service effective date, in writing, SWBT,
at its discretion, determines that it lacks adequate storage or processing
capability to provide CNAM Service Query to LSP, SWBT shall notify LSP of its
intent not to provide the services under this Appendix and this Appendix will be
void and have no further effect.
F. Upon request, LSP shall update its busy hour forecast for each
upcoming calendar year (January - December) by October 1 of the preceding year.
LSP shall provide such updates each year for the first three (3) years of this
Agreement.
G. SWBT provides CNAM Service Query as set forth in this Appendix only
as such service is used for LSP's activities as a local service provider in
SWBT's traditional serving areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas. SWBT provides CNAM Service Query for interexchange
carriers, operator service providers, and other telecommunications companies
under separate contract rates. LSP agrees that any use of SWBT's LIDB for the
provision of CNAM Service Query by LSP, including, but not limited to, when LSP
acts as an LSP outside of SWBT's traditional serving areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas, and/or acts as an operator
service provider to other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange carrier, will be
pursuant to the standard terms, conditions, rates and charges of SWBT's non-LSP
contracts, as revised, for CNAM Service Query.
3. Price and Payment
A. LSP shall pay a CNAM Service Query Rate of $0.0115 and a Query
Transport Rate of $0.0045 for each Query initiated into SWBT's Calling Name
database. Additional nonrecurring charges for point code activation of $36.00
and service order activity of $256.70 shall be applicable for all such activity
after the initial service order and initial point code activation. The per CNAM
Service Query rate SWBT charges hereunder may be increased upon
<PAGE> 68
APPENDIX CNAM
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sixty (60) days written notice to the LSP unless LSP acts as an agent on behalf
of other carriers in which case ninety (90) days written notice shall be given.
Upon such notice, the Party receiving notice may terminate this Appendix without
any termination liability as provided in Section 5(B) of this Appendix. All
tariffed rates associated with Services provided hereunder are subject to change
pursuant to revisions of such tariffs.
B. SWBT shall record usage information for LSP's CNAM Queries
terminating to SWBT's Calling Name database. SWBT shall use its SCPs as the
source of usage data. SWBT shall aggregate usage by the point code of the
Query-originating SSP.
C. Based upon the data identified in Subsection 3.B above, SWBT shall
bill the LSP for its CNAM Queries on a monthly basis. The bill will be issued by
the fifteenth day of each month, and LSP shall pay the Subsection 3.B bill
within thirty (30) days of the bill issue date.
D. Depending on LSP's choice of method for transporting its Queries and
responses, LSP may be required to purchase certain other services, especially
services that may be provided pursuant to effective tariffs. In this event the
prices, terms, conditions and billing for such services will be specified in the
applicable tariff(s), and this Appendix shall not be construed to circumvent the
prices, terms, conditions, or billing as specified in the applicable tariff(s).
E. If there is a dispute associated with a monthly bill, the disputing
Party shall notify the other in writing within ninety (90) calendar days of the
date of said monthly bill or the dispute shall be waived. Each party agrees that
any amount of any monthly bill that the Party disputes will be paid by that
Party according to the terms of Subsection 3.C above. Any adjustments relating
to a disputed amount shall be reflected on the next monthly bill issued after
resolution. Any credit issued upon resolution of any dispute shall bear interest
at the rate specified in Subsection 3.C. above, payable on and as of the date
the credit is issued. Parties shall work cooperatively and use their best
efforts to resolve any disputes as quickly as possible.
F. If LSP acts as a telecommunications company other than a local
service provider, or if LSP acts as a local service provider in areas outside of
SWBT's traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas, LSP will designate those point codes from which it
originates CNAM Service Queries as an LSP acting as a local service provider
within SWBT's traditional service areas in the states of Arkansas, Kansas,
Missouri, Oklahoma and Texas from those point codes which originate CNAM Service
Queries for all other aspects of its business. If LSP uses the same OPC to
originate Queries for its operations as an LSP within SWBT's traditional service
areas in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas as it
does for any other aspect of its business, then LSP will provide SWBT with a
percentage of use factor that SWBT can use to apportion LSP's traffic between
SWBT's terms and conditions, rates and charges under this Appendix and the
standard terms, conditions, rates and charges under SWBT's non-LSP contracts.
LSP will provide this factor in a whole number between one (1) and one hundred
(100) to indicate the percentage of CNAM Service Queries LSP originates as an
LSP acting as a local service provider within SWBT's traditional service area in
the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A percentage of
<PAGE> 69
APPENDIX CNAM
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use factor of 1 (one) indicates that one percent of LSP's CNAM Service Queries
originate as an LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas. A percentage of use factor of 100 indicates that one
hundred percent of LSP's traffic is from LSP acting as a local service provider
within SWBT's traditional service areas in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas.
G. Such percentage of use factors will be provided by LSP on the LIDB
Access Service Order Form used to establish the service. All updates to this
factor will be provided via a letter. If LSP does not furnish a percentage of
usage factor, LSP agrees that SWBT will apply a percentage of use factor of one
percent (1%).
H. LSP agrees to update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and October of each year,
LSP will forward to SWBT, to be received no later than fifteen (15) business
days after the first of each such month, a revised report showing the percentage
of use factors for the past three months ending the last day of December, March,
June, and September, respectively, for each OPC from which LSP originates CNAM
Service Query. Both parties agree that the revised report will serve as the
basis for the next three months billing. Both parties agree that no prorating or
backbilling will be done based on the report. SWBT will use the revised report
to apportion usage rate, monthly rates, and nonrecurring charges until a revised
report is received from LSP as set forth and agreed to herein.
I. Both parties agree that SWBT may, upon written request by Certified
U.S. mail (return receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage of use factor
provided by LSP. SWBT may request this detailed information annually. If the
audit results represent what SWBT considers to be a substantial deviation from
LSP's previously reported percentage of use for the period upon which the audit
is based, and that deviation is not due to seasonal changes or other
identifiable reasons, LSP agrees to allow SWBT to request such call detail
records more than once annually. Both parties agree that SWBT may make the call
detail records available to an independent auditor or to SWBT audit employees
within thirty (30) days of the request at an agreed upon location during normal
business hours.
J. Both parties agree that if LSP fails to comply with SWBT's request
for auditable call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service for a period of
thirty (30) days. If at the conclusion of thirty (30) days, LSP still does not
comply with this request, both parties agree that SWBT may apply an assumed
percentage of use factor of one percent (1%).
4. Ownership of the Calling Name Information
A. Telecommunications companies depositing information in a
Party's Calling Name database retain full and complete ownership and control
over such Calling Names information in
<PAGE> 70
APPENDIX CNAM
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that Calling Name database. The querying Party obtains no ownership interest
by virtue of this Appendix.
B. LSP shall not copy, store, maintain or create any table or database
of any kind after initiation of, and based upon a response to, a CNAM Query to
SWBT's calling name database.
C. If LSP acts on behalf of other carriers, LSP shall prohibit its
Query-originating carrier customers from copying, storing, maintaining, or
creating any table or database of any kind from any Response provided by SWBT
after a CNAM Query to a Calling Name database.
5. Term and Termination
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Agreement and shall continue for two (2) years from the
date of implementation of CNAM Service Query (or the equivalent thereof).
Thereafter, this Appendix shall remain in effect unless terminated by either
party upon written notice given sixty (60) days in advance of the termination
date.
B. Should LSP terminate this Appendix within the first six (6) months
of this effective date, LSP agrees to pay SWBT an early termination sum equal to
two (2) times the average monthly volume of LSP's CNAM Queries times the rate
specified in Section 3(A) of this Appendix. The average monthly volume will be
calculated using the previous two (2) months' volume divided by two (2) or, if
less than two months, the monthly volume of the first month service was
provided.
C. If at any time during the term of this Appendix a tariff for CNAM
Service Query (or the equivalent service thereof) becomes effective, the tariff
and all terms and conditions, including all rates, will supersede this Appendix.
Under these circumstances, no termination liability as provided in Section 5(B)
of this Appendix will apply.
D. If a party materially fails to perform its obligation under this
appendix, the other party, after notifying the non-performing party of the
failure to perform and allowing that party thirty (30) days after receipt of the
notice to cure such failure, may cancel this appendix immediately upon written
notice.
E. Notwithstanding anything to the contrary in this Appendix, if legal
or regulatory decisions or rules compel SWBT or LSP to terminate the Appendix,
SWBT and LSP shall have no liability to the other in connection with such
termination.
6. Limitation of Liability
A. LSP's sole and exclusive remedies against SWBT for injury, loss or
damage caused by or arising from anything said, omitted or done in connection
with this Appendix regardless of the form of action, whether in contract or in
tort (including negligence or strict liability) shall be
<PAGE> 71
APPENDIX CNAM
Page 8 of 11
the amount of actual direct damages and in no event shall exceed the amount paid
for CNAM Service Queries.
B. The remedies in Section 6(A) of this Appendix shall be exclusive of
all other remedies against a Party, its affiliate, subsidiaries or parent
corporation, (including their directors, officers, employees or agents).
C. In no event shall SWBT have any liability for system outages or
inaccessibility, or for losses arising from the unauthorized use of the data by
CNAM Service Query purchasers.
D. CALLING NAME INFORMATION PROVIDED TO AN LSP HEREUNDER SHALL BE
PROVIDED "AS IS." SWBT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
ACCURACY OR COMPLETENESS OF THE CALLING NAME INFORMATION REGARDLESS OF WHOSE
CALLING NAME INFORMATION IS PROVIDED. AND, SWBT SHALL NOT BE HELD LIABLE FOR ANY
ACTIONS OR OMISSIONS ARISING OUT OF OR IN CONJUNCTION WITH LSP'S USE OF THE
CALLING NAME INFORMATION. NOTWITHSTANDING THE FOREGOING, SWBT WARRANTS THAT LSP
WILL BE ACCESSING THE SAME CALLING NAME DATABASE FOR CUSTOMER'S CNAM QUERIES AS
SWBT ACCESSES FOR ITS OWN QUERIES.
E. SWBT is furnishing access to its Calling Name database in order to
facilitate the LSP's provision of Calling Name Delivery Service (CNDS) to its
end users or to the end users of its Query-originating carrier customers, but
not to insure against the risk of completion of a call to a CNDS subscriber
without the display of the name of the caller. While each Party agrees to make
every reasonable attempt to provide accurate and current Calling Name
information, the Parties acknowledge that Calling Name information is the
product of routine business service order activity. LSP acknowledges that SWBT
can furnish Calling Name information only as accurate and current as the
information has been provided to SWBT for inclusion in its CNAM database.
Therefore, SWBT, in addition to the limitations of liability set forth, is not
liable for inaccuracies in the Calling Name information name records provided to
LSP or to its Query-originating carrier customers, except such inaccuracies
caused by SWBT's willful or wanton misconduct or gross negligence.
The Parties acknowledge that each Calling Name database limits the
Calling Name information length to fifteen (15) characters. As a result, the
Calling Name Information provided in a response to a Query may not reflect a
subscriber's full name. Name records of residential local telephone subscribers
will generally be stored in the form of last name followed by first name
(separated by a comma or space) to a maximum of fifteen (15) characters. Name
records of business local telephone subscribers will generally be stored in the
form of the first fifteen (15) characters of the listed business name that in
some cases may include abbreviations. The Parties also acknowledge that certain
local telephone service subscribers of Name Record Administering Companies may
require their name information to be restricted, altered, or rendered
unavailable. Therefore, in addition to the limitations of liability set forth in
Section 6 of this Appendix, SWBT is not liable for any and all liability,
claims, damages or actions including attorney's fees,
<PAGE> 72
APPENDIX CNAM
Page 9 of 11
resulting directly or indirectly from the content of any Name Record contained
in a Calling Name database and provided to LSP or its Query-originating carrier
customers, except for such content related claims, damages or actions resulting
from SWBT's willful or wanton misconduct or gross negligence.
F. The Parties acknowledge that certain federal and/or state
regulations require that local exchange telephone companies make available to
their subscribers the ability to block the delivery of their telephone number
and/or name information to the terminating telephone when the subscriber
originates a telephone call. This blocking can either be on a call-by-call basis
or on an every call basis. Similarly, a party utilizing blocking services can
unblock on a call-by-call basis or every call basis. LSP acknowledges its
responsibility to and warrant that it will abide by information received in SS7
protocol during call set-up that the calling telephone service subscriber wishes
to block or unblock the delivery of telephone number and/or name information to
a CNDS subscriber. LSP agrees not to attempt to obtain the caller's name
information by originating a Query to SWBT's Calling Name database where the
subscriber attempted to block such information, nor will LSP block information a
subscriber attempted to unblock. Therefore, SWBT, in addition to the limitations
of liability set forth in this Section, is not liable for any failure by LSP or
its Query-originating carrier customers to abide by the caller's desire to block
or unblock delivery of Calling Name information, and LSP agrees to hold SWBT
harmless from, and defend and indemnify SWBT for, any and all liability, claims,
damages or actions including attorney's fees, resulting directly or indirectly
from LSP or its Query-originating carrier customers' failure to block or unblock
delivery of the Calling Name information when appropriate indication is
provided, except for such privacy related claims, damages or actions caused by
SWBT's willful or wanton misconduct or gross negligence.
G. In no event shall SWBT, its affiliates, subsidiaries or parent
corporation (including its directors, officers, employees or agents) have any
liability whatsoever to or through LSP for any indirect, special, or
consequential 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, even if SWBT has been advised of the
possibility of such damages.
7. Communication and Notices
A. Ordering and billing inquiries for the services described herein
from SWBT shall be directed to the Local Service Provider Service Center
(LSPSC). Ordering shall be done through the LSPSC using the form attached hereto
as Exhibit B.
8. Confidentiality
A. Identification. SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, it may disclose to the
other party proprietary or confidential customer, technical or business
information in written, graphic, oral or other tangible or intangible forms. In
order for such information to be considered "Proprietary Information" under this
Appendix, it must be marked "Confidential" or "Proprietary" or bear a marking of
<PAGE> 73
APPENDIX CNAM
Page 10 of 11
similar import. Orally discussed information shall be considered Proprietary
Information only if contemporaneously identified as such and reduced to writing
and delivered to the other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall
remain the exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary Information to
authorized employees and other individuals who have a need to know the
Proprietary Information in order to perform its obligation under this Appendix.
(3) To keep such Proprietary Information confidential and to
use the same level of care to prevent disclosure or unauthorized use of the
received Proprietary Information as it exercises in protecting its own
Proprietary Information of a similar nature.
(4) For a period of three (3) years following any disclosure,
not to copy or publish or disclose such Proprietary Information to others or
authorize anyone else to copy or publish or disclose such Proprietary
Information to others without the prior written approval of the Disclosing
Party.
(5) To use such Proprietary Information only for purposes of
performing its obligations under this Appendix and for other purposes only upon
such terms as may be agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give notice to
the Disclosing Party of any demand to disclose or provide Proprietary
Information of the Disclosing Party to another person, under lawful process,
prior to disclosing or furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the Disclosing Party deems it
necessary to seek protective arrangements. The Receiving Party may disclose or
provide Proprietary Information of the Disclosing Party to meet the requirements
of a court, regulatory body or government agency having jurisdiction over the
Party; provided, however, that the Receiving Party shall notify the Disclosing
Party so as to give the Disclosing Party a reasonable opportunity to object to
such disclosure. The Disclosing Party may not unreasonably withhold approval of
protective arrangements provided by any such court, regulatory body or
government agency. Nothing herein requires either Party to support the position
of any person or entity as to whether any particular Proprietary Information is
proprietary under applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained in
this Appendix, the Proprietary Information described herein shall not be
deemed confidential or proprietary and
<PAGE> 74
APPENDIX CNAM
Page 11 of 11
the Receiving Party shall have no obligation to prevent disclosure of such
Proprietary Information if such Proprietary Information :
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through no wrongful act of the
Receiving Party;
(3) is received from a third party without similar restriction
and without breach of this Section 8;
(4) is independently developed, produced or generated by the
Receiving Party;
(5) is furnished to a third party by the Disclosing Party
without a similar restriction on the third party's rights; or
(6) is approved for release by written authorization of the
Disclosing Party, but only to the extent of such authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of Customer Queries for the
purposes of: (a) estimation of facilities usage for jurisdictional separations;
(b) engineering and network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the
contrary contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary Information is subject to
all applicable statutes, decisions and regulatory rules concerning the
disclosure and use of such Proprietary Information which, by their express
terms, mandate a different handling of such information.
9. Mutuality
To the extent that LSP stores its own Calling Name information in a database,
LSP agrees that such Calling Name information shall be available to SWBT on
terms and conditions comparable to those contained in this Appendix. Such terms
and conditions shall include but not be limited to, making such Calling Name
information available on a platform technically similar to that employed by
SWBT, and at a rate comparable to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit A - Specifications and Standards
Exhibit B - LIDB Access Service Order Form [to be attached].
<PAGE> 75
Exhibit A
Page 1 of 1
Specifications and Standards
Descriptions of Subject Area
and Issuing Organization Document Number
- ---------------------------- ---------------
A. Bellcore, SS7 Specifications TR-NPL-000246
B. ANSI, SS7 Specifications
- Message Transfer part T1.111
- Signaling Connection Control T1.112
Part
- Transaction Capabilities T1.114
Application Part
C. Bellcore, CLASS Calling Name Delivery TR-NWT-001188
Generic Requirements
D. Bellcore, CCS Network Interface TR-TSV-000905
Specifications
<PAGE> 76
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
EXHIBIT B
SEPTEMBER 1996
PAGE 1
LIDB ACCESS VALIDATION SERVICES ORDER FORM
<TABLE>
<S><C>
CUSTOMER NAME ______________________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION _____________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS
____________________________________________________________________________________________
CUSTOMER BILLING NAME
____________________________________________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION ______________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
____________________________________________________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE
____________________________________________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER ___________________________________
____________________________________________________________(_______)_________________________
CREDIT INFORMATION: TYPE OF OWNERSHIP ________
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP. ___________ DATE INCORP. ______________
CHARTER NUMBER ____________________________________________
PRES. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
V.P. NAME ________________________________________________OFC. TEL. NO. _(___)____________________
SECT. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
TREA. NAME _______________________________________________OFC. TEL. NO. _(___)____________________
IF PARTNERSHIP:
PARTNERS NAME ____________________________________________OFC. TEL. NO. _(___)____________________
PARTNERS NAME_____________________________________________OFC. TEL. NO. _(___)_____________________
PARTNERS NAME_____________________________________________OFC. TEL. NO. _(___)_____________________
</TABLE>
<PAGE> 77
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
EXHIBIT B
SEPTEMBER 1996
PAGE 2
<TABLE>
<S><C>
PARTNERS NAME__________________________________________OFC. TEL. NO. _(___)_____________________
LETTER OF AGENCY DATED ______________SIGNATURE ___________________________________________
SWBT ORDER NUMBER ___________________
DESIRED DUE DATE ______________________FIRM DUE DATE ______________________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs ____________________________________
TYPE OF ACTIVITY ______ (N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
BILLING ACCOUNT NUMBER (BAN) ______________________________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
_____________________________________
_____________________________________
_______________________(____)________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
___________________________________________________________________________(____)________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
___________________________________________________________________________(____)________________
*SWBT CKR:_________________________________________*TWO SIX CODE:____________________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1. _______________________________
2. _______________________________
3. _______________________________
4. _______________________________
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7 INTERCONNECTION SERVICE PROVIDER.
</TABLE>
<PAGE> 78
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
EXHIBIT B
SEPTEMBER 1996
PAGE 3
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 79
SOUTHWESTERN BELL TELEPHONE COMPANY
CUSTOMER PROVIDED FACTOR REPORTS
EXHIBIT B
SEPTEMBER 1996
PAGE 4
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
____ ___________________ ____ _______________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 80
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 5
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY.
THIS INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN COORDINATED
WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER FORM TO THE
ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE TO
BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED WITH THE
NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 81
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 6
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE ENTERED TO
ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM AN
EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO THE
COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S), ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL ENTER
THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER TO
ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR LINKS FOR
ACCESS TO THE LIDB.
<PAGE> 82
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 7
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE. THE
LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR THEIR
POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO ESTABLISH
THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER SHOULD
ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN FOR OLNS.
IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR THE LIDB
VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER WILL USE
BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE BILLING
ACCOUNTS.
1. LIDB VALIDATION SERVICE _____ CALLING NAME SERVICE _____
ORIGINATING LINE NUMBER SCREENING _____
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES ARE
REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE
LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE
"N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 83
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT B
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 8
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY
FROM PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT
ICSC IN ST. LOUIS, MISSOURI.
<PAGE> 84
APPENDIX DCO
PAGE 2 OF 2
APPENDIX DCO
EXCHANGE:
<TABLE>
<CAPTION>
====================================================================================================================
NIP(4)
[INSERT ADDRESS AND V&H INTERCONNECTION
DIRECTION(1) LSP LOCATION(2) DCO(3) BELOW] METHOD
====================================================================================================================
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
1 This column will be completed by indicating the direction of the terminating
traffic (e.g., either LSP to SWBT to SWBT to LSP.)
2 LSP LOCATION - The address of the LSP Location that will house LSP's
interconnection equipment and through which SWBT will terminate traffic on
the LSP's network.
3 DESIGNATED CONNECTING OFFICE (DCO) - The address of the SWBT end office or
tandem through which the LSP will terminate traffic on SWBT's network.
4 NETWORK INTERCONNECTION POINT OR "NIP" - The NIP is the location where
SWBT and LSP facilities connect. The NIP will be identified by address and
V&H Coordinates. The NIP for traffic going from LSP to SWBT and going from
SWBT to LSP could be different. Where the physical interface occurs at a
SWBT end office or tandem, the NIP shall be located at the DCO. When SWBT
and an LSP agree to interconnect with a Mid-Span Fiber Interconnection
(MSFI) the NIP is the location where the fiber of SWBT and the fiber of the
LSP is connected, unless both Parties agree that the NIP is defined
otherwise. Where the physical interface occurs at the LSP location the NIP
for that interconnection shall be located at the LSP location.
<PAGE> 85
APPENDIX A
PAGE 2 OF 5
APPENDIX DA
DIRECTORY ASSISTANCE SERVICE
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Directory Assistance Services (DA
Services) for LSP ("LSP").
I. SERVICES
SWBT will provide the following DA Services:
A. DIRECTORY ASSISTANCE (DA) - consists of providing subscriber
listing information (name, address, and published telephone
number or an indication of "non-published status") to LSP's
end users who dial 411 or NPA+555+1212 and whenever
appropriate, performing Non-Published and Non-List service
according to current SWBT methods and practices.
B. DIRECTORY ASSISTANCE CALL COMPLETION (DACC) - an optional
service in which SWBT completes a call to the requested number
on behalf of LSP's end user, utilizing an automated voice
system or with operator assistance. SWBT agrees to provide DA
with DACC upon request.
II. DEFINITIONS
The following terms are defined as set forth below:
A. Non-List Telephone Number - A telephone number that, at the
request of the telephone subscriber, is not published in a
telephone directory, but is available by calling a SWBT DA
operator.
B. Non-Published Number - A telephone number that, at the request
of the telephone subscriber, is neither published in a
telephone directory nor provided by a SWBT DA operator.
C. Published Number - A telephone number that is published in a
telephone directory and is available upon request by calling a
SWBT DA operator.
D. Call Branding - the procedure of identifying a providers name
audibly and distinctly to the consumer at the beginning of
each DA Services call, and prior to completion of a DACC
request.
<PAGE> 86
APPENDIX A
PAGE 3 OF 5
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Where SWBT provides LSPs OS and DA services via
the same trunk, both the OS and DA calls will be branded with
the same brand. Where SWBT is only providing DA service on
behalf of the LSP, specific DA branding can be provided upon
request. Such branding will be provided pursuant paragraph B.
below.
B. CALL BRANDING - SWBT will brand DA in LSP's name based upon
the criteria outlined below:
1. LSP will provide SWBT with written specification of its
company name to be used in creating LSP specific branding
messages for its DA calls.
2. An initial non-recurring charge applies per TOPS switch,
per load for the establishment of Call Branding as well as
a charge per TOPS switch, per subsequent load to change
the brand. In addition, a per call charge applies for
every DA call handled by SWBT on behalf of LSP when such
services are provided in conjunction with: i) the purchase
of SWBT's unbundled local switching; or ii) when multiple
brands are required on a single Operator Services trunk.
Prices for Call Branding are as outlined in Exhibit II,
attached hereto and incorporated herein.
C. DIRECTORY ASSISTANCE (DA) RATE/REFERENCE INFORMATION - SWBT
will provide LSP DA Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA Rate and Reference Information in a
mutually agreed to format or media thirty (30) days in
advance of the date when the DA Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any changes to be
made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date.
LSP acknowledges that it is responsible to provide SWBT
updated Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
3. In all cases when a SWBT Operator receives a rate request
from a LSP end user, SWBT will quote the applicable DA
rates as provided by LSP.
An initial non-recurring charge will apply per TOPS switch for loading of LSP's
Operator Services Rate/Reference Information as well as a charge per TOPS switch
for each subsequent change to either the LSP's DA Services Rate or Reference
Information.
<PAGE> 87
APPENDIX DA
PAGE 4 OF 5
IV. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of DA Services for LSP's local
serving area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown
in Exhibit I.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with
Automatic Number Identification (ANI) to each SWBT operator
switch. Should LSP seek to provide interexchange DA Service
under this agreement it is responsible for ordering the
necessary facilities. Nothing in this agreement in any way
changes the manner in which an interexchange Carrier obtains
access service for the purpose of originating or terminating
interexchange traffic.
C. Facilities necessary for the provision of DA Services shall be
provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of
service is met. Each party shall bear the costs for its own
facilities. LSP shall bear the costs of facilities necessary
for signaling and routing calls with Automatic Number
Identification (ANI) to each SWBT operator switch. SWBT shall
bear the cost of facilities and equipment necessary to provide
DA Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the DA Services are to be undertaken,
all end user listing records and information required by SWBT
to provide the DA Services.
E. LSP will keep end user listing records current using reporting
forms and procedures that are mutually acceptable to both
parties, and will inform SWBT, in writing, of any changes to
be made to such records. LSP will send the DA listing records
to SWBT via a local manual service order, T-TRAN, magnetic
tape or by any other mutually agreed to format or media.
F. SWBT will accumulate and provide LSP such data as necessary
for LSP to verify traffic volumes and bill its end users.
V. METHODS AND PRACTICES
SWBT will provide the DA Services to LSP's end users in accordance with
SWBT's DA methods and practices that are in effect at the time the DA
call is made, unless otherwise agreed in writing by both parties.
VI. PRICING
Pricing for DA Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached hereto and made part of this
Appendix. The prices will apply from the
<PAGE> 88
APPENDIX DA
PAGE 5 OF 5
service effective date through the term of this agreement as specified
in paragraph X., A. below. Beyond the specified term of this Appendix,
SWBT may change the prices for the provision of DA Services upon one
hundred-twenty (120) days' notice to LSP.
VII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
VIII. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless
SWBT from any and all losses, damages, or other liability
including attorneys fees that LSP may incur as a result of
claims, demands, wrongful death actions, or other suits
brought by any party that arise out of LSP's end users use of
DA Services. LSP shall defend against all end user claims just
as if LSP had provided such service to its end user with the
LSP's own operators and shall assert its tariff limitation of
liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SWBT employees and equipment associated with
provision of the DA Services. This provision includes but is
not limited to suits arising from disclosure of the telephone
number, address, or name associated with the telephone called
or the telephone used to call the DA Services.
IX. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force
for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one
hundred-twenty (120) days notice in writing from either Party
to the other.
B. If LSP terminates this agreement prior to the agreed-upon term
of this Appendix, LSP shall pay SWBT, within thirty (30) days
of the issuance of a final bill by SWBT, all amounts due for
actual services provided under this Appendix, plus estimated
monthly charges for the remainder of the term. Estimated
charges will be based on an average of the actual monthly
amounts billed by SWBT pursuant to this Appendix prior to its
termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit
II.
<PAGE> 89
APPENDIX DA - EXHIBIT I
PAGE 1 OF 1
APPENDIX DA
DIRECTORY ASSISTANCE SERVICES EXCHANGE LIST
EFFECTIVE:
------------------
(mm/dd/yr)
The following table depicts the services and exchanges covered by this Appendix:
<TABLE>
<CAPTION>
SWBT SERVING OFFICE(S) LSP'S OFFICE(S) TOLL (555) LOCAL (411) DACC
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 90
APPENDIX DA - EXHIBIT II
PAGE 1 OF 1
APPENDIX DA
ARKANSAS
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE:
-----------------------
(mm/dd/yr)
The following rates will apply for each service element:
<TABLE>
<S><C>
A. DIRECTORY ASSISTANCE (DA)
This usage rate applies to each DA call.
Rate per call $0.370
B. DIRECTORY ASSISTANCE CALL COMPLETION DACC)
This usage rate applies to each DA call that has been completed
to the requested number.
Rate per completed call $0.24
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per
brand for the establishment of Call Branding.
Rate per initial load $2,230.00
Rate per load for Brand change $2,230.00
Per Call(1) $0.02
D. DA SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the
initial load of Carrier's DA Services Rate/Reference Information.
An additional non-recurring charge applies for each subsequent
change to Rate/Reference Information.
Rate per initial load $3,430.00
Rate per subsequent rate change $2,450.00
Rate per subsequent reference change $2,450.00
</TABLE>
- --------------------
(1) A per call charge will apply when DA services are provided in conjunction
with i) unbundled local switching or ii) when multiple brands are required on a
single trunk.
<PAGE> 91
APPENDIX FGA
Page 2 of 7
APPENDIX FGA
This Appendix to Attachment Compensation sets forth the terms and conditions
under which the Parties will distribute revenue from the joint provision of
Feature Group A (FGA) Switched Access Services.
These services will be provided within a Local Access and Transport Area (LATA)
and/or an Extended Area Service (EAS) arrangement. The Primary Company will
compensate the Secondary Company only to the extent that it has not already been
compensated under its interstate or intrastate access service tariffs or other
settlement/contract arrangements. This Appendix is subject to applicable
tariffs.
1.0 DEFINITIONS
1.1 Local Access and Transport Area (LATA) means a pre-established
geographic area encompassing one or more local exchange areas within
which a Party may provide telecommunications services.
1.2 The term Extended Area Service (EAS) as used in this Appendix means the
provision of message telephone exchange service between two or more
local exchange service areas without a toll charge.
1.3 Subscriber Access Lines will mean a communication facility provided
under a general and/or exchange service tariff extended from a customer
premise to a central office switch which may be used to make and
receive exchange service calls, intrastate toll service or interstate
toll service calls.
1.4 Feature Group A Switched Access Service includes all facilities and
services rendered in furnishing FGA access service, both in EAS and
non-EAS (i.e., LATA wide terminations) areas, in accordance with the
schedule or charges, regulations, terms and conditions stated in the
interstate or intrastate access service tariffs of the Parties.
1.5 The Primary Company denotes the Party with the Primary office(s).
1.6 The Primary Office is an office which: (1) directly or jointly connects
to an interexchange carrier and /or end user: and (2) provides joint
FGA switched access service to that interexchange carrier and/or end
user with other end offices.
1.7 The Secondary Company denotes the Party with the secondary office(s).
<PAGE> 92
APPENDIX FGA
Page 3 of 7
1.8 The Secondary Office is any office involved in providing joint FGA
switched access to an Interexchange carrier and /or end user through
the switching facilities of the Primary office.
1.9 Revenues under this Appendix are those FGA Switched Access amounts due
the Primary and Secondary Companies under their applicable tariffs,
less uncollectible revenues. Revenues for any other services are not
included. Uncollectible revenues are those revenues the Primary Company
is unable to collect, using its regular established collection
procedures. The Primary Company may offset uncollectibles against
current revenue distribution.
1.10 Access Minutes or Minutes of Use (MOUs) are those minutes of use as
described in Part 69 of the Federal Communications Commission s Rules,
and are limited to those FGA MOUs which originate and /or terminate in
the Secondary Office(s) covered by this Appendix.
1.11 Currently Effective Tariff Rate means the approved tariff rate
effective on the first day of the month for which compensation is
being calculated.
2.0 UNDERTAKING OF THE PARTIES
2.1 The Secondary Company will notify the Primary Company of all tariff
rate revisions, affecting this Appendix which the FCC or other
appropriate regulatory authority allows to take effect, at least 30
days in advance of their effective date. Revenue distribution will be
based on the revised rates 45 days after the effective date of the
tariff revisions. However, if the secondary Company fails to notify the
Primary Company of a new rate within 30 days of its effective date, the
Primary company may delay implementation of the new rate until the next
month s revenue distribution cycle, and will not be required to adjust
the previous bills retroactive.
2.2 Each party will furnish to the other such information as may reasonably
be required for the administration, computation and distribution of
revenue, or otherwise to execute the provisions of this appendix.
3.0 ADMINISTRATION OF REVENUE DISTRIBUTION
The Primary Company will be responsible for the administration,
computation and distribution of the FGA access service revenues
collected on behalf of the Secondary Company.
4.0 MINUTES OF USE (MOUS) DEVELOPMENT
4.1 The Parties will calculate the amount of FGA revenues due each Party,
by determining the amount of FGA MOUs attributable to each Party as
described
<PAGE> 93
APPENDIX FGA
Page 4 of 7
below. The Primary Company will then multiply the MOUs by the rates in
the Secondary Company's applicable tariff to determine the amounts
tentatively due to the Secondary Company.
4.2 TERMINATING MOUS DEVELOPMENT
4.2.1 Actual monthly premium (charged at equal access end office) and
non-premium (charged at non-equal access end offices) terminating FGA
access MOUs for each office in the LATA or a FGA access EAS area will
be measured by the Primary Company.
4.2.2 Where the Primary Company cannot measure or identify the terminating
FGA MOUs by end office, terminating MOUs will be total unmeasured MOUs
allocated to the LATA. In this event, those MOUs will be distributed
based upon the ratio of each Party's subscriber access lines, as
identified in Exhibit B, which is attached hereto and made a part
hereof, to the total subscriber access lines in the FGA access area as
determined by the Primary Company.
4.3 ORIGINATING MOUS DEVELOPMENT
4.3.1 The Primary Company will derive and distribute monthly originating FGA
access MOUs, billed by the Primary Company, to each Secondary Company's
end office in the EAS calling area, as identified in Exhibit A, which
is attached hereto and made a part hereof, based upon a ration of each
Party's subscriber access lines to the total subscriber access lines in
the appropriate EAS area as determined by the Primary Company.
4.3.2 The parties recognize that since originating non-EAS calls to the FGA
service area are rated and billed as intraLATA toll, such usage is
assumed to be minimal. Therefore, originating FGA access MOUs will not
be distributed to end offices outside an EAS calling area.
5.0 CALCULATION OF REVENUE DISTRIBUTION
5.1 The amount of premium or non-premium revenues due each party each month
will be equal to the sum of Originating and Terminating premium or
non-premium revenue for each end office. These revenues will be
calculated by the Primary Company by multiplying each of the Secondary
Company's effective interstate and/or intrastate FGA switched access
tariff rate elements (except the Local Transport element described
below) by the appropriate MOU calculation under Sections 4.2.1 and
4.2.2.
5.2 Local Transport (or its equivalent under the Secondary Company's tariff
and called Transport in this agreement) compensation will be determined
for each company by multiplying each of the Secondary Company's
Transport rates by the
<PAGE> 94
APPENDIX FGA
Page 5 of 7
appropriate MOUs (as calculated under Sections 4.2.1 and 4.2.2.) by the
Secondary company's percentage ownership of facilities agreed on by the
Parties and set out in Exhibit B, which is attached hereto and made a
part hereof.
6.0 REVENUE DISTRIBUTION AMOUNTS, MONTHLY STATEMENTS AND PAYMENTS
6.1 The Primary Company each month will calculate and prepare a monthly
compensation statement reflecting the revenue distribution amounts for
FGA, both EAS and non-EAS, access service due the Secondary Company.
6.2 The monthly compensation statement will show, for each Secondary
Office, separately:
6.2.1 The total number of non-premium or premium terminating MOUs and
revenue.
6.2.2 The total number on non-premium or premium originating MOUs and
revenues.
6.2.3 The total compensation due the Secondary Company, by rate element.
6.2.4 The number of terminating MOUs recorded by the Primary Company.
6.2.5 The number of originating MOUs estimated by the Primary Company
pursuant to Section 4.3 contained herein.
6.2.6 The number of access lines used to prorate originating usage pursuant
to Section 4.3 contained herein.
6.2.7 The percent ownership factor, if any, used to prorate Local Transport
revenues.
6.2.8 Adjustments for uncollectibles.
6.3 Within 60 Calendar days after the end of each billing period, the
Primary Company will remit the compensation amount due the Secondary
Company. Where more than one compensation amount is due, they may be
combined into a single payment.
7.0 MISCELLANEOUS PROVISIONS
7.1 This appendix will remain in effect until terminated by thirty (30)
calendar day s notice by either Party to the other.
<PAGE> 95
APPENDIX FGA
Page 6 of 7
EXHIBIT A
EAS Locations for Originating and Terminating
Feature Group A Access Service
Primary Office Secondary Office
Company Company
CLLI CODE NPA-NXX CLLI CODE NPA-NXX
ACCESS LINE
<PAGE> 96
APPENDIX FGA
Page 7 of 7
EXHIBIT B
Location for LATA Wide Termination
of Feature Group A Access Service in
Non-EAS Calling Areas
SECONDARY OFFICE COMPANY
% Ownership of
CLLI CODE NPA-NXX Access Line Transport Facilities LATA
<PAGE> 97
APPENDIX HOST
Page 2 of 5
APPENDIX HOST
This Appendix sets forth the terms and conditions under which SWBT will perform
hosting responsibilities for LSP for (1) the provision of billable message data
and/or access usage data received from such LSP for distribution to the
appropriate billing and/or processing location via SWBT's in-region network or
via the nationwide Centralized Message Distribution System (CMDS) or (2)
billable message data and/or access usage data received from other Local
Exchange Carriers (LECs) or LSPs or from CMDS to be distributed to such LSP.
This Appendix covers hosting in region (i.e., Missouri, Arkansas, Kansas,
Oklahoma and Texas) and hosting out of region. Hosting out of region is only
available to an LSP that is a Full Status Revenue Accounting Office (RAO)
company.
I. DEFINITIONS
A. Access Usage Record (AUR) - a message record which contains the
usage measurement reflecting the service feature group, duration
and time of day for a message which is subsequently used by a LEC
to bill access to an Interexchange Carrier (IXC).
B. Bellcore Client Company Calling Card and Third Number Settlement
(BCC CATS) System - nationwide system used to produce information
reports that are used in the settlement of LEC or LSP revenues
recorded by one BCC (or LEC or LSP within the territory of that
BCC) and billed to a customer of another BCC (or LEC or LSP within
the territory of that BCC) as described in accordance with the
Bellcore Practice BR 981-200-110.
C. Billable Message Record - a message record containing details of a
completed call which has been carried by a LEC over its facilities
or by LSP over its facilities and such record is to be used to
bill an end user.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange
Message Record (EMR) formatted billing data between a company
originating a message and the company billing for a message.
E. Exchange Message Record (EMR) - industry standard message format
as described in accordance with the Bellcore Practice BR
010-200-010 which was developed to facilitate the exchange of
telecommunications message information.
F. Full Status Revenue Accounting Office (RAO) - an LSP or LEC that
is responsible for formatting EMR records, and for editing and
packing of such detail records into files for distribution.
<PAGE> 98
APPENDIX HOST
Page 3 of 5
G. In-Region Hosting - includes the transport, using Hosting Company
network, of (1) billable message record data for LEC or LSP
transported messages and/or access usage record data that
originate in a region and are delivered by the LSP to SWBT at a
mutually agreed upon location within the territory of SWBT to be
sent to another LEC or LSP for billing; and (2) billable message
record data and/or access usage data received from CMDS or another
LEC or LSP to be delivered to the LSP for billing to its end user
located within the five state territory of SWBT.
H. Out-of-Region Hosting - includes the transport, using the national
CMDS network, of (1) billable message record data for LEC or LSP
transported messages and/or access usage record data that
originate out of region and are delivered by the LSP to SWBT and
are to be sent to another LEC or LSP for billing; and (2) billable
message record data and/or access usage data received from CMDS or
another LEC or LSP to be delivered to the LSP for billing to its
end user located outside SWBT's five state territory.
I. Non-Full Status Revenue Accounting Office (RAO) - An LSP or LEC
that has assigned responsibility to SWBT for editing, sorting and
placing billing message record detail and/or access usage record
detail into packs for distribution.
II. RESPONSIBILITIES OF THE PARTIES
A. All data forwarded from LSP must be in the industry standard EMR
format in accordance with Bellcore Practice BR 010-200-010. The
LSP is responsible to ensure all appropriate settlement plan
indicators are included in the message detail, i.e., the Bellcore
Client Company Calling Card and Third Number Settlement (BCC CATS)
System. The LSP acknowledges that the only message records subject
to this Hosting Appendix are those that arise from LEC or LSP
transported billable messages and/or access usage records to be
used by a LEC or LSP for the purpose of billing access to an IXC.
B. When LSP delivers billable message data and/or access usage data
to SWBT which must be forwarded to another location for billing
purposes, SWBT will accept data from the LSP, perform edits to
make message detail and access usage records consistent with CMDS
specifications, and use its in region data network to forward this
data to the appropriate billing company or to access the national
CMDS network in order to deliver this data to the appropriate
billing and/or processing company.
If LSP is not a Full Status RAO Company, SWBT will also sort
billable message detail and access usage record detail by Revenue
Accounting Office, Operating Company Number or Service Bureau and
split data into packs for invoicing prior to using its in region
network to forward this data to the appropriate billing company or
to access the national CMDS network in order to deliver such data
to the appropriate billing company.
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C. For billable message data and/or access usage data received by
SWBT for delivery to an LSP location, SWBT will use its in region
data network to receive this data from other LECs or LSPs or from
CMDS in order to deliver such billable message data and/or access
usage data to the agreed upon billing LSP location.
III. BASIS OF COMPENSATION
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records that are received from LSP and destined for
delivery to another location for billing, at the rates listed below:
Per Record Charge
Full Status RAO Company
Hosting Company Network $.002
National CMDS Network $.005
Non-Full Status RAO Company
Hosting Company Network $.007
National CMDS Network $.010
As part of this per record charge, SWBT will provide Confir mation and/or
Error Reports and any Intercompany Settlement (ICS) Reports, such as the
Bellcore Client Company Calling Card and Third Number Settlement System
(BCC CATS), as needed.
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records which are entered on a magnetic tape or data
file for delivery to the LSP, at the rate listed below:
Per Record Charge $.003
IV. LIABILITY
A. Any failure to populate accurate information in accordance with
Section II.A. will be the responsibility of the LSP.
B. SWBT will not be liable for any costs incurred by the LSP when the
LSP is transmitting data files via data lines and a transmission
failure results in the non-receipt of data by SWBT .
C. SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING FROM, OR
ARISING OUT OF, OR IN CONNECTION WITH, THIS APPENDIX.
D. SWBT shall not be liable for any losses or damages arising out of
errors, interruptions, defects, failures, or malfunction of the
services provided hereunder,
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APPENDIX HOST
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including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole
negligence of SWBT. Any losses or damage for which SWBT is held
liable under this Appendix shall in no event exceed the amount of
charges made for the services provided hereunder during the period
beginning at the time SWBT receives notice of the error,
interruption, defect, failure or malfunction to the time service
is restored.
E. The LSP agrees to release, defend, indemnify, and hold harmless
SWBT from any and all losses, damages, or other liability,
including attorney fees, that it may incur as a result of claims,
demands, or other suits brought by any party that arise out of the
use of this service by the LSP, its customers or end users. The
LSP shall defend SWBT against all end user claims just as if LSP
had provided such service to its end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or indirectly,
by SWBT employees and equipment associated with provision of this
service. This includes, but is not limited to suits arising from
disclosure of any customer specific information associated with
either the originating or terminating numbers used to provision
this service.
VI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
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APPENDIX ITR
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APPENDIX ITR
(TRUNKING REQUIREMENTS)
This Appendix provides descriptions of the trunking requirements for the LSP and
SWBT interconnection. The attached scenarios depict the recommended trunk groups
for local, intraLATA toll, interLATA "meet point", mass calling, E911 and
Operator Services interconnection. All references to incoming and outgoing trunk
groups are from the perspective of the LSP.
I. LOCAL TRAFFIC AND INTRALATA TOLL TRAFFIC
(a) The LSP Originating (The LSP to SWBT)
When SWBT has a combined local and access tandem in an
exchange, IntraLATA Toll Traffic may be combined with the
Local Traffic on the same trunk group. When SWBT has more than
one combined local and access tandem in an exchange, the LSP
shall provide a separate trunk group to each SWBT tandem. When
there are separate SWBT access and local tandems in an
exchange, a separate local trunk group shall be provided to
the local tandem and a separate IntraLATA toll trunk group
shall be provided to the access tandem. This trunk group(s)
shall be one-way or two-way directionalized outgoing only and
will utilize Signaling System 7 (SS7) or multifrequency (MF)
protocol signaling.
(b) The LSP Terminating (SWBT to LSP)
When SWBT has a combined local and access tandem, SWBT shall
normally combine the Local and IntraLATA Toll Traffic over a
single trunk group to the LSP. When SWBT has a separate access
and local tandem in an exchange, a trunk group shall be
established from each tandem to the LSP. This trunk group(s)
shall be one-way or two-way directionalized incoming only and
will utilize SS7 or MF protocol signaling.
(c) Direct End Office Trunking
The Parties shall establish direct end office primary high
usage trunk groups for Local Traffic and/or IntraLATA Toll
Traffic when end office traffic requires twelve or more
trunks. If LSP has established collocation to the end office,
the trunks shall be provisioned over the LSP collocation
facility. If the LSP has no collocation facilities, SWBT shall
provision the trunks from the NIP to the end office. IntraLATA
Toll Traffic shall be provided over a separate trunk group to
the SWBT access tandem.
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II. ACCESS TOLL CONNECTING TRUNKS
InterLATA traffic shall be transported between the LSP Central Office
and the SWBT access tandem over a "meet point" trunk group separate
from local and intraLATA toll traffic. The access toll connecting trunk
group will be established for the transmission and routing of Exchange
Access traffic between the LSP's end users and interexchange carriers
via a SWBT access tandem. When SWBT has more than one access tandem
within an exchange, the LSP shall utilize a single access toll
connecting trunk group to one SWBT tandem within the exchange. This
trunk group may be set up as one-way or two-way (two-way is preferred)
and will utilize SS7 or MF protocol signaling. The traffic use code and
modifier for this trunk group should be MDJ (see Scenario 1, 2, 3, or
4).
III. 800 (888) TRAFFIC
If the LSP chooses SWBT to handle 800 (888) database queries from its
central office switches, all the LSP originating 800 (888) service
queries will be routed over the InterLATA Interexchange Carrier (MDJ)
trunk group. This traffic will include a combination of both InterLATA
Interexchange Carrier 800 (888) service and IntraLATA LEC 800 (888)
service that will be identified and segregated by carrier through the
database query handled through the SWBT tandem switch.
A separate trunk group from each Party to the other will be required
for IntraLATA 800 service if either Party chooses to handle the 800
database queries from its switch location. The purpose of the separate
trunk group is to provide for the segregation of originating 800
IntraLATA call volumes to ensure the proper billing of intercompany
settlement compensation.
The trunk group shall be set up as one-way outgoing only and will
utilize SS7 protocol signaling. The traffic use code and modifier for
this trunk group should be DD800J (see Scenario 1, 2, 3, or 4).
IV. E911
A segregated trunk group will be required to each appropriate E911
tandem within the exchange in which the LSP offers the Exchange
Service. This trunk group shall be set up as a one-way outgoing only
and shall utilize MF CAMA signaling. The traffic use code and modifier
for this trunk group shall be ESJ (see Scenario 1, 2, 3, or 4).
V. MASS CALLING (PUBLIC RESPONSE CHOKE NETWORK)
A segregated trunk group shall be required to the designated Public
Response Choke Network tandem in each serving area. This trunk group
shall be one-way outgoing only and shall utilize MF signaling. It is
recommended that this group be sized as follows:
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APPENDIX ITR
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<15001 access lines (AC) 2 trunks (min)
15001 to 25000 AC 3 trunks
25001 to 50000 AC 4 trunks
50001 to 75000 AC 5 trunks
>75000 AC 6 trunks (max)
The traffic use code and modifier for this trunk group shall be TOCRJ
(see Scenario 1, 2, 3, or 4).
VI. OPERATOR SERVICES
(a) No Operator Contract:
Inward Operator Assistance (Toll Center (TC) Code plus 121)
- The LSP may choose from two interconnection options
for Inward Operator Assistance as follows:
Option 1 - Interexchange Carrier (IXC) Carrier
The LSP may utilize the Interexchange Carrier Network (see
Scenario 6). The LSP operator will route its calls requiring
inward operator assistance through its designated IXC POP to
SWBT's TOPS tandem. SWBT shall route its calls requiring
inward operator assistance to the LSP's Designated Operator
Switch (TTC) through the designated IXC POP.
Option 2 - The LSP Operator Switch
The LSP reports its switch as the designated serving operator
switch (TTC) for its NPA-NXXs and requests SWBT to route its
calls requiring inward operator assistance to the LSP. This
option requires a segregated two-way (with MF signaling) trunk
group from SWBT's Access Tandem to the the LSP switch. The
traffic use code and modifier for this trunk group should be
OAJ (see Scenario 7). The LSP's operator will route its calls
requiring inward operator assistance to SWBT's operator over
an IXC network.
(b) Operator Contract with SWBT:
(i) Directory Assistance (DA):
The LSP may contract for DA services only. A
segregated trunk group for these services would be
required to SWBT's TOPS tandem. This trunk group is
set up as one-way outgoing only and utilizes MF and
Operator Services signaling. The traffic use code and
modifier for this trunk group should be DAJ (see
Scenario 5).
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APPENDIX ITR
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(ii) Directory Assistance Call Completion (DACC):
The LSP contracting for DA services may also contract
for DACC. This requires a segregated one-way trunk
group to SWBT's TOPS tandem. This trunk group is set
up as one-way outgoing only and utilizes MF
signaling. The traffic use code and modifier for this
trunk group should be DACCJ (see Scenario 5).
(iii) Busy Line Verification:
When SWBT's operator is under contract to verify the
LSP's end user loop, SWBT will utilize a segregated
one-way with MF signaling trunk group from SWBT's
Access Tandem to the the LSP switch. The traffic use
code and modifier for this trunk group should be VRJ
(see Scenario 5).
(iv) Operator Assistance (0+, 0-):
This service requires a one-way trunk group from the
the LSP switch to SWBT's TOPS tandem. Two types of
trunk groups may be utilized. If the trunk group
transports DA/DACC, the trunk group will be
designated as ETCMFJ (0-, 0+, DA, DACC) (see Scenario
5). If DA is not required or is transported on a
segregated trunk group, then the group will be
designated as ETCM2J (see Scenario 5). MF and
Operator Services signaling will be required on the
trunk group.
VII. Trunk Design Blocking Criteria
Trunk forecasting and servicing for the Local and IntraLATA Toll trunk
groups shall be based on the industry standard objective of 2% overall
time consistent average busy season busy hour loads (1% from the End
Office to the Tandem and 1% from the Tandem to the End Office based on
Neil Wilkinson B.01M [Medium Day-to-Day Variation] until traffic data
is available ). Listed below are the trunk group types and their
objectives:
Trunk Group Type Blocking Objective (Neil Wilkinson M)
- --------------------------------------------------------------------------------
Local Tandem 1%
Local Direct 2%
IntraLATA Interexchange 1%
911 1%
Operator Services (DA/DACC) 1%
Operator Services (0+, 0-) 0.5%
InterLATA Tandem 0.5%
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APPENDIX ITR
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VIII. FORECASTING/SERVICING RESPONSIBILITIES
Both Parties agree to provide an initial forecast for establishing the
initial interconnection facilities. Subsequent forecasts will be
provided on a semi-annual basis concurrent with the publication of the
SWBT General Trunk Forecast including yearly forecasted trunk
quantities for all trunk groups described in this Appendix for a
minimum of three years and the use of Common Language Location
Identifier (CLLI-MSG) which is described in Bellcore documents
BR795-100-100 and BR795-400-100. Trunk servicing will be performed on a
monthly basis at a minimum.
SWBT shall be responsible for forecasting and servicing the trunk
groups terminating to the LSP. The LSP shall be responsible for
forecasting and servicing the trunk groups terminating to SWBT end
users and/or to be used for tandem transit to other provider's
networks, operator services and DA service, and interLATA toll service.
Standard trunk traffic engineering methods will be used as described in
Bell Communications Research, Inc. (Bellcore) document SR-TAP-000191,
Trunk Traffic Engineering Concepts and Applications.
IX. TRUNK SERVICING
1. Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an Access
Service Request ("ASR").
2. All Parties shall jointly manage the capacity of local
Interconnection Trunk Groups. Either Party may send the other
Party an ASR to initiate changes to the Local Interconnection
Trunk Groups that the ordering Party desires based on the
ordering Party's capacity assessment. The receiving Party will
issue a Firm Order Confirmation ("FOC") and a Design Layout
Record ("DLR") to the ordering Party within five (5) business
days after receipt of the ASR.
3. Orders that comprise a major project (i.e., new switch
deployment) shall be submitted in a timely fashion, and their
implementation shall be jointly planned and coordinated.
4. SWBT will process trunk service requests submitted via a
properly completed ASR within twenty (20) business days of
receipt of such ASR. Facilities must also be in place before
trunk orders can be completed.
5. In the event that a Party requires trunk servicing within
shorter time intervals than those provided for in this Article
XI due to a bona fide end user demand, such Party may
designate its ASR as an "Expedite" and the other Party shall
use best efforts to issue its FOC and DLR and install service
within the requested interval.
6. Each Party shall be responsible for engineering their
networks on their side of the NIP.
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APPENDIX ITR
Page 7 of 8
X. SERVICING OBJECTIVE/DATA EXCHANGE
Each Party agrees to service trunk groups to the foregoing blocking
criteria in a timely manner when trunk groups exceed measured blocking
thresholds on an average time consistent busy hour for a 20 business
day study period. Upon request, each Party will make available to the
other, trunk group measurement reports for trunk groups terminating in
the requesting Party's network. These reports will contain offered
load, measured in CCS (100 call seconds), that has been adjusted to
consider the effects of overflow, retrials and day-to-day variation.
They will also contain overflow CCS associated with the offered load,
day-to-day variation, peakedness factor, the date of the last week in
the four week study period and the number of valid days of measurement.
These reports shall be made available at a minimum on a semi-annual
basis upon request.
XI. SPECIFICATIONS
All DS-1 and DS-3 facilities utilized for trunking established or
employed by the Parties for purposes of this STC shall meet the
specifications set forth in SWBT's TP-76625 dated June, 1990 and
TP-76839 dated January, 1996.
XII. TRUNK FACILITY UNDER UTILIZATION
At least once a year the Parties shall exchange trunk group measurement
reports as detailed above for trunk groups terminating to the other
Party's network. Each Party will determine the required trunks for each
of the other Party's trunk groups for the previous 12 months. Required
trunks will be based on the Blocking Objectives under "Trunk Design
Blocking Criteria" above and time consistent average busy hour usage
measurements from the highest 4 consecutive week (20 business day)
study. Trunk groups with excess capacity will be identified to the
other Party as eligible for downsizing. Excess capacity exists when a
trunk group, on a modular trunk group design basis, has 48 trunks (2
modular digroups) or 10%, whichever is larger, over the required number
of trunks.
The party with excess trunking capacity will assess the trunk capacity
based on forecasted requirements and agrees to disconnect trunks in
excess of forecasted requirements for the next 12 months. If after 12
months the trunk group continues to have excess capacity the party
agrees to take timely steps to disconnect all excess capacity.
XIII. Where available and upon the request of the other Party, each Party
shall cooperate to ensure that its trunk groups are configured
utilizing the B8ZS ESF protocol for 64 kbps clear channel transmission
to allow for ISDN interoperability between the Parties' respective
networks.
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APPENDIX ITR
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XIV. INSTALLATION, MAINTENANCE, TESTING AND REPAIR. SWBT's standard
intervals for Feature Group D Switched Exchange Access Services will
be used for Interconnection trunks as specified in the most current
SWBT Accessible Letter, currently SWA96-036, dated April 15, 1996. The
LSP shall meet the same intervals for comparable installations,
maintenance, joint testing, and repair of its facilities and services
associated with or used in conjunction with Interconnection or shall
notify SWBT of its inability to do so and will negotiate such
intervals in good faith.
<PAGE> 108
APPENDIX ITR - SCENARIOS
PAGE 1 of 7
SCENARIO 1
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
2. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7 SIGNALING) #
5. MDJ INTERLATA ONLY (MF SIGNALING) @
6. MDJ INTERLATA ONLY (SS7 SIGNALING)
7. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and Feature
Group B over D.
# Required if SWBT does not perform the database query for the LSP.
Revised 6/17/96
LSP1.AF3
<PAGE> 109
APPENDIX ITR - SCENARIOS
PAGE 2 of 7
SCENARIO 2
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITH SOME DIRECT END OFFICE, ILEC AND IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
4. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. MDJ INTERLATA ONLY (MF SIGNALING) @
8. MDJ INTERLATA ONLY (SS7 SIGNALING)
9. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and Feature
Group B over D.
# Required if SWBT does not perform the database query for the LSP.
Revised 6/17/96
LSP2.AF3
<PAGE> 110
APPENDIX ITR - SCENARIOS
PAGE 3 of 7
SCENARIO 3
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. TOJ LOCAL ONLY (SS7 SIGNALING)
2. TGJ LOCAL ONLY (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
5. DDJ INTRALATA ONLY (SS7 SIGNALING)
6. TCJ INTRALATA ONLY (SS7 SIGNALING)
7. MDJ INTERLATA ONLY (SS7 SIGNALING)
8. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform the database query for the LSP.
Revised 12/30/96
LSP3.AF3
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APPENDIX ITR - SCENARIOS
PAGE 4 of 7
SCENARIO 4
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITH SOME DIRECT END OFFICE, ILEC AND IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. TOJ LOCAL ONLY (SS7 SIGNALING)
4. TGJ LOCAL ONLY (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. DDJ INTRALATA ONLY (SS7 SIGNALING)
8. TCJ INTRALATA ONLY (SS7 SIGNALING)
9. MDJ INTERLATA ONLY (SS7 SIGNALING)
10. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform database query for the LSP.
Revised 12/30/96
LSP4.AF3
<PAGE> 112
APPENDIX ITR - SCENARIOS
PAGE 5 of 7
SCENARIO 5
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS THE OPERATOR SERVICES PROVIDER FOR THE LSP
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. VRJ BUSY LINE VERIFICATION (MF SIGNALING) #
2. DAJ or DACCJ DIRECTORY ASSISTANCE or DIRECTORY ASSISTANCE CALL
COMPLETION (MF SIGNALING, OPERATOR SERVICES SIGNALING)
3. ETCM2J 0-, 0+ COMBINED COIN AND NONCOIN (MF SIGNALING, OPERATOR
SERVICES SIGNALING)
4. ETCMFJ 0-, 0+, DA, DACC COMBINED COIN AND NONCOIN (MF SIGNALING,
OPERATOR SERVICES SIGNALING)
# Busy Line Verification is sometimes trunked out from the TOPS Tandem rather
than the Access Tandem.
Revised 1/7/97
LSP5.AF3
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APPENDIX ITR - SCENARIOS
PAGE 6 OF 7
SCENARIO 6
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER FOR THE LSP
121 INWARD OPERATOR ASSISTANCE
[CHART]
Note: THIS SCENARIO WOULD USE EXISTING INTEREXCHANGE CARRIER NETWORK.
REVISED 6/17/96
LSP6.AF3
<PAGE> 114
APPENDIX ITR - SCENARIOS
PAGE 7 OF 7
SCENARIO 7
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER
FOR THE LSP AND THE LSP'S SWITCH IS THE DESIGNATED
OPERATOR SWITCH (TTC) FOR 121 INWARD ASSISTANCE
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. OAJ ACCESS TO INWARD OPERATOR (121) (MF SIGNALING)
REVISED 6/17/96
LSP7.AF3
<PAGE> 115
APPENDIX LIDB
Page 2
APPENDIX LIDB
AGREEMENT FOR THE PROVISION OF DATA BASE ADMINISTRATION
AND
LINE INFORMATION DATA BASE (LIDB) STORAGE
This Appendix, between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide data base administration to store LSP's line/billing
records in SWBT's Line Information Data Base (LIDB).
WHEREAS, SWBT owns and maintains a Line Validation Administration System (LVAS)
that provides facilities for adding, deleting, and changing information in LIDB;
and
WHEREAS, SWBT maintains LIDB for various purposes, including the validation of
alternately billed service (ABS) requests and the provision of other services;
and
WHEREAS LSP desires to have SWBT use LVAS to administer LSP's line information
cords for the provision of services set forth in the exhibits attached to this
Appendix; and
WHEREAS SWBT is willing to provide, where equipment, processing capability and
hardware configurations permit, such LVAS services and LIDB storage for LSP; and
WHEREAS, SWBT owns and maintains a Sleuth System that provides facilities for
ABS fraud monitoring; and
WHEREAS LSP desires SWBT to use its Sleuth System for ABS fraud monitoring of
its telecommunications traffic.
NOW, THEREFORE, in consideration of the mutual promises and undertakings made,
the parties agree as follows:
1. DEFINITIONS
As used herein and for the purpose of this Appendix, the following
terms shall have the meanings set forth below:
A. Alternate Billing Services (ABS) - A service that allows end
users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect and third number billed calls.
B. Billed Number Screening (BNS) - A process which utilizes a
database to determine specific characteristics and/or end user
preferences with respect to a billed number.
<PAGE> 116
APPENDIX LIDB
Page 3
C. Calling Card Service (CCS) - A service which enables a calling
customer to bill a telephone call to a calling card number
with or without the help of an operator.
D. Data Base - An integrated collection of related data. In the
case of the LIDB, the data base is the line number and related
line information.
E. Data Base Administration Center (DBAC) - The LIDB input center
where the LVAS facility and administrative personnel are
currently located.
F. Exchange - For the purpose of this Appendix, a specific
NPA-NXX combination.
G. Group Record - Information in LIDB or LVAS that is common
to all lines or billing records in an NPA-NXX or NPA-RAO.
H. LIDB Editor - A database editor located at the SCP where LIDB
resides. LIDB ditor provides emergency access to LIDB that
bypasses the service management system for LIDB.
I. Line Validation Administration System (LVAS) - An off-line
administrative system, used by SWBT to add, delete and change
information in LIDB.
J. Line Information Data Base (LIDB) - The line information
database, which is an ANSI SS7 database system, functions as a
centralized repository for data storage and retrieval. LIDB
supports validation and recording of ABS requests. LIDB also
supports storage, retrieval and recording capabilities for
other information that can be associated with an end user's
line. Examples of such information are, or are expected to be,
originating screening information, ZIP code data and calling
name.
K. Line Record - Information in LIDB or LVAS that is specific to
a single telephone number or special billing number.
L. Personal Identification Number (PIN) - A confidential four
digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in the LIDB for those line numbers that have an
associated calling card.
M. Response - A single response in a set of predefined expected
responses to a request for information contained in a query
from a computer processor.
N. Toll Billing Exception (TBE) - A LIDB option that allows
end users to restrict
<PAGE> 117
APPENDIX LIDB
Page 4
third number billing or collect calls to their lines.
O. Service Management System (SMS) - An off-line system used to
access, create, modify, or update information in LIDB. For the
purposes of this appendix, the SMS for LIDB is LVAS.
P. Sleuth - An off-line administration system that SWBT uses to
monitor suspected occurrences of ABS-related fraud. Sleuth
uses a systematic pattern analysis of query message data to
identify potential incidences requiring fraud investigation.
Detection parameters are based upon vendor recommendations and
SWBT's analysis of collected data and are subject to change
from time to time.
Q. Special Billing Number (SBN) Account Groups - Line records in
LIDB that are based on an NPA-RAO numbering format. NPA-RAO
numbering formats are similar to NPA-NXX formats except that
the fourth digit of an NPA-RAO line record is either a zero
(0) or a one (1).
R. Tape Load Facility - A separate data entry point at the SCP
where LIDB resides. The Tape Load Facility provides direct
access to LIDB for data administrationadministation that
bypasses the service management system for SWBT's LIDB.
S. Translation Type - A code in the Signaling Connection Control
Point (SCCP) of the SS7 signaling message. Translation Types
are used for routing LIDB queries. Signal Transfer Points
(STP's) use Translation Types to identify the routing table
used to route a LIDB query. All LIDB queries against the same
exchange and Translation Type are routed to the same LIDB.
2. General Description
A. SWBT's LIDB is connected directly to a service management
system (i.e., LVAS), a database editor (i.e., LIDB Editor),
and a tape load facility. Each of these facilities, processes,
or systems, provide SWBT with the capability of creating,
modifying, changing, or deleting, line/billing records in
LIDB. SWBT's LIDB is also connected directly to an adjunct
fraud monitoring system (i.e., Sleuth).
B. SWBT will provide LSP with access to LVAS, LIDB Editor, and
tape load facility as set forth in this Appendix and the
Exhibit or Exhibits attached hereto. SWBT warrants that the
manner in which it provides such access to LSP will be
equivalent to the manner in which SWBT provides such access to
itself.
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APPENDIX LIDB
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C. SWBT will also provide LSP with fraud alerts from Sleuth as
set forth in this Appendix and in Exhibit IV (Sleuth). SWBT
warrants that it will provide fraud alerts to LSP using the
same fraud monitoring parameters as SWBT uses for itself.
D. From time-to-tome, SWBT enhances its LIDB to create new
services and/or LIDB functionalities. Such enhancements may
involve the creation of new line-level or group-level data
elements in LIDB. SWBT will coordinate with LSP to provide LSP
with the opportunity to update its data concurrent with SWBT's
updates of SWBT's own data. Both parties understand and agree
that some LIDB enhancements will require LSP to update its
line/billing records with new or different information.
E. Charges for the provisioning of Data Base Administration and
LIDB Storage are set forth in Exhibit II (Basis of
Compensation).
3. Service Description
3.1 LVAS
LVAS provides LSP with the capability to access, create,
modify or update information in LIDB. LVAS has two electronic interfaces. These
interfaces are the Service Order Entry Interface and the Interactive Interface.
3.1.1 Service Order Entry Interface
(A) The Service Order Entry Interface provides
LSP with unbundled access to SWBT's LVAS
that is equivalent to SWBT's own service
order entry process to LVAS. Service Order
Entry Interface allows LSP to electronically
transmit properly formatted records from
LSP's service order process into LVAS.
(B) LSP's access to the Service Order Entry
Interface will be through a remote access
facility (RAF). The RAF will provide SWBT
with a security gateway for LSP access to
the Service Order Entry Interface. The RAF
will verify the validity of LSP's
transmissions and limit LSP's access to
SWBT's Service Order Entry Interface to
LVAS. LSP does not gain access to any other
SMS, interface, database, or operations
support system through this Appendix.
(C) SWBT will provide LSP with the file transfer
protocol specifications LSP will use to
administer LSP's data over the
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APPENDIX LIDB
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Service Order Entry Interface. LSP
acknowledges that transmission in such
specified protocol is necessary for SWBT to
provide LSP with Data Base Administration
and Storage.
(D) LSP can choose the Service Order Entry
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific
documentation for properly formatting the
records LSP will transmit over the Service
Order Entry Interface.
(F) LSP understands that its record access
through the Service Order Entry Interface
will be limited to its own line/billing
records.
3.1.2 Interactive Interface
(A) The Interactive Interface provides LSP with
unbundled access to SWBT's LVAS that is
equivalent to SWBT's access at its LIDB
DBAC. Interactive Interface provides LSP
with the ability to have its own personnel
access LSP's records via an application
screen that is presented on a computer
monitor. Once LSP has accessed one of its
line/billing records, LSP can perform all of
the data administration tasks SWBT's LIDB
DBAC personnel can perform on SWBT
line/billing records.
(B) SWBT will provide LSP with Interactive
Interface through a modem. LSP understands
that its record access through the
Interactive Interface will be limited to its
own line/billing records.
(C) LSP will use hardware and software that is
compatible with LVAS hardware and software.
(D) LSP can choose to request the Interactive
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific
documentation in the form of screen prints
and prints of help screens.
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APPENDIX LIDB
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3.1.3 Manual Interface
(A) Manual Interface is available only if the
LSP has 1,000 line/billing records or less.
Manual Interface allows LSP to fax updates
to SWBT's LIDB DBAC. SWBT's LIDB DBAC
personnel will manually enter these faxed
updates into LVAS for LSP.
(B) Manual Interface is not available with any
other interface SWBT provides under this
Appendix.
(C) LSP understands that its record access
through the Manual Interface will be limited
to its own line/billing records.
3.2 Tape Load Facility Interface
(A) Tape Load Facility Interface provides LSP with
unbundled access to SWBT's Tape Load Facility in the
same manner that SWBT accesses this facility. Tape
Load Facility Interface allows LSP to create and
submit magnetic tapes for input into LIDB.
(B) The Tape Load Facility Interface is not an interface
to LVAS. The Tape Load Facility Interface is an entry
point to LIDB at the SCP where LIDB resides.
(C) The Tape Load Facility Interface is available only
when the amount of information is too large for LVAS
to accommodate. Both parties agree that these
situations normally occur during the initial load of
LSP's information into LIDB or when LIDB is updated
for a new product. The Tape Load Facility Interface
is not available for ongoing updates of information.
LSP may request the Tape Load Facility Interface only
when its updates exceed 100,000 line/billing records
over and above the LSP's normal daily update
processing.
(D) LSP will create its own tapes in formats specified in
GR-446-CORE, Issue 2, June 1994, as revised. Such
tapes will only include information associated with
LSP's line/billing records.
(E) LSP will deliver a separate set of tapes, each having
identical information to each SCP node on which LIDB
resides. SWBT will provide LSP with the name and
address of the SWBT employee designated to receive
the tapes at each location.
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APPENDIX LIDB
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(F) In addition to the tapes LSP will create and deliver
to the SCP node locations, LSP shall deliver an
additional set of tapes to the LVAS System
Administrator so that SWBT can load LSP's updates
into LVAS. LSP understand that these additional tapes
must contain information identical to the tapes
delivered to the SCP nodes, but that the format will
differ. SWBT shall provide LSP SWBT-specific
documentation for record formations of these
additional tapes. SWBT shall use these tapes to
create LSP records in LVAS that correspond with the
records being loaded into LIDB using the Tape Load
Facility Interface. SWBT shall provide LSP with the
name and address of the SWBT System Administrator to
whom the LVAS update tapes should be sent.
(G) SWBT and LSP shall negotiate mutually agreed upon
dates and times for tape loads of LSP data when such
loads are the result of an LSP request.
(H) LSP understands and agrees that its record access
through the Tape Load Facility Interface is only for
LSP's own line/billing records. LSP warrants that it
shall not use the Tape Load Facility Interface to
modify any group record. LSP further warrants that it
shall not use the Tape Load Facility Interface to
modify any line/billing record not belonging to LSP.
3.3 LIDB Editor Interface
(A) LIDB Editor Interface provides LSP with unbundled
access to SWBT's LIDB Editor equivalent to SWBT's
manner of access. LIDB Editor provides LSP with
emergency access to LIDB only when LVAS is unable to
access LIDB or is otherwise inoperable.
(B) LIDB Editor Interface is not an interface to LVAS.
LIDB Editor is an SCP tool accessible only by
authorized SWBT employees. LSP shall have access to
SWBT employees authorized to access LIDB Editor
during the same times and under the same conditions
that SWBT has access to LIDB Editor.
(C) LSP understands that its record access through the
LIDB Editor Interface is limited to its own
line/billing records.
3.4 Audits
SWBT shall provide LSP with access equivalent to SWBT's own
access
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APPENDIX LIDB
Page 9
to LVAS audit functionalities.
3.4.1 LIDB Audits
(A) This audit is between LVAS and LIDB. This
audit verifies that LVAS records match LIDB
records. The LIDB Audit is against all line
records and group record information in LVAS
and LIDB, regardless of data ownership.
(B) SWBT shall run the LIDB audit continuously
throughout each and every day.
(C) SWBT shall create a "variance file" of all
LSP records that fail the LIDB audit. LSP
can access these files through the
Interactive Interface.
(D) LSP shall investigate accounts that fail the
LIDB audit and correct any discrepancies as
set forth in paragraph 3(H). LSP shall
correct all discrepancies using the LVAS
interface(s) LSP has requested under this
Appendix.
3.4.2 Billing System Audit
(A) This type of audit is between LVAS and
SWBT's billing system(s). This audit
verifies that LVAS records match SWBT's
billing system records.
(B) SWBT shall provide LSP with access
equivalent to SWBT's own access to the
billing system audit functionality. SWBT
shall provide LSP with a file containing LSP
records in LIDB. LSP shall specify if the
billing system audit tape will be delivered
by either magnetic tape or electronically
over the Service Order Entry Interface.
(C) LSP shall audit its LIDB accounts against
LSP's billing system and correct any
discrepancies as set forth in paragraph
3(H). LSP shall correct all discrepancies
using the LVAS interface(s) LSP has
requested under this Appendix.
(C) SWBT shall provide LSP scheduled and
unscheduled billing system audits as set
forth below:
(1) Scheduled Audits
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APPENDIX LIDB
Page 10
SWBT shall provide LSP with a
billing system audit file twice per
year. Such audit files will
represent LSP's entire data store in
LVAS. The Parties shall mutually
agree upon the dates such audit
files will be provided.
(2) Unscheduled Audits
LSP can request additional audit
files and SWBT will work
cooperatively to accommodate all
reasonable LSP requests for such
additional audit files. Charges for
additional audit files shall apply
as set forth in Exhibit II (Basis
for Compensation).
3.5 Sleuth
(A) Sleuth notification provides LSP with Sleuth
alert messages. Sleuth alert messages
indicate potential incidences of ABS-related
fraud for investigation.
(B) Sleuth historical reports are available to
LSP as set forth in Exhibit IV (Sleuth).
3. Manner of Provisioning
(A) SWBT shall provide to LSP, on request, SWBT-specific
documentation regarding record formatting and associated
hardware requirements for LSP to access each of the interfaces
SWBT provides for LIDB data administration.
(B) LSP shall obtain, at its own expense, all necessary
documentation produced by non-SWBT entities such as Bellcore.
(C) Magnetic tapes submitted by LSP must conform to the hardware
specifications of each SCP node where LIDB resides. This
includes 9-track and 8mm tapes as well as other site-specific
limitations. SWBT shall provide LSP with all magnetic tape
hardware requirements upon request. LSP shall create the
magnetic tapes its submits for input into LIDB and LVAS over
the tape load interface.
(D) SWBT shall input information provided by LSP into LIDB for the
NPA-NXXs and/or NPA-RAOs set forth in Exhibit I, EXCHANGES TO
BE ADMINISTERED, attached hereto and made a part hereof. LSP
shall provide all information needed by SWBT to support the
services being requested. This information may include, but is
not limited to, Calling Card Service information, Toll Bill
Exception information (such as restrictions on collect
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APPENDIX LIDB
Page 11
and third number billing), class of service information,
originating line number screening information, ZIP code
information, and calling name information.
(E) LSP shall furnish, prior to the initial LVAS load, and as
requested by SWBT thereafter, the following forecast data:
- the number of working lines per account group
- the number of working line numbers to be established
- the average number of monthly changes to these records
- the number of busy hour queries, by query type
- the number of annual queries by query type
If SWBT, at its discretion, determines that it lacks adequate
storage, or processing capability, prior to the initial
loading of LSP information, SWBT shall notify LSP of its
intent to not provide to LSP the Services under this Appendix
and this Appendix will be void.
(F) LSP shall furnish all line records and group records in a
format required by SWBT to establish records in LIDB for all
working line numbers, not just line numbers associated with
calling card PIN or Toll Billing Exceptions (TBE).
(G) LSP acknowledges that SWBT's LIDB is accessible by many
telecommunications companies and that these telecommunications
companies expect a high degree of accuracy in the response
information provided to their queries. LSP shall administer its
data in such a manner that SWBT's accuracy of response
information is not adversely impacted.
(H) LSP shall verify to SWBT the line information data residing in
LVAS by reviewing the listing of line information data provided
by SWBT's billing system audit file. LSP shall provide to SWBT
all additions, deletions, and corrections resulting from its
verification on, or before, the fourteenth business day
following its receipt of line information verification reports
produced by SWBT for audit processes.
(I) SWBT shall provide the functionality needed to perform certain
query/response functions on a call-by-call basis for the
line/billing records of LSP that reside in SWBT's LIDB. Those
query/response functions SWBT will perform are set forth in the
Exhibits.
(J) With respect to all matters covered by this Appendix, each
Party shall adopt and comply with SWBT standard operating
methods and procedures and shall observe the rules and
regulations which cover the administration of LVAS service and
the Sleuth System, as set forth in SWBT practices. The Parties
acknowledge that those practices may be changed by SWBT from
time to time.
<PAGE> 125
APPENDIX LIDB
Page 12
(K) Administration of the SCP on which LIDB resides, as well as any
system or query processing logic that applies to all data
resident on SWBT's LIDB is, and remains, the responsibility of
SWBT. LSP acknowledges that SWBT, in its role as system
administrator, may need to access any record in LIDB, including
any such records of LSP. SWBT shall limit such access to those
actions necessary to ensure the successful operation and
administration of SWBT's SCP and LIDB.
(L) LSP acknowledges that SWBT shall, in its sole discretion, allow
or negotiate any access to SWBT's LIDB. LSP does not gain any
ability, by virtue of this Appendix, to determine which
telecommunications companies are allowed to access information
in SWBT's LIDB. LSP acknowledges that when SWBT allows a query
originator to access SWBT data in SWBT's LIDB, such query
originators shall also have access to LSP's data that is also
stored in SWBT's LIDB.
(M) LSP acknowledges that SWBT does not have data screening
capability in LIDB. Data Screening is the ability of a LIDB
owner to deny complete or partial access to LIDB data or
processes.
4. Billing
Compensation to SWBT for data storage and administration service and
Sleuth services shall be based upon the rates set forth in Exhibit II
(Basis of Compensation), attached hereto and made a part hereof. These
rates will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
seventy-five (75) days' notice. SWBT may first give such notice
seventy-five days before the end of the first year.
4.1 SWBT Responsibilities
(A) SWBT shall determine, for billing purposes, the
number of access lines that are administered for each
NPA-NXX or NPA-RAO for which SWBT performs the
database administration function on behalf of LSP.
SWBT shall quantify access lines monthly.
(B) SWBT shall provide, upon written request, such data
as is reasonably necessary to verify billing charges
for data base administration update functions. SWBT
shall provide this information in standard SWBT LVAS
report formats.
(C) SWBT shall provide such data, as is reasonably
necessary, to enable the independent Billing
Information Systems (IBIS) billing statements to be
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APPENDIX LIDB
Page 13
substantiated for query volumes of LSP line/billing
records that reside in SWBT's LIDB. SWBT shall
provide this data to LSP in standard Exchange Message
Record (EMR) format.
4.2 LSP Responsibilities
(A) LSP shall pay SWBT the amounts billed for the
services rendered.
(B) LSP shall bill the appropriate charges to end users,
on behalf of third parties who query LIDB and receive
a response verifying the end user's willingness to
accept the charges for the underlying call.
(C) LSP shall provide to third parties, that query LIDB
and receive a response verifying an end user's
willingness to accept charges of services supported
by LIDB, all necessary billing information needed by
the third party to bill for the services provided.
4.3 Compensation for Data Access
(A) Subject to the limitations in (B) below, SWBT shall
compensate LSP for queries against the data LSP
stores in SWBT's LIDB. Queries by SWBT and LSP
against the data LSP stores in SWBT's LIDB shall be
included in the count of queries for which LSP will
be compensated. SWBT shall compensate LSP by paying a
percentage of the amounts SWBT billed, or would have
billed, for each query. LSP acknowledges that the
amount SWBT bills for LIDB queries against LSP's data
may differ by query type, by query originator, and/or
may change over time. The percentage SWBT will use to
calculate such credits is set forth in Exhibit II
(Basis of Compensation).
(B) LSP acknowledges that SWBT's ability to provide such
credit is based upon SWBT's ability to identify
account ownership in LIDB. LSP acknowledges that LIDB
currently identifies account ownership only at the
level of the group record (i.e., NPA-NXX or NPA-RAO).
LSP further agrees that SWBT will not provide such
credit for LSP accounts that reside in group records
that also contain SWBT or other data owner accounts.
SWBT agrees to work with its LIDB and switch vendors
to attempt to develop the capabilities for SWBT to
identify, and record for billing, the service
provider of individual line/billing records. SWBT
shall provide LSP compensation if SWBT implements
such capabilities in its network.
5. Liability
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APPENDIX LIDB
Page 14
(A) SWBT shall not be liable for any losses or damages
arising out of errors, interruptions, defects,
failures, or malfunction of LVAS, including any and
all associated equipment and data processing systems,
except such losses or damages caused by the sole
negligence of SWBT. Any losses or damages for which
SWBT is held liable under this Appendix shall in no
event exceed the amount of charges made for LVAS
during the period beginning at the time SWBT receives
notice of the error, interruption, defect, failure or
malfunction to the time service is restored.
(B) SWBT shall not be liable for any losses or damages
arising out of SWBT's administration of Sleuth.
(C) SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES RESULTING FROM, OR ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT.
(D) LSP agrees to release, indemnify, defend, and hold
harmless SWBT from any and all claims, demands, or
suits brought by a third party against SWBT, directly
or indirectly, arising out of SWBT's provision of
service under this Appendix. This provision shall not
apply to any losses, damages or other liability for
which SWBT is found liable as a result of its sole
negligence.
6. Disclaimer of Warranties
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO LVAS
SERVICE, LIDB OR THE SLEUTH SYSTEM. ADDITIONALLY, SOUTHWESTERN BELL
ASSUMES NO RESPONSIBLEILITY WITH REGARD TO THE CORRECTNESS OF THE DATA
SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
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APPENDIX LIDB
Page 15
APPENDIX LIDB
EXHIBIT I
EXCHANGES TO BE ADMINISTERED
SWBT shall provide service management system and other interface service
capabilities to LSP as set forth in this Appendix and attached Exhibit or
Exhibits for the following LSP exchanges:
EXCHANGE NAME NPA NXX NPA-RAO
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
---------------------- ------------------------- -------------------
(Attach additional copies as needed)
<PAGE> 129
APPENDIX LIDB
EXHIBIT II
BASIS OF COMPENSATION
1. COMPENSATION :
All rates and charges contained in this section are applicable in all regulatory
jurisdictions.
2. RATES AND CHARGES
Manual Interface Rate Per Initial Load
(a) Initial Load ---------------------
(1) per initial load $372.00
(2) per 100 line records
loaded $ 55.00
Rate Per Month
(b) Ongoing Updates --------------
(1) per month $ 51.00
(2) per 100 line records
stored in LIDB $ 3.75
<PAGE> 130
APPENDIX LIDB
EXHIBIT III
CALLING CARD AND BILLED NUMBER SCREENING VALIDATION
(A) SWBT shall provide the functionality needed to perform the
following query/response functions, on a call-by-call basis,
for the line/billing records residing in SWBT's LIDB to:
1. Validate a 14-digit billing number where the first 10
digits are a telephone number or a special billing
number assigned and the last four digits (PIN) are a
security code assignment.
2. Determine whether the billed line automatically
rejects, accepts, or requires verification of certain
calls billed as collect or third number.
3. Determine whether the billed line is a public telephone
number using the Class of Service information in the
LIDB.
B. LSP shall bill the appropriate charges to end users, on behalf
of third parties who query LIDB and receive a response
validating the end user's willingness to accept the charges
for the underlying call.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 131
APPENDIX LIDB
EXHIBIT IV
SLEUTH
(A) SWBT shall provide LSP with an alert notification, by fax, or
another mutually agreed upon format, when SWBT's Sleuth system
indicates the probability of a fraud incidence. SWBT will use
the same criteria to determine fraud alerts for LSP as SWBT
uses for its own accounts.
(B) Sleuth alert messages have four levels of priority. These
levels are low, medium, high and urgent. Sleuth delivers alert
messages to a queue in the Sleuth DBAC in priority order.
Urgent alerts are prioritized first, followed by high, medium
and low alerts (in that order).
(C) SWBT's Sleuth investigators can access alerts only in the
order the alerts appear in the queue. Low alerts almost never
see investigator treatment. However, when Sleuth encounters a
number of low priority alerts on the same account, Sleuth may
upgrade the alert's status to a higher priority status.
(D) When a Sleuth investigator determines that an urgent, high, or
medium priority alert is for an LSP account, the Sleuth
investigator will print the alert for the queue and fax the
alert to the LSP. Sleuth alerts only identify potential
occurrences of fraud. The LSP receiving Sleuth alerts will
need to perform its own investigations to determine whether a
fraud situation actually exists. The LSP will also need to
determine what, it any action should it take as a result of a
Sleuth alert.
(E) SWBT's hours of operation for Sleuth are seven days a week,
twenty-four hours per day (7X24). LSP shall provide SWBT with
a contact name and fax number for SWBT to fax alerts from
SWBT's Sleuth DBAC.
(F) SWBT shall provide LSP with a Sleuth contact name and number,
including fax number, for LSP to contact the Sleuth DBAC.
(G) For each alert notification SWBT provides to LSP, LSP may
request a corresponding 30-day historical report of
ABS-related query processing. LSP may request up to three
reports per alert. The charge for each historical report is
set forth in Exhibit II (Basis of Compensation).
<PAGE> 132
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 133
APPENDIX LIDB
EXHIBIT V
CNAM SERVICE QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT will provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the name associated with the line record.
Calling Name records are limited to fifteen characters. LSP is responsible for
providing all name truncations and/or abbreviations needed to limit a calling
name to 15 characters. LSP is also responsible for ensuring that its calling
name data does not contain obscenities in English or other languages. Upon
receipt of Calling Name data, in a format acceptable to SWBT, SWBT will provide
the query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to identify the name associated with the line
record.
CNAM Service Query is SWBT's service that allows customers to query SWBT's LIDB
for calling name information. Calling Name information means a
telecommunications company's records of all its subscribers' names associated
with one or more ten-digit telephone numbers assigned to the end user.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By_______________________________ By_____________________________
Title____________________________ Title__________________________
Date_____________________________ Date___________________________
<PAGE> 134
APPENDIX LIDB
EXHIBIT VI
SINGLE NUMBER SERVICE (SNS) QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the ZIP code associated with the line record.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_____________________________
Title_____________________________ Title__________________________
Date______________________________ Date___________________________
<PAGE> 135
APPENDIX LIDB
EXHIBIT VII
ORIGINATING LINE NUMBER SCREENING (OLNS) QUERY
Upon receipt of the line/billing information for LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the originating line screening requirements of the line
record.
LSP shall ensure that its OLNS data complies with the definitions and record
formats set forth in GR-1149-CORE and GR-446-CORE.
Approved and executed the _________________________ day of _________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By_______________________________ By_____________________________
Title____________________________ Title__________________________
Date_____________________________ Date___________________________
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APPENDIX LIDB-V
APPENDIX LIDB VALIDATION SERVICE
WHEREAS, the Parties are interested in purchasing each other's
LIDB Validation Service (or equivalent service);
In consideration of the mutual promises contained herein, SWBT and LSP
agree as follows.
I. DEFINITIONS
A. A-links means a diverse pair of facilities connecting local
end office switching centers with Signaling Transfer Points.
B. Alternate Billing Service (ABS) means a service that allows
end users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect, and third number billed calls.
C. Billed Number Screening (BNS) means a validation of toll
billing exception (TBE) data and performance of public
telephone checks i.e., determining if a billed line is a
public (including those classified as semi-public) telephone
number.
D. Calling Card Service (CCS) means a service that enables a
calling customer to bill a telephone call to a calling card
number with or without the help of an operator.
E. Common Channel Signaling (CCS) Network means an out-of-band,
packet-switched, signaling network used to transport
supervision signals, control signals, and data messages.
Validation Queries and Response messages are transported
across the CCS network.
F. Data Base means an integrated collection of related data. In
the case of the LIDB, the data base is the line number and
related line information.
G. Data Owner means telecommunications companies that administer
their own validation data in a party's LIDB or LIDB-like
database.
H. Line Information Data Base (LIDB) means an ANSI SS7
call-related database system. LIDB functions as a centralized
repository for data storage and retrieval. SWBT's LIDB
supports validation of ABS calls as well as certain other
services.
I. Line Record means information in LIDB that is specific to a
single telephone number or special billing number.
J. Nonrecurring charges are one-time charges that apply for a
specific work activity
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(i.e., installation or change to an existing service).
Nonrecurring charges are applicable for the establishment of
LIDB Validation Service, service rearrangements, and service
order activity.
K. Originating Point Code (OPC) means a code assigned to
identify LSP's operator service system location(s).
L. Personal Identification Number (PIN) means a confidential
four-digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in LIDB for those line numbers that have an
associated calling card.
M. Query means a message in American National Standards
Institute's (ANSI) standard SS7 signaling protocol which
represents a request to a LIDB or LIDB-like database for
Validation information.
N. Query Rate applies to each Validation Query that is received
at SWBT's LIDB for the validation of calling card and toll
billing exception data and performance of public telephone
checks; i.e., determining if a billed line is a public
(including those classified as semi public) telephone number.
O. Query Transport Rate applies to each Validation Query
transported from SWBT's STP to the SCP where LIDB resides and
back. SWBT and LSP shall list their STP locations in the
National Exchange Carrier Association, Inc. Tariff FCC No.
4.
P. Response means an SS7 message which, when appropriately
interpreted, represents an answer to a Query.
Q. Service Order Charge is a nonrecurring charge that applies,
per service order form, that specifies the LSP's originating
point codes (OPCs) of the LSP's designated operator service
systems sending the Validation Query or Queries.
R. Service Control Point (SCP) is a CCS network node where
Validation information resides.
S. Service Point (SP) means a CCS network interface element
capable of initiating and/or terminating SS7 messages from an
end office.
T. Service Rearrangements are changes to existing services which
do not result in changes to previously established OPCs.
U. Service Switching Point (SSP) means the software capability
within a switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7
transmission/reception access ability.
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V. Signaling System 7 (SS7) means the signaling protocol used by
the CCS network.
W. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to
SWBT's SS7 network, LSP or a third party initiating LSP's
Validation Queries must connect with an SWBT STP in order to
connect to SWBT's SCP.
X. Special Billing Number means line records in LIDB that are
based on an NPA-RAO numbering format. NPA-RAO numbering
formats are similar to NPA-NXX formats except that the fourth
digit of an NPA-RAO line record is either a zero (0) or a one
(1).
Y. Toll Billing Exception (TBE) Service means a service that
allows end users to restrict third number billing or collect
calls to their lines.
Z. Validation information means Data Owners' records of all their
Calling Card Service and Toll Billing Exception Service.
II. DESCRIPTION OF SERVICE
A. SWBT shall provide LSP access to Validation information
whenever LSP initiates a query from an SSP for Validation
information available in SWBT's LIDB.
B. All LSP Queries to SWBT's LIDB shall use subsystem number 253
in the calling party address field and a translations type of
253 and a subsystem number in the calling party address field
that is mutually agreed upon by the Parties. LSP acknowledges
that such subsystem number and translation type values are
necessary for SWBT to properly process Validation Queries to
its LIDB.
C. LSP warrants SWBT that LSP shall send Queries conforming to
the ANSI approved standards for SS7 protocol and pursuant to
the specification standards documents identified in Exhibit A
attached hereto and incorporated by reference. Both Parties
acknowledge that transmission in said protocol is necessary
for each party to provision Validation Service (or the
equivalent thereof). Both Parties warrant that they shall send
SS7 Messages that comply with ANSI approved standards for SS7
protocol and pursuant to the specification standards documents
identified in Exhibit A. Each Party reserves the right to
modify its network pursuant to other specifications standards,
which may include Bellcore Specifications defining specific
service applications, message types and formats, that may
become necessary to meet the prevailing demands within the
U.S. telecommunications industry. All such changes shall be
announced a minimum of one hundred eighty (180) days in
advance of implementation through industry standard
procedures. Each Party will work cooperatively to coordinate
any necessary changes.
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D. LSP acknowledges that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network
messages can and will have a detrimental effect on the
performance of SWBT's CCS/SS7 network. LSP further agrees that
SWBT, in its sole discretion, shall employ certain automatic
and/or manual overload controls within SWBT's CCS/SS7 network
to guard against these detrimental effects. SWBT shall report
to LSP any instances where overload controls are invoked due
to LSP's CCS/SS7 network and LSP agrees in such cases to take
immediate corrective actions as are necessary to cure the
conditions causing the overload situation.
E. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour Query volumes.
If, prior to the establishment of a mutually agreeable service
effective date, in writing, SWBT, at its sole discretion,
determines that it lacks adequate processing capability to
provide Validation Service to LSP, SWBT shall notify LSP of
SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
F. LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the
preceding year. LSP shall provide such updates each year for
the first three (3) years of this Appendix.
G. SWBT will perform testing of the LIDB Validation Service in
conjunction with CCS/SS7 Interconnection Service as outlined
in Bellcore Technical References TR-NWT-000954, TR-TSV-000905,
and TP 76638.
H. SWBT supports the performance standards as defined in Section
7 of TR- TSV-000905. The overall end-to-end CCS/SS7 network
objective is less than ten minutes unavailability per year
from any Signal Point (SP) to any other SP. The performance
objective for any single SP, including a Service Control Point
(SCP), is less than three minutes unavailability per year. The
combined link set from the SCP to the Signal Transfer Point
(STP) has a performance objective of less than two minutes
unavailability per year.
I. SWBT's LIDB Validation Service system downtime will be less
than twelve hours per year. The response time for a Query,
from switch transmission to reception, should not exceed one
second for ninety-nine (99) percent of all Queries.
J. SWBT shall administer its LIDB to provide acceptable service
levels to all customers of SWBT's LIDB Validation Service.
During periods of LIDB system congestion, SWBT will utilize an
automatic code gapping procedure to control such congestion.
The automatic code gapping procedure will tell LSP's switch
the gap (how long LSP's switch should wait before sending
another query) and
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the duration (how long the switch should continue to perform
gapping). For example, during an overload condition, the
automatic code gapping procedure will tell SWBT's LIDB when to
begin to drop one out of three queries received. This code
gapping procedure will be applied uniformly to all users of
SWBT's LIDB Validation Service. SWBT maintains the right to
invoke manual intervention of the automatic code gapping
procedure to preserve the integrity of its network.
K. LSP agrees that network overload due to extraordinary volumes
of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's network and
its LIDB Validation Service. LSP further agrees to take
immediate, corrective actions as are necessary to cure the
conditions causing the overload situation.
L. All access by LSP to SWBT's LIDB shall occur through SWBT's
regional STP as designated by SWBT.
M. SWBT's LIDB shall contain a record for every SWBT working line
number and Special Billing Number served by SWBT. Other
telecommunications companies, including LSP, may also store
their data in SWBT's LIDB. SWBT shall request such
telecommunications companies to also provide this data as
well.
N. SWBT shall update the LIDB information; e.g., add, delete, and
modify customer accounts as customers move, become delinquent
on their account, or order new service, on a daily basis. SWBT
shall request other Data Owners to provide such updates in
like time.
O. SWBT has procedures in place to deactivate billing validation
data in the event that such data is being used fraudulently or
in the event end users exceed SWBT-defined limits on toll
charges. SWBT shall update SWBT- issued calling cards that
SWBT suspects of being fraudulently used or exceeding
SWBT-defined toll limits seven (7) days a week, 24 hours a
day.
P. SWBT's LIDB shall receive and respond to all Calling Card
Service and Billed Number Screening queries, including SWBT's
and LSP's queries, as defined in Bellcore publications
TR-NWT-000246, FR-NWT-000271, TR-TSV-000905, TR-NWT-000954 and
SWBT's publication TP 6638. These procedures shall be applied
uniformly to all users of SWBT's LIDB Validation Service.
Q. SWBT's LIDB Validation Service shall provide the following
functions on a per query basis:
- validation of a telecommunications calling card
account number stored in LIDB;
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- determination of whether the billed line has
decided in advance to reject certain calls billed as
collect or to a third number; and
- determination of billed line as a public (including
those classified as semi public) or nonworking
telephone number.
R. SWBT provides LIDB Validation Service as set forth in this
Appendix only as such service is used for LSP's activities as
a local service provider in SWBT's traditional serving areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and
Texas. SWBT provides a LIDB Validation Service for
interexchange carriers, operator service providers, and other
telecommunications companies under effective tariffs. LSP
agrees that any other use of SWBT's LIDB for the provision of
LIDB Validation Service by LSP, including, but not limited to,
when LSP acts as an LSP outside of SWBT's traditional serving
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas, and/or acts as an operator service provider to
other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange
carrier, will be pursuant to the terms, conditions, rates, and
charges of SWBT's effective tariffs, as revised, for LIDB
Validation Service.
III. PRICE AND PAYMENT
A. LSP shall pay SWBT a Validation Query rate and a Query
Transport Rate for each Query initiated into SWBT's LIDB.
These rates are set forth in Exhibit I (Basis of
Compensation), which is attached hereto and incorporated by
reference.
B. LSP shall pay a Nonrecurring Charge for each request for
establishment or change of existing LIDB Validation Service.
The LIDB Validation Service Establishment Charge applies per
originating point code per request and is set forth in Exhibit
I (Basis of Compensation).
C. LSP shall pay a Service Order Charge for each request for
service order activity. The Service Order Charge is set forth
in Exhibit I (Basis of Compensation).
D. Payment to SWBT for LIDB Validation Service shall be based
upon the rates set forth in Exhibit I (Basis of Compensation),
attached hereto and made a part thereof. These rates and
charges will apply for one (1) year from the service effective
date for each exchange. After one (1) year, SWBT may change
the rates upon sixty (60) days' notice. SWBT may first give
such notice sixty (60) days before the end of the first year.
E. SWBT shall record usage information for LSP's Validation
Queries terminating to SWBT's LIDB. SWBT shall use its SCPs as
the source of usage data. SWBT shall aggregate usage by the
point code of the Query-originating SSP.
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F. Based upon the data identified in SubSection 3.E of this
Appendix, SWBT shall bill LSP for its Validation Queries on a
monthly basis. The bill will be issued by the fifteenth day of
each month, and LSP shall pay the bill within thirty (30) days
of the bill issue date. LSP shall pay late payment charges as
applicable and as described in SWBT's Tariff FCC No. 73.
G. SWBT shall provide sufficient information with the bill to
enable LSP to determine how the billed amount was calculated.
H. Depending on LSP's choice of method for transporting its
Queries and Responses, LSP may be required to purchase certain
other services, especially services that may be provided
pursuant to effective tariffs. In this event the prices,
terms, conditions, and billing for such services will be
specified in the applicable tariff(s) and this Appendix shall
not be construed to circumvent the prices, terms, conditions,
or billing as specified in the applicable tariff(s).
I. If there is a dispute associated with a monthly bill, the
disputing Party shall notify the other in writing within
ninety (90) calendar days of the date of said monthly bill or
the dispute shall be waived. Each Party agrees that any amount
of any monthly bill that that Party disputes will be paid by
that Party according to the terms of Subsection III.F. above.
Any adjustments relating to a disputed amount shall be
reflected on the next monthly bill issued after resolution.
Any credit issued upon resolution of any dispute shall bear
interest at the rate specified in Subsection III.F. above,
payable on and as of the date the credit is issued. Parties
shall work cooperatively and use their best efforts to resolve
any disputes as quickly as possible.
J. SWBT shall treat changes in previously established OPCs as a
discontinuance of the existing LIDB Validation Service and
establishment of a new LIDB Validation Service and all
applicable Nonrecurring Charges shall be paid by LSP.
K. If LSP acts as a telecommunications company other than a
local service provider, or if LSP acts as a local service
provider in areas outside of SWBT's traditional service areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and
Texas, LSP shall designate those point codes from which it
originates LIDB Validation Service Queries as an LSP acting as
a local service provider within SWBT's traditional service
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas from those point codes which originate LIDB
Validation Service Queries for all other aspects of its
business. If LSP uses the same OPC to originate Queries for
its operations as an LSP within SWBT's traditional service
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas as it does for any other aspect of its business,
then LSP shall provide SWBT with a percentage of use factor
that SWBT can use to apportion LSP's traffic between SWBT's
terms, conditions, rates and charges under this Appendix and
the terms, conditions, rates and charges under SWBT's
appropriate and effective tariff. LSP
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shall provide this factor in a whole number between one (1)
and one hundred (100) to indicate the percentage of LIDB
Validation Services LSP originates as an LSP acting as a local
service provider within SWBT's traditional service area in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of 1 (one) indicates that one percent
of LSP's LIDB Validation Service Queries originate as an LSP
acting as a local service provider within SWBT's traditional
service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas. A percentage of use factor of one hundred
(100) indicates that one hundred percent of LSP's LIDB
Validation Service Queries is from LSP acting as a local
service provider within SWBT's traditional service area in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas.
L. Such percentage of use factors will be provided by LSP on the
LIDB Access Service Order Form used to establish the service.
All updates to this factor will provided via a letter. If LSP
does not furnish a percentage of usage factor, LSP agrees that
SWBT will apply a percentage of usage factor of one percent
(1%).
M. LSP shall update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and
October of each year, LSP shall forward to SWBT, to be
received no later than fifteen (15) business days after the
first of each such month, a revised report showing the
percentage of use factors for the past three months ending the
last day of December, March, June, and September,
respectively, for each OPC from which LSP originates LIDB
Validation Service Queries. Both Parties agree that the
revised report will serve as the basis for the next three
months billing. Both Parties agree that no prorating or
backbilling will be done based on the report. SWBT shall use
the revised report to apportion usage rates, monthly rates,
and nonrecurring charges until a revised report is received
from LSP as set forth and agreed to herein.
N. SWBT may, upon written request by Certified U.S. mail (return
receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage
of use factor provided by LSP. SWBT may request this detailed
information annually. If the audit results represent what SWBT
considers to be a substantial deviation from LSP's previously
reported percentage of use for the period upon which the audit
was based, and that deviation is not due to seasonal changes
or other identifiable reasons, LSP agrees to allow SWBT to
request such call detail records more than once annually. Both
parties agree that SWBT may make the call detail records
available to an independent auditor or to SWBT audit employees
within thirty (30) days of the request at an agreed upon
location during normal business hours.
O. If LSP fails to comply with SWBT's request for auditable call
detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for
service for a period of thirty (30) days. If at the conclusion
of thirty (30) days, LSP still does not comply with this
request, SWBT
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may apply an assumed percentage of use factor of one percent
(1%).
IV. OWNERSHIP OF VALIDATION INFORMATION
A. Telecommunications companies depositing information in SWBT's
LIDB may retain full and complete ownership and control over
such information. LSP obtains no ownership interest by virtue
of this Appendix.
B. Unless expressly authorized in writing by parties, LIDB
Validation Service is not to be used for purposes other than
those described in this Appendix. LSP may use LIDB Validation
Service for those functions only on a call-by-call basis. Data
accessed on LIDB may not be stored by LSP elsewhere for future
use.
C. Proprietary information residing in SWBT's LIDB is protected
from unauthorized access and LSP may not store such
information in any table or database for any reason. All
information related to alternate billing service is
proprietary. Examples of proprietary information are as
follows:
- Billed (Line/Regional Accounting Office (RAO)) Number
- PIN Number(s)
- Billed Number Screening (BNS) indicators
- Class of Service (also referred to as Service or
Equipment)
- Reports on LIDB usage
- Information related to billing for LIDB usage
- LIDB usage statistics.
D. LSP shall not copy, store, maintain, or create any table or
database of any kind after initiating, and based upon a
Response to, a Validation Query to SWBT's LIDB.
E. If LSP acts on behalf of other carriers, LSP shall prohibit
its Query- originating carrier customers from copying,
storing, maintaining, or creating any table or database of any
kind from any Response provided by SWBT after a Validation
Query to SWBT's LIDB.
F. SWBT will share end user information, pertinent to fraud
investigation, with LSP when validation queries for the
specific end user reaches SWBT's established fraud threshold
level. This fraud threshold level will be applied uniformly to
all end user information in SWBT's LIDB.
V. TERM AND TERMINATION
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Statement and shall continue for one
(1) year from the effective date of implementation of LIDB
Validation Service. Thereafter, this Appendix shall
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remain in effect unless terminated by either party upon
written notice given sixty (60) days in advance of the
termination date.
B. If a Party materially fails to perform its obligations under
this Appendix, the other Party, after notifying the
non-performing Party of the failure to perform and allowing
that Party thirty (30) days after receipt of the notice to
cure such failure, may cancel this Appendix immediately upon
written notice.
C. Notwithstanding anything to the contrary in this Appendix, if
legal or regulatory decisions or rules compel SWBT or LSP to
terminate the Appendix, SWBT and LSP shall have no liability
to the other in connection with such termination.
VI. LIMITATION OF LIABILITY
A. A Party's sole and exclusive remedies against the other Party
for injury, loss or damage caused by or arising from anything
said, omitted or done in connection with this Appendix
regardless of the form of action, whither in contract or in
tort (including negligence or strict liability) shall be the
amount of actual direct damages and in no event shall exceed
the amount paid for LIDB Validation Service.
B. The remedies in Section VI.A. of this Appendix shall be
exclusive of all other remedies against a Party, its
affiliates, subsidiaries or parent corporation, (including
their directors, officers, employees or agents).
C. In no event shall a Party have any liability for system outage
or inaccessibility, or for losses arising from the
unauthorized use of the data by LIDB Validation Service Query
purchasers.
D. SWBT is furnishing access to its LIDB or LIDB-like database
in order to facilitate LSP's provision of Alternate Billing
Service to its end users, but not to insure against the risk
of completion of an ABS-related call. While SWBT agrees to
make every reasonable attempt to provide accurate Validation
information, the Parties acknowledge that Validation
information is the product of routine business service order
activity and fraud investigations. LSP acknowledges that SWBT
can furnish Validation information only as accurate and
current as the information has been provided to SWBT for
inclusion in its LIDB. Therefore, SWBT, in addition to the
limitations of liability set forth, is not liable for
inaccuracies in the Validation information records provided to
LSP except such inaccuracies caused by SWBT's willful or
wanton misconduct or gross negligence.
E. IN NO EVENT SHALL SWBT, ITS AFFILIATES, SUBSIDIARIES OR
PARENT CORPORATION, (INCLUDING ITS DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) HAVE ANY LIABILITY WHATSOEVER TO
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OR THROUGH LSP FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL
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, EVEN
IF LSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VII. COMMUNICATION AND NOTICES
A. Ordering and billing inquiries for the services described
herein from SWBT shall be directed to the Local Service
Provider Service Center (LSPSC). Ordering shall be done
through the LSPSC using the form attached hereto as Exhibit
III.
VIII. CONFIDENTIALITY
A. Identification SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, either
may disclose to the other party proprietary or confidential
customer, technical or business information in written
graphic, oral or other tangible or intangible forms. In order
for such information to be considered "Proprietary
Information" under this Appendix, such information must be
marked "Confidential" or "Proprietary" or bear a marking of
similar import. Orally disclosed information shall be
considered Proprietary Information only if contemporaneously
identified as such and reduced to writing and delivered to the
other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party
(the "Receiving Party") that receives Proprietary Information
from the other Party (the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall
remain the exclusive property of the Disclosing
Party.
(2) To limit access to such Proprietary Information to
authorized employees and other individuals who have a
need to know the Proprietary Information in order to
perform its obligations under this Appendix.
(3) To keep such Proprietary Information confidential and
to use the same level of care to prevent disclosure
or unauthorized use of the received Proprietary
Information as it exercises in protecting its own
Proprietary Information of a similar nature.
(4) For a period of three (3) years following any
disclosure, not to copy or publish or disclose such
Proprietary Information to others or authorize anyone
else to copy or publish or disclose such Proprietary
Information to
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others without the prior written approval of the
Disclosing Party.
(5) To use such Proprietary Information only for purposes
of performing its obligations under this Appendix and
for other purposes only upon such terms as may be
agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give
notice to the Disclosing Party of any demand to disclose or
provide Proprietary Information of the Disclosing Party to
another person, under lawful process, prior to disclosing or
furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the
Disclosing Party deems it necessary to seek protective
arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the
requirements of a court, regulatory body or government agency
having jurisdiction over the Party; provided, however, that
the Receiving Party shall notify the Disclosing Party so as to
give the Disclosing Party a reasonable opportunity to object
to such disclosure. The Disclosing Party may not unreasonably
withhold approval of protective arrangements provided by any
such court, regulatory body or government agency. Nothing
herein requires either Party to support the position of any
person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this
Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained
in this Appendix, the Proprietary Information described herein
shall not be deemed confidential or proprietary and the
Receiving Party shall have no obligation to prevent disclosure
of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through
no wrongful act of the Receiving Party;
(3) is received from a third party without similar
restriction and without breach of this Section 8;
(4) is independently developed, produced or generated by
the Receiving Party;
(5) is furnished to a third party by the Disclosing
Party without a similar restriction on the third
party's rights; or
(6) is approved for release by written authorization of
the Disclosing Party, but only to the extent of such
authorization.
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E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of LSP
Queries for the purposes of: (a) estimation of facilities
usage for jurisdictional separations; (b) engineering and
network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the contrary
contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary
Information is subject all applicable statures, decisions, and
regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate
a different handling of such information.
9. Mutuality
To the extent that LSP stores its own Validation Information in a
database, LSP agrees that Validation Information shall be available to
SWBT on terms and conditions comparable to those contained in this
Appendix. Such terms and conditions shall include, but not be limited
to, making such Validation Information available on a platform
technically similar to that employed by SWBT, and at a rate comparable
to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit I - Basis of Compensation
Exhibit II - Specifications and Standards
Exhibit III - LIDB Access Service Order Form
<PAGE> 149
APPENDIX LIDB-V-EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB-V
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. Rates and Charges
A LIDB Query Rate Per Query
--------------
1. Per LIDB Query Transport $.0045
2. Per LIDB Validation Query $.026
- Billed Number Screening
- Calling Card Count
B. LIDB Nonrecurring Charge Nonrecurring Charge
-------------------
1. Per Originating Point Code (OPC) $36.00
2. Per LIDB Validation Service Form $256.70
<PAGE> 150
APPENDIX LIDB-V-EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB-V
SPECIFICATIONS AND STANDARDS
Issuing Organization Document Number
- -------------------- ---------------
Bellcore TR-NWT-000246
Bellcore TR-NWT-000271
Bellcore TR-TSV-000905
Bellcore TR-NWT-000954
SWBT TP 76638
<PAGE> 151
APPENDIX MAP
LITTLE ROCK, ARKANSAS
SWBT OPTIONAL CALLING AREAS
- - BENTON
- - BAUXITE
ILEC MANDATORY EXCHANGES
- - JACKSONVILLE
<PAGE> 152
APPENDIX OSS
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APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems (OSS)
"functions" to LSP for pre-ordering, ordering, provisioning, maintenance /
repair, and billing. Such functions will be made available as described herein
for Resold Services, as provided in Appendix Resale, and for Unbundled Network
Elements (UNE), as provided in Appendix UNE.
1.2 The functions, for Resale and UNE, will be accessible via electronic
interface, as described herein, where such functions are available. Manual
access will be available to all pre-ordering, ordering, provisioning, and
billing functions via the Local Service Provider Service Center (LSPSC). Repair
and maintenance functions are available via manual handling by the Local
Service Provider Center (LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT defines
in its requirements, only for the functions described herein for the purposes
of establishing and maintaining Resale services or UNE. LSP agrees that such
use will comply with the summary of SWBT's Operating Practice No. 113,
Protection of Electronic Information, titled Local Service Provider Security
Policies and Guidelines.
1.4 LSP acknowledges and agrees that access to OSS functions will only
be utilized to view an end-user's Customer Proprietary Network Information
under the conditions set forth and agreed to in Exhibit A of this Appendix.
1.5 By utilizing electronic interfaces to access OSS functions, LSP
acknowledges and agrees to perform accurate and correct billing functions that
occur during ordering per the terms of this Agreement. Further, LSP recognizes
that such billing functions for conversion orders require viewing CPNI as
described in 1.4 above. All exception handling must be requested manually from
LSPSC.
1.6 In areas where Resale and UNE service order transactions cannot be
provided via an electronic interface for the pre-order, ordering and
provisioning processes, SWBT and LSP will utilize manual processes until such
time as the transactions can be electronically transmitted.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
1.8 SWBT and LSP will jointly establish interface contingency and
disaster recovery plans for the pre-order, ordering and provisioning of Resale
services and UNE.
1.9 SWBT reserves the right to modify or discontinue the use of any
system or
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interface as it deems appropriate.
1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale or UNE, SWBT and LSP agree to work together in the Order
and Billing Forum (OBF) and the Telecommunications Industry Forum (TCIF) to
establish and conform to uniform industry standards for electronic interfaces
for pre-order, ordering, and provisioning. Neither Party waives its rights as
participants in such forums in the implementation of the standards. To achieve
industry standard system functionality as quickly as possible, the Parties
acknowledge that SWBT may deploy these interfaces with requirements developed
in advance of industry standards. Thus, subsequent modifications may be
necessary to comply with emerging standards. LSP and SWBT are individually
responsible for evaluating the risk of developing their respective systems in
advance of standards and agree to support their own system modifications to
comply with new requirements.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support LSP
ordering of Resale services and UNE via several electronic interfaces. The
Parties acknowledge that ordering requirements necessitate the use of current,
real time pre-order information to accurately build service orders. The
following lists represent pre-order information that will be available to LSP
so that LSP order requests may be created to comply with SWBT ordering
requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business address,
billed telephone numbers and features and services available in the end office
where the customer is provisioned;
2.2.2 features and services to which the customer subscribes (LSP
agrees that LSP's representatives will not access the information specified in
this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP and such request complies with
conditions of Exhibit A of this Appendix.)
2.2.3 a telephone number (if the customer does not have one assigned)
with the customer on-line.
2.2.4 service availability dates to the customer;
2.2.5 information regarding the dispatch / installation schedule, if
applicable;
2.2.6 PIC options for intraLATA toll (when available) and interLATA
toll;
2.2.7 address verification.
2.3 PRE-ORDERING FUNCTIONS FOR UNE WILL INCLUDE:
2.3.1 customer name, billing address and residence or business
address, billed
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telephone numbers and features and services available in the end
office where the customer is provisioned;
2.3.2 features and services to which the customer subscribes (LSP
agrees that LSP's representatives will not access the information specified in
this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP, and such request complies with
conditions of Exhibit A of this Appendix.)
2.3.3 telephone number (if the customer does not have one assigned)
with the customer on-line;
2.3.4 PIC options for intraLATA toll (when available) and interLATA
toll;
2.3.5 address verification;
2.3.6 channel facility assignment (CFA), network channel (NC), and
network channel interface (NCI) data.
2.4 Electronic Access to Pre-Order Functions: Upon request by LSP for
electronic access to pre-ordering functions, SWBT will provide LSP access to
one or more of the following systems:
2.4.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.4.1.1 Residential Easy Access Sales Environment (R-EASE):
R-EASE is an ordering entry system through which SWBT will provide LSP access
for the functions of pre-ordering SWBT's Resale services so long as EASE is
utilized to order SWBT Residential Resale Services.
2.4.1.2 Business Easy Access Sales Environment (EASE): B-EASE
is an ordering entry system through which SWBT will provide LSP access for the
functions of pre-ordering SWBT's Resale services so long as such access is
utilized to order SWBT's Business Resale Services.
2.4.2 RESALE AND UNE PRE-ORDER SYSTEM AVAILABILITY:
2.4.2.1 DataGate: DataGate is transaction-based data query
system through which SWBT will provide LSP access for the functions of gathering
pre-ordering information to support industry standardized ordering processes
for Residential and Business Resale services. When ordering Resale services or
UNE, LSP's representatives will have access to a pre-order electronic gateway
provided by SWBT for both consumer and business customers that provides
real-time access to SWBT's operations systems. This gateway shall be a
Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will allow
the LSP representatives to perform the pre-order functions for Resale services
and UNE, as described above. SWBT and LSP agree to work together to develop and
implement an electronic communication interface that will replace this initial
pre-order electronic interface consistent with industry standards developed by
the OBF and the TCIF.
<PAGE> 155
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2.4.2.2 VERIGATE is an Access Service Pre-order system that will
also provide access to the pre-ordering functions for Resale Services and UNE.
VERIGATE may be used in connection with electronic or manual ordering.
VERIGATE provides the UNE pre-order capability of identifying CFA information,
NC, and NCI codes that are associated with order requirements for UNE.
2.5 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.5.1 Where due dates are not available electronically, SWBT will
provide LSP with due date interval for inclusion in the service order request.
2.5.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to
construct order requests only in exception handling.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services and UNE via one or more electronic interfaces.
Upon request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.2 B-EASE is available for the generation of Business Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.3 SWBT will provide LSP with an Electronic Data Interexchange
(EDI) Interface for transmission of industry-standardized Resale service order
requests in formats as defined by the Ordering and Billing Forum
(OBF) and EDI mapping as defined by TCIF. EDI ordering functionality
will be made available as negotiated and implemented in timeframes
mutually acceptable to SWBT and LSP.
3.3 UNE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
3.3.1 In ordering and provisioning UNE, LSP and SWBT will utilize
mutually agreeable standard industry order formats and data elements developed
by OBF and TCIF EDI. Where industry standards do not currently exist for the
ordering and provisioning of UNE, LSP and SWBT agree to jointly develop a form
for ordering Common-Use UNE. Common-Use UNE, including, without limitation,
tandem switching, signaling and call-related databases,
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Operator Services and DA, and Operations Support Systems, shall be ordered in a
manner that is consistent with OBF Access Service Request Process; in addition
customized routing will be ordered in the same manner. Customer Specific UNE,
including, Local Loop (which includes NID), and unbundled Local Switching,
and Interim Number Portability will be ordered consistent with the OBF Local
Service Request (LSR) process.
3.4 SWBT will provision Resale Services and UNE as prescribed in LSP
order requests. Access to status on such orders of Resale services and UNE
will be provided via the following electronic interfaces:
3.4.1 Customer Network Administration (CNA) will allow LSP to check
service order status via CNA.
3.4.2 In cases of industry-standardized EDI ordering, SWBT will provide
to LSP an EDI electronic interface for transferring and receiving orders, Firm
Order Confirmation (FOC), service completion, and, as available, other
provisioning data and information. SWBT will provide LSP with a FOC for each
Resale and UNE order. The FOC includes but is not necessarily limited to:
purchase order number, telephone number, Local Service Request number, due
date, Service Order number, and completion date. Upon work completion, SWBT
will provide LSP with an 855 EDI transaction-based Order Completion that states
when that order was completed. When available, SWBT will provide LSP an 865
EDI transaction-based Order Completion.
3.4.3 A file transmission may be provided to confirm order completions
for R-EASE or B-EASE order processing. This file will provide service order
information of all distributed and completed orders for LSP, regardless of
order entry mechanism.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for both Resale and UNE. Upon request, LSP may
access these functions via the following methods:
4.1.1 CNA system access provides LSP with SWBT software that allows LSP
to submit trouble reports and subsequently check status on trouble reports for
LSP end-users. CNA will provide ability to review the maintenance history of a
converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an industry-standardized
interface that is available for trouble report submission and status updates.
This EBI will conform to ANSI standards T1:227:1995 and T1.228:1995,
Electronic Communications Implementation Committee (ECIC) Trouble Report Format
Definition (TFRD) Number 1 as defined in ECIC document ECIC/TRA/95-003, and all
standards referenced within those documents, as mutually agreed upon by LSP and
SWBT. Functions currently implemented will include Enter Trouble, Request
Trouble Report Status, Add Trouble Information, Modify Trouble Report
Attributes, Trouble Report Attribute Value Change Notification, and Cancel
Trouble Report, as explained in 6 and 9 of ANSI T1.228:1995. LSP. SWBT will
exchange requests over a mutually agreeable X.25-based network.
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5. BILLING
5.1 SWBT shall bill LSP for resold services and UNE. SWBT shall
send associated billing information to LSP as necessary to allow LSP
to perform billing functions. At minimum SWBT will provide LSP
billing information in a paper format or via magnetic tape, as agreed
to between LSP and SWBT.
5.2 Upon request, electronic access to billing information for
Resale Services will also be available via the following interfaces:
5.2.1 LSP may receive Bill Plus(TM), an electronic version of their
electronic bill as described in and in accordance with SWBT's Local Exchange
Tariff.
5.2.2 LSP may receive a mechanized bill format via the industry
standards EDI.
5.2.3 LSP may also view billing information through the CNA system.
5.2.4 SWBT shall provide the Usage Billable Records for Resale Services
via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers change their local
service provider.
5.3 Upon request, electronic access to billing information for UNE will
also be available via the following interfaces:
5.3.1 SWBT will make available a mechanized bill data tape (local)
format by February 1997.
5.3.2 LSP may also view billing information through the CNA system.
5.3.3 SWBT shall provide the Usage/Toll Billable Records for UNE via
EMR industry standard format with a daily feed.
5.2.4 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers, utilizing SWBT
ports, change their local service provider.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following SWBT's OSS functions via a LSP Remote
Access Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, CNA, DATAGATE
and VERIGATE.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide
its own router, circuit, and two Channel Service Units/Data Service Units
(CSU/DSU). The demarcation point shall be the router interface at the LRAF.
Switched Access connections require LSP to provide its own
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modems and connection to the SWBT LRAF. LSP shall pay the cost of the call if
Switched Access is used.
6.3 LSP shall use TCP/IP to access SWBT OSS via the LRAF. In addition,
each LSP shall have a valid Internet Protocol (IP) network address. A user-id
/password unique to each individual accessing an OSS shall be maintained to
access SWBT OSS's. LSP shall provide estimates regarding its volume of
transactions, number of concurrent users, desired number of private line or
dial-up (switched) connections, and length of a typical session.
6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on
an ongoing basis in accessing any SWBT OSS over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
7.1 LSP must participate with SWBT in Operational Readiness Testing
(ORT), which will allow for the testing of the systems, interfaces, and
processes for the ordering and provisioning of Resale services. ORT will be
completed in conformance with agreed upon implementation dates.
8. RATES - ARKANSAS
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $ 3,030.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $ 1,560.00 / month
Dial Up Per Port $ 312.00 / month
8.4 LPS requesting the Bill Plus, as desribed in 5.2.1, agrees to pay
applicable tariffed rate, less Resale discount.
8.3 LSP requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.4 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.4 Should unforeseen modifications and costs to provision OSS
functions become required by SWBT or industry standards, SWBT reserves the
right to modify its rate structure. In addition, should LSP request custom
development of an exclusive interface to support OSS
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functions, such development will be considered by SWBT on an Individual Case
Basis (ICB) and priced as such.
9. EFFECTIVE DATE, TERM
9.1 The Appendix OSS will be effective upon approval by the state
commission when it determined that the entire Interconnection Agreement is in
compliance with Sections 251 and 252 of the Act.
9.2 The Term Appendix OSS will be the shorter of the Term of this
Interconnection Agreement or December 31, 1998. Continuation of Appendix OSS
follows the continuation rules of the Agreement. Should the Interconnection
Agreement establish a new term, the Term of Appendix OSS will be the shorter of
one year, or the new Term of the Interconnection Agreement. Should the term of
the Interconnection Agreement Expire without provision for continuance, the
Term of Appendix OSS expires as well.
<PAGE> 160
APPENDIX OSS - RESALE & UNE - EXHIBIT A
PAGE 1 OF 1
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE OF
CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent request or
in the course of ordering SWBT's network elements or services via manual and/or
mechanized interfaces, the undersigned must, at least, certify that "yes" (Y)
it has obtained Authorization for Release of CPNI and provide the name of the
individual authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of CPNI has
been obtained from an end-user and that it includes the expressed content of
the language, "Minimum Scope." SWBT may then provide the CPNI referenced
herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects the
following: "This document serves as instruction to all holders of
my local exchange telecommunications Customer Proprietary Network
Information (CPNI) to provide such information to the undersigned.
I understand that this CPNI includes the following information:
billing name, service address, billing address, service and feature
subscription, directory listing information long distance carrier
identity, and all pending service order acitivity. This
Authorization remains in effect until such time that I revoke it
directly or appoint another individual/company with such capacity or
undersigned receives notice to disconnect my local exchange service
or notice that a service disconnect has been performed. At and from
such time, this Authorization is null and void."
or
2) Authorization for change in local exchange service and release
of CPNI with documentation that adheres to all requirements of state
and federal law, as applicable.
__________________________________________
Signed
__________________________________________
Name (Typed/Printed)
__________________________________________
Title
__________________________________________
Company
__________________________________________
Date
<PAGE> 161
APPENDIX OSS - RESALE & UNE
SIGNATURE PAGE
PAGE 1 OF 1
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By:___________________________ By:________________________________
(name printed or typed) (name printed or typed)
Signature:____________________ Signature:_________________________
Title:________________________ Title:_____________________________
(printed or typed) (printed or typed)
Date:_________________________ Date:______________________________
<PAGE> 162
APPENDIX 0S
PAGE 2 OF 8
APPENDIX OS
OPERATOR SERVICES
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Operator Services for LSP ("LSP").
I. SERVICES
SWBT will provide the following Operator Services:
A. FULLY AUTOMATED CALL PROCESSING - Allows the caller to complete
a call utilizing equipment without the assistance of a SWBT operator,
hereafter called "Operator."
This allows the caller the option of completing calls through an
automated alternate billing system (AABS). Automated functions
can only be activated from a touch-tone telephone. Use of a rotary
telephone and failure or low response by the caller to the audio
prompts will bridge the caller to an Operator for assistance. The
called party must also have Touch-tone service to automatically
accept calls that are billed collect or to a third number.
B. OPERATOR-ASSISTED CALL PROCESSING - Allows the caller to
complete a call by receiving assistance from an Operator.
II. DEFINITIONS
A. FULLY AUTOMATED CALL PROCESSING
SWBT will support the following fully automated call types for LSP:
1. FULLY AUTOMATED CALLING CARD STATION-TO-STATION -
This service is provided when the caller dials zero ("0"),
plus the desired telephone number and the telecommunications
calling card number to which the call is to be
charged. The call is completed without the assistance of
an Operator. An authorized telecommunications calling card
for the purpose of this Appendix, is one for which SWBT can
perform billing validation. Fully-Automated Calling Card
Call Service may also include the following situations:
a. When an individual with a
disability dials zero (0) and identifies himself or
herself as disabled, he or she will provide the
Operator the desired telephone number and the calling
card number to which the call is to be billed.
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b. When due to trouble on the network, or lack of service
components (facilities to the AABS network), the
automated call processing cannot be completed without
assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
2. FULLY AUTOMATED STATION-TO-STATION - This
service is limited to those calls placed collect or billed to
a third number. The caller dials zero (0) plus the telephone
number desired, the service selection codes and/or billing
information as instructed by the automated equipment. The
call is completed without the assistance of an Operator.
Fully Automated Station-to-Station service may also include
the following situations:
a. When an individual with a
disability identifies himself or herself as disabled
and provides the Operator the number to which the call
is to be billed (either collect or third number).
b. When due to trouble on the
network or lack of service components, the automated
call cannot be completed without assistance from an
Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
B. OPERATOR-ASSISTED CALL PROCESSING
SWBT will support the following operator-assisted call types for LSP:
1. SEMI-AUTOMATED STATION-TO-STATION - A service
provided when the caller dials zero (0) plus the telephone
number desired and the call is completed with the
assistance of an Operator. Semi-Automated Station-to-Station
service may also include the following situations:
a. Where the caller does not dial
zero (0) prior to calling the number desired from a
public or semi-public telephone, or from a telephone
where the call is routed directly to an Operator
(excluding calling card calls).
b. When an Operator re-establishes
an interrupted call that meets any of the situations
described in this call type.
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2. SEMI-AUTOMATED PERSON-TO-PERSON - A service in
which the caller dials zero (0) plus the telephone number
desired and specifies to the Operator the particular person
to be reached or a particular PBX station, department or
office to be reached through a PBX attendant. This service
applies even if the caller agrees, after the connection is
established, to speak to any party other than the party
previously specified. Semi-Automated Person-to-Person
service may also include:
a. Where the caller does not dial a
zero (0) prior to dialing the number from a public or
semi-public telephone, or where the call is routed
directly to an Operator.
b. When an operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
3. SEMI-AUTOMATED CALLING CARD STATION-TO-STATION -
A service provided when the caller dials zero (0) plus the
desired telephone number and provides the Operator the
calling card number to which the call is to be charged.
Semi-Automated Calling Card Station-to-Station service may
also include the following situations:
a. When the caller does not dial
zero (0) prior to dialing the number desired from a
public or semi-public telephone, or from a telephone
that is directly routed to an Operator, and the call
is billed to a calling card.
b. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
4. STATION-TO-STATION (OPERATOR HANDLED) - A
service provided when the caller dials zero (0) and places a
sent paid, collect, third number or calling card
station-to-station call using an Operator's assistance. These
calls may originate from a private, public or semi-public
telephone. The service may also include the situation when an
Operator reestablishes an interrupted call that meets any of
the situations described in this call type.
5. PERSON-TO-PERSON (OPERATOR HANDLED) - A service
in which the caller dials zero (0) and specifies to the
Operator the number desired and the person to be reached, or
a particular PBX station, department or office to be reached
through a PBX attendant, or a particular mobile service point
to be reached through a mobile telephone attendant. The call
remains a person-to-person call even if the caller agrees,
after the connection is established, to speak to any party
other than the party previously specified. The service may
also include situations when an
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Operator reestablishes an interrupted call that meets
any of the situations described in this call type.
6. LINE STATUS VERIFICATION - A service in which
the caller asks the Operator to determine the condition of a
telephone line.
7. BUSY LINE INTERRUPT - A service in which the
caller asks the Operator to interrupt a conversation in
progress, to determine if one of the parties is willing to
speak to the caller requesting the interrupt. A Busy Line
Interrupt charge will apply even if no conversation is in
progress at the time of the interrupt attempt, or when the
parties interrupted refuse to terminate the conversation in
progress.
8. 0PERATOR TRANSFER SERVICE - A service offered
by SWBT in which the local caller requires Operator
Assistance for completion of a call outside the originating
LATA. The SWBT Operator transfers the call to an
interexchange carrier selected by the caller from a list of
IXCs provided to SWBT by the LSP. This transfer service is
similar to SWBT's "Operator Transfer" service offering. LSP
agrees to obtain all necessary compensation arrangements
between LSP and participating carriers.
9. MISCELLANEOUS - Includes the following call
types: General Assistance and Rate Quotes, 800, 888 and
connections to all other Toll Free services, Repair Bureau
and Business Office requests, credit requests, NPA-NXX
location requests, and all other 0- No Attempt services.
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of Operator Services
is required to:
1. provide its brand at the beginning of each telephone call and
before the consumer incurs any charge for the call; and
2. disclose immediately to the consumer, upon request a quote of its
rates or charges for the call.
B. CALL BRANDING - In compliance with A. 1. above, SWBT will
brand Operator Services in LSP's name based upon the criteria
outlined below:
1. LSP will provide SWBT with written specification of
its company name to be used in creating LSP specific branding
messages for its OS calls.
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2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every Operator Services call handled by SWBT on behalf of LSP
when such services are provided in conjunction with: i) the
purchase of SWBT's unbundled local switching; or ii) when
multiple brands are required on a single Operator Services
trunk. Prices for Call Branding are as outlined in Exhibit
II, attached hereto and incorporated herein.
C. OPERATOR SERVICES (OS) RATE/REFERENCE INFORMATION - In
compliance with A. 2. above, SWBT will provide LSP Operator Services
Rate/Reference Information based upon the criteria outlined below:
1. LSP will furnish OS Rate and Reference Information
in a mutually agreed to format or media thirty (30) days in
advance of the date when the Operator Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any changes to
be made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date. LSP
acknowledges that it is responsible to provide SWBT updated
Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the applicable
OS rates as provided by LSP.
4. An initial non-recurring charge will apply per
TOPS switch for loading of LSP's Operator Services
Rate/Reference Information as well as a charge per TOPS
switch, for each subsequent change to either LSP's Operator
Services Rate or Reference Information.
IV. HANDLING OF EMERGENCY CALLS TO OPERATOR
To the extent LSP's NXX encompasses multiple emergency agencies, SWBT will
agree to query the caller on his/her community and to transfer the caller
to the appropriate emergency agency for the caller's area. LSP must
provide SWBT with the correct information to enable the transfer. When the
assistance of another Carrier's operator is required, SWBT will attempt to
reach the appropriate operator if the network facilities for inward
assistance exist. LSP agrees to indemnify SWBT for any misdirected calls.
V. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of Operator Services for LSP's
local service area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I. SWBT will provide Operator
<PAGE> 167
APPENDIX OS
PAGE 7 OF 8
Services only where the necessary physical facilities
are available and in place and under conditions previously stated in
this Appendix.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with Automatic
Number Identification (ANI) to each SWBT operator switch. Should
LSP seek to provide interexchange Operator Services under this
agreement, it is responsible for ordering the necessary facilities
through SWBT's interstate or intrastate Access Service tariffs.
Nothing in this agreement in any way changes the manner in which an
interexchange Carrier obtains access service for the purpose of
originating or terminating interexchange traffic.
C. Facilities necessary for the provision of Operator Services
shall be provided by the parties hereto, using standard trunk
traffic engineering procedures to insure that the objective grade of
service is met. Each party shall bear the costs for its own
facilities. LSP shall bear the costs of facilities necessary for
signaling and routing calls with Automatic Number Identification
(ANI) to each SWBT operator switch. SWBT shall bear the cost of
facilities and equipment necessary to provide Operator Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in advance
of the date when the Operator Services are to be undertaken, unless
otherwise agreed to by the SWBT, all records required by SWBT to
provide the Operator Services.
E. LSP will keep all records furnished to SWBT current by using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT in advance of any changes to be made
in such records. SWBT will specify the required interval for such
advance notice. LSP will provide all records and changes to records
to SWBT in writing or in any other mutually agreeable format.
F. SWBT will accumulate and provide the LSP such data as
necessary for the LSP to verify traffic volumes and bill its end
users.
VI. METHODS AND PRACTICES
SWBT will provide the Operator Services to LSP's end users in accordance
with SWBT's OS methods and practices in effect for SWBT at the time the
OS call is made, unless otherwise agreed in writing by both parties.
VII. PRICING
Pricing for Operator Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached and made part of this Appendix.
The rates will apply from the service effective date through the term of
this agreement as specified in paragraph X.,
<PAGE> 168
APPENDIX OS
PAGE 8 OF 8
A. below. At any time beyond the specified or the term of this
Appendix, SWBT may change the prices for the provision of OS upon one
hundred-twenty (120) days' notice to LSP.
VIII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
IX. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability including
attorneys fees that LSP may incur as a result of claims, demands,
wrongful death actions, or other suits brought by any party that
arise out of LSP's end users use of Operator Services. LSP shall
defend against all end user claims just as if LSP had provided such
service to its end user with the LSP's own operators and shall
assert its tariff limitation of liability for benefit of both SWBT
and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SWBT employees and equipment associated with
provision of the Operator Services. This provision includes but is
not limited to suits arising from disclosure of the telephone
number, address, or name associated with the telephone called or the
telephone used to call the Operator Services.
X. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in
force for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one hundred-twenty
(120) days notice in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon
term of this Appendix, LSP shall pay, within thirty (30) days of
the issuance of a final bill by SWBT, all amounts due for actual
services provided under this Appendix, plus estimated monthly
charges for the remainder of the term. Estimated charges will be
based on an average of the actual monthly amounts billed by SWBT
pursuant to this Appendix prior to its termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit II.
<PAGE> 169
APPENDIX OS-EXHIBIT I
PAGE 1 OF 1
APPENDIX OS
LOCAL SERVICE AREA(S)
EFFECTIVE:
-----------------
(mm/dd/yr)
The following table depicts the service area(s) covered by this Appendix:
LSP'S LOCAL SERVICE AREA(S) EFFECTIVE DATE
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
<PAGE> 170
APPENDIX OS-EXHIBIT II
PAGE 1 OF 1
APPENDIX OS
ARKANSAS
EXHIBIT II
PRICING - FCILITIES BASED
EFFECTIVE:
-----------------------
(mm/dd/yr)
The following rates will apply for each service element:
<TABLE>
<S><C>
A. FULLY AUTOMATED CALL PROCESSING
This usage rate applies to each call that has been completed on a
fully automated basis.
Rate per completed automated call $ 0.157
B. OPERATOR-ASSISTED CALL PROCESSING
This usage rate applies to each call that has been answered by or
forwarded to an operator.
Rate per actual work second $ 0.016
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand
for the establishment of LSP specific Call Branding. An additional
non-recurring charge applies for each subsequent change to the
branding
Rate per initial load group $ 2,230.00
Rate per load for Brand change $ 2,230.00
Per Call(1) $ 0.02
D. OPERATOR SERVICES RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch, per rate
schedule, for the initial load of LSP's Operator Services
Rate/Reference Information. An additional non-recurring charge
applies for each subsequent change to Rate/Reference Information.
Rate per initial load $ 3,430.00
Rate per subsequent rate change $ 2,450.00
Rate per subsequent reference change $ 2,450.00
</TABLE>
- ---------------------
(1) A per call charge will apply when OS are provided in conjunction with:
i) unbundled local switching or ii) when multiple brands are required on a
single operator services trunk
<PAGE> 171
APPENDIX NIM
PAGE 2 OF 5
APPENDIX NETWORK INTERCONNECTION METHODS (NIM)
This Appendix NIM designates Network Interconnection Methods (NIMs) to be
used by the Parties. These include, but are not limited to: MidSpan Fiber
Interconnection (MSFI); Virtual Collocation Interconnection; SONET Based
Interconnection; Physical Collocation Interconnection; leasing of SWBT
facilities; and other methods as mutually agreed to by the Parties.
1. MID-SPAN FIBER INTERCONNECTION (MSFI)
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.
MSFI may be used to provide interconnection trunking as defined in
Appendix ITR to Attachment 11: Network Interconnection Architecture.
A. There are two basic mid-span interconnection designs:
1. 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 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.
<PAGE> 172
APPENDIX NIM
PAGE 3 OF 5
2. 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.
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.
B. 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.
C. 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.
D. The fiber connection point may occur at several locations:
1. 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;
2. 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;
3. 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;
4. 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.
E. 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.
<PAGE> 173
APPENDIX NIM
PAGE 4 OF 5
F. 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.
2. AVOIDANCE OF OVER PROVISIONING
Underutilization is the 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.
3. JOINT FACILITY GROWTH PLANNING
The initial fiber optic 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:
1. Investment is to be minimized;
2. Facilities are to be deployed in a "just in time" fashion.
B. Processes
1. discussions to provide relief to existing facilities will be
triggered when either Party recognizes that the overall system
facility (DS1s) is at 90% capacity;
2. 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;
3. 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
<PAGE> 174
APPENDIX NIM
PAGE 5 OF 5
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;
4. 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;
5. 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;
6. the joint planning process/negotiations should be completed
within two months of identification of 90% fill.
4. VIRTUAL COLLOCATION INTERCONNECTION
The description of Virtual Collocation Interconnection is contained in
SWBT's Virtual Collocation tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
5. SONET-BASED INTERCONNECTION
The description of SONET-Based Interconnection is contained in SWBT's
Sonet-Based Interconnection tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
6. PHYSICAL COLLOCATION INTERCONNECTION
SWBT will provide Physical Collocation Interconnection on
nondiscriminatory terms and conditions at the time LSP requests such
interconnection.
7. LEASING OF SWBT'S FACILITIES
LSP's leasing of SWBT's facilities for purposes of Attachment 11: Network
Interconnection Architecture will be subject to the mutual agreement of
the Parties.
<PAGE> 175
PHYSICAL COLLOCATION AGREEMENT
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
<PAGE> 176
TABLE OF ARTICLES
ARTICLE I - PREMISES........................................... -1-
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL............. -2-
ARTICLE III - TERM............................................. -3-
ARTICLE IV - PREMISES CHARGES.................................. -4-
ARTICLE V - INTERCONNECTION CHARGES............................ -7-
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT.......... -7-
ARTICLE VII - USE OF PREMISES.................................. -8-
ARTICLE VIII - STANDARDS....................................... -10-
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR............ -11-
ARTICLE X - QUIET ENJOYMENT.................................... -13-
ARTICLE XI - ASSIGNMENT........................................ -13-
ARTICLE XII - CASUALTY LOSS.................................... -13-
ARTICLE XIII - RE-ENTRY........................................ -14-
ARTICLE XIV - LIMITATION OF LIABILITY......................... -15-
ARTICLE XV - INDEMNIFICATION OF SWBT........................... -16-
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES.. -17-
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION....... -17-
ARTICLE XVIII - SUCCESSORS BOUND............................... -19-
ARTICLE XIX - CONFLICT OF INTEREST............................. -19-
ARTICLE XX - NON-EXCLUSIVE REMEDIES............................ -20-
ARTICLE XXI - NOTICES.......................................... -20-
ARTICLE XXII - COMPLIANCE WITH LAWS............................ -20-
ARTICLE XXIII - OSHA STATEMENT................................. -21-
ARTICLE XXIV - INSURANCE....................................... -21-
ARTICLE XXV - SWBT'S RIGHT OF ACCESS........................... -24-
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT.................. -24-
ARTICLE XXVII - MISCELLANEOUS.................................. -25-
<PAGE> 177
PHYSICAL COLLOCATION AGREEMENT
THIS PHYSICAL COLLOCATION AGREEMENT ("Agreement") is made this _____
day of __________ , 19____ by and between SOUTHWESTERN BELL TELEPHONE COMPANY, a
Missouri corporation ("SWBT"), and Digital Teleport, Inc., a [STATE OF
INCORPORATION] corporation ("Interconnector").
WITNESSETH
WHEREAS, SWBT is an incumbent local exchange carrier having a statutory
duty to provide for "physical collocation" of "equipment necessary for
interconnection or access to unbundled network elements" at its premises, 47
U.S.C. 251(c)(6);
WHEREAS, the Interconnector wishes to physically locate certain of its
equipment within the Premises (as defined herein) and connect with SWBT;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SWBT and the Interconnector (the
"parties") agree as follows:
ARTICLE I - PREMISES
1.1 Right to Use. Subject to this Agreement, SWBT grants to
Interconnector the right to use the premises described on Exhibit ____
("Premises"), attached and incorporated herein, within real property at _______
____ in the City of ___________, County of ____________, State of
________________.
1.2 Relocation. Notwithstanding Section 1.1, in the event that SWBT
determines it necessary for the Premises to be moved within the building in
which the Premises is located ("Building") or to another SWBT wire center, the
Interconnector is required to do so. In such an event, the Interconnector shall
be responsible for the preparation of the new premises at the new location if
such relocation arises from circumstances beyond the reasonable control of SWBT,
including condemnation
<PAGE> 178
-2-
or government order or regulation that makes the continued occupancy of the
Premises or Building uneconomical in SWBT's sole judgment. Otherwise SWBT shall
be responsible for any such preparation.
In the event that the Interconnector requests that the Premises be
moved within the Building or to another SWBT wire center, SWBT shall permit the
Interconnector to relocate the Premises, subject to the availability of space
and associated requirements. The Interconnector shall be responsible for all
applicable charges associated with the move, including the reinstallation of its
equipment and facilities and the preparation of the new Premises and the new
wire center as applicable.
In either such event, the new premises shall be deemed the "Premises"
hereunder and the new wire center the "Building."
1.3 The Premises. SWBT agrees, at the Interconnector's sole cost and
expense as set forth herein, to prepare the Premises in accordance with working
drawings and specifications entitled ___________ and dated _________ , which
documents, marked Exhibit ___________, are attached and incorporated herein. The
preparation shall be arranged by SWBT in compliance with all applicable
codes, ordinances, resolutions, regulations and laws. After the Interconnector
has made the initial payments required by Section 4.4 and the state regulatory
approval is obtained in accordance with Section 2.1 hereof, SWBT agrees to
pursue diligently the preparation of the Premises for use by the
Interconnector.
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL
2.1 Submission to State Commission. The effectiveness of this
Agreement is conditioned upon the unqualified approval of this
Agreement, whether as a result of an approval process or by operation of law,
under 47 U.S.C. 252(a)(1). After execution of this Agreement, the parties shall
submit it to the State commission for the State in which the Premises is
located as thereby required for approval, and shall defend the Agreement and
support any reasonable effort to have this Agreement so approved,
<PAGE> 179
-3-
including the supplying of witnesses and testimony if a hearing is to be held.
2.2 Failure to Receive Approval. In the event that this Agreement does not
receive such unqualified approval, this Agreement shall be void upon written
notice of either party to the other after such regulatory action becomes final
and unappealable. Thereafter Interconnector may request to begin negotiations
again under 47 U.S.C. 251. Alternatively, the parties may both agree to modify
this Agreement to receive such approval, but neither shall be required to agree
to any modification. Any agreement to modify shall not waive the right of either
party to pursue any appeal of the ruling made by any reviewing regulatory
commission.
2.3 Preparation Prior to Regulatory Approval. At the written election of
the Interconnector, SWBT shall begin preparing the Premises for the
Interconnector prior to receiving the approval required by Section 2.1 hereof.
The sole evidence of such election shall be the payment to SWBT of the initial
payments specified in Sections 4.4. Payment to SWBT of the remaining charges
under these Sections shall be due upon completion. Upon such an election, this
Agreement shall become effective but only insofar as to be applicable to the
Premises preparation. In the event that the Agreement does not become fully
effective as contemplated by this Article, the Interconnector shall not be
entitled to any refund or return of any such payments beyond any portion of the
charges paid but not attributable to costs incurred by SWBT. To the extent that
SWBT has incurred preparation costs not included within any payment made by the
Interconnector, the Interconnector shall pay those costs within thirty (30) days
of notice by SWBT.
ARTICLE III - TERM
3.1 Commencement Date. This Agreement shall be month-to-month, beginning
on the "Commencement Date." The "Commencement Date" shall be the first day after
this Agreement becomes effective in accordance with Article II hereof.
3.2 Occupancy. Unless there are unusual circumstances, SWBT will notify
the Interconnector
<PAGE> 180
-4-
that the Premises is ready for occupancy within ____ days after receipt of the
payments due under Sections 4.4. The Interconnector must place operational
telecommunications equipment in the Premises and connect with SWBT's network
within sixty (60) days after receipt of such notice; provided, however, that
such 60-day period shall not begin until regulatory approval is obtained under
Article II. If the Interconnector fails to do so, this Agreement is terminated
except that the Interconnector shall be liable in an amount equal to the unpaid
balance of the charges due under and, further, shall continue to be bound by
Articles II, IV, XI, XIV, XV, XVII, XVIII, XX, XXI, XXVI and XXVII hereof. For
purposes of this Section, the Interconnector's telecommunications equipment is
considered to be operational and interconnected when connected to SWBT's network
for the purpose of providing service.
ARTICLE IV - PREMISES CHARGES
4.1 Monthly Charges. Beginning on the Commencement Date, Interconnector
shall pay to SWBT a charge of _______ Dollars ($______) per month for use of
the Premises. The monthly charge may be increased upon thirty (30)
days' notice by SWBT.
4.2 Billing. Billing shall occur on or about the 25th day of each month,
with payment due thirty (30) days from the bill date. SWBT may change its
billing date practices upon thirty (30) days notice to the Interconnector.
4.3 Preparation Charge. (a) The one-time charge for preparing the Premises
for use by the Interconnector is estimated to be __________________ Dollars
($XXX.XX) ("Preparation Charge"), which consists of two components: (i) the
charge to the Interconnector associated with modifying the Building to provide
physical collocation ("Common Charge"), and (ii) the charge associated with
preparing the Premises ("Premises Charge"). Of the Preparation Charge
___________ Dollars ($XXX.XX) is the estimate for subcontractor charges
("Subcontractor Charges").
(b) SWBT will contract for and perform the construction and preparation
activities underlying the
<PAGE> 181
-5-
Preparation Charge, including the Common Charge, the Premises Charge, and the
Subcontractor Charges, and any Custom Work charges, using same or consistent
practices that are used by SWBT for other construction and preparation work
performed in the Building. Subject to an appropriate non-disclosure agreement,
SWBT will permit the Interconnector to inspect supporting documents for the
Preparation Charge, including the Common Charge (if the Interconnector is the
initial physical collocator as used in Section 4.5(b)) and the Premises Charge,
and any Custom Work charge. Any dispute regarding such SWBT charges will be
subject to the dispute resolution provisions hereof.
4.4 Payment of Premises Charge. Prior to any obligation on SWBT to start
any preparation of the Premises, the Interconnector shall pay SWBT fifty percent
(50%) of the Premises Charge and eighty-five percent (85%) of any custom work
charge required to create or vacate any entrance facility for the Interconnector
("Custom Work"), and shall be due no later than ten (10) business days after the
Agreement has become effective in accordance with Article II hereof. The
remainder of the Premises Charge and any Custom Work charge are due upon
completion and prior to occupancy by the Interconnector.
4.5 Payment of Common Charge. (a) In addition and prior to any obligation
on SWBT to start any preparation of the Building for physical collocation, the
Interconnector shall pay SWBT fifty percent (50%) of the Common Charge. The
other fifty percent (50%) of the Common Charge is due upon completion and prior
to occupancy by the Interconnector.
(b) The first entity to which SWBT provides physical collocation in the
Building shall be responsible for all costs incurred by SWBT associated with the
preparation of the Building to provide physical collocation in the initial space
where physical collocation is to be located ("Initial Common Charge").
Thereafter the Initial Common Charge will be prorated and the prorated share
refunded to the previous physical collocator(s) as additional entities use
physical collocation in the Building within twelve (12) months of the first
billing date of the initial monthly charge for the first physical collocator in
the Building, using the following schedule:
<PAGE> 182
-6-
<TABLE>
<CAPTION>
Collocator Initial Common Charge Refund
- ---------- --------------------- ------
<S> <C> <C>
1st 100% NA
2nd 50% 50%
3rd 33 1/3% 16 2/3%
4th 25% 8 1/3%
5th and beyond 0% 0%
</TABLE>
To the extent that a physical collocator uses a space other than such initial
space, SWBT shall refund to the Interconnector the portion of the Initial Common
Charge applicable to such collocator based on the relative use of such initial
space in a manner consistent with the above methodology and other terms of this
Agreement.
(c) No interest will be paid on refunds. Refunds shall be based on the
Initial Common Charge actually paid by the first physical collocator.
(d) Notwithstanding the above, SWBT shall have no obligation to remit any
amount that would result in SWBT being unable to retain the full amount of the
Initial Common Charge or to remit any amount based upon charges not actually
collected.
4.6 Payment of Preparation Charge. SWBT is not obligated to start any
preparation of the Premises until the Interconnector pays SWBT fifty percent
(50%) of the Preparation Charge and eighty-five percent (85%) of the charges for
any Custom Work charge. Such charges shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Preparation Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.7 Occupancy Conditioned on Payment. SWBT shall not permit the
Interconnector to have access to the Premises for any purpose other than
inspection until SWBT is in receipt of complete payment of the Preparation
Charge and any Custom Work charges.
4.8 Subcontractor Charges. Within one hundred twenty (120) days of the
completion date of the Premises, SWBT shall perform a true-up of all
Subcontractor Charges using the actual amounts billed by subcontractors. Any
amounts incurred above the Subcontractor Charges will be billed to the
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Interconnector or, alternatively, any amount below such Charges will be remitted
to the Interconnector.
4.9 Breach Prior to Commencement Date. In the event that the
Interconnector materially breaches this Agreement by purporting to terminate
this Agreement after SWBT has begun preparation of the Premises but before SWBT
has been paid the entire amounts due under this Article, then in addition to any
other remedies that SWBT might have, the Interconnector shall be liable in the
amount equal to the non-recoverable costs less estimated net salvage.
Non-recoverable costs include the non-recoverable cost of equipment and material
ordered, provided or used; trued-up Subcontractor Charges, the non-recoverable
cost of installation and removal, including the costs of equipment and material
ordered, provided or used; labor; transportation and any other associated costs.
4.10 Late Payment Charge. In the event that any charge is not paid when
due, the unpaid amounts shall bear interest in accordance with the terms and
conditions set forth in SWBT's intrastate tariff late payment provision(s)
applicable to access services for the State in which the Premises is located, or
the highest rate permitted by law, whichever is lower, from the due date until
paid.
ARTICLE V - INTERCONNECTION CHARGES
5.1 Charges for interconnection shall be as set forth in any
interconnection agreement between SWBT and the interconnector and any applicable
tariffs.
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT
6.1 Fiber Entrances. The Interconnector shall use a single mode dielectric
fiber optic cable as a transmission medium to the Premises. The Interconnector
shall be permitted no more than two (2) entrance routes into the Building, if
available.
6.2 Demarcation Point. SWBT shall designate the point(s) of termination
within the Building as the point(s) of physical demarcation between the
Interconnector's network and SWBT's network, with
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each being responsible for maintenance and other ownership obligations and
responsibilities on its side of that demarcation point. SWBT anticipates that
the demarcation point will be within the point-of-termination frame.
ARTICLE VII - USE OF PREMISES
7.1 Nature of Use. The Premises are to be used by the Interconnector for
purposes of locating equipment and facilities within SWBT's central offices to
connect with SWBT services only. Consistent with the nature of the Building and
the environment of the Premises, the Interconnector shall not use the Premises
for office, retail, or sales purposes. No signage or markings of any kind by the
Interconnector shall be permitted on the Building or on the grounds surrounding
the Building.
7.2 Equipment List. A list of all of the Interconnector's equipment and
facilities that will be placed within the Premises is set forth on Exhibit ___,
attached and incorporated herein, with the associated power requirements, floor
loading, and heat release of each piece. The Interconnector warrants and
represents that Exhibit __ is a complete and accurate list, and acknowledges
that any incompleteness or inaccuracy would be a material breach of this
Agreement. The Interconnector shall not place or leave any equipment or
facilities within the Premises beyond those listed on Exhibit ___ without the
express written consent of SWBT.
7.2.1 Subsequent Requests to Place Equipment. In the event that subsequent
to the execution of this Agreement the Interconnector desires to place in the
Premises any equipment or facilities not set forth on Exhibit ___, the
Interconnector shall furnish to SWBT a written list and description thereof
substantially in the form of Attachment A, which is attached and incorporated.
Thereafter, in its sole discretion, SWBT may provide such written consent or may
condition any such consent on additional charges arising from the request,
including any engineering design charges and any additional requirements such as
power and environmental requirements for such listed and described equipment
and/or facilities. Upon the execution by both parties of a final list and
description, including any
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applicable charges, this Agreement shall be deemed to have been amended to
include the terms and conditions of the final list and description.
7.2.2 Limitations. The foregoing imposes no obligation upon SWBT to
purchase additional plant or equipment, relinquish used or forecasted space or
facilities, or to undertake the construction of new quarters or to construct
additions to existing quarters in order to satisfy a subsequent request for
additional space or the placement of additional equipment or facilities.
7.3 Administrative Uses. The Interconnector may use the Premises for
placement of equipment and facilities only. The Interconnector's employees,
agents and contractors shall be permitted access to the Premises at all
reasonable times, provided that the Interconnector's employees, agents and
contractors comply with SWBT's policies and practices pertaining to fire, safety
and security. The Interconnector agrees to comply promptly with all laws,
ordinances and regulations affecting the use of the Premises. Upon the
expiration of the Agreement, the Interconnector shall surrender the Premises to
SWBT, in the same condition as when first occupied by the Interconnector,
ordinary wear and tear excepted.
7.4 Threat to Network or Facilities. Interconnector equipment or operating
practices representing a significant demonstrable technical threat to SWBT's
network or facilities, including the Building, are strictly prohibited.
7.5 Interference or Impairment. Notwithstanding any other provision
hereof, the characteristics and methods of operation of any equipment or
facilities placed in the Premises shall not interfere with or impair service
over any facilities of SWBT or the facilities of any other person or entity
located in the Building; create hazards for or cause damage to those facilities,
the Premises, or the Building; impair the privacy of any communications carried
in, from, or through the Building; or create hazards or cause physical harm to
any individual or the public. Any of the foregoing events would be a material
breach of this Agreement.
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7.6 Interconnection to Other Collocated Interconnectors Within the
Building To the extent that SWBT is required by law to permit such
interconnection, SWBT will provide the connection between physical collocation
arrangements on a time and materials basis whenever the collocated
interconnectors cannot for technical reasons provide the connection for
themselves by passing the facility through the cage wall(s). SWBT will provide
nothing more than the labor and physical structure(s) necessary for the
collocator(s) to pull facilities provided by one collocator from its cage to the
cage of another collocator. If the collocators are not located on the same floor
and cannot physically pull the cable themselves through the SWBT provided
structure(s), SWBT will perform the cable pull on an time and materials basis.
At no time will the collocators be allowed access to any portion of the central
office other than the collocation area. SWBT will not make the physical
connection within the collocator's cage, SWBT will not accept any liability for
the cable or the connections and SWBT will not maintain any records concerning
these connections.
7.7 Personality and its Removal. Subject to this Article, the
Interconnector may place or install in or on the Premises such fixtures and
equipment as it shall deem desirable for the conduct of business. Personal
property, fixtures and equipment placed by the Interconnector in the Premises
shall not become a part of the Premises, even if nailed, screwed or otherwise
fastened to the Premises, but shall retain their status as personality and may
be removed by Interconnector at any time. Any damage caused to the Premises by
the removal of such property shall be promptly repaired by Interconnector at its
expense.
7.8 Alterations. In no case shall the Interconnector or any person
purporting to be acting through or on behalf of the Interconnector make any
rearrangement, modification, improvement, addition, repair, or other alteration
to the Premises or the Building without the advance written permission and
direction of SWBT. SWBT shall consider a modification, improvement, addition,
repair, or other alteration requested by the Interconnector, provided that SWBT
shall have the right to reject or modify
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any such request. The cost of any such construction shall be paid by
Interconnector in accordance with SWBT's then-standard custom work order
process.
ARTICLE VIII - STANDARDS
8.1 Minimum Standards. This Agreement and the physical collocation
provided hereunder is made available subject to and in accordance with the (i)
Bellcore Network Equipment Building System (NEBS) Generic Requirements
(GR-63-CORE and GR-1089-CORE), as may be amended at any time and from time to
time, and any successor documents; (ii) SWBT's Technical Publication for
Physical Collocation dated ________ ___, 1996, as may be amended from time to
time; (iii) SWBT's Technical Publication 76300, Installation Guide, followed in
installing network equipment and facilities within SWBT central offices, as may
be amended from time to time; (iv) SWBT's Emergency Operating Procedures, as may
be amended from time to time; and (v) any statutory and/or regulatory
requirements in effect at the execution of this Agreement or that subsequently
become effective and then when effective. The Interconnector shall strictly
observe and abide by each.
8.2 Revisions. Any revision to SWBT's Technical Publication for Physical
Collocation, its Technical Publication 76300, or its Emergency Operating
Procedures shall become effective and thereafter applicable under this Agreement
thirty (30) days after such revision is released by SWBT; provided, however,
that any revision made to address situations potentially harmful to SWBT's
network or the Premises, or to comply with statutory and/or regulatory
requirements shall become effective immediately.
8.3 Compliance Certification. The Interconnector warrants and represents
compliance with the Bellcore Network Equipment Building System (NEBS) Generic
Requirements (GR-63-CORE and GR-1089-CORE) for each item set forth on Exhibit
___. The Interconnector also warrants and represents that any equipment or
facilities that may be placed in the Premises pursuant to Section 7.2.1 or
otherwise shall be so compliant. DISCLOSURE OF ANY NON-COMPLIANT ITEM ON
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EXHIBIT __, PURSUANT TO SECTION 7.2.1, OR OTHERWISE SHALL NOT QUALIFY THIS
ABSOLUTE CERTIFICATION IN ANY MANNER.
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR
9.1 Contact Number. The Interconnector is responsible for providing to
SWBT personnel a contact number for Interconnector technical personnel who are
readily accessible 24 hours a day, 7 days a week.
9.2 Trouble Status Reports. The Interconnector is responsible for
providing trouble report status when requested by SWBT.
9.3 Optical Fiber Extension. The Interconnector is responsible for
bringing its fiber optic cable to the wire center entrance manhole(s) designated
by SWBT, and for leaving sufficient cable length in order for SWBT to fully
extend the Interconnector-provided cable through the cable vault to the
Premises.
9.4 Regeneration. Regeneration of either DS1 or DS3 signal levels may
be provided by the Interconnector, or SWBT under its then-standard custom work
order process, including payment requirements prior to the installation of the
regeneration equipment.
9.5 Removal. The Interconnector is responsible for removing any
equipment, property or other items that it brings into the Premises or any
other part of the Building. If the Interconnector fails to remove any
equipment, property, or other items from the Premises within thirty (30) days
after discontinuance of use, SWBT may perform the removal and shall charge the
Interconnector for any materials used in any such removal, and the time spent
on such removal at the then-applicable hourly rate for custom work. Further, in
addition to the other provisions herein, the Interconnector shall indemnify and
hold SWBT harmless from any and all claims, expenses, fees, or other costs
associated with any such removal by SWBT.
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9.6 Interconnector's Equipment and Facilities. The Interconnector is
solely responsible for the design, engineering, testing, performance, and
maintenance of the equipment and facilities used by the Interconnector in the
Premises. The Interconnector will be responsible for servicing, supplying,
repairing, installing and maintaining the following facilities within the
Premises:
(a) its fiber optic cable(s);
(b) its equipment;
(c) required point of termination cross connects;
(d) point of termination maintenance, including replacement of fuses and
circuit breaker restoration, if and as required; and
(e) the connection cable and associated equipment which may be required
within the Premises to the point(s) of termination.
SWBT NEITHER ACCEPTS NOR ASSUMES ANY RESPONSIBILITY WHATSOEVER IN ANY OF THESE
AREAS.
9.7 Verbal Notifications Required. The Interconnector is responsible for
immediate verbal notification to SWBT of significant outages or operations
problems which could impact or degrade SWBT's network, switches, or services,
and for providing an estimated clearing time for restoral. In addition, written
notification must be provided within twenty-four (24) hours.
9.8 Service Coordination. The Interconnector is responsible for
coordinating with SWBT to ensure that services are installed in accordance with
the service request.
9.9 Testing. The Interconnector is responsible for testing, to identify
and clear a trouble when the trouble has been isolated to an
Interconnector-provided facility or piece of equipment. If SWBT testing is also
required, it will be provided at charges specified in SWBT's F.C.C. No. 73,
Section 13.
ARTICLE X - QUIET ENJOYMENT
Subject to the other provisions hereof, SWBT covenants that it has full
right and authority to
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permit the use of the Premises by the Interconnector and that, so long as the
Interconnector performs all of its obligations herein, the Interconnector may
peaceably and quietly enjoy the Premises during the term hereof.
ARTICLE XI - ASSIGNMENT
The Interconnector shall not assign or otherwise transfer this Agreement,
neither in whole nor in part, or permit the use of any part of the Premises by
any other person or entity, without the prior written consent of SWBT. Any
purported assignment or transfer made without such consent shall be voidable at
the option of SWBT. The Interconnector shall not permit any third party to
jointly occupy the Premises.
ARTICLE XII - CASUALTY LOSS
12.1 Damage to Premises. If the Premises are damaged by fire or other
casualty, and
(i) The Premises are not rendered untenantable in whole or in part,
SWBT shall repair the same at its expense (as hereafter limited)
and the rent shall not be abated, or
(ii) The Premises are rendered untenantable in whole or in part and
such damage or destruction can be repaired within
ninety (90) days, SWBT has the option to repair the Premises at
its expense (as hereafter limited) and rent shall be
proportionately abated while Interconnector was deprived of the
use. If the Premises cannot be repaired within ninety (90)
days, or SWBT opts not to rebuild, then this Agreement shall
(upon notice to the Interconnector within thirty (30) days
following such occurrence) terminate as of the date of such
damage.
Any obligation on the part of SWBT to repair the Premises shall be limited to
repairing, restoring and rebuilding the Premises as originally prepared for the
Interconnector and shall not include any obligation to repair, restore, rebuild
or replace any alterations or improvements made by the
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Interconnector or by SWBT on request of the Interconnector; or any fixture or
other equipment installed in the Premises by the Interconnector or by SWBT on
request of the Interconnector.
12.2. Damage to Building. In the event that the Building shall be so
damaged by fire or other casualty that closing, demolition or substantial
alteration or reconstruction thereof shall, in SWBT's opinion, be advisable,
then, notwithstanding that the Premises may be unaffected thereby, SWBT, at its
option, may terminate this Agreement by giving the Interconnector ten (10) days
prior written notice within thirty (30) days following the date of such
occurrence, if at all possible.
ARTICLE XIII - RE-ENTRY
If the Interconnector shall default in performance of any agreement
herein, and the default shall continue for thirty (30) days after receipt of
written notice, or if the Interconnector is declared bankrupt or insolvent or
makes an assignment for the benefit of creditors, SWBT may, immediately or at
any time thereafter, without notice or demand, enter and repossess the Premises,
expel the Interconnector and any claiming under the Interconnector, remove the
Interconnector's property, forcibly if necessary, and thereupon this Agreement
shall terminate, without prejudice to any other remedies SWBT might have.
SWBT may also refuse additional applications for service and/or refuse to
complete any pending orders for additional space or service by the
Interconnector at any time thereafter.
ARTICLE XIV - LIMITATION OF LIABILITY
14.1 Limitation. With respect to any claim or suit for damages arising in
connection with the mistakes, omissions, interruptions, delays or errors, or
defects in transmission occurring in the course of furnishing service hereunder,
the liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly charge to the Interconnector for the period during which
such mistake, omission, interruption, delay, error, or defect in transmission or
service occurs and continues.
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However, any such mistakes, omissions, interruptions, delays, errors, or defects
in transmission or service which are caused or contributed to by the negligence
or willful act of the Interconnector or which arise in connection with the use
of the Interconnector-provided facilities or equipment shall not result in the
imposition of any liability whatsoever upon SWBT.
Neither party shall be responsible to the other for any indirect, special,
consequential, lost profit, or punitive damages, whether in contract or tort.
Each party shall be indemnified and held harmless by the other against
claims and damages by any third party arising from provision of the other
party's services or equipment except those claims and damages directly
associated with the provision of services to the other party which are governed
by the provisioning party's applicable tariffs.
Neither party shall have any liability whatsoever to the customers of the
other party for claims arising from the provision of the other party's service
to its customers, including claims for interruption of service, quality of
service or billing disputes.
The liability of either party for its willful misconduct, if any, is not
limited by this Agreement. With respect to any other claim or suit, by a
customer or by any others, for damages associated with the installation,
provision, preemption, termination, maintenance, repair or restoration of
service, SWBT's liability, if any, shall not exceed an amount equal to the
proportionate monthly charge for the affected period.
SWBT shall not be liable for any act or omission of any other carrier or
customer providing a portion of a service, nor shall SWBT for its own act or
omission hold liable any other carrier or customer providing a portion of a
service.
When the Interconnector is provided service under this Agreement, SWBT
shall be indemnified, defended and held harmless by the Interconnector against
any claim, loss or damage arising from the customer's use of services offered
under this Agreement, involving:
(1) Claims for libel, slander, invasion of privacy, or infringement of
copyright arising from
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the customer's own communications;
(2) Claims for patent infringement arising from the customer's acts
combining or using the service furnished by SWBT in connection
with facilities or equipment furnished by the customer; or
(3) All other claims arising in connection with any act or omission of
the Interconnector in the course of using services provided
pursuant to this Agreement.
14.2 Third Parties. The Interconnector acknowledges and understands that
SWBT may provide space in or access to the Building to other persons or entities
("Others"), which may include competitors of Interconnectors; that such space
may be close to the Premises, possibly including space adjacent to the Premises
and/or with access to the outside of the Premises; and that the cage around the
Premises is a permeable boundary that will not prevent the Others from observing
or even damaging the Interconnector's equipment and facilities. In addition to
any other applicable limitation, SWBT shall have absolutely no liability with
respect to any action or omission by any Other, regardless of the degree of
culpability of any such Other or SWBT, and regardless of whether any claimed
SWBT liability arises in tort or in contract. The Interconnector shall save and
hold SWBT harmless from any and all costs, expenses, and claims associated with
any such acts or omission by any Other acting for, through, or as a result of
the Interconnector.
ARTICLE XV - INDEMNIFICATION OF SWBT
In addition to any other provision hereof, the Interconnector agrees to
indemnify, defend and save harmless SWBT (including its officers, directors,
employees, and other agents) from any and all claims, liabilities, losses,
damages, fines, penalties, costs, attorney's fees or other expenses of any kind,
arising in connection with Interconnector's use of the Premises, conduct of its
business or any activity, in or about the Premises, performance of any terms of
this Agreement, or any act or omission of the Interconnector (including its
officers, directors, employees, agents, contractors, servants,
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invitees, or licensees). Defense of any claim shall be reasonably satisfactory
to SWBT.
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES
16.1 Operating Services. SWBT, at its sole cost and expense, shall
maintain for the Building customary building services, utilities (excluding
telephone facilities), including janitor and elevator services, 24 hours a day.
The Interconnector shall be permitted to have a single-line business telephone
service for the Premises subject to applicable SWBT tariffs.
16.2 Utilities. SWBT will provide negative DC and AC power, back-up power,
heat, air conditioning and other environmental support necessary for the
Interconnector's equipment, in the same manner that it provides such support
items for its own equipment within that wire center.
16.3 Maintenance. SWBT shall maintain the exterior of the Building and
grounds, and all entrances, stairways, passageways, and exits used by the
Interconnector to access the Premises.
16.4 Legal Requirements. SWBT agrees to make, at its expense, all changes
and additions to the Premises required by laws, ordinances, orders or
regulations of any municipality, county, state or other public authority
including the furnishing of required sanitary facilities and fire protection
facilities, except fire protection facilities specially required because of the
installation of telephone or electronic equipment and fixtures in the Premises.
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION
17.1 Finality of Disputes. No claim arising from this Agreement shall be
brought more than twenty-four (24) months from the date of occurrence which
gives rise to the claim.
17.2 Alternative to Litigation. The parties desire to resolve disputes
arising in connection with this Agreement without litigation. Accordingly,
except for action seeking a temporary restraining order or an injunction related
to the purposes of this Agreement, or suit to compel compliance with this
dispute resolution process, the parties agree to use the following alternative
dispute resolution
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procedure as their sole remedy with respect to any controversy or claim arising
from or relating to this Agreement.
17.3 Resolution of Disputes Between Parties. At the written request of a
party, each party will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration and conclusion of these
discussions shall be left to the discretion of the representatives. Upon
agreement, the representatives may use other alternative dispute resolution
procedures, such as mediation, to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of settlement, exempt from
discovery and production, shall not be admissible in the arbitration described
below or in any lawsuit without the concurrence of all parties. Documents
identified in or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and, if otherwise admissible,
may be admitted in evidence in the arbitration or lawsuit.
17.4 Arbitration. If the negotiations do not resolve the dispute within
sixty (60) days of the initial written request, the dispute shall be submitted
to binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A Party may demand
such arbitration in accordance with the procedures set forth in those rules.
Discovery shall be controlled by the arbitrator and shall be permitted only to
the extent set forth in this Section. Each party may submit in writing to the
other party, and the receiving party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have subparts) of the
following:
(a) Interrogatories
(b) Demands to produce documents
(c) Requests for admission
Additional discovery may be permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60) days of the demand for
arbitration. The arbitration shall be held in ___________________. The
arbitrator shall control the scheduling so as to process the matter
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expeditiously. The parties shall submit written briefs five days before the
hearing. The arbitrator shall rule on the dispute by issuing a written opinion
within thirty (30) days after the close of hearings. The arbitrator has no
authority to order punitive or consequential damages. The times specified in
this section may be extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
17.5 Costs. Each party shall bear its own costs of these procedures. A
party seeking discovery shall reimburse the responding party the costs of
production of documents (including search time and reproduction costs). The
parties shall equally split the fees of the arbitration and the arbitrator.
ARTICLE XVIII - SUCCESSORS BOUND
Without limiting Article XI hereof, the conditions and agreements
contained herein shall bind and inure to the benefit of SWBT, the Interconnector
and their respective successors and, except as otherwise provided herein,
assigns.
ARTICLE XIX - CONFLICT OF INTEREST
The Interconnector represents that no employee or agent of SWBT has been
or will be employed, retained, paid a fee, or otherwise has received or will
receive any personal compensation or consideration from the Interconnector, or
any of the Interconnector's employees or agents in connection with the arranging
or negotiation of this Agreement or associated documents.
ARTICLE XX - NON-EXCLUSIVE REMEDIES
No remedy herein conferred upon is intended to be exclusive of any other
remedy in equity, provided by law, or otherwise, but each shall be in addition
to every other such remedy.
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ARTICLE XXI - NOTICES
Except as may be specifically permitted in this Agreement, any notice,
demand, or payment required or desired to be given by one party to the other
shall be in writing and shall be valid and sufficient if dispatched by
registered or certified mail, return receipt requested, postage prepaid, in the
United States mails, or by facsimile transmission; provided, however, that
notices sent by such registered or certified mail shall be effective on the
third business day after mailing and those sent by facsimile transmission shall
only be effective on the date transmitted if such notice is also sent by such
registered or certified mail no later than the next business day after
transmission, all addressed as follows:
If to SWBT:
Jeffrey Fields
One Bell Plaza, 525.07
Dallas, Texas 75202
If to the Interconnector:
Richard Weinstein
11111 Dorsett Road
St. Louis, Missouri 63043
Either party hereto may change its address by written notice given to the other
party hereto in the manner set forth above.
ARTICLE XXII - COMPLIANCE WITH LAWS
The Interconnector and all persons acting through or on behalf of the
Interconnector shall comply with the provisions of the Fair Labor Standards Act,
the Occupational Safety and Health Act, and all other applicable federal, state,
county, and local laws, ordinances, regulations and codes (including
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identification and procurement of required permits, certificates, approvals and
inspections) in its performance hereunder. The Interconnector further agrees
during the term of this Agreement to comply with all applicable Executive and
Federal regulations as set forth in SW9368, attached as Exhibit ____ and
incorporated herein, as may be modified from time to time.
ARTICLE XXIII - OSHA STATEMENT
The Interconnector, in recognition of SWBT's status as an employer, agrees
to abide by and to undertake the duty of compliance on behalf of SWBT with all
federal, state and local laws, safety and health regulations relating to the
Premises which the Interconnector has assumed the duty to maintain pursuant to
this Agreement, and to indemnify and hold SWBT harmless for any judgments,
citations, fines, or other penalties which are assessed against SWBT as the
result of the Interconnector's failure to comply with any of the foregoing.
SWBT, in its status as an employer, shall comply with all federal, state and
local laws, safety and health standards and regulations with respect to the
structural and those other portions of the Premises which SWBT has agreed to
maintain pursuant hereto.
ARTICLE XXIV - INSURANCE
24.1 Coverage Requirements. The Interconnector shall, at its sole cost and
expense procure, maintain, pay for and keep in force the following insurance
coverage and any additional insurance and/or bonds required by law and
underwritten by insurance companies having a BEST Insurance rating of A+VII or
better, and which is authorized to do business in the jurisdiction in which the
Premises are located. SWBT shall be named as an ADDITIONAL INSURED on general
liability policy.
(1) Comprehensive General Liability insurance including
Products/Completed Operations Liability insurance including the
Broad Form Comprehensive General Liability endorsement (or its
equivalent(s)) with a Combined Single limit for Bodily Injury and
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Property Damage of $1,000,000. Said coverage shall include the
contractual, independent contractors products/completed
operations, broad form property, personal injury and fire legal
liability.
(2) If use of an automobile is required or if the Interconnector is
provided or otherwise allowed parking space by SWBT in connection
with this Agreement, automobile liability insurance with minimum
limits of $1 million each accident for Bodily Injury, Death and
Property Damage combine. Coverage shall extend to all owned,
hired and non-owned automobiles. The Interconnector hereby waives
any rights of recovery against SWBT for damage to the
Interconnector's vehicles while on the grounds of the Building
and the Interconnector will hold SWBT harmless and indemnify it
with respect to any such damage or damage to vehicles of the
Interconnector's employees, contractors, invitees, licensees or
agents.
(3) Workers' Compensation insurance with benefits afforded in
accordance with the laws of the state in which the space is to be
provided.
(4) Employer's Liability insurance with minimum limits of $100,000
for bodily injury by accident, $100,000 for bodily injury by
disease per employee and $500,000 for bodily injury by disease
policy aggregate.
(5) Umbrella/Excess liability coverage in an amount of $5 million
excess of coverage specified above.
(6) All Risk Property coverage on a full replacement cost basis
insuring all of the Interconnector's personal property situated
on or within the Building or the Premises. The Interconnector
releases SWBT from and waives any and all right of recovery,
claim, action or cause of action against SWBT, its agents,
directors, officers, employees, independent contractors, and
other representatives for any loss or damage that may occur to
equipment or any other personal property belonging to
Interconnector or located on or in the space at
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the instance of the Interconnector by reason of fire or water or
the elements or any other risks would customarily be included in
a standard all risk casualty insurance policy covering such
property, regardless of cause or origin, including negligence of
SWBT, its agents, directors, officers, employees, independent
contractors, and other representatives. Property insurance on the
Interconnector's fixtures and other personal property shall
contain a waiver of subrogation against SWBT, and any rights of
the Interconnector against SWBT for damage to the
Interconnector's fixtures or personal property are hereby waived.
The Interconnector may also elect to purchase business interruption and
contingent business interruption insurance, knowing that SWBT has no liability
for loss of profit or revenues should an interruption of service occur.
24.2 Coverage Increases. The limits set forth in Section 24.1 may be
increased by SWBT from time to time during the term of occupancy to at least
such minimum limits as shall then be customary in respect of comparable
situations within the existing SWBT buildings.
24.3 Primary Coverage. All policies purchased by the Interconnector shall
be deemed to be primary and not contributing to or in excess of any similar
coverage purchased by SWBT.
24.4 Effective Date. All insurance must be in effect on or before
occupancy date and shall remain in force as long as any of the Interconnector's
facilities or equipment remain within the Premises or the Building. If the
Interconnector fails to maintain the coverage, SWBT may pay the premiums thereon
and, if so, shall be reimbursed by the Interconnector.
24.5 Supporting Documentation. The Interconnector shall submit
certificates of insurance and copies of policies reflecting the coverages
specified above prior to the commencement of the work called for in this
Agreement. The Interconnector shall arrange for SWBT to receive thirty (30) days
advance written notice from the Interconnector's insurance company(ies) of
cancellation, non-renewal or substantial alteration of its terms.
<PAGE> 201
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24.6 Carrier Recommendations. The Interconnector must also conform to the
recommendation(s) made by SWBT's Property Insurance Company which Interconnector
has already agreed to or to such recommendations as it shall hereafter agree to.
24.7 Material Breach. Failure to comply with the provisions of this
section will be deemed a material violation of this Agreement.
ARTICLE XXV - SWBT'S RIGHT OF ACCESS
SWBT, its agents, employees, and other SWBT-authorized persons shall have
the right to enter the Premises at any reasonable time to examine its condition,
make repairs required to be made by SWBT hereunder, and for any other purpose
deemed reasonable by SWBT. SWBT may access the Premises for purpose of averting
any threat of harm imposed by the Interconnector or its equipment or facilities
upon the operation of SWBT equipment, facilities and/or personnel located
outside of the Premises. If routine inspections are required, they shall be
conducted at a mutually agreeable time.
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT
Through this Agreement, the Interconnector is placing telecommunications
equipment and facilities on SWBT property for the purpose of connecting with
SWBT's network only. The parties agree that this Agreement does not constitute,
and shall not be asserted to constitute, an admission or waiver or precedent
with any State commission, the Federal Communications Commission, any other
regulatory body, any State or Federal Court, or in any other form that SWBT has
agreed or acquiesced that any piece of Interconnector equipment or facility is
"equipment necessary for interconnection or access to unbundled network
elements" under 47 U.S.C. 251(c)(6).
ARTICLE XXVII - MISCELLANEOUS
27.1 Exhibits The following Exhibits are attached hereto and made part
hereof:
Exhibit
--------------
<PAGE> 202
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Exhibit
--------------
Exhibit
--------------
Exhibit
--------------
27.2 Variations. In the event of variation or discrepancy between any
duplicate originals hereof, including exhibits, the original Agreement held by
SWBT shall control.
27.3 Governing Law. This Agreement shall be governed by the laws of the
State in which the Premises are located, without regard to the choice of law
principles thereof.
27.4 Joint and Several. If Interconnector constitutes more than one
person, partnership, corporation, or other legal entities, the obligation of all
such entities under this Agreement is joint and several.
27.5 Future Negotiations. SWBT may refuse requests for additional space in
the Building or in any other SWBT premises if the Interconnector is in material
breach of this Agreement, including having any past due charges hereunder. In
any and each such event, the Interconnector hereby releases and shall hold SWBT
harmless under Article XV from any duty to negotiate with the Interconnector or
any of its affiliates for any additional space or physical collocation.
27.6 Severability. With the exception of the requirements, obligations,
and rights set forth in Article II hereof, if any of the provisions hereof are
otherwise deemed invalid, such invalidity shall not invalidate the entire
Agreement, but rather the entire Agreement shall be construed as if not
containing the particular invalid provision(s), and the rights and obligations
of SWBT and the Interconnector shall be construed accordingly.
27.7 Paragraph Headings and Article Numbers. The headings of the articles
and paragraphs herein are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Agreement.
27.8 Entire Agreement. This Agreement with the attached schedules and
exhibits, and referenced documentation and materials attached hereto set forth
the entire understanding of the parties and
<PAGE> 203
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supersedes all prior agreements, arrangements and understandings relating to
this subject matter and may not be changed except in writing by the parties;
provided, however, that this provision shall not affect current or pending
tariffs, under investigation or otherwise, including any charges due thereunder.
No representation, promise, inducement or statement of intention has been made
by either party which is not embodied herein, and there are no other oral or
written understandings or agreements between the parties relating to the subject
matter hereof except as may be referenced herein.
27.9 No Third Party Beneficiaries. Nothing in this Agreement is intended,
nor shall be deemed, to confer any rights or remedies upon any person or legal
entity not a party hereto.
27.10 Construction. This Agreement shall be interpreted and governed
without regard to which party drafted this Agreement.
27.11 Multiple Originals. This Agreement may be executed in multiple
copies, each of which shall be deemed an original.
27.12 Wavier of Obligations. (a) Whenever this Agreement requires the
consent of a party, any request for such consent shall be in writing.
(b) Neither party shall be deemed to have waived or impaired any right,
authority, or option reserved by this Agreement (including the right to demand
exact compliance with every term, condition and covenant herein, or to declare
any breach hereof to be a default and to terminate this Agreement prior to the
expiration of its term), by virtue of any custom or practice of the parties at
variance with the terms hereof or any failure, refusal or neglect to exercise
any right under this Agreement or to insist upon exact compliance by the other
with its obligations hereunder, including any rule or procedure, or any waiver,
forbearance, delay, failure or omission by SWBT to exercise any right, power or
option, whether of the same, similar or different nature, with respect to one or
more other interconnectors.
27.13 Rights Cumulative. The rights of a party hereunder are cumulative
and no exercise or
<PAGE> 204
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enforcement by such party of any right or remedy hereunder shall preclude the
exercise or enforcement of any other right or remedy hereunder or to which such
party is entitled to enforce.
27.14 Binding Effect. (a) This Agreement is binding upon the parties
hereto, their respective executors, administrators, heirs, assigns and
successors in interest.
<PAGE> 205
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(b) All obligations by either party which expressly or by their nature
survive the expiration or termination of this Agreement shall continue in full
force and effect subsequent to and notwithstanding its expiration or termination
and until they are satisfied in full or by their nature.
27.15 Impossibility of Performance. Neither party shall be liable for loss
or damage or deemed to be in breach of this Agreement if its failure to perform
its obligations results from: (a) compliance with any law, ruling, order,
regulation, requirement or instruction of any federal, state or municipal
government or any department or agency thereof or court of competent
jurisdiction; (b) acts of God; (c) acts of omissions of the other party; (d)
fires, strikes, labor difficulties, embargoes, war, insurrection or riot; or any
other intervening act beyond the reasonable control of the party claiming such a
delay. Any delay resulting from any of said causes shall extend performance
accordingly or excuse performance, in whole or in part, as may be reasonable. In
any such event, the Interconnector's employees, authorized agents and
contractors will comply with the Emergency Operating Procedures established by
SWBT.
27.16 Survival. The terms, provisions, representations, and warranties
contained in this Agreement that by their nature and/or context are intended to
survive the performance thereof by either or both parties hereunder shall so
survive the completion of performances and termination of this Agreement,
including the making of any and all payments due hereunder.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed and delivered this Agreement as of the day and year first above
written.
<PAGE> 206
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
SOUTHWESTERN BELL TELEPHONE COMPANY
By:
---------------------------------------
Title:
------------------------------------
DIGITAL TELEPORT, INC.
By:
---------------------------------------
Title:
------------------------------------
<PAGE> 207
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ATTACHMENT A
Southwestern Bell Telephone Company
[ADDRESS AND TO THE ATTENTION OF PER NOTICE PROVISION]
Re: [REFERENCE IDENTIFIER ON COVER SHEET]
Pursuant to the referenced Physical Collocation Agreement ("Agreement"),
this letter constitutes a request to place the following additional equipment
and/or facilities in the Premises:
Generic Name # of Bays Floor Loading Power Req. Heat Release
------------ --------- ------------- ---------- ------------
If this request is acceptable to Southwestern Bell Telephone Company
("SWBT"), please indicate that acceptance by executing both originals and
returning one to the undersigned. With the return of an executed original, the
Agreement shall be deemed amended to reflect that the listed equipment and
facilities may be located in the Premises. In all other respects, the Agreement
shall be unaffected.
If not acceptable, please let me know of SWBT's objections or conditions
to its acceptance.
All capitalized terms not defined in this letter but defined in the
Agreement shall have the meaning ascribed to such term in the Agreement.
DIGITAL TELEPORT, INC.
By:
--------------------------------
Title:
-----------------------------
Name:
------------------------------
AGREED AND ACCEPTED:
SOUTHWESTERN BELL TELEPHONE
COMPANY
By:
---------------------------------------
Title:
------------------------------------
Name:
------------------------------------
Date:
-------------------------------------
<PAGE> 208
APPENDIX SS7
Page 2 of 12
APPENDIX SS7
APPENDIX FOR THE PROVISION OF
SS7 SERVICE
This Appendix sets forth the terms and conditions under which SWBT shall provide
to LSP certain Common Channel Signaling/Signaling System 7 (CCS/SS7) services,
herein referred to as "SS7 Service".
This Appendix provides for the use of the SWBT Common Channel Signaling network,
which uses the Signaling System 7 (SS7) protocol, and for a Dedicated Signaling
Link, which provides network interconnection to SWBT's Signal Transfer Point
(STPs), including facilities. SS7 Service provides CCS/SS7 functionality and
translations to support SS7 based services and applications as they become
available and as facilities permit.
SS7 Service includes the screening of messages based on origination signaling
point code and the routing of messages by a SWBT mated pair of STPs. Any
services beyond SS7 Transport, Use of the STP or a Dedicated Signaling Link
interconnection (e.g. Local and IntraLATA Call Set-Up Signaling, Interexchange
Carrier (IXC) Call Set-Up Signaling, Easy OptionsSM, 800 Data Base Access, and
Line Information Data Base (LIDB) Validation Service Access) will be provided by
an amendment to this appendix, by a separate agreement, or by tariff, whichever
is applicable. Arrangements for services should be made through the LSP Service
Center of SWBT.
I. SERVICE DESCRIPTION
A. SS7 TRANSPORT
SS7 Transport provides for the routing and screening of SS7
messages from a SWBT pair of STPs (i.e. a mated pair) to
another SWBT pair of STPs. The screening of messages provides
for LSP designation of signaling points associated with the
LSP and controls which messages may be allowed or not allowed
by the SWBT STP pairs. The routing of messages provides for
the transfer of a complete message between signaling links,
and for a Global Title Translation of the message address, if
needed.
SS7 Transport provides routing of messages for all parts of the
SS7 protocol including, for example, Message Transfer Part
(MTP) messages, Integrated Services Digital Network User Part
(ISDNUP or ISUP) messages, Signaling Connection and Control
Part (SCCP) messages, Transaction Capability
<PAGE> 209
APPENDIX SS7
Page 3 of 12
Application Part (TCAP) messages and Operations and Maintenance
Application Part (OMAP) messages.
SS7 Transport provides for screening and routing of
signaling messages based on the SS7 protocol. These messages
may support other applications and services such as, for
example, Easy Option[ICON] (referred to as Call Control
Option[ICON] or Bellcore CLASS[ICON]) services, Message
Waiting services, Toll Free Database services, Line
Information Data Base (LIDB) Services, Calling Name (CNAM)
Database services, Advanced Intelligent Network (AIN) services
and Telecommunications Industry Association Interim
Standard-41 (IS-41) services. SS7 Transport will route
messages to the global title address or to the signaling point
code address of the message based on the translation
information of SWBT's STP.
SS7 Transport provides screening and routing of messages that
are generated by the action of the LSP signaling point, or
messages that are generated by a signaling point connected via
the LSP signaling point.
B. DEDICATED SIGNALING LINKS
Dedicated Signaling Links provide physical access to SWBT's
signaling network. The links are fully dedicated to the use of
LSP and provide the screening and routing usage for the SWBT
STP to which the link is connected. Dedicated signaling links
are provided as a set of links connecting to a SWBT mated pair
of STPs. Dedicated Signaling Links are dedicated two-way
digital data circuits that interconnect SWBT's STP locations
and the LSP's Signaling Points at Signaling Point of Interface
(SPOI) locations. Dedicated Signaling Links are available to
LSPs for their use in furnishing SS7-based services or
applications to their end users or other users of SS7 signaling
information.
Dedicated Signaling Links include the following elements:
1. SS7 Link Cross Connect: The SS7 Link Cross Connect provides a
DS-0A or DS1 connection and access point for testing in the
SWBT STP building. The cross connect connects the STP Port
Termination to an LSP unbundled dedicated transport or to a
collocation cage.
2. STP Port Termination: The STP Port Termination is the physical
termination of the signaling link (i.e. 56 kbps circuit) at a
SWBT STP. An STP Port Termination is used for each 56 kbps SS7
Link Cross Connect terminated at a SWBT STP.
The STP Port Termination shall provide for the use of the SWBT
STP to which the port is connected.
<PAGE> 210
APPENDIX SS7
Page 4 of 12
The LSP shall provide the portion of the signaling link from
the LSP premises within the LATA to the SWBT STP location using
unbundled dedicated transport. LSP shall notify SWBT that the
facility contains a signaling link service. Multiple facilities
provided by SWBT will be identified so that SWBT may maintain
facility diversity between links and linksets that require
diversity. LSP shall identify the DS1 or channel of a DS1 that
will be used for the signaling link.
If LSP does not use an unbundled dedicated transport facility
to LSP premises, LSP shall identify that the SS7 Link Cross
Connect shall connect to a LSP collocation cage in the SWBT STP
building.
When LSP uses an alternative DS1 facility or arranges, or
agrees to allow, a physical degree of diversity or performance
that is not in accordance with the specifications of Bellcore,
GR-905-CORE, LSP acknowledges that the performance and
reliability of the SS7 protocol may be affected and the
performance and reliability standards described in GR-905-CORE
may be disqualified.
Dedicated Signaling Links are subject to SWBT compatibility
testing and certification requirements per the Network
Operations Forum Reference Document, per Bellcore, GR-905-CORE
and per SWBT Technical Publication, TP76638. First
interconnections to the SWBT signaling network per LSP and per
signaling point type of equipment will require pre-ordering
meetings to exchange information and schedule testing for
certification by SWBT.
C. USE OF THE STP
The Use of the STP provides for the use of the SWBT SS7
signaling network when LSP uses the SWBT Local Switching
Unbundled Network Element. The Use of the STP provides for the
use of the signaling link between the SWBT local switch and
the STP, the use of the signaling link and ports between the
SWBT tandem switch and the STP when applicable, the use of the
SWBT STP port and use of STP Transport. The Use of the STP is
a signaling network element incurred by use of the SWBT local
switching (i.e. Unbundled Local Switching). The Use of the STP
provides the SWBT signaling when LSP subscribers originate and
terminate calls from a SWBT SS7 equipped end office.
II. DEFINITIONS
Attachment 1, which is attached hereto and made a part hereof, contains
DEFINITIONS OF TERMS in this Appendix.
<PAGE> 211
APPENDIX SS7
Page 5 of 12
III. MANNER OF PROVISIONING
A. SS7 TRANSPORT
LSP shall use SS7 Transport subject to the screening and
routing information of the SWBT STPs. SWBT shall provide
information to LSP on the routes and signaling point codes
served by the SWBT STPs.
SS7 Transport shall route ISUP messages for the purpose of
establishing trunk voice paths between switching machines.
Routes requiring ISUP routes longer than two SWBT STP pairs may
be provisioned pursuant to Attachment Network Element Bona Fide
Request per specific LSP request, if such route is technically
feasible. However, routes involving signaling point codes not
associated with LSP are subject to the route designated by the
owner of the SPC.
SS7 Transport shall route TCAP queries when feasible per the
SS7 Protocol to the SWBT "regional" STP pair that directly
serves the database of TCAP message. SS7 Transport shall route
TCAP responses from a SWBT "regional" STP pair to another SWBT
STP pair.
When LSP requires modification of SWBT's SS7 Service components
not otherwise provided in this contract, the modifications may
be furnished pursuant to Attachment Network Element Bona Fide
Request.
SS7 Transport provides a signaling route for messages only to
signaling points to which SWBT has a route. SS7 Transport does
not include the provision of a signaling route to every
possible signaling point. When SWBT does establish a route to a
signaling point in a mated pair of STPs, the route may not be
available to other SWBT pairs of STPs, until ordered. When SWBT
or LSP, pursuant to a service order, arranges to establish a
route to a signaling point, such route to the other signaling
point or other signaling network will be used by all signaling
points within and connected to the SWBT signaling network per
the standard requirements of the SS7 protocol.
Disputes concerning the association of a signaling point among
specific link sets associated with a SWBT mated STP will be
resolved by consultation with the signaling point owner, as
defined in the Local Exchange Routing Guide (LERG), Section 1,
assignment of Signaling Point Codes.
B. DEDICATED SIGNALING LINKS
LSP shall designate the signaling points and signaling point
codes associated with LSP. LSP shall provide information to
SWBT to allow SWBT to translate SWBT STPs. The information
shall define the screening and routing information
<PAGE> 212
APPENDIX SS7
Page 6 of 12
for the signaling point codes of LSP. This information may
include global title address, translation type and subsystem
designations as needed.
Signaling links from SWBT mated pairs of STPs shall connect to LSP
premises (including collocation locations) within the same LATA. A
set of links can be either:
1. "A" Link Sets from LSP's Signaling Point (SP)/Service
Switching Point (SSP). A minimum of two links will be
required, one from the SP/SSP to each STP; or,
2. "B" Link Sets from LSP's STPs that are connected to SWBT's
mated pair of STPs. A minimum of four links will be required
(i.e., a "quad") between the two pairs of STPs. (This same
arrangement is sometimes referred to as a set of "D" links.)
An STP Port Termination and SS7 Link Cross Connect is required for
each 56 kbps access link utilized for the Service. STP locations
are set forth in the National Exchange Carrier Association, Inc.
(NECA) Tariff F.C.C. No. 4.
A pre-order meeting will define the SWBT facility availability and
the degree of diversity in both the SWBT physical network and the
LSP physical network from signaling point to signaling point for
the link.
All applicable signaling point codes for each signaling link must
be installed at each of SWBT's interconnecting STPs.
Call set-up times may be adversely affected when LSP, using SS7
signaling, employs Intermediate Access Tandems (IATs) in its
network. SWBT makes no warranties with respect to call set-up times
when multiple STP pairs are involved or when the signaling traffic
is exchanged between two non-SWBT signaling points.
Provisioning of the SS7 Service is in accordance with SWBT CCS/SS7
Network Interface Specifications (TP76638) and Bellcore Common
Channel Network Interface Specification (GR-905-CORE), as amended.
When LSP uses the Dedicated Signaling Links of another party and
LSP submits an order for SWBT to change the routing or screening
information associated with the other party's signaling links, LSP
shall include with the order a Letter of Authorization (LOA). The
LOA shall be from the other party (i.e. the owner of the set of
links) and shall indicate that the other party shall agree to pay
SWBT charges to change the translations associated with the link
set and shall agree to pay SWBT charges associated with SS7
Transport.
<PAGE> 213
APPENDIX SS7
Page 7 of 12
C. USE OF THE STP
When LSP orders SWBT Unbundled Local Switching the Use of the
STP shall apply. No order nor provisioning by LSP is needed.
The SWBT Local Switch will use the SWBT SS7 signaling network.
Any changes, additions or deletions to the SWBT SS7 signaling
network required per LSP shall be submitted pursuant to
Attachment Network Element Bona Fide Request.
IV. DESCRIPTION OF RATE ELEMENTS
The following rate elements apply to SS7 Service:
A. SS7 TRANSPORT
SS7 Transport shall be measured per octet of information
screened and routed.
LSP shall pay SS7 Transport Per Octet rate element for the
screening and routing of messages by each additional SWBT STP
pair. A usage rate applies per octet generated by action of
LSP.
B. DEDICATED SIGNALING LINKS
1. SS7 Link Cross Connect
LSP shall pay the DS-0 or DS-1 rate for the SS7 Link
Cross Connect at the STP location for each Dedicated
Signaling Link. Rates are per DS-0 and DS-1 bandwidth
and per connection to unbundled dedicated facility or
connection to a collocation cage. Rates are per month
and nonrecurring installation per first or additional
cross connects ordered per order.
2. STP Port Termination
LSP shall pay the STP Port Termination rate element
for each termination of the SS7 Link Cross Connect at
the SWBT STP. One STP Port Termination must be
installed at SWBT's interconnecting STP for each
Dedicated Signaling Link.
There are two charges that apply to the STP Port
Termination, i.e., a fixed recurring monthly rate per
port termination and a nonrecurring installation
charge per port.
C. SIGNALING POINT CODE ADDITION
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APPENDIX SS7
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LSP shall pay the Signaling Point Code Addition rate element
for the establishment and translation of each applicable CCS
network signaling point code at a SWBT STP. LSP shall pay a
nonrecurring charge per Signaling Point Code established at
each STP.
D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall pay the GTT Addition rate element for the
establishment of LSP's global title address, translation type
or subsystem information in the SWBT STP translations. LSP
shall pay a nonrecurring charge per GTT established at each
STP.
E. SERVICE REARRANGEMENT
LSP shall pay charges for rearrangement of the SS7 Service
which are not specifically addressed pursuant to the Network
Element Bona Fide Request process.
F. USE OF THE STP PER CALL
LSP shall pay the Use of the STP Per Call rate element for Use
of the SWBT STP. The rate shall apply for each call originated
by LSP subscribers using the SWBT Local Switch Unbundled
Network Element. The rate is based on an assumed mean quantity
of 200 octets of signaling used for each originated call times
the STP Transport rate element.
The Use of the STP Per Call is a surrogate for STP Transport
and Dedicated Signaling Links when LSP uses the SWBT Unbundled
Local Switching Network Element.
<PAGE> 215
APPENDIX SS7
Page 9 of 12
V. RATES AND CHARGES
Rates and Charges for the elements described above are as follows:
<TABLE>
<CAPTION>
Monthly Nonrecurring
SS7 Links - Cross Connects Zone A Zone B Zone C Initial Additional
-------------------------- ------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C>
STP to Collocators Cage - DS0 $71.20 $71.20 $71.20 $258.75 $204.35
STP to Collocators Cage- DS1 $51.30 $51.30 $51.30 $230.50 $176.15
STP to SWBT MDF - DS0 $71.20 $71.20 $71.20 $258.75 $204.35
STP to SWBT DSX Frame-DS1 $51.30 $51.30 $51.30 $230.50 $176.15
</TABLE>
<TABLE>
<S> <C> <C> <C>
SS7
Links
STP Access Connection - 1.544 Mbps See Dedicated
Transport
STP Access Link - 56 Kbps $100.16 fixed +
$0.91 per mile
SS7 Signalling
SS7 Signalling $0.000800 per call
STP Port $1,737.50 per port $207.95 ---
STP Trunk Signalling $0.000004 per octet
Point Code Addition N/A per point code $36.00 ---
Global Title Translation Addition ICB ICB ICB
</TABLE>
VI. ORDERING THE SERVICE
LSP shall abide by the following ordering guidelines:
A. SS7 TRANSPORT
LSP shall submit SWBT's CCS/SS7 Activity Notification Form,
identify the set of links the LSP will use and identify the
service(s) associated with each SPC. LSP shall identify
Signaling Point Code and Global Title Translation information
that must be translated into the SWBT STPs.
B. DEDICATED SIGNALING LINKS
LSP shall submit an Access Service Request form and SWBT's CCS
Activity Notification form. LSP shall identify the SWBT STPs,
the LSP premises, the circuit interconnection arrangement at
the LSP Dedicated Transport location and the LSP signaling
point. LSP shall identify Signaling Point Code and Global
Title Translation information that must be translated in the
SWBT STPs.
C. SIGNALING POINT CODE ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT STPs and the LSP signaling point code
information that must be added
<PAGE> 216
APPENDIX SS7
Page 10 of 12
or changed in the SWBT STP translations. If more than one pair
of SWBT STPs are affected, LSP shall indicate translation
route information.
D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT Global Title Translation information
that must be added, deleted or changed in the SWBT STP
translations. If more than one pair of SWBT STPs are affected,
LSP shall indicate translation route information.
E. SERVICE REARRANGEMENT
LSP shall order a SS7 Signaling Service Rearrangement per
Attachment Network Element Bona Fide Request.
F. USE OF THE STP
Ordering requirements for the Use of the STP are included in
the requirements set forth in the ordering clause of the Local
Switching UNE (Attachment Switching), and are incorporated
here by reference.
VII. RESPONSIBILITIES OF SWBT
A. SWBT shall manage the network and, at its sole discretion,
apply protective controls. Protective controls include actions
taken to control or minimize the effect of network failures or
occurrences, which include, but are not limited to, failure or
overload of SWBT or LSP facilities, natural disasters, mass
calling or national security demands.
B. SWBT shall determine the GTT and Translation Type (TT) route
for messages routed to GTT which are associated with SWBT
signaling points.
C. SWBT shall define regional functions and local functions of
its STPs. SWBT will route ISUP messages within the SWBT
signaling network subject to technical feasibility. Capacity
limitations shall define a temporary technical infeasibility
until the capacity limit can be resolved.
D. SWBT shall meet service performance standards as outlined in
GR-905-CORE and TP76638 except as otherwise provided herein.
E. In the event that SWBT provides under this contract special
service arrangements associated with diversity or other
arrangements that do not strictly adhere to GR-905-CORE and
TP76638 and are of non-compliance to the technical
publications
<PAGE> 217
APPENDIX SS7
Page 11 of 12
or not certified by SWBT, LSP acknowledges that the service
performance standards need not be met in the provision of the
total service.
F. SWBT shall route messages generated by the action of LSP
throughout the SWBT signaling network. The content of the
messages is for the use of signaling points of origination and
destination. SWBT will not use any information within messages
for any purpose not required by or related to the use of the
SWBT signaling network. SWBT will not divulge any message or
any part of messages generated by LSP to any other party,
except as required to manage the SWBT signaling network or as
may be required by law.
G. SWBT shall determine the monthly charges and issue an invoice
to the billing address of LSP for the respective service(s)
requested by LSP and provided by SWBT. The invoice will
identify nonrecurring charges, recurring charges, and other
charges and credits, as they apply.
H. SWBT shall work cooperatively and provide knowledgeable
personnel to meet with LSP in order to provision, test and
install the SS7 Service in a timely fashion.
VIII. RESPONSIBILITIES OF LSP
A. LSP shall provision the signaling links at the LSP premises
and from the LSP premises to the SWBT STP location in a
diverse, reliable and technically acceptable manner to comply
with the standard SS7 protocol, Bellcore GR-905-CORE and the
SWBT network.
B. If LSP requires a greater degree of diversity than SWBT
provides in the existing network, a special facility or a
special routing of services, LSP agrees to initiate a
Wholesale Construction request and pay additional charges as
SWBT may reasonably determine.
C. LSP shall identify to SWBT the SPC(s) associated with the LSP
set of links.
D. When LSP orders the use of the SWBT STP, LSP shall specify the
set of signaling links to be used. If the links are provided
to another party LSP shall warrant to SWBT that the other
party is aware of the charges associated with the use of the
STP and that the other party will pay the monthly charges for
the use of the SWBT STP.
E. LSP shall identify to SWBT the Global Title and Translation
Type information for messages that route to LSP.
<PAGE> 218
APPENDIX SS7
Page 12 of 12
F. When routing messages addressed to a SWBT Subsystem Number
(SSN), LSP shall use the SWBT defined SSN designation of the
SWBT mated STP pair to which the message is routed.
G. LSP shall transfer Calling Party Number Parameter information
unchanged, including the "privacy indicator" information, when
ISUP Initial Address Messages are interchanged with the SWBT
signaling network.
H. LSP shall verify the accuracy of information concerning the
services ordered by LSP.
I. LSP shall designate the level of diversity associated with the
LSP premises. SWBT shall provide the same degree of diversity
as LSP provides.
J. LSP shall work cooperatively and provide knowledgeable
personnel to meet with SWBT in order to provision, test and
install the SS7 Service in a timely fashion.
K. LSP shall furnish to SWBT, at the time the SS7 Service is
ordered and annually thereafter, an updated three year
forecast of usage of the SS7 Signaling network. The forecast
shall include total annual volume and busy hour busy month
volume. SWBT shall utilize the forecast in its own efforts to
project further facility requirements.
L. LSP shall inform SWBT in writing thirty (30) days in advance
of any change in LSP's use of such SS7 Service which alters by
ten percent for any thirty (30) day period the volume of
signaling transactions by individual SS7 service that are
planned by LSP to be forwarded to SWBT's network. LSP shall
provide in said notice the reason, by individual SS7 service,
for the volume change.
<PAGE> 219
Attachment 1
Appendix SS7
Page 1 of 2
ATTACHMENT 1
DEFINITIONS OF TERMS
Common Channel Signaling (CCS)
A high-speed specialized packet switched communications network that is separate
(out-of-band) from the public packet switched and message networks. CCS carries
addressed signaling messages for individual trunk circuits and/or database
related services between Signaling Points (SS7 nodes) in the CCS network.
Compatibility Testing
Testing performed by representatives from SWBT and LSP to determine proper
interconnection of CCS network facilities for accurate transmission of system
signals and messages. This is often referred to as TR-905 Compatibility Testing.
Octet
8-bits of binary information.
Service Control Point (SCP)
A node in the CCS network that provides a database functionality.
Service Switching Point (SSP)
A signaling point that can launch queries to databases and receive/interpret
responses used to provide specific end user services.
Signal Transfer Point (STP)
A packet switch in the CCS network that is used to route SS7 protocol signaling
messages between signaling nodes. An STP provides screening and routing of SS7
messages. STPs transfer signaling messages to other networks. SWBT's signaling
network includes mated pairs of local and regional STPs.
Signaling Link
An end-to-end high-capacity digital, data quality, link operating at 56 kilobits
per second that transmits signaling information in the form of signaling
messages from one network SS7 node to another node in a CCS network. The Link
Type identifies the functionality of the signaling link sets. Signaling links
provide physical interconnection between signaling points of another party and
SWBT STPs.
<PAGE> 220
Attachment 1
Appendix SS7
Page 2 of 2
Signaling Point (SP)
A node in the CCS network that originates and/or receives signaling messages, or
transfers signaling messages from one signaling link to another, or both.
Signaling Point Code (SPC)
An identifier code that identifies a signaling point in the CCS network. The
signaling point code provides an address within the CCS network which enables
messages to be routed to signaling points. Signaling Point Codes are 24 bit
binary numbers comprised of three segments: the Network Identification, the
Network Cluster, and the Member number within the cluster. Signaling Point Codes
are represented digitally as AAA-AAA-AAA, where "AAA" represents a decimal
number from 000 to 255.
Signaling Point of Interface (SPOI)
Mutually agreed point at which SWBT hands off signaling information to LSP.
Signaling System 7 (SS7)
See SS7 Protocol
Signaling System 7 (SS7) Protocol
The signaling protocol, Version 7, used by the nodes of the CCS network. The SS7
protocol used by SWBT is the American National Standards Institute (ANSI)
standard protocol defined by Bellcore Generic Requirement, GR-246-CORE, defined
by Bellcore requirements (GR-317-CORE, GR-394-CORE, GR-444-Core, GR-606-CORE,
GR-82-CORE, GR-905-CORE and various other documents) and defined by the SWBT
Technical Publication TP76638.
<PAGE> 221
APPENDIX RECORDING
APPENDIX RECORDING
RECORDING, MESSAGE PROCESSING AND
PROVISION OF INTEREXCHANGE CARRIER TRANSPORTED
MESSAGE DETAIL APPENDIX
This Appendix sets forth the terms and conditions under which SWBT will provide
recording, message processing and message detail services as described in total
in Exhibit I, SERVICES AND ASSOCIATED CHARGES, and those services specifically
selected by LSP as described in Exhibit II, SELECTED SERVICE OPTIONS AND METHOD
OF PROVISION and at the rates set forth in Exhibit III, BASIS OF COMPENSATION.
Exhibits I, II and III are attached hereto and made a part of this Appendix by
reference.
I. DEFINITIONS
As used herein and for the purposes of this Appendix, the following
terms shall have the meanings set forth below:
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group,
duration and time of day for a message and is subsequently
used to bill access to Interexchange Carriers (IXCs).
B. Assembly and Editing - the aggregation of recorded customer
message details to create individual message records and the
verification that all necessary information required to ensure
all individual message records meet industry specifications is
present.
C. Billing Company - the company that bills end users for the
charges incurred in originating and terminating IXC
transported calls.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange
Message Records (EMR) formatted billing data between SWBT and
the Billing Company.
E. Data Transmission - the forwarding by SWBT of IXC transported
toll message detail and/or access usage record detail in EMR
format over data lines or on magnetic tapes to the appropriate
Billing Company.
F. Exchange Message Record (EMR) - Industry standard message
format as described in accordance with the Bellcore Practice
BR010-200-010 developed for the interexchange of
telecommunications message information.
G. Interexchange Carrier (IXC) - A third party transmission
provider that carries long distance voice and non-voice
traffic between user locations for a related
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APPENDIX RECORDING
recurring fee. IXCs provide service interstate and intrastate.
In some states IXCs are permitted to operate within a LATA.
H. Interexchange Carrier Transported - telecommunications
services provided by an IXC or traffic transported by
facilities belonging to an IXC.
I. Message Processing - the creation of individual EMR formatted
billable message detail records from individual recordings
that reflect specific billing detail for use in billing the
end user and/or access usage records from individual
recordings that reflect the service feature group, duration
and time of day for a message, Carrier Identification Code,
among other fields, for use in billing access to the
Interexchange Carriers. Message Processing includes performing
CMDS online edits required to ensure message detail and access
usage records are consistent with CMDS specifications.
J. Originating Local Exchange Carrier Company - the company whose
local exchange telephone network is used to originate calls
thereby providing originating exchange access to IXCs.
K. Provision of Message Detail - the sorting of all billable
message detail and access usage record detail by Revenue
Accounting Office, Operating Company Number or Service Bureau,
splitting of data into packs for invoicing, and loading of
data into files for data transmission to LSP for those records
created internally or received from other Local Exchange
Carrier Companies or Interexchange Carriers through SWBT's
internal network or national CMDS.
L. Record - a logical grouping of information as described in the
programs that process information and create the magnetic
tapes or data files.
M. Recording - the creation and storage on magnetic tape or other
medium of the basic billing details of a message in Automatic
Message Accounting (AMA) format.
N. Service Switching Point (SSP) - a signaling point that can
launch queries to databases and receive/interpret responses
used to provide specific customer services.
O. Switching Control Point (SCP) - the real time database system
that contains routing instructions for 800 calls. In addition
to basic routing instructions, the SCP may also provide
vertical feature translations, i.e., time of day, day of week
routing, out of area screening and/or translation of the
dialed 800 number to its assigned working telephone number.
P. 800 SCP Carrier Access Usage Summary Record (SCP Record) - a
summary record which contains information concerning the
quantity and types of queries launched to a SWBT SCP. In those
situations where charges are applicable for
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APPENDIX RECORDING
the production and delivery of SCP records, such charges will
be those specified in Exhibit III-A pertaining to the
production and forwarding of AUR data.
Q. Terminating Local Exchange Carrier Company - the company whose
local exchange telephone network is used to terminate calls
thereby providing terminating exchange access to IXCs.
II. RESPONSIBILITIES OF THE PARTIES
A. SWBT will record all IXC transported messages for LSP carried
over all Feature Group Switched Access Services that are
available to SWBT-provided recording equipment or operators.
Unavailable messages (i.e., certain operator messages which
are not accessible by SWBT-provided equipment or operators)
will not be recorded. The recording equipment will be provided
at locations selected by SWBT.
B. SWBT will perform assembly and editing, message processing and
provision of applicable access usage record detail for IXC
transported messages if the messages are recorded by SWBT.
C. SWBT will provide access usage records that are generated by
SWBT.
D. Assembly and editing will be performed on all IXC transported
messages recorded by SWBT, during the billing period
established by SWBT and selected by LSP from Exhibit III-B.
E. Standard EMR record formats for the provision of billable
message detail and access usage record detail will be
established by SWBT and provided to LSP.
F. Recorded access usage record detail will not be sorted to
furnish detail by specific end users, by specific groups of
end users, by office, by feature group or by location.
G. SWBT will provide message detail to LSP either on magnetic
tapes or in data files, depending on the option contracted for
by LSP in Exhibit III. Only ONE method may be selected by the
LSP.
1. Magnetic Tapes
a. SWBT will supply the magnetic tapes, which
will be provided without the return of
previously supplied tapes.
b. LSP will specify one of the following
options for provision of tapes:
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APPENDIX RECORDING
1) SWBT may send the tapes to LSP via first
class U.S. Mail Service or an equivalent
service of SWBT's choice, or
2) LSP may pick up the magnetic tapes at a
location designated by SWBT.
3) If, at the request of LSP, overnight
delivery other than those provided in
1 & 2 above is requested, the cost of
this delivery will be at the expense of
LSP.
2. Data Files
The message detail may be transmitted to LSP in data
files via data lines using software and hardware
acceptable to both parties.
H. In Exhibit III LSP will identify separately the location where
the tapes and any data transmissions should be sent (as
applicable) and the number of times each month the information
should be provided. SWBT reserves the right to limit the
frequency of transmission to existing SWBT processing and work
schedules, holidays, etc.
I. SWBT will determine the number of magnetic tapes or data files
required to provide the access usage record detail to LSP.
J. Access usage record detail previously provided LSP and lost or
destroyed through no fault of SWBT will not be recovered and
made available to LSP except on an individual case basis at a
cost determined by SWBT.
K. When SWBT receives rated billable messages from an IXC or
another Local Exchange Carrier (LEC) that are to be billed by
LSP, SWBT will forward those messages to LSP.
L. When SWBT has rated billable message detail originating from
LSP's end users requiring billing by another LEC or LSP, SWBT
will forward such messages to the appropriate Billing Company.
M. SWBT will record the applicable detail necessary to generate
access usage records and forward them to LSP for its use in
billing access to the IXC.
III. BASIS OF COMPENSATION
A. Compensation for recording, assembly and editing, rating,
message processing and provision of messages provided
hereunder by SWBT for the LSP shall be based upon the rates
and charges set forth in Exhibit III, BASIS OF COMPENSATION.
5
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APPENDIX RECORDING
B. When message detail is entered on a magnetic tape or data file
for provision of message detail to LSP, a per record charge
will apply for each record processed. SWBT will determine the
charges based on its count of the records processed.
IV. LIABILITY
A. Except as otherwise provided herein, neither party shall be
liable to the other for any special, indirect, or
consequential damage of any kind whatsoever. A party shall not
be liable for its inability to meet the terms of this
Agreement where such inability is caused by failure of the
first party to comply with the obligations stated herein. Each
party is obliged to use its best efforts to mitigate damages.
B. When SWBT is notified that, due to error or omission,
incomplete data has been provided to the LSP, SWBT will make
reasonable efforts to locate and/or recover the data and
provide it to the LSP at no additional charge. Such requests
to recover the data must be made within 30 days from the date
the details initially were made available to the LSP. If
written notification is not received within 30 days, SWBT
shall have no further obligation to recover the data and shall
have no further liability to the LSP.
C. If, despite timely notification by the LSP, message detail is
lost and unrecoverable as a direct result of SWBT having lost
or damaged tapes or incurred system outages while performing
recording, assembly and editing, rating, message processing,
and/or transmission of message detail, SWBT will estimate the
volume of lost messages and associated revenue based on
information available to it concerning the average revenue per
minute for the average interstate and/or intrastate call. In
such events, SWBT's liability to the LSP shall be limited to
the granting of a credit adjusting amounts otherwise due from
it equal to the estimated net lost revenue associated with the
lost message detail.
D. SWBT will not be liable for any costs incurred by the LSP when
the LSP is transmitting data files via data lines and a
transmission failure results in the non-receipt of data by
SWBT.
E. The LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability,
including attorney fees, that it may incur as a result of
claims, demands, or other suits brought by any party that
arise out of the use of this service by the LSP, its customers
or end users. The LSP shall defend against all end users'
claims just as if the LSP had provided such service to its end
users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or
indirectly, by SWBT employees and equipment associated with
provision of this
6
<PAGE> 226
APPENDIX RECORDING
service. This includes, but is not limited to suits arising
from disclosure of any customer specific information
associated with either the originating or terminating numbers
used to provision this service.
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR INTENDED OR
PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER. ADDITIONALLY,
SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF THE DATA
SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
7
<PAGE> 227
EXHIBIT 1
EXPLANATION OF SERVICE OPTIONS
The attached pages of this Exhibit I show the service options that are offered
under this Appendix and the charges that are associated with each option.
Alphabetical and numerical references in the CHARGES columns are to rates and
charges set forth in Exhibit III, BASIS OF COMPENSATION.
ORIGINATING 1+ DDD RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS USAGE
RECORDS
OPTION #1: SWBT performs recording, assembly and editing, rating of
billable message detail and creates an Access Usage Record
(AUR) for all 1+ Interexchange Carrier (IXC) transported
messages originating from LSP end office telephone network and
forwards both billable message detail records and AUR records
to LSP.
OPTION #2: SWBT performs recording, assembly and editing of the
billable message detail and extracts that detail to the IXC
for all 1+ IXC transported messages originating from LSP end
office. SWBT creates Access Usage Records for this traffic and
forwards those AUR records to LSP.
OPTION #3: The IXCs do their own billable message recording for their
1+ IXC transported messages originating from LSP end office.
SWBT performs recording for Access purposes only, assembles
and edits this data, creates AURs and forwards the AUR records
to LSP.
ORIGINATING OPERATOR RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS
USAGE RECORDS
OPTION #4: LSP Non-Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for all 0+, 0-, Coin Sent Paid, CAMA and
International IXC transported messages. SWBT assembles and
edits this data, creates AURs and forwards the AUR records to
LSP.
OPTION #5: LSP Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for 0- only IXC transported messages. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
OPTION #6: LSP Equal or Non-Equal Access End Office - The IXCs do
their own billable message recording. LSP chooses to have SWBT
purchase source information from IXC in order to have
information required to create Access Usage Records. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
1
<PAGE> 228
OPTION #7: The IXCs do their own billable message recording and
forward to SWBT the billable message detail for assembly and
editing and rating of these operator service IXC transported
messages. SWBT forwards the rated billable message detail to
the appropriate billing company, creates an AUR and forwards
the AUR records to LSP. This situation occurs when the LSP has
not signed a rating takeback waiver with the IXC.
800 RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL
OPTION #8: SWBT performs SSP function for LSP end office and bills
query charge to the appropriate IXC. SWBT performs recording
for Access purposes only, assembles and edits this data,
creates AURs and forwards AUR records to LSP.
OPTION #9: SWBT performs SSP function for LSP end office. LSP
performs billing of query charge to the appropriate IXC. SWBT
performs recording at the SSP for Access purposes only,
assembles and edits this data, creates AURs and forwards AUR
records to LSP. SWBT performs recording at the SCP for query
billing purposes only, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
OPTION 10: SWBT performs SCP function for LSP. SWBT performs
recording at the SCP, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
TERMINATING RECORDINGS - IXC TRANSPORTED ACCESS USAGE RECORDS
OPTION 11: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B, Feature Group C and Feature
Group D terminating usage recordings including Feature Group B
over D and Feature Group C over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 12: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group B terminating usage
recordings excluding B over D. SWBT creates terminating AURs
for this data and forwards AUR records to LSP.
OPTION 13: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B terminating usage recordings
including Feature Group B over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 14: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group D terminating usage recordings
including B over D and C over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
2
<PAGE> 229
OPTION 15: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group D terminating usage
recordings including B over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
MESSAGE PROVISIONING:
OPTION 16: SWBT will forward all IXC transported message detail
records or access usage records to LSP generated internally
within SWBT system or received via CMDS from an IXC or another
Local Exchange Carrier or LSP. LSP forwards rated IXC
transported message detail or access usage detail to SWBT for
distribution to the appropriate billing company through SWBT's
internal network or using the CMDS network.
There is no charge for this option under this
Appendix if LSP has also executed, as part of an
agreement executed pursuant to this Statement, an
Appendix for SWBT to provide "Hosting" services to
LSP, of if LSP has executed a separate agreement with
SWBT for "Hosting" services to be provided from SWBT
to LSP.
3
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DRAFT APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page two, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
4
<PAGE> 231
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
Attached to and made a part of the RECORDING, MESSAGE PROCESSING AND PROVISION
OF INTEREXCHANGE CARRIER TRANSPORTED MESSAGE DETAIL AGREEMENT effective
___________, 19___, between Southwestern Bell Telephone Company and
______________________________ .
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page 2, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
Approved and executed the ____________ day of _________________, 19________.
________________________________ SOUTHWESTERN BELL
TELEPHONE COMPANY
By:_____________________________ By:_______________________________
(Title) (Title)
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<PAGE> 232
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:
-----------------------
<TABLE>
<CAPTION>
MESSAGE
1+DDD OPERATOR HANDLED 800 SERVICE TERMINATING AUR PROVISIONING
OPTIONS OPTIONS OPTIONS OPTIONS OPTIONS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NPA/NXX 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Numerical references are to specific service options listed in Exhibit I.
6
<PAGE> 233
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:
----------
<TABLE>
<CAPTION>
METHOD OF PROVISION:
<S> <C> <C> <C>
Circle One: DATA FILE 9 TRACK MAGNETIC TAPE 18 TRACK MAGNETIC TAPE
</TABLE>
7
<PAGE> 234
DRAFT APPENDIX RECORDING
EXHIBIT III-A
BASIS OF COMPENSATION [RATES TO BE CONSISTENT WITH ORDER.]
EFFECTIVE:
------------------------
LSP shall pay SWBT the following amounts for services provided under the
Recording, Message Processing and Provision of Message Detail Appendix.
<TABLE>
<CAPTION>
TYPE OF ACTIVITY RATE
<S> <C> <C>
A. Recording
Per AUR $.0100
B. Assembly and Editing
Per Message and/or AUR $.0050
C. Rating
Per Message $.0050
D. Message Processing
Per Message and/or AUR $.0050
E. Provision of Message Detail
Per Record $.0030
F. Source Information Provided
1. Per Record Purchased - Meet Point Bill Applicable $.0115
2. Per Record Purchased - Meet Point Bill Not Applicable $.0230
</TABLE>
8
<PAGE> 235
DRAFT APPENDIX RECORDING
EXHIBIT III-B
INVOICE DESIGNATION
COMPANY NAME:
---------------------------------------------------------------
EXCHANGE COMPANY I.D. NUMBER (OCN):
---- ---- ---- ----
BILLABLE INVOICE INTERVAL:
Check One:
[ ] Daily (Full Status RAO Companies will receive
billable messages daily.)
[ ] Bill period (A maximum of five dates may be chosen.)
A file is created five workdays from each bill period date,
and three additional days should be allowed for distribution.
Circle a maximum of five bill period dates:
<TABLE>
<S><C>
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
</TABLE>
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
9
<PAGE> 236
DRAFT APPENDIX RECORDING
EXHIBIT III-B
AUR INVOICE INTERVAL:
Check One:
[ ] Daily (Full Status RAO Companies will receive AURs
daily.)
[ ] Bill period (A maximum of five dates may be chosen.)
A file is created five workdays from each bill period date,
and three additional days should be allowed for distribution.
Circle a maximum of five bill period dates:
<TABLE>
<S><C>
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
</TABLE>
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
10
<PAGE> 237
APPENDIX RESALE (MO, AR & KS)
PAGE 2 OF 11
APPENDIX RESALE
This Appendix sets forth the rates, terms and conditions for those services
available for sale at retail to end users which are made available to LSPs by
SWBT for resale.
1.0 TERMS AND CONDITIONS OF SERVICE
1.1 For services included in this Appendix, the rules and
regulations associated with the corresponding tariffs apply
except for applicable resale restrictions, which are offered
through tariffs by SWBT to its end users and except as
otherwise provided herein.
1.2 LSP shall only sell Plexar services to a single end user.
1.3 Except where otherwise explicitly provided in the
corresponding tariffs, LSP shall not permit the sharing of a
service by multiple end users or the aggregation of traffic
from multiple end users onto a single service or except where
SWBT permits such sharing by its own end users.
1.4 The LSP shall resell these telecommunications services
only to the same class of customers to which SWBT sells the
services, e.g. residence service may not be resold to business
customers. LSP may only resell Lifeline Assistance, Link-Up,
and other like services to similarly situated customers who
are eligible for such services. Further, to the extent LSP
resells services that require certification on the part of the
buyer, LSP will ensure that the buyer has received proper
certification and complies with all rules and regulations as
established by the Commission.
1.5 SWBT promotions of ninety (90) days or less shall not be
available to the LSP for resale.
1.6 The LSP shall not use a resold service to avoid the rates,
terms and conditions of SWBT's corresponding retail tariff.
1.7 The LSP shall not use resold local exchange telephone service
to provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers, competitive
access providers (CAPs), or other telecommunications
providers. Provided however, that LSP may permit its end users
to use resold local exchange telephone service to access IXCs,
wireless carriers, CAPs, or other retail telecommunications
providers.
1.8 An End User Common Line (EUCL) charge will continue to apply
for each local exchange line resold under this agreement. All
federal rules and regulations associated with EUCL charges, as
found in Tariff FCC 73, also apply.
<PAGE> 238
APPENDIX RESALE (MO, AR & KS)
PAGE 3 OF 11
1.9 To the extent allowable by law, LSP shall be responsible for
Primary Interexchange Carrier (PIC) change charges associated
with such local exchange line. LSP shall pay for PIC changes
at the tariffed rate.
1.10 SWBT shall provide the services covered by this Appendix
subject to availability of existing facilities and on a
nondiscriminatory basis with its other customers. LSP shall
resell the services provided herein only in those service
areas in which such resale services or any feature or
capability thereof are offered at retail by SWBT as the
incumbent local exchange carrier to its end users.
1.11 When LSP converts an end user currently receiving
non-complex service from the SWBT network, without any changes
to SWBT's network, LSP will be charged a per-order conversion
charge of twenty-five dollars ($25.00) in Arkansas, Kansas and
Missouri. When LSP converts an end user with non-complex
service and adds or changes are made to the network, the
respective twenty-five dollars ($25.00) conversion charge will
apply, as well as any normal service order charges associated
with said changes. All nonrecurring service connection
charges, excluding the conversion charge mentioned above, will
be charged at a discount for those services listed in Exhibits
A & B to this Appendix. Complex conversion orders will be
charged at a rate of one hundred twenty-five dollars
($125.00). Custom Services conversions (e.g., Plexar Custom)
will be handled on a Customer Specific Proposal basis.
1.12 For the purposes of ordering service under this Appendix, all
requests for service shall be handled as an initial request
for service. The additional line rate for Service Order
Charges shall apply only to those requests for additional
residential service at the end user's same location where a
residential line is currently provided on SWBT's network,
regardless of the non-facilities based local service provider
of record.
1.13 If the LSP is in violation of a provision of this
Appendix, SWBT will notify the LSP of the violation in
writing. Such notice must refer to the specific provision
being violated. At such time, the LSP will have thirty (30)
days to correct the violation and notify SWBT in writing that
the violation has been corrected. SWBT will then bill the LSP
for the charges which should have been collected by SWBT or
the actual revenues collected by the LSP from its end users
for the stated violation, whichever is greater. Should the LSP
dispute the violations, it must notify SWBT in writing within
fourteen (14) days of receipt of notice from SWBT. Disputes
will be resolved as outlined in the Disputed Amounts Section
of the Agreement.
1.14 SWBT is not required to make services available for resale at
wholesale rates to LSP for its own use. SWBT, however, shall
at its option agree to allow LSP to purchase SWBT's
Telecommunications Services and other services available for
resale as outlined in the exhibits to this Appendix, as long
as said services are not resold exclusively or predominately
to LSP, its subsidiaries, or affiliates.
<PAGE> 239
APPENDIX RESALE (MO, AR & KS)
PAGE 4 OF 11
1.15 The effective date of this Appendix shall be ten (10) days
after the date the Commission approves the Interconnection
Agreement.
2.0 ANCILLARY SERVICES
2.1 Where available, SWBT will afford LSP end users with the
ability to make 911 calls. LSP shall be responsible for
collecting and remitting all applicable 911 surcharges on a
per line basis to the Public Safety Answering Point (PSAP).
2.2 Where requested by SWBT, the LSP shall provide SWBT with
accurate and complete information regarding end users in a
format and time frame prescribed by SWBT, for purposes of 911
administration.
2.3 SWBT shall provide LSP's end users access to SWBT Directory
Assistance Service. LSP shall pay SWBT amounts attributable to
Directory Assistance services used by LSP's end users.
Discounts associated with the utilization of Directory
Assistance Service are outlined in the exhibits to this
Appendix.
2.4 SWBT shall provide, at no additional charge, a straight line
listing of the LSP end user in the appropriate SWBT local
White Pages. Subscriber listing information on resold lines
shall remain the property of SWBT.
2.5 Additional Listing services (e.g., foreign or signature
listings) can be purchased by LSP for its end users on a per
listing basis. LSP shall pay SWBT amounts attributable to
Additional Listing services used by LSP's end users. The
exhibits outline the discounts associated with such additional
listing services.
2.6 SWBT or its agents will deliver local White Pages directories
to LSP end user's premises at the same time and under the same
conditions that such directories are delivered to SWBT end
users.
2.6.1 LSP end users shall be entitled to one directory per
basic residential or business line provided by SWBT
pursuant to this Appendix.
2.6.2 SWBT, or its agents, shall deliver a White Pages
Directory to LSP end users' premises at the same time
that such directories are delivered to SWBT end users.
If an LSP's end user already has a current SWBT
directory, SWBT shall not be required to deliver a
directory to that end user until new directories are
published for that end user's location.
2.7 SWBT shall provide LSP's end users access to SWBT's Operator
Services. LSP shall pay SWBT amounts attributable to Operator
Services used by LSP's end users. Discounts associated with
the utilization of Operator Services features are outlined in
the exhibits to this Appendix.
<PAGE> 240
APPENDIX RESALE (MO, AR & KS)
PAGE 5 OF 11
3.0 BRANDING
3.1 Except where otherwise required by law, LSP shall not, without
SWBT's written authorization, offer the resale services
covered by this Appendix using the trademarks, service marks,
trade names, brand names, logos, insignia, symbols or
decorative designs of SWBT or its affiliates, nor shall the
LSP state or imply that there is any joint business
association or similar arrangement with SWBT in the provision
of telecommunications services to its own customers. The LSP
may brand services included in this Appendix with its own
brand name, but SWBT will not provide for LSP branding of
those services.
3.2 Development of Branding Directory Assistance and Operator
Services
A. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of
Operator Services is required to:
1. provide its brand at the beginning of each
telephone call and before the consumer
incurs any charge for the call; and
2. disclose immediately to the consumer, upon
request a quote of its rates or charges for
the call.
3. Where SWBT provides LSPs OS and DA services
via the same trunk, both the OS and DA calls
will be branded with the same brand. Since
SWBT's DA and OS utilize the same trunk
group, LSP will receive the same brand for
both DA/OS. Such branding will be provided
pursuant Section B. below.
B. CALL BRANDING - In compliance with A. 1. above, SWBT
will brand DA/OS in LSP's name based upon the
criteria outlined below:
1. LSP will provide SWBT with written
specification of its company name to be used
in creating LSP specific branding messages
for its DA/OS calls.
2. An initial non-recurring charge applies per
TOPS switch, per load, for the establishment
of Call Branding as well as a charge per
TOPS switch, per subsequent load to change
the brand. In addition, a per call charge
applies for every DA/OS call handled by SWBT
on behalf of LSP when such services are
provided in conjunction with resale
services. Prices for Call Branding are as
outlined in Exhibit C, attached hereto and
incorporated herein.
C. RATE/REFERENCE INFORMATION - SWBT will provide LSP
DA/OS Rate/Reference Information based upon the
criteria outlined below:
<PAGE> 241
APPENDIX RESALE (MO, AR & KS)
PAGE 6 OF 11
1. LSP will furnish DA/OS Rate and Reference
Information in a mutually agreed to format
or media thirty (30) days in advance of the
date when the DA/OS Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any
changes to be made to such Rate/Reference
Information ten (10) working days prior to
the effective Rate/Reference change date.
LSP acknowledges that it is responsible to
provide SWBT updated Rate/Reference
Information in advance of when the
Rates/Reference Information are to become
effective.
3. In all cases when a SWBT Operator receives a
rate request from a LSP end user, SWBT will
quote the applicable DA/OS rates as provided
by LSP.
4. An initial non-recurring charge will apply
per TOPS switch for loading of LSP's DA/OS
Rate/Reference Information as well as a
charge for each subsequent change, per TOPS
switch to either the LSP's DA/OS Services
Rate or Reference Information as outlined in
Exhibit C, attached hereto and incorporated
herein.
3.4 SWBT shall also offer LSP the opportunity to customize route
DA/OS beginning March 1, 1997, where technically feasible. LSP
agrees to pay SWBT appropriate charges associated with
customized routing on an ICB basis.
4.0 RESPONSIBILITIES OF SWBT
4.1 SWBT shall allow LSP to place service orders and receive phone
number assignments (for new lines). These activities shall be
accomplished by telephone call or facsimile until electronic
interface capability has been established. SWBT, with input
from LSP, shall provide interface specifications for
electronic access for these functions to LSP once such
electronic interfaces become technically feasible and are in
place. However, LSP shall be responsible for modifying and
connecting any of its systems with SWBT provided interfaces
when such interfaces become available, as outlined in Appendix
OSS.
4.2 SWBT shall implement LSP service orders within the same time
intervals SWBT uses to implement service orders for similar
services for its own end users.
4.3 LSP will have the ability to report trouble for its end users
to appropriate SWBT trouble reporting centers twenty-four (24)
hours a day, seven (7) days a week. LSP will be assigned a
customer contact center when initial service agreements are
made. LSP end users calling SWBT will be referred to LSP at
the number provided by LSP.
<PAGE> 242
APPENDIX RESALE (MO, AR & KS)
PAGE 7 OF 11
4.3.1 Methods and procedures for ordering and trouble
reporting are outlined in the Handbook for
Non-Switched Based Providers dated 11/15/95, as
amended by SWBT from time to time. Both parties agree
to abide by the procedures contained therein.
4.4 SWBT will provide LSP with the detailed billing information in
a standard electronic format as outlined in Appendix OSS
necessary for LSP to issue a bill to its end users. On no less
than sixty (60) days advance written notice, LSP will have the
option of receiving daily usage to monitor the patterns of its
end users' usage sensitive services. LSP agrees to pay SWBT
three tenths of a cent ($.003) per message.
4.5 SWBT shall make telecommunications services that SWBT provides
at retail to subscribers who are not telecommunications
carriers available for resale consistent with its obligation
under Section 251(c)(4)(A) of the Telecommunications Act. SWBT
currently uses the Accessible Letter process to notify LSP of
new services available for resale during the term of this
Agreement. The notification shall advise LSP of the category
in which such new service shall be placed and the same
discount already applicable to LSP in that category shall
apply to the new service. Should SWBT change its notification
procedures to the LSP, the notice will be no less prompt than
the Accessible Letter.
4.5.1 Furthermore, to the extent that a federal or state
regulatory agency adopts a final order establishing
wholesale discounts under Section 252(d)(3) of the
Telecommunications Act, which is not stayed and which
directs SWBT to apply state-specific wholesale
discount percentages which are different from those
incorporated within this Agreement, either Party shall
have the option of converting to that discount level
upon ten (10) days written notice to the other Party.
4.6 LSP end user's activation of Call Trace shall be handled by
the SWBT Call Trace Center (CTC) or its Annoying and Anonymous
Call Bureau. SWBT shall notify LSP of requests by its end
users to provide the call records to the proper authorities.
Subsequent communication and resolution of the case with LSP's
end user (whether that end user is the victim or the suspect)
will be coordinated through the LSP.
4.6.1 LSP understands that for services where reports are
provided to law enforcement agencies (e.g., Call
Trace) only billing number and address information
shall be provided. It shall be the LSP's
responsibility to provide additional information
necessary for any police investigation. LSP shall
indemnify SWBT against any claims that insufficient
information led to inadequate prosecution. SWBT shall
handle law enforcement requests consistent with the
Miscellaneous-Law Enforcement Section of the
Interconnection Agreement.
<PAGE> 243
APPENDIX RESALE (MO, AR & KS)
PAGE 8 OF 11
4.7 LSP may offer to resell Customer Initiated Suspension and
Restoral Service to their end users. SWBT will offer to LSP
Company Initiated Suspension service for their own purposes at
the SWBT retail tariffed rate. Should LSP choose to suspend
their end user through Company Initiated Suspension Service,
this suspension period shall not exceed fifteen (15) calendar
days. If LSP issues a disconnect on their end user account
within the fifteen (15) day period, appropriate services will
not be billed for the suspension period. However, should LSP
issue a disconnect after the fifteen (15) day suspension
period, LSP will be responsible for all appropriate charges on
the account back to the suspension date. Should LSP restore
their end user, restoral charges at the SWBT retail tariffed
rate will apply and LSP will be billed for the appropriate
service from the time of suspension.
5.0 RESPONSIBILITIES OF LSP
5.1 Prior to submitting an order under this Agreement, LSP shall
obtain end user authorization as required by applicable state
or federal laws and regulations, and assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996. SWBT shall abide by the same
applicable laws and regulations.
5.2 Only an end user can initiate a challenge to a change in its
local exchange service provider. If an end user notifies SWBT
or LSP that the end user requests local exchange service, the
Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to
connect the end user to any local service provider based upon
the local service provider's request and local service
provider's assurance that proper end user authorization has
been obtained. LSP shall make authorization available to SWBT
upon request and at no charge.
5.3 When an end user changes or withdraws authorization, each
Party shall release customer-specific facilities in accordance
with the end user customer's direction or the direction of the
end user's authorized agent. Further, when an end user
abandons the premise, SWBT is free to reclaim the facilities
for use by another customer and is free to issue service
orders required to reclaim such facilities.
5.4 Neither Party shall be obligated by this Agreement to
investigate any allegations of unauthorized changes in local
exchange service (slamming) on behalf of the other Party or a
third party. If SWBT, on behalf of LSP, agrees to investigate
an alleged incidence of slamming, SWBT shall charge LSP a
fifty dollar ($50) investigation fee.
5.5 When SWBT receives an order from LSP for services under this
Agreement and SWBT is currently providing the same services to
another local service provider for the same end user, SWBT
shall notify the end user's local service provider of record
of such order coincident with processing the order, should LSP
subscribe
<PAGE> 244
APPENDIX RESALE (MO, AR & KS)
PAGE 9 OF 11
to the Local Disconnect Report (LDR) as outlined below. It
shall then be the responsibility of the local service provider
of record and LSP to resolve any issues related to the end
user. This paragraph shall not apply to new additional lines
and services purchased by an end user from multiple LSPs or
from SWBT.
5.5.1 On no less than sixty (60) days notice, LSP may
request the LDR., SWBT agrees to furnish to LSP the
Billing Telephone Number (BTN), Working Telephone
Number (WTN), and terminal number of all end users who
have disconnected LSP's service. LSP understands and
agrees that the CARE interface will be used to provide
such information and such information will only be
available via the CARE electronic data transmission as
outlined in Appendix OSS. Information will be provided
on a per WTN basis to be priced on a per WTN basis.
SWBT will provide LSP no less than thirty (30) days
notice prior to any change of the per-WTN charge. SWBT
grants to LSP a non-exclusive right to use the
information provided by SWBT. LSP will not permit
anyone but its duly authorized employees or agents to
inspect or use this information. LSP agrees to pay
SWBT ten cents ($0.10) per WTN and any applicable
transmission charges for the LDR.
5.6 The LSP agrees to hold harmless and indemnify SWBT against any
and all liability and claims, including reasonable attorney's
fees, that may result from SWBT acting under this Article.
5.7 LSP is solely responsible for the payment of charges for all
services furnished under this Appendix including, but not
limited to, calls originated or accepted at LSP's location and
its end users' service locations, with the exception of any
retail services provided directly by SWBT to the end user
which SWBT shall be responsible for billing.
5.7.1. Interexchange carried traffic (e.g., sent-paid,
information services and alternate operator services
messages) received by SWBT for billing to resold
end-user accounts will be returned as unbillable and
will not be passed on to LSP for billing. An
unbillable code returned with those messages to the
carrier will indicate that the messages originated
from a resold account and will not be billed by SWBT.
5.8 SWBT shall not be responsible for the manner in which the use
of resold service, or the associated charges are allocated to
others by LSP. All applicable rates and charges for such
services will be billed to and shall be the responsibility of
LSP, with the exception of other retail services provided
directly to the end user by SWBT as described in paragraph 7
above.
5.8.1 Compensation for all services shall be paid regardless
of a Party's ability or inability to collect charges
from its end user for such service.
<PAGE> 245
APPENDIX RESALE (MO, AR & KS)
PAGE 10 OF 11
5.9 If LSP does not wish to be responsible for collect, third
number billed, toll and information services (e.g., 900)
calls, it must order the appropriate blocking for resold lines
under this Appendix and pay any applicable charges. LSP
acknowledges that blocking is not available for certain types
of calls, including 800 numbers.
5.10 LSP shall be responsible for modifying and connecting any of
its systems with SWBT-provided interfaces as described in this
Appendix.
5.11 LSP shall be responsible for providing to its end users and to
SWBT a telephone number or numbers that LSP's end users can
use to contact LSP in the event of service or repair requests.
In the event that LSP's end users contact SWBT with regard to
such requests, SWBT shall inform the end user that they should
call LSP and may provide LSP contact number. The requirements
herein are subject to additional terms and conditions in the
Coordinated Repair Calls Section of the Agreement.
6.0 PROCEDURES FOR NONPAYMENT AND DISCONNECTION
6.1 If LSP fails to pay when due, any and all charges billed to
them under this Agreement, including any late payment charges
(Unpaid Charges), and any portion of such charges remain
unpaid more than fifteen (15) days after the due date of such
Unpaid Charges, SWBT shall notify LSP in writing that in order
to avoid having service disconnected, LSP must remit all
Unpaid Charges to SWBT within fourteen (14) business days.
6.2 If LSP disputes the billed charges, it shall, within the
fourteen (14) day period provided for above, inform SWBT in
writing which portion of the charges it disputes, including
the specific details and reasons for its dispute; immediately
pay to SWBT all undisputed charges; and pay all disputed
charges into an interest bearing escrow account.
6.3 Disputes hereunder shall be resolved in accordance with the
procedures identified in the Dispute Resolution Section of the
Interconnection Agreement. Failure of LSP to pay charges
deemed owed to SWBT after conclusion of the Arbitration shall
be grounds for termination under this section.
6.4 If any LSP charges remain unpaid or undisputed twenty-nine
(29) days past the due date, SWBT shall notify LSP, the
Commission and the end user's IXC(s) of Record in writing,
that unless all charges are paid within sixteen (16) days,
LSP's service shall be disconnected and its end users shall be
defaulted to SWBT local service. SWBT will also suspend order
acceptance at this time.
6.5 If any LSP charges remain unpaid or undisputed forty (40) days
past the due date, LSP shall, at its sole expense, notify its
end users, the Commission and the end user's of Record that
their service may be disconnected for LSP failure to pay
<PAGE> 246
APPENDIX RESALE (MO, AR & KS)
PAGE 11 OF 11
Unpaid Charges, and that its end users must affirmatively
select a new local service provider within five (5) days. The
notice shall also advise the end user that SWBT will assume
the end user's account at the end of the five (5) day period
should the end user fail to select a new local service
provider.
6.6 If any LSP charges remain unpaid or undisputed forty-five (45)
days past the due date, SWBT shall disconnect LSP and transfer
all LSP's end users who have not selected another local
service provider directly to SWBT's service. These end users
shall receive the same services provided through LSP at the
time of transfer. SWBT shall inform the Commission and the end
user's IXC(s) of Record of the names of all end users
transferred through this process. Applicable service
establishment charges for switching end users from LSP to SWBT
shall be assessed to LSP.
6.7 Within five (5) days of the transfer (fifty (50) days past
LSP's due date), SWBT shall notify all affected end users that
because of an LSP's failure to pay, their service is now being
provided by SWBT. SWBT shall also notify the end user that
they have thirty (30) days to select a local service provider.
6.8 SWBT may discontinue service to LSP upon failure to pay
undisputed charges as provided in this section, and shall have
no liability to LSP or LSP end users in the event of such
disconnection.
6.9 If any end user fails to select a local service provider
within thirty (30) days of the change of providers (eighty
(80) days past LSP's due date), SWBT shall terminate the end
user's service. SWBT shall notify the Commission and the end
user's IXC of Record of the names of all end users whose
service has been terminated. The end user shall be responsible
for any and all charges incurred during the selection period.
6.10 Nothing herein shall be interpreted to obligate SWBT to
continue to provide service to any such end users. Nothing
herein shall be interpreted to limit any and all disconnection
rights SWBT may have with regard to such end users.
6.11 After disconnect procedures have begun, SWBT shall not accept
service orders from LSP until all unpaid charges are paid.
SWBT shall have the right to require a deposit equal to one
month's charges (based on the highest previous month of
service from SWBT) prior to resuming service to LSP after
disconnect for nonpayment.
<PAGE> 247
EXHIBIT A
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
ARKANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Life Line and Link Up America Services 14.5% 14.5%
Residence 1 Party 14.5% 14.5%
Residence Measured 14.5% 14.5%
EXPANDED LOCAL CALLING
Mandatory Extended Area Service (EAS)- 1 Party 14.5% 14.5%
Optional EAS - Metroplus 1 Party 14.5% 14.5%
CALL MANAGEMENT SERVICES 14.5% 14.5%
Auto Redial 14.5% 14.5%
Auto Redial - Usage Sensitive 14.5% 14.5%
Call Blocker 14.5% 14.5%
Call Forwarding 14.5% 14.5%
Call Forwarding - Busy Line 14.5% 14.5%
Call Forwarding - Busy Line/Don't Answer 14.5% 14.5%
Call Forwarding - Don't Answer 14.5% 14.5%
Call Return 14.5% 14.5%
Call Return - Usage Sensitive 14.5% 14.5%
Call Trace 14.5% 14.5%
Call Waiting 14.5% 14.5%
Calling Name 14.5% 14.5%
Calling Number 14.5% 14.5%
ComCall(R) 14.5% 14.5%
Personalized Ring (1 dependent number) 14.5% 14.5%
Personalized Ring (2 dependent numbers - 1st number 14.5% 14.5%
Personalized Ring (2 dependent numbers - 2nd number 14.5% 14.5%
Priority Call 14.5% 14.5%
Remote Access to Call Forwarding 14.5% 14.5%
Selective Call Forwarding 14.5% 14.5%
Simultaneous Call Forwarding 14.5% 14.5%
Speed Calling 8 14.5% 14.5%
Three Way Calling 14.5% 14.5%
DIRECTORY ASSISTANCE SERVICES 14.5% 14.5%
ISDN
Digiline(sm) 14.5% 14.5%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 248
EXHIBIT A
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
ARKANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
OTHER
Customer Alerting Enablement 14.5% 14.5%
Grandfathered Services 14.5% 14.5%
Hot Line 14.5% 14.5%
Hunting 14.5% 14.5%
Intercept Referral Service 14.5% 14.5%
Local Operator Assistance Service 14.5% 14.5%
Packages 14.5% 14.5%
Promotions (Greater than 90 Days) 14.5% 14.5%
Preferred Number Service 14.5% 14.5%
Toll Restriction 14.5% 14.5%
Voice Dial 14.5% 14.5%
Warm Line 14.5% 14.5%
TOLL
900 Call Restriction 14.5% 14.5%
Billed Number Screening 14.5% 14.5%
Home 800(sm) 14.5% 14.5%
IntraLATA MTS 14.5% 14.5%
InWats 800 14.5% 14.5%
NON-TELECOMMUNICATION SERVICES
Bill Plus(sm) 14.5% 14.5%
Consolidated Billing 14.5% 14.5%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.5% 14.5%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 249
EXHIBIT B
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
ARKANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Business 1 Party 14.5% 14.5%
Business - Multi-Line 14.5% 14.5%
Business - PBX Trunk 14.5% 14.5%
Business - Measured 14.5% 14.5%
Semi Public Coin Telephone Service 14.5% 14.5%
EXPANDED LOCAL CALLING
Extended Area Service (Mandatory EAS) 14.5% 14.5%
Mandatory Extended Area Service (EAS)- 1 Party 14.5% 14.5%
Mandatory EAS - PBX Trunk 14.5% 14.5%
Mandatory EAS - Semi Public 14.5% 14.5%
Optional EAS - Metroplus 1 Party 14.5% 14.5%
Optional EAS - Metroplus Multiline/PBX 14.5% 14.5%
CALL MANAGEMENT SERVICES
Auto Redial 14.5% 14.5%
Auto Redial - Usage Sensitive 14.5% 14.5%
Call Blocker 14.5% 14.5%
Call Forwarding 14.5% 14.5%
Call Forwarding - Busy Line 14.5% 14.5%
Call Forwarding - Busy Line/Don't Answer 14.5% 14.5%
Call Forwarding - Don't Answer 14.5% 14.5%
Call Return 14.5% 14.5%
Call Return - Usage Sensitive 14.5% 14.5%
Call Trace 14.5% 14.5%
Call Waiting 14.5% 14.5%
Calling Name 14.5% 14.5%
Calling Number 14.5% 14.5%
ComCall(R) 14.5% 14.5%
Personalized Ring (1 dependent number) 14.5% 14.5%
Personalized Ring (2 dependent numbers - 1st number) 14.5% 14.5%
Personalized Ring (2 dependent numbers - 2nd number) 14.5% 14.5%
Priority Call 14.5% 14.5%
Remote Access to Call Forwarding 14.5% 14.5%
Selective Call Forwarding 14.5% 14.5%
Simultaneous Call Forwarding 14.5% 14.5%
Speed Calling 8 14.5% 14.5%
Speed Calling 30 14.5% 14.5%
Three Way Calling 14.5% 14.5%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 250
EXHIBIT B
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
ARKANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
AIN
Area Wide Networking 14.5% 14.5%
Caller Intellidata(R) 14.5% 14.5%
Disaster Routing Service 14.5% 14.5%
Intelligent Redirect(sm) 14.5% 14.5%
IntelliNumber(sm) 14.5% 14.5%
Positive ID 14.5% 14.5%
DID
DID (First Block of 100 - Category 1) 14.5% 14.5%
DID (First Block of 10 - Category 1) 14.5% 14.5%
DID (Ea.adl. block of 10 after first 10 - Category 1) 14.5% 14.5%
DID (Ea. adl. block of 100 after first 100 - Category 2) 14.5% 14.5%
DID (with dial pulse) 14.5% 14.5%
DID (with Multifrequency) 14.5% 14.5%
DID (with Dual-Tone Multifrequency) 14.5% 14.5%
DID (1st 10 Trunks or access lines) 14.5% 14.5%
DID (11th thru 50th trunk or network access lines) 14.5% 14.5%
DID (51st trunk or network access line) 14.5% 14.5%
TRUNKS
Trunk 14.5% 14.5%
OTHER
Customer Alerting Enablement 14.5% 14.5%
Grandfathered Services 14.5% 14.5%
Hot Line 14.5% 14.5%
Hunting 14.5% 14.5%
Intercept Referral Service 14.5% 14.5%
Local Operator Assistance Service 14.5% 14.5%
Night Number associated with Telephone Number 14.5% 14.5%
Night Number associated with a Terminal 14.5% 14.5%
Packages 14.5% 14.5%
Promotions (Greater than 90 Days) 14.5% 14.5%
Telebranch (R) 14.5% 14.5%
Toll Restriction 14.5% 14.5%
Voice Dial 14.5% 14.5%
Warm Line 14.5% 14.5%
ISDN
Digiline(sm) 14.5% 14.5%
Digital Loop Service 14.5% 14.5%
Select Video Plus(R) 14.5% 14.5%
Smart Trunk(sm) 14.5% 14.5%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 251
EXHIBIT B
SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
ARKANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
DIRECTORY ASSISTANCE SERVICES 14.5% 14.5%
TOLL
900 Call Restriction 14.5% 14.5%
IntraLATA MTS 14.5% 14.5%
MaxiMizer 800(R) 14.5% 14.5%
OutWATS 800 14.5% 14.5%
PLEXAR(R)
Plexar I(R) 14.5% 14.5%
Plexar II(R) 14.5% 14.5%
PRIVATE LINE
Analog Private Lines 14.5% 14.5%
DOVLink 14.5% 14.5%
Frame Relay 14.5% 14.5%
MegaLink I(R) 14.5% 14.5%
MegaLink II(R) 14.5% 14.5%
MegaLink III(R) 14.5% 14.5%
MicroLink I(R) 14.5% 14.5%
NON-TELECOMMUNICATION SERVICES
Bill Plus(sm) 14.5% 14.5%
Consolidated Billing 14.5% 14.5%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.5% 14.5%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE> 252
APPENDIX RESALE - EXHIBIT C
PAGE 1 OF 1
APPENDIX RESALE - EXHIBIT C
ARKANSAS
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
<TABLE>
<S> <C>
A. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand for
the establishment of LSP specific Call Branding. A Per Call charge also
applies. When there are subsequent changes to the branding
announcement, an additional non-recurring charge will also apply per
change.
Rate per initial load group $2,230.00
Rate per load for Brand change $2,230.00
Per Call $0.02
B. DIRECTORY ASSISTANCE RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial
load of LSP's DA Services Rate/Reference Information. An additional
non-recurring charge applies for each subsequent change to
Rate/Reference Information.
Rate per initial load $3,550.00
Rate per subsequent rate change $2,575.00
Rate per subsequent reference change $2,575.00
C. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial
load of LSP's Operator Services Rate/Reference Information. An
additional non-recurring charge applies for each subsequent change to
Rate/Reference Information.
Rate per initial load $3,550.00
Rate per subsequent rate change $2,575.00
Rate per subsequent reference change $2,575.00
</TABLE>
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APPENDIX UNE
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APPENDIX: UNBUNDLED NETWORK ELEMENTS (UNE)
I. Introduction
A. This Appendix Unbundled Network Elements to the Agreement sets
forth the unbundled Network Elements that SWBT agrees to offer
to LSP. The specific terms and conditions that apply to the
unbundled Network Elements are described below. The prices for
Network Elements are set forth in Appendix Pricing Schedule.
II. General Terms and Conditions
A. SWBT and LSP may agree to connect LSP's facilities with SWBT's
network at any technically feasible point for access to
unbundled Network Elements for the provision by LSP of a
Telecommunications Service. Unbundled Network Elements may not
be connected to or combined with SWBT access services or other
SWBT tariffed service offerings with the exception of tariffed
collocation services.
B. SWBT will provide LSP access to the unbundled Network Elements
to permit LSP to combine such Network Elements with other
Network Elements obtained from SWBT or with network components
provided by itself to provide Telecommunications Services to
its customers, provided that such combination is technically
feasible and would not impair the ability of other carriers to
obtain access to other unbundled network elements or to
interconnect with SWBT's network. Any request by LSP for SWBT
to provide a type of connection between Network Elements that
is not currently being utilized in the SWBT network and is not
otherwise provided for under this Agreement will be made in
accordance with the Bona Fide Request process described in
Section III.
C. When LSP orders unbundled network elements, SWBT will perform
the functions necessary to combine unbundled network elements
in any manner required by law, even if those elements are not
ordinarily combined in SWBT's network, provided that such
combination is a) technically feasible; and b) would not
impair the ability of other carriers to obtain access to
unbundled network elements or to interconnect with SWBT's
network as provided in F.C.C. Rule 51.315 (c).
D. LSP is responsible to designate each network element being
ordered from SWBT and how those network elements are to be
combined. Where multiple SWBT network elements are to be
combined, LSP must designate the order in which the elements
are to be connected. Where SWBT network elements are to be
connected to another carrier's network element(s), LSP will
designate how SWBT network element(s) are to be connected
(i.e., cross connected) to the network element(s) of the other
telecommunications carrier.
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APPENDIX UNE
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E. Various subsections below list the Network Elements that LSP
and SWBT have identified as of the Effective Date of this
Agreement. SWBT will upon request of LSP and to the extent
technically feasible provide LSP additional Network Elements
or modifications to previously identified Network Elements for
the provision by LSP of a Telecommunications Service. Such
requests will be processed in accordance with the Bona Fide
Request process.
F. Unbundled Network Elements are provided under this agreement
over such routes, technologies, and facilities as SWBT may
elect at its own discretion. If LSP requests special
facilities, equipment or routing of unbundled network elements
such requests will be handled under the Bona Fide Request
process.
G. Subject to the terms herein, SWBT is responsible only for the
installation, operation and maintenance of the Network
Elements it provides. SWBT is not otherwise responsible for
the Telecommunications Services provided by LSP through the
use of those elements.
H. Where unbundled elements provided to LSP are dedicated to a
single end user, if such elements are for any reason
disconnected they will be made available to SWBT for future
provisioning needs. The LSP agrees to relinquish control of
any such unbundled element concurrent with the disconnection
of a LSPs end user's service.
I. The Parties acknowledge that the Commission may decline to
require unbundling of Network Elements beyond those identified
in 47 CFR Section 51.319 if the Commission concludes that: (1)
such Network Element is proprietary or contains proprietary
information that will be revealed if such Network Element is
provided to LSP on an unbundled basis, and LSP could offer the
same proposed Telecommunications Service through the use of
other, nonproprietary Network Elements within SWBT's network;
or (2) the Commission concludes that the failure of SWBT to
provide access to such Network Element would not decrease the
quality of, and would not increase the financial or
administrative cost of, the Telecommunications Service LSP
seeks to offer, compared with providing that service over
other unbundled Network Elements in SWBT's network.
J. LSP will, upon request of SWBT, and to the extent technically
feasible, provide SWBT access to Network Elements for the
provision of SWBT's telecommunications services in accordance
with the Act. Such request by SWBT will be processed in
accordance with the Bona Fide Request process.
K. Each Party is solely responsible for the services it provides
to its end users and to other Telecommunications Carriers.
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L. Network elements provided to LSP under the provisions of this
Appendix will remain the property of SWBT.
M. SWBT will provide network elements where technically feasible.
Where facilities and equipment are not available, LSP may
request and, to the extent required by law and as SWBT may
otherwise agree, SWBT may provide Network Elements through the
Bona Fide Request process.
N. The elements provided pursuant to this Agreement will be
available to SWBT at times mutually agreed upon in order to
permit SWBT to make tests and adjustments appropriate for
maintaining the services in satisfactory operating condition.
No credit will be allowed for any interruptions involved
during such tests and adjustments.
O. LSP's use of any SWBT network element, or of its own equipment
or facilities in conjunction with any SWBT network element,
will not materially interfere with or impair service over any
facilities of SWBT, its affiliated companies or its connecting
and concurring carriers involved in its services, cause damage
to their plant, impair the privacy of any communications
carried over their facilities or create hazards to the
employees of any of them or the public. Upon reasonable
written notice and opportunity to cure, SWBT may discontinue
or refuse service if LSP violates this provision.
P. When converting a SWBT account to an LSP account or between
LSP and another provider, the conversion will be handled as a
disconnect of the current account and a new connect of the
unbundled network elements account.
Q. Performance of Network Elements
1. Each Network Element provided by SWBT to LSP
will meet applicable regulatory performance standards
and be at least equal in quality and performance as
that which SWBT provides to itself. Each Network
Element will be provided in accordance with SWBT
Technical Publications or other written descriptions,
if any, as changed from time to time by SWBT at its
sole discretion. LSP may request, and SWBT will
provide, to the extent technically feasible, Network
Elements that are superior or lesser in quality than
SWBT provides to itself and such service will be
requested pursuant to the Bona Fide Request process.
2. Nothing in this Agreement will limit either Party's
ability to modify its network through the
incorporation of new equipment, new software or
otherwise. Each Party will provide the other Party
written notice of any such upgrades in its network
which will materially impact the other Party's
service consistent with the timelines established by
the FCC in the Second Report and Order, CC Docket
96-98. LSP will be solely responsible, at its own
<PAGE> 256
APPENDIX UNE
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expense, for the overall design of its
telecommunications services and for any redesigning
or rearrangement of its telecommunications services
which may be required because of changes in
facilities, operations or procedure of SWBT, minimum
network protection criteria, or operating or
maintenance characteristics of the facilities.
R. LSP will connect equipment and facilities that are compatible
with the SWBT Network Elements and will use Network Elements
in accordance with the applicable regulatory standards and
requirements referenced in paragraph II, Q.
III. Bona Fide Request
A. Sections IV - XI below identify specific unbundled Network
Elements and provide the terms and conditions on which SWBT
will offer them to LSP. Any request by LSP for an additional
unbundled Network Element, or modifications to previously
identified Network Elements, both to the extent technically
feasible, will be considered under this Bona Fide Request
process. Where facilities and equipment are not available, LSP
may request and SWBT may agree to provide, Network Elements
through the Bona Fide Request process.
B. Each Party will promptly consider and analyze access to new
unbundled Network Element with the submission of a Network
Element Bona Fide Request hereunder. The Network Element Bona
Fide Request process set forth herein does not apply to those
services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. Oct. 19, 1992) paragraph 259
and n. 603 and subsequent rulings.
C. A Network Element Bona Fide Request will be submitted in
writing and will include a technical description of each
requested Network Element, the date when interconnection is
requested and the projected quantity of interconnection points
ordered with a demand forecast.
D. The requesting Party may cancel a Network Element Bona Fide
Request at any time, but will pay the other Party's reasonable
and demonstrable costs of processing and/or implementing the
Network Element Bona Fide Request up to the date of
cancellation.
E. Within ten (10) business days of its receipt, the receiving
Party will acknowledge receipt of the Network Element Bona
Fide Request.
F. Except under extraordinary circumstances, within thirty (30)
days of its receipt of a Network Element Bona Fide Request,
the receiving Party will provide to the requesting Party a
preliminary analysis of such Network Element Bona Fide
Request. The preliminary analysis will confirm that the
receiving Party will offer access to the Network Element or
will provide a detailed explanation that access to the Network
Element is not
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APPENDIX UNE
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technically feasible and/or that the request does not qualify
as a Network Element that is required to be provided under the
Act.
G. If the receiving Party determines that the Network Element
Bona Fide Request is technically feasible and otherwise
qualifies under the Act, it will promptly proceed with
developing the Network Element Bona Fide Request upon receipt
of written authorization from the requesting Party. When it
receives such authorization, the receiving Party shall
promptly develop the requested services, determine their
availability, calculate the applicable prices and establish
installation intervals.
H. Unless the Parties otherwise agree, the Network Element Bona
Fide Request must be priced in accordance with Section
252(d)(1) of the Act.
I. As soon as feasible, but not more than ninety (90) days
after its receipt of authorization to proceed with developing
the Network Element Bona Fide Request, the receiving Party
shall provide to the requesting Party a Network Element Bona
Fide Request quote which will include, at a minimum, a
description of each Network Element, the availability, the
applicable rates and the installation intervals.
J. Within thirty (30) days of its receipt of the Network Element
Bona Fide Request quote, the requesting Party must either
confirm its order for the Network Element Bona Fide Request
pursuant to the Network Element Bona Fide Request quote or
seek arbitration by the Commission pursuant to Section 252 of
the Act.
K. If a Party to a Network Element Bona Fide Request believes
that the other Party is not requesting, negotiating or
processing the Network Element Bona Fide Request in good
faith, or disputes a determination, or price or cost quote,
such Party may seek mediation or arbitration by the Commission
pursuant to Section 252 of the Act.
IV. Network Interface Device
A. The Network Interface Device (NID) is a cross-connect used to
connect loop facilities to inside wiring. The fundamental
function of the NID is to establish the official network
demarcation point between a carrier and its end-user customer.
The NID contains the appropriate and accessible connection
points or posts to which the service provider and the end-user
customer each make its connections.
B. LSP may connect to the customer's inside wire at the SWBT NID,
as is, at no charge. Any repairs, upgrade and rearrangements
required by LSP will be performed by SWBT based on time and
material charges.
C. LSP will provide its own NID and will interface to the
customer's premises wiring through connections in the customer
chamber of the SWBT NID.
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APPENDIX UNE
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D. With respect to multiple dwelling units or multiple-unit
business premises, LSP will provide its own NID, will connect
directly with the customer's inside wire and will not require
any connection to the SWBT NID, unless such premises are
served by "single subscriber" type NIDs.
E. The SWBT NIDs that LSP uses under this Appendix will be those
installed by SWBT to serve its customers.
F. LSP will not attach to or disconnect SWBT's ground. LSP will
not cut or disconnect SWBT's loop from its protector. LSP will
not cut any other leads in the NID. LSP will protect all
disconnected leads with plastic sleeves and will store them
within the NID enclosure. LSP will tighten all screws or lugs
loosened by LSP in the NID's enclosure and replace all
protective covers.
V. Local Loop
A. A "loop" is a dedicated transmission facility between a
distribution frame (or its equivalent) in a SWBT central
office and an end user customer premises.
B. SWBT will provide at the rates, terms, and conditions set out
in Appendix Pricing Schedule the following:
1. The 2-Wire analog loop supports analog voice
frequency, voice band services with loop start
signaling within the frequency spectrum of
approximately 300 Hz and 3000 Hz.
2. SWBT will offer 5 dB conditioning on a 2-wire analog
loop as the standard conditioning option available.
3. The 4-Wire analog loop provides a non-signaling voice
band frequency spectrum of approximately 300 Hz to
3000 Hz. The 4-Wire analog loop provides separate
transmit and receive paths.
4. The 2-Wire digital loop 160 Kbps supports Basic Rate
ISDN (BRI) digital exchange services. The 2-Wire
digital loop 160 Kbps supports usable bandwidth up
to 160 Kbps.
5. The 4-Wire digital loop 1.544 Mbps will support DS1
service including Primary Rate ISDN (PRI). The 4-wire
digital loop 1.544 Mbps supports usable bandwidth up
to 1.544 Mbps.
C. If LSP requests one or more unbundled Loops serviced by
Integrated Digital Loop Carrier (IDLC) or Remote Switching
technology, SWBT will, where available, move the requested
unbundled Loop(s) to a spare, existing physical or a universal
digital loop carrier unbundled Loop at no additional charge to
LSP. If, however, no spare unbundled Loop is available, SWBT
will within two business days, excluding weekends and
holidays, of LSP's request notify LSP of the lack of
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APPENDIX UNE
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available facilities. LSP may request alternative arrangements
through the Bona Fide Request process.
D. In addition to any liability provisions in this agreement,
SWBT does not guarantee or make any warranty with respect to
unbundled loops when used in an explosive atmosphere. LSP will
indemnify, defend and hold SWBT harmless from any and all
claims by any person relating to LSP's or LSP end user's use
of unbundled loops in an explosive atmosphere.
VI. Local Switching
A. The local switching element encompasses line-side and trunk
side facilities plus the features, functions and capabilities
of the switch. The line side facilities include the connection
between a loop termination at, for example, a main
distribution frame (MDF), and a switch line card. Trunk-side
facilities include the connection between, for example, trunk
termination at a trunk-side cross-connect panel and a trunk
card. The local switching element includes all features,
functions, and capabilities of the local switch, including but
not limited to the basic switching function of connecting
lines to lines, lines to trunks, trunks to lines and trunks to
trunks. It also includes the same basic capabilities that are
available to SWBT customers, such as a telephone number, dial
tone, signaling and access to 911, operator services,
directory assistance, and features and functions necessary to
provide services required by law. In addition, the local
switching element includes all vertical features that the
switch is capable of providing, including custom calling,
CLASS features, and centrex-like capabilities.
B. SWBT will route InterLATA calls as defined by the exchange
dialing plan via the existing PIC process when LSP uses Local
Switching elements. Until such time that the commission
mandates intraLATA presubscription, SWBT will route IntraLATA
Toll calls as defined by the exchange dialing plan when LSP
uses Local Switching elements and will provide intraLATA toll
to LSP without other usage sensitive charges. When the
commission mandates intraLATA presubscription, SWBT will route
IntraLATA Toll calls to the presubscribed carrier.
C. When LSP requests Unbundled Common Transport, SWBT's Local
Switching element will route local calls on SWBT's common
network to the appropriate trunk or lines for call origination
or termination.
D. SWBT will provide the Local Switching element only with
standard central office treatments (e.g., busy tones, vacant
codes, fast busy, etc.), supervision and announcements.
E. SWBT will control congestion points such as those caused by
radio station call-ins, and network routing abnormalities,
using capabilities such as Automatic Call Gapping, Automatic
Code Gapping, Automatic
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APPENDIX UNE
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Congestion Control, and Network Routing Overflow. LSP agrees
to respond to SWBT's notifications regarding network
congestion.
F. SWBT will provide switch interfaces to adjuncts in the same
manner it provides them to itself. LSP requests for use of
SWBT adjuncts will be handled through the Bona Fide Request
process.
G. SWBT will allow LSP to designate the features and functions
that are activated on a particular unbundled switch port to
the extent such features and functions are available or as may
be requested by the Bona Fide Request process.
H. Switch Ports
1. Analog Line Port: A line side switch connection
available in either a loop or ground start signaling
configuration used primarily for Switched voice
communications.
2. Analog (DID) Trunk Port: A trunk side switch
connection used for voice communications via customer
premises equipment primarily provided by a Private
Branch Exchange (PBX) switch.
3. ISDN Basic Rate Interface (BRI) Port: A line side
switch connection which provides ISDN Basic Rate
Interface (BRI) based capabilities.
4. ISDN Primary Rate Interface (PRI) Trunk Side Port:
trunk side switch connection which provides Primary
Rate Interface (PRI) ISDN Exchange Service
capabilities.
VII. Tandem Switching
A. Tandem Switching is defined as: (1) trunk-connect facilities,
including but not limited to the connection between trunk
termination at a cross-connect panel and a switch trunk card,
(2) the basic switching function of connecting trunks to
trunks; and (3) all technically feasible functions that are
centralized in tandem switches (as distinguished from separate
end-office switches), including but not limited to call
recording, the routing of calls to operator services, and
signaling conversion features.
B. Tandem Switching will provide trunk to trunk connections for
local calls between two end offices.
C. To the extent all signaling is SS7, Tandem Switching will
preserve CLASS/LASS features and Caller ID as traffic is
processed. Additional signaling information and requirements
are provided in Section IX.
VIII. Interoffice Transport
A. The Interoffice Transport network element is defined as SWBT
interoffice transmission facilities dedicated to a particular
customer or carrier, or shared by more than one customer or
carrier, that provide
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APPENDIX UNE
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telecommunications between wire centers owned by SWBT or LSP,
or between switches owned by SWBT or LSP. Interoffice
Transport includes Common Transport and Dedicated Transport.
B. SWBT will be responsible for the engineering, provisioning,
and maintenance of the underlying equipment and facilities
that are used to provide Interoffice Transport.
C. Common Transport - Common Transport is a shared interoffice
transmission path between SWBT switches. Common Transport will
permit LSP to connect its Unbundled Local Switching element
purchased from SWBT with Common Transport to transport the
local call dialed by the Unbundled Local Switching element to
its destination through the use of SWBT's common transport
network. Common Transport will also permit LSP to utilize
SWBT's common network between a SWBT tandem and a SWBT end
office.
D. Dedicated Transport
1. Dedicated Transport is an interoffice transmission
path dedicated to a particular customer or carrier
that provides telecommunications between wire centers
owned by SWBT or LSP, or between switches owned by
SWBT or LSP.
2. SWBT will offer Dedicated Transport as a circuit
(e.g., DS1, DS3) dedicated to LSP.
3. SWBT will provide Dedicated Transport at the
following speeds: DS1 (1.544 Mbps), DS3 (45 Mbps),
OC3 (155.520 Mbps) and OC12 (622.080 Mbps). In
addition, SWBT offers OC48 (2488.320 Mbps) bandwidth
as an option for interoffice capacity.
4. In addition to any liability provisions in this
agreement, SWBT does not guarantee or make any
warranty with respect to entrance facilities when
used in an explosive atmosphere. LSP will indemnify,
defend and hold SWBT harmless from any and all claims
by any person relating to LSP's or LSP end user's use
of unbundled loops in an explosive atmosphere.
E. Digital Cross-Connect System (DCS) - SWBT will offer Digital
Cross-Connect System (DCS) in conjunction with the unbundled
dedicated transport element with the same functionality that
is offered to interexchange carriers.
IX. Signaling Networks and Call-Related Databases - Signaling Networks and
Call-Related Databases are Network Elements that includes Signaling
Link Transport, Signaling Transfer Points, and Service Control Points
and Call-Related Databases. Access to SWBT's signaling network and call
related databases will be provided as described in the following
Appendices: SS7, LIDB Validation, LIDB, CNAM, 800, and AIN.
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X. Operations Support Systems Functions
A. Operations Support Systems Functions consist of pre-ordering,
ordering, provisioning, maintenance and repair, and billing
functions supported by SWBT's databases and information.
B. SWBT will provide LSP access to its Operations Support Systems
Functions as outlined in Appendix OSS.
XI. Cross Connects
A. The cross connect is the media between the SWBT distribution
frame and an LSP designated collocation or to other SWBT
unbundled network elements purchased by LSP.
B. SWBT offers a choice of four types of cross connects with each
unbundled loop type. The applicable cross connects are as
follows:
1. Cross connect to DCS
2. Cross connect to MUX
3. Cross connect to Collocation
4. Cross connect to Switch Port
C. Cross connects must also be ordered with Unbundled Dedicated
Transport (UDT).
1. The LSP must specify when placing an UDT order, in
what order the unbundled network components are to be
connected.
2. The Cross Connect being requested must have a
compatible interface to each of the elements which
the Cross Connect is joining together.
3. The following cross connects are available with UDT:
a) Voice Grade 2-Wire
b) Voice Grade 4-Wire
c) DS0 - DCS to Collocation
d) DS1
e) DS3
f) OC3
g) OC12
h) OC48
XII. Pricing
A. Attached hereto as Appendix Pricing Schedule is a schedule
which reflects the prices at which SWBT agrees to furnish
Unbundled Network Elements to LSP. LSP agrees to compensate
SWBT for unbundled Network elements at the rates contained in
this Appendix. Unbundled Network Elements are available from
SWBT on a per unbundled Network Element basis at prices as
contained in Appendix Pricing Schedule.
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B. For any rate element and/or charge contained in or referenced
to in this Appendix that are not listed in the attached
Appendix Pricing Schedule, including Bona Fide Requests, SWBT
and LSP will negotiate prices.
C. Unless otherwise stated, SWBT will render a monthly bill for
Network Elements provided hereunder. Remittance in full will
be due within thirty (30) days of receipt of invoice. Interest
will apply on overdue amounts.
D. SWBT will recover the costs of modifying its outside plant
facilities for LSP space requirements. These costs will be
recovered via the Bona Fide Request process described herein.
E. Recurring Charges
1. Unless otherwise listed below, where Rates are shown
as monthly, a month will be defined as a calendar
month. The minimum term for each monthly rated
element will be one (1) month. After the initial
month, billing will be on the basis of whole or
fractional months used. The minimum service period
for elements provided under the Bona Fide Request
process may be longer.
2. When an unbundled network element with a minimum
period greater than one month is discontinued prior
to the expiration of the minimum period, the
applicable charge will be the total monthly charges,
for the remainder of the minimum period.
3. The minimum service period for unbundled dedicated
transport elements is 12 months.
4. Where rates will be based on minutes of use, usage
will be accumulated at the end office or other
measurement point without any per call rounding and
total minutes by end office are rounded to the next
higher minute. LSP will pay for all usage on such
calls including those that are not completed due to
busy or don't answer conditions.
5. Where rates are based on miles, the mileage will be
calculated on the airline distance involved between
the locations. To determine the rate to be billed,
SWBT will first compute the mileage using the V&H
coordinates method, as set forth in the National
Exchange Carrier Association, Inc. Tariff F.C.C. No
4. When the calculation results in a fraction of a
mile, SWBT will round up to the next whole mile
before determining the mileage and applying rates.
F. Non-Recurring Charges
1. There are non-recurring charges for the first
connection on an LSP order as well as separate
non-recurring charges for each additional connection
associated with the same LSP order at the same LSP
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specified premises. When converting the SWBT account
to LSP or between LSP and another local service
provider, the conversion will be handled as a
disconnect of the current account and a new connect
of the unbundled network element account.
2. LSP will pay a non-recurring charge when an LSP adds
or removes a signaling point code. The rates and
charges for Signaling Point Code(s) are identified in
the Pricing Schedule. This charge also applies to
point code information provided by LSP allowing other
telecommunications providers to use LSP's SS7
signaling network.
3. A service order processing (Service Order) charge
will apply for each service order issued by SWBT to
process a request for installation, disconnection,
rearrangement, changes to or record orders for
unbundled elements.
G. Maintenance of Elements
1. The network elements provided by SWBT pursuant to
this Appendix will be maintained by SWBT. LSP or
others may not rearrange, move, disconnect, remove or
attempt to repair any facilities provided by SWBT,
other than by connection or disconnection to any
interface means used, except with the written consent
of SWBT.
2. If trouble occurs with unbundled network elements
provided by SWBT, LSP will first determine whether
the trouble is in LSP's own equipment and/or
facilities or those of the end user. If LSP
determines the trouble is in SWBT's equipment and/or
facilities, LSP will issue a trouble report to SWBT.
3. LSP will pay Time and Material charges when LSP
reports a suspected failure of a network element and
SWBT dispatches personnel to the end user's premises
or a SWBT central office and trouble was not caused
by SWBT's facilities or equipment. Time and Material
charges will include all technicians dispatched,
including technicians dispatched to other locations
for purposes of testing.
4. LSP will pay Time and Material charges when SWBT
dispatches personnel and the trouble is in equipment
or communications systems provided an entity by other
than SWBT or in detariffed CPE provided by SWBT,
unless covered under a separate maintenance
agreement.
5. If LSP issues a trouble report allowing SWBT access
to the end user's premises and SWBT personnel are
dispatched but denied access to the premises, then
Time and Material charges will apply
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for the period of time that SWBT personnel are
dispatched. Subsequently, if SWBT personnel are
allowed access to the premises, the charges discussed
herein will still apply.
6. Time and Material charges apply on a first and
additional basis for each half hour or fraction
thereof. If more than one technician is dispatched in
conjunction with the same trouble report, the total
time for all technicians dispatched will be
aggregated prior to the distribution of time between
the "First Half Hour or Fraction Thereof" and "Each
Additional Half Hour or Fraction Thereof" rate
categories. Basic Time is work related efforts of
SWBT performed during normally scheduled working
hours on a normally scheduled work day. Overtime is
work related efforts of SWBT performed on a normally
scheduled work day, but outside of normally scheduled
working hours. Premium Time is work related efforts
of SWBT performed other than on a normally scheduled
work day.
7. If LSP requests or approves a SWBT technician to
perform services in excess of or not otherwise
contemplated by the nonrecurring charges herein, LSP
will pay for any additional work to perform such
services, including requests for installation or
conversion outside of normally scheduled working
hours.
H. Other Pricing Terms and Conditions for Unbundled Local
Switching (ULS)
1. When LSP purchases Unbundled Local Switching, SWBT
will provide LSP the vertical features that the
switch is equipped to provide, as part of the usage
charges associated with ULS. LSP will pay
non-recurring charges to activate such features in
association with a particular ULS Port type. There
are two levels of non-recurring charges. The first
will apply when the features are activated at the
same time the port is established. A different
non-recurring charge applies when the feature is
activated subsequent to initial installation of the
port.
2. When the NXX of the telephone number provided to LSP
is one associated with an optional EAS arrangement,
LSP will pay a flat-rated monthly port additive for
the optional EAS toll package(s) inherent in the
telephone number.
3. LSP will pay the Toll Free Database query rate for
each query received and processed by SWBT's database.
When applicable, the charge for the additional
features (Designated 10-Digit Translation, Call
Validation and Call Handling and Destination) are per
query and in addition to the Toll Free Database query
charge, and will also be paid by LSP.
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4. Use of SWBT's SS7 signaling network will be provided
for unbundled local switching as set forth in
Appendix SS7. LSP does not separately order SS7 under
this method. LSP will be charged for the use of the
SWBT SS7 network on a per call basis when the SS7
network is used in conjunction with unbundled local
switching.
5. With Unbundled Local Switching, SWBT will make
available features that require resources outside the
switch, but LSP will pay additional charges (e.g.,
TCAP messages, SS7 Signaling, database queries, etc.)
for such features.
6. Associated with Unbundled Local Switching, LSP will
pay a non-recurring and a monthly recurring charge
for the establishment of common block for a
particular end user served by LSP. LSP will also pay
a non-recurring charge for activation of features
associated with individual ports and for subsequent
changes to features associated with individual ports.
These non-recurring charges are separate from the
service charges for service order processing.
I. Temporary Rate Structure for Unbundled Local Switching (ULS)
1. LSP will be charged a per minute rate for each local
call generated by an unbundled local ULS port, when
both the originating and terminating telephone number
are in the same 11 digit CLLI end office. When LSP
uses a ULS port to initiate a call to a terminating
number associated with a different 11 digit CLLI, LSP
will pay a rate per minute for ULS plus a rate per
minute for UCT transport. The parties agree to assume
that SWBT's common transport network is used in this
latter case.
J. Standard Interim Structure for ULS
1. Intra Switch Calls - On calls originating and
terminating in the same switch:
a) LSP will pay ULS-O for a call originating
from an ULS line or trunk port that
terminates to a SWBT end user service line
or any other unbundled line or trunk port
which is connected to the same end office
switch.
b) LSP will pay ULS-O for a centrex-like ULS
intercom call in which the LSP's user dials
from one centrex-like station to another
centrex-like station in the same common
block defined system.
c) SWBT will not bill ULS-T for calls
originating from a bundled line port (a line
port associated with the provision
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of resold local service by SWBT, or
associated with local service to SWBT end
user) and terminating to a ULS Port.
d) SWBT will not bill ULS-T for Intraswitch
calls originated by an unbundled ULS port
even when the line to which the call is
terminated is another ULS Port.
2. Inter Switch Calls - On calls not originating and
terminating in the same switch:
a) When a call originates from an ULS Port and
is routed to SWBT's public network via a
connection to UCT, ULS-O will apply. Charges
for UCT as outlined below will also apply.
b) When an InterLATA toll call is initiated
from an ULS port it will be routed to the
end user PIC choice. ULS-O usage charges
will apply to LSP in such event.
c) Until IntraLATA Dialing Parity, all
intraLATA toll calls initiated by ULS Port
will be routed to SWBT. The LSP will pay
IntraLATA toll rates for such calls. No ULS
usage charges will apply to LSP in such
event.
d) After IntraLATA Dialing Parity, IntraLATA
toll calls from ULS Ports will be routed to
the end user PIC choice. ULS-O charges will
apply.
e) When LSP uses ULS Ports to initiate an
800/888 call, SWBT will perform the
appropriate database query and route the
call to the indicated IXC. No ULS-O charges
will apply to the ULS Port.
f) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from another of the same LSP's ports
or another LSP's ULS Port, ULS-T charges
will apply.
g) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from the bundled local exchange
service of SWBT, ULS-T charges will apply.
h) When a call terminates to an ULS Port via
terminating access services provided by SWBT
(e.g., FGA, FGB, FGD, WATS etc.) SWBT will
assess ULS-T charges.
i) When a call which has been routed from
another network terminates to an ULS line
port, ULS-T charges will apply.
<PAGE> 268
UNE PRICE LIST - ARKANSAS
<TABLE>
<CAPTION>
Monthly/MOU Rates Nonrecurring Charge
Zone A Zone B Zone C Initial Additional
------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C>
Network Interface Device (NID)
Disconnect Loop from inside wiring, per NID N/A N/A N/A $60.85 $30.45
Unbundled Loops
2-Wire Analog $73.05 $32.50 $19.25 $38.05 $15.35
Conditioning for dB Loss $7.75 $7.75 $7.75 $45.05 $16.90
4-Wire Analog $146.10 $65.00 $38.50 $38.05 $15.35
2-wire Digital $123.00 $61.40 $43.60 $117.40 $61.60
4-wire Digital $209.95 $159.60 $137.00 $277.25 $109.35
Loop Cross Connects
Analog Loop to Collocation
2-wire cross connect $1.65 $1.65 $1.65 $71.80 $68.35
4-wire cross connect $3.25 $3.25 $3.25 $84.95 $81.50
Digital Loop to Collocation
2-wire cross connect $1.65 $1.65 $1.65 $71.80 $68.35
4-wire cross connect $8.70 $8.70 $8.70 $84.95 $81.50
Analog Loop to Multiplexer / Interoffice
2-wire cross connect $4.50 $4.50 $4.50 $105.45 $96.95
4-wire cross connect $6.10 $6.10 $6.10 $123.70 $115.20
Digital Loop to Multiplexer / Interoffice
2-wire cross connect 10.85 $10.85 $10.85 $105.45 $96.95
Analog Loop to DCS / Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Digital Loop to DCS / Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Local Switching
Interim Structure
Within the Same Central Office
Per Originating or Terminating MOU $0.002417 $0.006306 $0.004478 N/A N/A
Between Different Central Offices
Per Originating or Terminating MOU $0.006123 $0.013916 $0.010359 N/A N/A
Long Term Structure
Per Originating or Terminating MOU $0.002417 $0.006306 $0.004478 N/A N/A
Customized Routing ICB ICB ICB ICB ICB
Port Charge Per Month
Analog Line Port $2.85 $2.85 $2.85 $82.75 $74.30
Analog Trunk Side (DID) $24.80 $24.80 $24.80 $152.60 ---
BRI Port $6.40 $6.40 $6.40 $13.25 $7.30
PRI Port $201.35 $201.35 $201.35 $441.25 $200.90
Feature Activation per Port Type ICB ICB ICB ICB ICB
Centrex-like System Charges ICB ICB ICB ICB ICB
EAS Port Additive $24.00 $24.00 $24.00 NA NA
Tandem Switching
per Minute Of Use $0.001696 $0.001696 $0.001696 --- ---
Common Transport
per Minute Of Use $0.000441 $0.000456 $0.000555 --- ---
Dedicated Transport
Entrance Facility:
DS1 $148.95 $148.95 $148.95 $628.00 $456.00
DS3 $1,805.00 $1,805.00 $1,805.00 $637.00 $496.00
Interoffice Transport:
DS1 First Mile $69.00 $69.00 $69.00 $408.00 $314.00
Each Additional Mile $17.70 $17.70 $17.70 N/A N/A
DS3 First Mile $933.00 $933.00 $933.00 $473.00 $341.00
Each Additional Mile $118.00 $118.00 $118.00 N/A N/A
</TABLE>
PAGE 1 OF 2
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UNE PRICE LIST - ARKANSAS
<TABLE>
<S> <C> <C> <C> <C> <C>
Dedicated Transport Cross Connects
Voice Grade 2-wire NC NC NC NC NC
Voice Grade 4-wire NC NC NC NC NC
DS0 to DCS NC NC NC NC NC
DS1 NC NC NC NC NC
DS3 NC NC NC NC NC
Digital Cross-Connect System
DCS Port Charge
DSO $12.00 $12.00 $12.00 $20.00 N/A
DS1 $45.14 $45.14 $45.14 $43.00 N/A
DS3 $490.05 $490.05 $490.05 $32.00 N/A
DCS Establishment Charge N/A N/A N/A $1,722.00 N/A
Database Modification Charge N/A N/A N/A $80.00 N/A
Reconfiguration Charge N/A N/A N/A $1.25 N/A
<CAPTION>
Service Order Charges - Unbundled Elements Simple Complex
<S> <C> <C>
New Service $60.00 $245.00
Change $58.00 $136.00
Record $36.00 $114.00
Disconnect $30.00 $65.00
<CAPTION>
Nonrecurring Charge
Maintenance of Service Charges Initial Additional
<S> <C> <C>
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
Time and Material Charges
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
</TABLE>
PAGE 2 OF 2
<PAGE> 270
Appendix Wireless
PAGE 2 OF 6
APPENDIX WIRELESS
This Appendix sets forth the terms and conditions under which the Parties will
distribute revenue from their joint provision of Wireless Interconnection
Service for traffic originated on a Commercial Mobile Radio Service (CMRS)
Provider's network and terminating through the Parties' respective wireline
switching networks within a Local Access and Transport Area (LATA). The Parties
will be compensated under this Appendix only to the extent that they are not
been compensated for Wireless Interconnection Service under other tariffs,
settlement agreements, contracts or other mechanism. This Appendix is subject to
the terms and conditions of applicable tariffs.
1.0 DEFINITIONS
1.1. Wireless Interconnection Service - The interchange of traffic
originated from a Commercial Mobile Radio Service (CMRS)
Provider's Mobile Telephone Switching Office (MTSO) through
SWBT's or the LSP's point of switching for termination on the
relevant Party's wireline switching network.
1.2. Commercial Mobile Radio Service (CMRS) Provider - A radio
common carrier provider of domestic public cellular
telecommunication service, as defined in Part 22, Part 24, or
Part 90 of the FCC Rules and Regulations.
1.3. End Office - SWBT or LSP switching system where exchange
service customer station loops are terminated for the purpose
of interconnection to each other and to the network.
1.4. Local Access and Transport Area ("LATA") - A geographic area
marking the boundaries beyond which a Bell Operating Company
formerly could not carry telephone calls pursuant to the terms
of the Modification of Final Judgment (MFJ), U.S. vs. American
Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C. 1983), affirmed sub
nom. Maryland v. United States, 460 U.S. 1001 (1983).
1.5. Local Calling Area or Local Calling Scope - That area in which
the message telephone exchange service between two or more end
offices, without a toll charge, is provided.
1.6. Minutes of Use (MOU) - For the purposes of this Appendix, MOU
means the Terminating Traffic as recorded by the Primary
Company or MOU provided by the CMRS Provider to the Primary
Company where the Primary Company is unable to measure the
actual terminating usage.
1.7. Mobile Telephone Switching Office ("MTSO") - A CMRS Provider's
switching equipment or terminal used to provide CMRS
Provider's switching services or,
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Appendix Wireless
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alternatively, any other point of termination designated by
the CMRS Provider. The MTSO directly connects the CMRS
Provider's customers within its licensed serving area to the
Primary Company's facilities.
1.8. Primary Company - The Party that provides the End Office or
Tandem Office where the CMRS Provider chooses to connect
terminating traffic. The Primary Company also bills the CMRS
Provider for Wireless Interconnection Service.
1.9. Revenues - Those monies the Primary Company bills and collects
from the CMRS Provider for jointly provided Wireless
Interconnection Service.
1.10. Secondary Company - The Party that receives Terminating
Traffic from the Primary Company.
1.11. Tandem Office - A Party's switching system that provides an
intermediate switching point for traffic between end offices
or the network.
1.12. Terminating Traffic - That traffic which is delivered by a
CMRS Provider to the Primary Company for termination at a
point on the intraLATA wireline switching network.
2.0 ADMINISTRATION OF REVENUE DISTRIBUTION
2.1. The Primary Company will compute, bill, collect and distribute
the revenue for jointly provided Wireless Interconnection
Service for calls terminating within a LATA. On jointly
provided Wireless Interconnection Service, the Primary Company
will distribute a portion of the Local Transport (LT) Revenues
as described below with the Secondary Company for its part in
terminating traffic from the CMRS Provider. The Primary
Company will distribute applicable Local Switching (LS) and
Carrier Common Line (CCL) charges which are collected from the
CMRS Provider to the Secondary Company, as described below.
2.2. Distribution of revenues will be computed using the rate
elements as defined in SWBT's applicable Wireless
Interconnection Tariff.
2.3. For terminating traffic, actual monthly wireless MOU will be
measured by the Primary Company for each office in the LATA or
provided to the Primary Company by the CMRS Provider in those
cases where the Primary Company is unable to measure the
actual terminating usage.
2.4. Each month, the amount of CCL and LS revenue (based on the
rates in the Primary Company's applicable tariffs) due the
Secondary Company from the Primary Company will be determined
by totaling the actual terminating MOU associated with each of
the Secondary Company's end offices and multiplying
<PAGE> 272
Appendix Wireless
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those MOU by the appropriate rates as set out above. The LT
revenues due to the Secondary Company will be determined for
each Secondary Company end office by multiplying the billed
MOU by the appropriate LT rate multiplied by the applicable
end office percentage ownership of facilities listed in
Exhibit A to this Appendix.
2.5. The Primary Company will prepare a revenue and usage statement
on a monthly basis. Within 90 calendar days after the end of
each billing period, except in cases of disputes, the Primary
Company will remit the compensation amount due the Secondary
Company. When more than one compensation amount is due, they
may be combined into a single payment. No distribution will be
made for the revenue the Primary Company is unable to collect.
2.6. The revenue and usage statement will contain the following
information:
2.6.1. The number of MOU for each of the Secondary Company's
end offices, the corresponding rate elements to be
applied to the MOUs for each end office, and the
resulting revenues;
2.6.2. The total of the MOU and revenues for the Secondary
Company;
2.6.3. The percent ownership factor used to calculate the
distribution of Local Transport revenues; and,
2.6.4. Adjustments for uncollectibles.
2.7. The Parties agree that revenue distribution under this
Appendix will apply as of the effective date of the Agreement.
The Primary Company will start revenue distribution on usage
within 60 calendar days from the date this Appendix is
effective.
3.0 TERMINATION PROVISIONS
3.1. This Appendix shall remain in effect until terminated by
either Party upon a minimum of 30 calendar days written notice
by such Party to the designated representative of the other.
3.2. This Appendix may be terminated by an order of an appropriate
regulatory commission or a court of competent jurisdiction.
4.0 MISCELLANEOUS PROVISIONS
4.1. Exhibit A to this Appendix is attached and incorporated into
this Appendix by reference. From time to time, by written
agreement of both parties, new Exhibits
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Appendix Wireless
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may be substituted for the attached Exhibit A, superseding and
canceling the Exhibit A previously in effect.
4.2. Each party will promptly upon request, furnish to the other
such information as may reasonably be required to perform
under this Appendix.
5.0 NOTICE
5.1. In the event any notices are required under the terms of this
Appendix, they shall be sent by registered mail, return
receipt requested to:
if to SWBT Jeff Fields
if to LSP Richard Weinstein
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Appendix Wireless
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EXHIBIT A TO APPENDIX WIRELESS
END OFFICE PERCENT OWNERSHIP OF LOCAL TRANSPORT FACILITIES
CLLI CODE NPA-NXX % OWNERSHIP OF TRANSPORT
FACILITIES
<PAGE> 275
APPENDIX WP
PAGE 2 OF 6
APPENDIX WP
WHITE PAGES DIRECTORY APPENDIX
SWBT and LSP agree to the following terms and conditions for the printing and
distribution of White Pages directories:
1. SWBT publishes White Pages directories for geographic areas in which
LSP also provides local exchange telephone service, and LSP wishes to
include listings information for its end users in the appropriate SWBT
White Pages directories.
2. LSP also desires distribution to its end users of the White Pages
directories that include listings of LSP's end users.
3. NOW THEREFORE, in consideration of these premises, SWBT and LSP agree
as follows:
I. SERVICE PROVIDED
A. Subject to SWBT's practices, as well as the rules and
regulations applicable to the provision of White Pages
directories, SWBT will include in appropriate White Pages
directories the primary alphabetical listings of all LSP end
users located within the local directory scope. The rules,
regulations and SWBT practices are subject to change from time
to time.
B. Prior to the issuance of a particular directory and at such
time or times as may be mutually agreed, the LSP shall furnish
to SWBT, in a form acceptable to both Parties, subscriber
listing information pertaining to LSP end users located within
the local directory scope, along with such additional
information as SWBT may require to prepare and print the
alphabetical listings of said directory.
C. LSP may provide LSP's subscriber listing information to SWBT
for inclusion in the White Pages directory via either a
mechanical or manual feed of the listing information to SWBT's
listing database or the LSP may choose to provide listings in
the form of camera ready copy.
D. If LSP provides its subscriber listing information to SWBT via
a mechanical or manual feed such listings are to be
alphabetically interfiled (interspersed) in the SWBT directory
among SWBT subscriber listings. If LSP provides its subscriber
listing information to SWBT in the form of camera ready copy,
SWBT will include such listings as a separate section of the
White Pages directory included in a separate section of the
SWBT White Pages directory.
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APPENDIX WP
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E. Sixty (60) days prior to the business office close date for a
particular directory, SWBT shall provide LSP a verification
list of its subscriber listings, as such listings are to
appear in the directory. The verification list shall also
include Directory Delivery Address information for each LSP
end user. LSP shall review this verification list and shall
submit to SWBT any necessary additions, deletions or
modifications within thirty (30) days of receipt of the list
from SWBT.
F. If LSP provides its subscriber listing information to SWBT in
the form of camera ready copy. SWBT shall provide LSP sixty
(60) days written notice of the date by which LSP must provide
this information to SWBT.
G. Sixty (60) days prior to the directory close, LSP shall
provide to SWBT written specification of the total number of
directories that it will require, along with the number of
directory(ies) that each LSP end user will require. SWBT will
provide one (1) copy of the directory to LSP end users, unless
otherwise instructed by the LSP.
H. At LSP's request, SWBT will include LSP specific information
(i.e., business office, residence office, repair bureau, etc.)
in the White Pages directory on an "index-type" informational
page. This page will also include specific information
pertaining to other LSPs. At its option, LSP shall provide
SWBT with its logo and information in the form of a camera
ready copy, sized at 1/8th of a page.
I. At its request, LSP may purchase "Informational Page(s)" in
the informational section of the White Pages directory
covering a geographic area. Such page(s) shall be no different
in style, size, color and format than SWBT "Informational
Pages". Sixty (60) days prior to the directory close date, the
LSP shall provide to SWBT the "Informational Page" in the form
of camera- ready copy.
II. USE OF SUBSCRIBER LISTING INFORMATION
A. LSP authorizes SWBT to use the subscriber listing information
provided to SWBT pursuant to this Appendix for the sole
purpose of including the listings in the appropriate printed
White Pages directory and directory assistance databases where
such service is provided by SWBT.
B. At LSP's request, SWBT shall transmit LSP's end user listing
information to designated third party directory publishers
(limited to publishers that SWBT transmits its own listing
information) for a one-time administrative fee of $100.00 per
occurrence, per directory publisher.
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APPENDIX WP
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III. PRICING
A. The rates for the services described herein are identified on
Exhibit I. If LSP provides its subscriber listing information
to SWBT via a mechanical or manual feed of the listings to
SWBT's listings database, SWBT will assess per book copy, per
subscriber line, charge when directories are delivered to LSP
end user premises, or an annual, per book copy charge when
delivered in bulk to LSP. Included in this rate, LSP will
receive for its end user, one single listing in SWBT's White
Page directory, and one copy of the directory delivered to
either its end user's premises, or in bulk to the LSP
location.
B. Where an LSP end user requires additional listings to appear
in the White Pages directory, SWBT will assess LSP an annual
charge for such listings at existing SWBT tariff rates.
C. For any "Subsequent" directory orders (orders placed after the
initial order/forecsat is provided - see I. G. above), SWBT
shall charge LSP a per book copy charge. This rate applies,
per book copy, when such directories are delivered in bulk to
LSP or to the LSP's end user premises.
D. For inclusion of the LSP "Informational Page" in the White
Pages directory, SWBT shall charge the LSP an annual fee for
inclusion in the Metropolitan area book.
IV. ASSIGNMENT
The subscriber listing information shall remain the property of LSP.
Except as stated in Section II herein, SWBT shall not sublicense,
assign, sell or transfer the subscriber listing information provided
hereunder, nor shall SWBT authorize any other company or any person to
use the subscriber listing information for any other purpose. SWBT
shall take appropriate measures to guard against any unauthorized use
of the listings provided to it hereunder (at least the same measures
SWBT takes to protect its own listings from unauthorized use), whether
by SWBT, its agents, employees or others.
V. LIABILITY
A. LSP hereby releases SWBT from any and all liability for
damages due to errors or omissions in LSP's subscriber listing
information as provided to SWBT under this Appendix, and/or
LSP's subscriber listing information as it appears in the
White Pages directory, including, but not limited to, special,
indirect, consequential, punitive or incidental damages.
B. LSP shall indemnify, protect, save harmless and defend SWBT
(or SWBT's officers, employees, agents, assigns and
representatives) from and against any and all losses,
liability, damages and expense arising out of any demand,
claim, suit or
<PAGE> 278
APPENDIX WP
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judgment by a third party in any way related to any error or
omission in LSP's subscriber listing information as it appears
in the White Pages directory, including any error or omission
related to non-published or non-listed subscriber listing
information. LSP shall so indemnify regardless of whether the
demand, claim or suit by the third party is brought jointly
against LSP and SWBT, and/or against SWBT alone. However, if
such demand, claim or suit specifically alleges that an error
or omission appears in LSP's subscriber listing information in
the White Pages directory, SWBT may, at its option, assume and
undertake its own defense, or assist in the defense of the
LSP, in which event the LSP shall reimburse SWBT for
reasonable attorney's fees and other expenses incurred by SWBT
in handling and defending such demand, claim and/or suit.
C. This Appendix shall not establish, be interpreted as
establishing, or be used by either party to establish or to
represent their relationship as any form of agency,
partnership or joint venture. Neither Party shall have any
authority to bind the other or to act as an agent for the
other unless written authority, separate from this Appendix,
is provided. Nothing in the Appendix shall be construed as
providing for the sharing of profits or losses arising out of
the efforts of either or both of the Parties. Nothing herein
shall be construed as making either Party responsible or
liable for the obligations and undertakings of the other
Party.
VI. BREACH OF CONTRACT
If either Party is found to have materially breached this Appendix, the
non-breaching Party may terminate the Appendix by providing written
notice to the breaching party, whereupon this Appendix shall be null
and void with respect to any issue of SWBT's White Pages directory
published sixty (60) or more days after the date of receipt of such
written notice.
VIII. TERM
A. This Appendix shall continue in force for one (1) until
terminated by sixty (60) days prior written notice by either
Party to the other. Upon termination, SWBT shall cease using,
for any purpose whatsoever, the subscriber listing information
provided hereunder by LSP, and shall promptly return such
subscriber listing information to the LSP.
B. Upon termination of the interconnection Agreement, this
Appendix will be null and void with respect to any issue of
directories published thereafter, except that the
indemnification provided by Section V herein shall continue
with respect to any directory published within sixty (60) days
of termination.
<PAGE> 279
APPENDIX WP
PAGE 6 OF 6
APPENDIX WP
EXHIBIT I
PRICE LIST
<TABLE>
<CAPTION>
DIRECTORY PRICE PER BOOK COPY PRICE PER BOOK COPY PRICE PER SINGLE PRICE PER BOOK
DELIVERED IN BULK DELIVERED TO LSP SIDED INFORMATIONAL COPY (1) ORDERED AFTER
TO LSP END USER PAGE INITIAL ORDER
==========================================================================================================
<S> <C> <C> <C> <C>
Little Rock $1.94 $2.72 $964.44 $10.00
Fayetteville $1.36 $1.82 $178.60 $10.00
Fort Smith $1.36 $1.82 $178.60 $10.00
Hot Springs $1.36 $1.82 $178.60 $10.00
Jonesboro $1.36 $1.82 $178.60 $10.00
==========================================================================================================
</TABLE>
- ------------------------------
(1) Subject To Availability
<PAGE> 280
APPENDIX TP
PAGE 2 OF 2
ELECTRICAL/OPTICAL INTERFACES:
- SWBT Technical Publication TP-76839 - SONET Transmission
Requirements - Performance and Interface Specifications, Issue
1, January 1996, or the most current version.
- SWBT Technical Publication TP-76625 - High Capacity Digital
Service (1.544 Mbs and 44.736 Mbs Requirements and
Transmission Limits, Issue 1, June 1990, or the most current
version.
INTERCONNECTION RESPONSIBILITIES RELATED TO SIGNALING:
- SWBT Technical Publication, TP-76638 - Common Channel
Signaling Network Interface Specifications
- GR-000246-CORE, Bell Communications Research Specifications of
Signaling System 7
- GR-000317-CORE, Switching System Requirements for Call Control
Using the Integrated Services Digital Network User Part
- GR-000394-CORE, Switching System Requirements for
Interexchange Carrier Interconnection Using the Integrated
Services Digital Network User Part
- GR-000606-CORE, LATA Switching Systems Generic
Requirements-Common Channel Signaling-Section 6.5
- GR-000905-CORE, Common Channel Signaling Network Interface
Specification Supporting Network Interconnection Message
Transfer Part (MTP) and Integrated Digital Services Network
User Part (ISDNUP)
COLLOCATION
- SWBT's Technical Publication for Physical Collocation (sixth
revision dated 2-18-97)
TECHNICAL EXHIBIT SETTLEMENT PROCEDURES
- TESP
<PAGE> 281
APPENDIX PORT
PAGE 2 OF 5
APPENDIX PORT
I. GENERAL
SWBT and LSP will provide Interim Number Portability (INP) in
accordance with requirements of the Act. INP will be provided by each
Party to the other upon request. INP will be provided with minimum
impairment of functionality, quality, reliability and convenience to
subscribers of LSP or SWBT. The Parties will provide Permanent Number
Portability (PNP) as soon as it is technically feasible, in conformance
with FCC rules and the Act, and will participate in development of PNP
in the state, in accordance with the FCC's First Report and Order in
Docket No. 95-116 (hereinafter called the Number Portability Order). As
described herein, INP is a service arrangement whereby an end user, who
switches subscription of local exchange service from one provider to
another is permitted to retain, for its use, the existing assigned
number provided that the end user remains in the same serving wire
center.
II. TERMS, CONDITIONS UNDER WHICH SWBT SHALL PROVIDE INP
A. SERVICE PROVIDED
1. SWBT shall only provide INP, as described herein, to
LSPs.
2. SWBT shall only provide INP services and facilities
where technically feasible, subject to the
availability of facilities, and only from properly
equipped central offices. SWBT does not offer INP
services and facilities for NXX codes 555, 976, 950,
or SWBT operated coin telephone service.
3. LSP shall not order INP services for local exchange
end user accounts of SWBT where the end user=s
payments are 45-days or more in arrears unless full
payment is made or an agreement is reached where the
LSP agrees to make full payment on the end user=s
behalf.
4. When the exchange service offerings associated with
INP service are provisioned using remote switching
arrangements, SWBT shall only make INP service
available from, or to host central offices.
B. OBLIGATIONS OF SWBT
1. SWBT's sole responsibility is to comply with the
service requests it receives from the LSP and to
provide INP in accordance with this Appendix.
C. OBLIGATIONS OF LSPS
1. LSP shall coordinate the provision of service with
SWBT to assure that
<PAGE> 282
APPENDIX PORT
PAGE 3 OF 5
LSP's switch is capable of accepting INP ported
traffic.
2. LSP is solely responsible to provide equipment
and facilities that are compatible with
SWBT's service parameters, interfaces, equipment and
facilities. LSP shall provide sufficient terminating
facilities and services at the terminating end of an
INP call to adequately handle all traffic to that
location and shall ensure that its facilities,
equipment and services do not interfere with or
impair any facility, equipment or service of SWBT or
any of its end users. In the event that SWBT
determines in its sole judgment that the LSP will
likely impair or is impairing, or interfering with
any equipment, facility or service of SWBT or any of
its end users, SWBT may either refuse to provide INP
service or terminate it in accordance with other
provisions of this STC or SWBT's tariffs.
3. LSP shall provide an appropriate intercept
announcement service for any telephone numbers
subscribed to INP service for which LSP is not
presently providing local exchange service or
terminating to an end user.
4. Where LSP chooses to disconnect or terminate any INP
service, LSP shall designate which standard SWBT
intercept announcement SWBT shall provide for
disconnected number.
5. LSP shall designate to SWBT at the time of its
initial service request for INP service one of the
following options for handling and processing of
Calling Card, Collect, Third Party, and other
operator handled non-sent paid calls from or to LSP
assigned telephone numbers:
a. LSP may elect to block the completion of
third number and calling card calls through
the use of LIDB to select ported numbers.
b. For non-sent paid calls billed to INP
assigned numbers, a separate
sub-clearinghouse billing arrangement must
be established which will provide for the
transmission of the EMR 01-01-01 billing
records, and settlement of toll revenues.
D. LIMITATIONS OF SERVICE
1. SWBT is not responsible for adverse effects on any
service, facility or equipment from the use of INP
service.
2. End-to-end transmission characteristics may vary
depending on the distance and routing necessary to
complete calls over INP facilities and the fact that
another carrier is involved in the provisioning of
service. Therefore, end-to-end transmission
characteristics cannot be specified by SWBT for such
calls.
<PAGE> 283
APPENDIX PORT
PAGE 4 OF 5
E. SERVICE DESCRIPTIONS
1. INP-REMOTE. INP-Remote is a service whereby a call
dialed to an INP-Remote equipped telephone number,
assigned to SWBT, is automatically forwarded to an
LSP-assigned, 7 or 10 digit local telephone number.
The forwarded-to-number is specified by the LSP at
the same location.
a. INP-Remote provides an initial call path and
two additional paths for the forwarding of
no more than three (3) simultaneous calls to
the LSP's specified forwarded-to number.
Additional call paths are available on a per
path basis.
b. The LSP-assigned forwarded-to number shall
be treated as two separate calls with
respect to interconnection compensation, end
user toll billing and intercompany
settlement and access billing, i.e., an
incoming call to the SWBT ported number
shall be handled like any other SWBT call
being terminated to that end office and the
ported call to the LSP assigned telephone
number in the LSP switch shall be handled as
any local calls between SWBT and the LSP.
c. Where facilities exist, SWBT will provide
identification of the originating telephone
number, via SS7 signaling, to the LSP.
2. INP-DIRECT. INP-Direct is a service which provides
for the delivery of the called (dialed) number to the
LSP's switching (central office or premises)
equipment for identification and subsequent routing
and call completion.
a. INP-Direct is available either on a per
voice grade channel basis or a per DS1 (24
equivalent voice grade channels) basis.
(1) Where the location of the LSP's
switching equipment to which SWBT is
providing voice grade or DS1
INP-Direct service reside outside
the exchange or central office
serving area from which the
INP-Direct service is purchased, LSP
shall pay applicable interoffice
mileage charges as specified in the
applicable state Special Access
Tariff.
b. INP-Direct service must be established with
a minimum configuration of two (2) voice
grade channels and one unassigned telephone
number per SWBT switch. Transport facilities
arranged for INP-Direct may not be mixed
with any other type of trunk
<PAGE> 284
APPENDIX PORT
PAGE 5 OF 5
group. Outgoing calls may not be placed
over facilities arranged for INP-Direct
service.
c. SS7 Signaling is not available on the
INP-Direct facilities.
F. PRICING
1. The Parties will comply with all effective FCC,
Commission and/or court Orders governing INP cost
recovery and compensation. The Parties acknowledge
that the Telephone Number Portability Order is
subject to pending Petitions for Reconsideration and
may be subject to appeal. As such, the Number
Portability Order may be reconsidered, revised and
remanded, or vacated, subject to further proceedings
before the FCC. As such, until a final decision is
rendered on INP cost recovery, the Parties agree to
track the costs associated with the implementation
and provision of INP and to "true-up" INP-related
accruals to reflect the final terms of any such
order.
2. Neither Party waives its rights to advocate its
views on INP cost recovery, or to present before any
appropriate regulatory agency or court its views on
FCC or Commission actions pertaining to INP cost
recovery.
<PAGE> 285
Agreement No. ______________________
MASTER AGREEMENT FOR ACCESS
TO POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY (ARKANSAS)
This Agreement dated _____________, 19__, is made by and between
Southwestern Bell Telephone Company ("SWBT") and the undersigned Applicant. As
provided in this Agreement, SWBT will provide Applicant nondiscriminatory
access, in accordance with the Pole Attachment Act, the Telecommunications Act
of 1996, and applicable rules, regulations, and commission orders, to poles,
ducts, conduits, and rights-of-way owned or controlled by SWBT and located in
this state.
ARTICLE 1: PARTIES
1.01 Southwestern Bell Telephone Company. Southwestern Bell Telephone
Company is a corporation chartered in the State of Missouri. SWBT's principal
office is located at 1010 Pine Street, St. Louis, Missouri 63101.
1.02 Applicant. Applicant is a telecommunications carrier or cable
television system doing business or operating in this State under the following
name(s):
________________________________________________________________________
_______________________________________________________________________.
Applicant maintains offices in this State at the following address:
____________________
_______________________________________________________________________.
Applicant is more fully described in APPENDIX II ("Identification of
Applicant").
ARTICLE 2: PURPOSE OF AGREEMENT
2.01 Primary Purpose of Agreement. The primary purpose of this
Agreement is to set forth the rates, terms, conditions, and procedures under
which SWBT will provide Applicant access to SWBT's poles, ducts, conduits, and
rights-of-way located in this State.
2.02 Applicability. This Agreement applies to all poles, ducts,
conduits, and rights-of-way subject to the Pole Attachment Act, 47 U.S.C.
Section 224, as amended by the Telecommunications Act of 1996, and further
amendments.
2.03 Construction in Accordance with Purpose. All provisions of this
Agreement shall be construed and applied consistently with the requirements of
the Pole Attachment Act and those provisions of the Telecommunications Act of
1996, including but not limited to 47 U.S.C. Sections 251(b)(4) and
271(c)(2)(B)(iii), which mandate access to SWBT's poles, ducts, conduits, and
rights-of-way.
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<PAGE> 286
2.04 Uniform Application and Nondiscriminatory Access. In Paragraph
1156 of the First Interconnection Order in CC Docket No. 96-98, the FCC has
ordered that "[W]here access is mandated, the rates, terms, and conditions of
access must be uniformly applied to all telecommunications carriers and cable
operators that have or seek access." In Paragraph 1157 of the First
Interconnection Order, the FCC has further stated that except as specifically
noted elsewhere in that order, "a utility may not favor itself over other
parties with respect to the provision of telecommunications or video programming
services." This Agreement has been drafted and shall be construed to effectuate
these nondiscriminatory access requirements.
2.05 Effect on Rights and Remedies under Law. This Agreement is
intended by the parties to implement, rather than abridge, their respective
rights under federal and state law. In the event of an irreconcilable conflict
between any provision of this Agreement and any applicable federal or state
laws, rules, regulations, or commission orders, the parties' rights and remedies
under such laws, rules, regulations, and orders shall take precedence over the
terms of this Agreement.
2.06 Additional Negotiations. This Agreement is one of many agreements
between SWBT and parties seeking access to SWBT's poles, ducts, conduits, and
rights-of-way in this State. Nothing contained in this Agreement shall preclude
SWBT from negotiating additional or different terms of access with third
parties. Applicant may, at any time, seek amendments to this Agreement to
conform to the terms of agreements between SWBT and third parties. In addition,
the parties acknowledge that it may be necessary to amend or supersede this
Agreement to conform to changes in the law, streamline procedures for granting
access, address issues not addressed in this Agreement, and resolve operational
concerns arising by virtue of the presence of competing providers of
telecommunications and cable television services on, within, or in the vicinity
of SWBT's poles, ducts, conduits, and rights-of-way. Each party shall,
therefore, at the request of the other party, engage in good faith negotiations
to supplement, amend or replace this Agreement.
2.07 Relationship to Interconnection Agreement. SWBT has provided
Applicant the option of executing this Agreement either as a standalone
agreement or as part of the interconnection agreement, if any, between the
parties. Applicant's election is reflected in this section, and this Agreement
shall be construed in accordance with Applicant's election. If this Agreement
has been executed as part of an interconnection agreement, Applicant shall have
the additional option of replacing this Agreement at any time with SWBT's
then-current Master Agreement for Access to Poles, Ducts, Conduits, and
Rights-of-Way.
[ ] This Agreement has been entered into as a standalone
Agreement.
[ ] This Agreement has been entered into, at Applicant's
request, as an appendix, attachment, or exhibit to an
interconnection agreement
PAGE 2
<PAGE> 287
between the parties. Except as otherwise specifically
stated in this Agreement, the terms of this Agreement,
which are specific to poles, ducts, conduits, and
rights-of-way, shall apply in the event of conflict
between the terms of this Agreement and the general terms
and conditions set forth in the interconnection agreement.
2.08 Access Ancillary to Arrangements for Interconnection, Collocation,
and Access to Unbundled Network Elements. Nothing contained in this Agreement
shall be construed as precluding Applicant from having such additional access to
SWBT's poles, ducts, conduits, and rights-of-way as may be necessary to
effectuate the terms of other arrangements between Applicant and SWBT relating
to interconnection, collocation, and access to unbundled network elements. To
the extent that this Agreement does not provide the access required, additional
terms of access may be included in any tariff or agreement between the parties
establishing arrangements for interconnection, collocation, or access to
unbundled network elements.
ARTICLE 3: DEFINITIONS
3.01 Definitions in general. As used in this Agreement, the terms
defined in this article shall have the meanings set forth below in Sections 3.02
to 3.48 except as the context otherwise requires.
3.02 Agreement. The term "Agreement" refers to this Master Agreement
for Access to Poles, Ducts, Conduits, and Rights-of-Way. The term "Agreement"
includes all appendices, attachments, and addenda to this Agreement, including
but not limited to addenda, if any, reflecting state-specific requirements or
Applicant-specific requirements imposed by interconnection arbitration orders.
3.03 Anchor. The term "anchor" refers to a device, structure, or
assembly which stabilizes a pole and holds it in place. An anchor assembly may
consist of a rod and fixed object or plate, typically embedded in the ground,
which is attached to a guy strand or guy wire which, in turn, is attached to the
pole. The term "anchor" does not include the guy strand which connects the
anchor to the pole.
3.04 Appendix. The capitalized term "APPENDIX" refers to one of the
following appendices to this Agreement.
APPENDIX I: Schedule of Rates, Fees, and Charges
APPENDIX II: Identification of Applicant
APPENDIX III: Administrative Forms and Notices
SW-9433: Pole Attachments
PAGE 3
<PAGE> 288
SW-9434: Access Application and Make-Ready
Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of
Pole Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of
Conduit Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by
Applicant
APPENDIX IV: Insurance Requirements
APPENDIX V: Nondisclosure Agreement
APPENDIX VI: Notices to Applicant
APPENDIX VII: Notices to SWBT
APPENDIX VIII: Identification of Utility Liaison Supervisor
(ULS)
3.05 Assigned. When used with respect to pole, duct, conduit, or
right-of-way space, the term "assigned" refers to space that is occupied by, or
has been designated for occupancy by, either party or by a third party. Except
as otherwise specifically provided in this Agreement, no person or entity shall
have the right to occupy space assigned to another person or entity (other than
on a temporary basis in the event of emergency as provided in Section 15.02 of
this Agreement) until the assignment has been released or lapsed. Assignment
procedures are described in Section 8.02 of this Agreement.
3.06 Authorized contractor. "Authorized contractors" are contractors
selected by Applicant who may, subject to Applicant's direction and control,
perform facilities modification or make-ready work which would ordinarily be
performed by SWBT or persons acting on SWBT's behalf. As used in this Agreement,
the term "authorized contractor" does not refer to contractors performing
routine installation, maintenance, or repair work on Applicant's behalf or other
contractors who may be selected by Applicant to perform work on Applicant's
behalf without SWBT's approval. More specifically, the term "authorized
contractor" refers only to those contractors included on a list of contractors
mutually approved by Applicant and SWBT to perform one or more of the following
tasks within a specified SWBT construction district: (a) installation of those
sections of Applicant's ducts or facilities which connect to SWBT's conduit
system as provided in Section 6.08(c); (b) installation of inner duct as
provided in Section 10.02(b); (c) excavation work in connection with the removal
of retired or inactive (dead) cables as provided in Section 10.02(c); or (d)
make-ready work as provided in Sections 10.04 and 10.05. A person or entity
approved as an authorized contractor is only an authorized
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<PAGE> 289
contractor with respect to those tasks for which such person or entity has been
approved by both parties and is an authorized contractor only in those
SWBT construction districts agreed to by both parties. Designation of an
authorized contractor for a specific category of tasks shall not be deemed to
be the designation of such person or entity as an authorized contractor for
other purposes, nor shall approval of an authorized contractor by one SWBT
construction district constitute approval of such authorized contractor for the
area served by a different SWBT construction district; provided, however, that
if a specific construction job extends beyond the boundaries of a single
construction district, an authorized contractor shall, for the purposes of that
job, be deemed to have been approved by all SWBT construction districts in
which the work is to be performed. If, by agreement of the parties or
commission order, Applicant has been approved as an authorized contractor, such
approval shall be noted by an addendum to this Agreement.
3.07 Available. When used with respect to pole, duct, conduit, and
right-of-way space, the term "available" refers to space that is not occupied or
assigned. In conduit systems owned or controlled by SWBT, maintenance ducts will
not be considered "available" for assignment. All other unassigned ducts, inner
ducts, sub-ducts, and partitioned conduits in a conduit system owned or
controlled by SWBT will be deemed available for assignment.
3.08 Cables. The term "cable" includes but is not limited to
twisted-pair copper, coaxial, and fiber optic cables. Cables are transmissions
media which may be attached to our placed in poles, ducts, conduits, and
rights-of-way but are not themselves poles, ducts, conduits, or rights-of-way.
Nothing contained in this Agreement shall be construed as a grant of access to
cables attached to SWBT's poles or placed in SWBT's ducts, conduits, or
rights-of-way.
3.09 Conduit. The term "conduit" refers to all SWBT conduits subject to
the Pole Attachment Act. In general, conduits are tubes or structures, usually
underground or on bridges, containing one or more ducts used to enclose cables,
wires, and associated transmission equipment. Except as the context otherwise
requires, the term "conduit" refers only to conduit owned or controlled by SWBT,
including the re-enterable manholes and handholes used to connect ducts and
provide access to cables, wires, and other facilities within the ducts. As used
in this Agreement, the term "conduit" refers only to conduit structures
(including ducts, manholes and handholes) and space within those structures and
does not include (a) cables and other telecommunications equipment located
within conduit structures or (b) central office vaults, controlled environment
vaults, or other SWBT structures (such as huts and cabinets) which branch off
from or are connected to SWBT's conduit.
3.10 Conduit occupancy. The term "conduit occupancy" refers to the
presence of wire, cable, optical conductors, or other equipment within any part
of SWBT's conduit system.
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<PAGE> 290
3.11 Conduit system. The term "conduit system" refers to any
combination of ducts, conduits, manholes, and handholes joined to form an
integrated whole. As used in this Agreement, the term "conduit system" refers
only to conduit systems owned or controlled by SWBT and does not include (a)
cables and other telecommunications equipment located within conduit structures
or (b) central office vaults, controlled environment vaults, or other SWBT
structures (such as huts and cabinets) which branch off from or are connected to
SWBT's conduit.
3.12 Construction District. The term "construction district" refers to
the SWBT organization responsible for outside plant construction in a specified
geographic area. The term "construction district" connotes responsibility for
handling a function and not to the official name of the organization responsible
for outside plant construction matters.
3.13 Cost/Cost-based. The terms "cost" and "costs" refer to costs
determined in a manner consistent with the Pole Attachment Act and applicable
rules, regulations, and commission orders. The term "cost-based" refers to
rates, fees, and other charges which are based on costs and determined in a
manner consistent with the Pole Attachment Act and applicable rules,
regulations, and commission orders.
3.14 Duct. The term "duct" refers to all SWBT ducts subject to the Pole
Attachment Act. In general, a "duct" is a single enclosed tube, pipe, or channel
for enclosing and carrying cables, wires, and other equipment. As used in this
Agreement, the term "duct" includes "inner ducts" created by subdividing a duct
into smaller channels. Except as the context otherwise requires, the term "duct"
refers only to ducts owned or controlled by SWBT and space within those ducts
and does not include cables and other telecommunications equipment located
within such ducts.
3.15 Facilities. The terms "facility" and "facilities" refer to any
property, equipment, or items owned or controlled by any person or entity.
3.16 FCC. The acronym "FCC" refers to the Federal Communications
Commission.
3.17 First Interconnection Order. The term "First Interconnection
Order" refers to the First Report and Order adopted by the FCC on September 1,
1996, and released on September 8, 1996, in CC Docket No. 96-98, In the Matter
of Implementation of the Local Competition Provisions in the Telecommunications
Act of 1996 and CC Docket No. 95-185, In the Matter of Interconnection between
Local Exchange Carriers and Commercial Mobile Radio Service Providers. Access to
poles, ducts, conduits, and rights-of-way is addressed in the First
Interconnection Order in Paragraphs 1119-1240.
3.18 Handhole. The term "handhole" refers to a structure similar in
function to a manhole, but which is too small for personnel to enter. As used in
this Agreement, the term "handhole" refers only to handholes which are part of
SWBT's conduit system and does not refer to handholes which provide access to
buried cables not housed within
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SWBT ducts or conduits. As used in this Agreement, the term "handhole" refers
only to handhole structures owned or controlled by SWBT and does not include
cables and other telecommunications equipment located within handhole
structures.
3.19 Hazardous substances. The term "hazardous substances" refers to
hazardous and toxic substances, waste, pollutants, contaminants, and materials
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601(14), as amended, and other
federal, state, and local health, safety, and environmental laws, ordinances,
statutes, rules, and regulations applicable to sites subject to this Agreement,
including but not limited to the Occupational Safety and Health Act ("OSHA").
In general, the term "hazardous substances" refers to any substance the
presence, use, transport, abandonment or disposal of which (a) requires
investigation, remediation, compensation, fine, or penalty under health,
safety, and environmental laws, ordinances, statutes, rules, and regulations
applicable to sites subject to this Agreement or (b) poses risks to human
health, safety, or the environment and is regulated under any such laws,
ordinances, statutes, rules, and regulations. For the purposes of this
Agreement, the term "hazardous substances" shall also include petroleum,
natural gas, and other combustible or noxious liquids, gases, or solids which
may accumulate at sites subject to this Agreement.
3.20 Interconnection agreement. The term "interconnection agreement"
refers to the interconnection agreement, if any, to which this Agreement has
been made an appendix, attachment, or exhibit, or, as the context may require,
any other interconnection agreement between the parties.
3.21 Jacket. The term "jacket" refers to a single enclosed outer
covering containing communications wires, fibers, or other communications media.
As used in this Agreement, the term "jacket" refers to the outermost sheath or
jacket of a cable.
3.22 Joint user. The term "joint user" refers to any person or entity
which has entered or may enter into an agreement or arrangement with SWBT
permitting it to attach its facilities to SWBT's poles or place its facilities
in SWBT's ducts, conduits, or rights-of-way.
3.23 License. The term "license" refers to a written instrument
confirming that SWBT has granted the application of Applicant or a third party
for access to pole, duct, conduit, or right-of-way space and that, based on
Applicant's or such third party's representations (and SWBT's field inspection,
if any), it appears that no further facilities modification, capacity expansion
or make-ready work by SWBT is required before facilities described in the
application are installed in the space requested. The term "license" refers to
licenses issued by SWBT pursuant to this Agreement and may, if the context
requires, refer to licenses issued by SWBT before the date of this Agreement.
The parties' use of the term "license" in this Agreement shall not be construed
as conferring authority or discretion on SWBT's part to deny access to Applicant
in any manner inconsistent with the requirements of the Pole Attachment Act, the
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Telecommunications Act of 1996, and applicable rules, regulations, and
commission orders.
3.24 Local service provider ("LSP"). The terms "local service provider"
and "LSP" refer only to telecommunications carriers authorized by applicable
federal and state laws and regulations to provide local exchange service. As
used in this Agreement, these terms include SWBT.
3.25 Maintenance duct. The term "maintenance duct" generally refers to
a full-sized duct (typically three inches in diameter or larger) which may be
used, on a short-term basis, for maintenance, repair, or emergency restoration
activities. Maintenance ducts will be available, on a nondiscriminatory basis,
to all persons and entities (including SWBT, Applicant, other local service
providers, and other joint users) with facilities in the conduit section in
which the maintenance duct is located for (a) short-term emergency repairs as
provided in Article 15 of this Agreement and (b) short-term non-emergency
maintenance or repair activities as provided in Articles 12 and 13 of this
Agreement. No more than one full-sized duct within any given conduit section
will be designated by SWBT as the maintenance duct. In those locations where, on
the effective date of this Agreement, there is not a full-sized duct available
to be used as a maintenance duct, SWBT will designate an inner duct, if one is
available, as the maintenance duct although such inner duct may be too small to
accommodate some of the cables occupying the conduit section in which such inner
duct is located. The term "maintenance duct" does not include ducts and conduits
extending from a SWBT manhole to customer premises. Maintenance ducts will not
be considered "available" (as defined in Section 3.07) for assignment to SWBT,
Applicant, or joint users for purposes other than short-term uses contemplated
in this section; provided, however, that SWBT may assign the duct currently
designated as a maintenance duct if another suitable full-sized duct will be
made available to serve as a replacement maintenance duct and may assign an
inner duct currently designated as a maintenance duct if another inner duct will
be made available to serve as a replacement maintenance duct. Maintenance duct
designations may change from time to time and may or may not be reflected in
SWBT's outside plant records. When only one usable full-sized duct remains in a
conduit section, that duct shall be deemed to be the maintenance duct.
3.26 Make-ready work. The term "make-ready work" refers to all work
performed or to be performed to prepare SWBT's poles, ducts, conduits,
rights-of-way, and related facilities for the requested occupancy or attachment
of Applicant's facilities. Make-ready work does not include the actual
installation of Applicant's facilities. "Make-ready work" includes, but is not
limited to, clearing obstructions (e.g., by "rodding" ducts to ensure clear
passage), and rearranging, transferring, replacing, and removing existing
facilities on a pole or in a conduit system where such work is required to
accommodate Applicant's facilities (as contrasted with work performed on SWBT's
behalf in furtherance of SWBT's own business needs or convenience). "Make-ready
work" may require "dig-ups" of existing facilities and may include the repair,
enlargement or modification of SWBT's facilities (including, but not limited to,
poles,
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ducts, conduits, handholes, and manholes), consolidating services into
fewer cables, or the performance of other work required to make a pole, anchor,
duct, conduit, manhole, handhole, or right-of-way usable for the initial
placement of Applicant's facilities. As used in this Agreement, the term
"make-ready work" also includes associated planning and engineering work
required to confirm or determine the extent of make-ready work required and to
plan make-ready projects.
3.27 Manhole. The term "manhole" refers to an enclosure, usually below
ground level and entered through a hole on the surface covered with a cast iron,
cast aluminum, steel, or concrete manhole cover, which personnel may enter and
use for the purpose of installing, operating, and maintaining facilities in
ducts or conduits which are parts of SWBT's conduit system. As used in this
Agreement, the term "manhole" refers only to manhole structures owned or
controlled by SWBT and does not include cables and other telecommunications
equipment located within manhole structures.
3.28 Occupancy. The term "occupancy" refers to the presence of cables
or other facilities on a pole, in a duct or conduit, or within a right-of-way.
3.29 Overlashing. The term "overlashing" refers to the practice of
placing an additional cable or inner duct by lashing such cable or inner duct
with spinning wire over an existing cable and strand.
3.30 Person acting on Applicant's behalf. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms include both natural persons and firms and ventures of every type,
including, but not limited to, corporations, partnerships, limited liability
companies, sole proprietorships, and joint ventures. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms specifically include, but are not limited to, Applicant, its
officers, directors, employees, agents, representatives, attorneys, contractors,
subcontractors, and other persons or entities performing services at the request
of or as directed by Applicant and their respective officers, directors,
employees, agents, and representatives. An authorized contractor selected by
Applicant to perform make-ready work shall be deemed to be a person acting on
Applicant's behalf while performing such work at Applicant's request.
3.31 Person acting on SWBT's behalf. The terms "person acting on SWBT's
behalf," "personnel performing work on SWBT's behalf," and similar terms include
both natural persons and firms and ventures of every type, including but not
limited to corporations, partnerships, limited liability companies, sole
proprietorships, and joint ventures. The terms "person acting on SWBT's behalf,"
"personnel performing work on SWBT's behalf," and similar terms specifically
include, but are not limited to, SWBT, its officers, directors, employees,
agents, representatives, attorneys, contractors, subcontractors, and other
persons or entities performing services at the request of or as directed by SWBT
and their respective officers, directors, employees, agents, and
representatives. An authorized contractor selected by SWBT to perform make-ready
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work shall be deemed to be a person acting on SWBT's behalf while performing
such work at SWBT's request.
3.32 Pole. The term "pole" refers to all SWBT poles subject to the Pole
Attachment Act. Except as the context otherwise requires, the term "pole" refers
only to poles (and associated anchors) which are owned or controlled by SWBT and
does not include cables and other telecommunications equipment attached to pole
structures.
3.33 Pole Attachment. As defined in the Pole Attachment Act, 47 U.S.C.
Section 224(a)(4), the term "pole attachment" refers to "any attachment by a
cable television system or provider of telecommunications service to a pole,
duct, conduit, or right-of-way owned or controlled by a utility." In this
Agreement, except as the context otherwise requires, the term "pole attachment"
refers to any attachment by a cable television system or provider of
telecommunications service to a pole (and associated anchors) owned or
controlled by SWBT. The term "pole attachment" includes all such facilities
attached to or supported by a SWBT pole, including but not limited to cables,
risers and U-guards, equipment boxes, drop wires, anchors, bolts, clamps, drive
rings, guys, hooks, strands, and other hardware affixed to the pole. Groupings
of associated pole attachments for billing purposes shall be consistent with
the Pole Attachment Act and applicable rules, regulations, and commission
orders. Except as otherwise authorized by applicable FCC rules, regulations, or
orders, Applicant's pole attachments occupying the same usable space (or
otherwise associated with facilities occupying the same usable space on a pole)
shall be treated as a single attachment for billing purposes.
3.34 Pole Attachment Act. The term "Pole Attachment Act" refers to
those provisions of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, now codified as 47 U.S.C. Section 224, as those
provisions may be amended from time to time.
3.35 Pre-license survey. The term "pre-license survey" refers to work
and activities performed or to be performed by SWBT or by persons acting on
SWBT's behalf for the primary purpose of:
(a) confirming or determining the existing availability and
capacity of a pole, duct, conduit, or right-of-way and
identifying capacity, safety, reliability, or engineering
concerns, if any, relating to Applicant's application;
(b) confirming or determining the extent, if any, to which
modifications to SWBT's poles, ducts, conduits, or
right-of-ways are required to accommodate Applicant's
facilities;
(c) confirming or determining what make-ready work, if any, will
be required to prepare SWBT's poles, ducts, conduits, or
rights-of-way to accommodate Applicant's facilities; and
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(d) estimating the costs, if any, that Applicant will be
required to pay for any such facilities modification,
capacity expansion, or make-ready work.
3.36 Pre-occupancy survey. The term "pre-occupancy survey" refers to
work and activities performed or to be performed by Applicant or persons acting
on Applicant's behalf for the primary purpose of enabling Applicant to
determine:
(a) whether SWBT's poles, ducts, conduits, or rights-of-way, in
their existing condition, are suitable for Applicant's
intended use;
(b) the extent, if any, to which modifications of SWBT's poles,
ducts, conduits, or rights-of-way will be proposed by
Applicant to expand the capacity of SWBT's poles, ducts,
conduits, or rights-of-way to accommodate Applicant's
facilities; and
(c) what other capacity expansion or make-ready work, if any,
will be proposed by Applicant to prepare SWBT's poles,
ducts, conduits, and rights-of-way to accommodate
Applicant's facilities.
3.37 Primary point of contact. The term "primary point of contact"
refers to the persons designated by Applicant and SWBT, respectively, to
coordinate arrangements for Applicant's access to SWBT's poles, ducts, conduits,
and rights-of-way and records relating to such poles, ducts, conduits, and
rights-of-way. SWBT's designated primary point of contact shall be the Utility
Liaison Supervisor unless the parties have arranged for that function to be
performed by a designated account representative who will serve as an
intermediary between Applicant and the Utility Liaison Supervisor.
3.38 Rights-of-way. The term "rights-of-way" refers to all SWBT
rights-of-way subject to the Pole Attachment Act. In general, rights-of-way are
legal rights to pass over or through property of another party for limited
purposes as defined in a statute, ordinance, easement, grant or other
conveyance. Rights-of-way include but are not limited to (a) public
rights-of-way which SWBT may occupy as permitted by law for the placement of its
facilities (e.g., rights-of-way on, under, or over streets, highways, and other
public roads) and (b) easements or servitudes granted by property owners or
obtained through the exercise of eminent domain authority authorizing SWBT to
pass over, place facilities on, and have rights of ingress and egress to the
property of such property owners. Rights-of-way may also include easements
which, at the time of land development or subdivision, were dedicated for use by
public or private utilities and are being occupied, in whole or in part, by
SWBT's facilities. Except as the context otherwise requires, the term
"rights-of-way" as used in this Agreement refers only to rights-of-way owned or
controlled by SWBT and does not include (a) cables and other telecommunications
equipment buried or located on such rights-of-way, (b) public rights of way
(which are owned by and subject to the control of governmental entities), or (c)
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any space which is owned and controlled by a third-party property owner and
occupied by SWBT with permission from such owner rather than as a matter of
legal right. As used in this Agreement, the term "right-of-way" may also include
certain fee-owned or leased property acquired by SWBT for the specific purpose
of installing poles, ducts, or conduits or burying underground cables which are
part of SWBT's network distribution facilities.
3.39 Sheath. The term "sheath" refers to an enclosed covering
containing communications wires, fibers, or other communications media. A cable
may include both inner and outer sheaths.
3.40 Spinning. The term "spinning" refers to a method of attaching a
cable or inner duct to a supporting strand. "Spinning" is sometimes referred to
as "lashing."
3.41 State. When capitalized, the term "State" (as used in terms
such as "this State") refers to the State of Arkansas.
3.42 State Commission. The term "State Commission" refers to the
Arkansas Public Service Commission.
3.43 Strand. The term "strand" refers to support wires, typically
stranded together, or other devices attached to a pole and connecting that pole
to an anchor or to another pole for the purpose of increasing pole stability or
supporting wires, cables, and associated facilities. The term "strand" includes,
but is not limited to, strands sometimes referred to as "anchor strands,"
"anchor/guy strands," "down guys," "guy strands," "pole-to-pole guys," and
"messengers."
3.44 Telecommunications Act of 1996. The term "Telecommunications
Act of 1996" refers to the Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56, enacted February 8, 1996.
3.45 Third party. The terms "third party" and "third parties" refer to
persons and entities other than the parties to this Agreement (that is, persons
and entities other than Applicant and SWBT).
3.46 Utility Liaison Supervisor ("ULS"). The terms "Utility Liaison
Supervisor" and "ULS" refer to the person or persons designated by SWBT to be
responsible for handling and processing requests for access to SWBT's poles,
ducts, conduits, and rights-of-way in this State. The term "ULS" connotes
responsibility for handling a function and is not a job title. Except as
otherwise specifically provided in this Agreement or in the parties'
interconnection agreement, if any, the ULS shall serve as Applicant's single
point of contact for arranging access to SWBT's poles, ducts, conduits, and
rights-of-way and access to SWBT's records relating to SWBT's poles, ducts,
conduits, and rights-of-way. The Utility Liaison Supervisor for this State is
identified in APPENDIX VIII.
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3.47 Vault. The term "vault" includes central office vaults and
controlled environment vaults ("CEVs"). Vaults may be connected to, but are not
considered part of, SWBT's conduit system. Access, if any, to vaults (and to
ducts, conduits, and risers which serve no purpose other than to provide a means
of entry to and exit from such vaults) shall be governed by the tariffs,
agreements, or commission orders, if any, establishing arrangements for
interconnection, collocation, and access to unbundled network elements, and not
by this Agreement.
3.48 "Vicinity of ...". When used in terms such as "vicinity of SWBT's
conduit system," "vicinity of SWBT's poles," "vicinity of SWBT's rights-of-way,"
or "vicinity of SWBT's poles, ducts, conduits, or rights-of-way," the term
"vicinity of ..." includes sites on, within, near to, surrounding, or adjoining
SWBT's poles, ducts, conduits, and rights-of-way. These sites include, but are
not limited to, all sites within a distance of 10 feet of any SWBT pole, duct,
conduit, or right-of-way.
ARTICLE 4: NATURE AND SCOPE OF AGREEMENT
4.01 Scope of Agreement. This Agreement establishes the rates, terms,
conditions, and procedures for access to SWBT's poles, ducts, conduits, and
rights-of-way located within this State, without regard to whether such poles,
ducts, conduits, or rights-of-way are located on public or private property;
provided, however, that nothing contained in this Agreement shall be construed
as a grant of access to any facilities which are not poles, ducts, conduits, or
rights-of-way subject to the Pole Attachment Act or to any poles, ducts,
conduits, rights-of-way, facilities, or property owned and controlled by parties
other than SWBT. Separate tariffs or agreements, including other portions of the
parties' interconnection agreement, and not this Agreement, shall govern
Applicant's access, if any, to the following facilities which require special
security, technical, and construction arrangements outside the scope of this
Agreement:
(a) SWBT's central office vaults and ducts and conduits which
serve no purpose other than to provide a means of entry to
and exit from SWBT's central offices;
(b) controlled environment vaults (CEVs), huts, cabinets, and
other similar outside plant structures and ducts and
conduits which serve no purpose other than to provide a
means of entry to and exit from such vaults, huts, cabinets,
and structures;
(c) ducts and conduits located within buildings owned by SWBT;
and
(d) ducts, conduits, equipment rooms, and similar spaces located
in space leased by SWBT from third-party property owners for
purposes other than to house cables and other equipment in
active service as part of SWBT's network distribution
operations.
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4.02 No Transfer of Property Rights to Applicant. Nothing contained in
this Agreement or any license subject to this Agreement shall create or vest (or
be construed as creating or vesting) in either party any right, title, or
interest in or to any real or personal property owned by the other. The payment
of fees and charges as provided by this Agreement and licenses subject to this
Agreement shall not create or vest (or be construed as creating or vesting) in
either party any right, title, or interest in or to any real or personal
property owned by the other. No use, however extended, of SWBT's poles, ducts,
conduits, or rights-of-way shall create or vest (or be construed as creating or
vesting) in Applicant any right, title, or interest in or to any real or
personal property owned by SWBT, and the placement of Applicant's facilities on
or in SWBT's poles, ducts, conduits and rights-of-way shall not create or vest
in SWBT any right, title, or interest in such facilities.
4.03 No Effect on SWBT's Right to Abandon, Convey or Transfer Poles,
Ducts, Conduits, or Rights-of-Way. Except as provided in subsections (a)-(d) of
this section, nothing contained in this Agreement or any license subject to this
Agreement shall in any way affect SWBT's right to abandon, convey, or transfer
to any other person or entity SWBT's interest in any of SWBT's poles, ducts,
conduits, or rights-of-way.
(a) SWBT shall give Applicant no less than 60 days written
notice prior to abandoning, conveying, or transferring any
pole, duct, conduit, or right-of-way (1) to or in which
Applicant has attached or placed facilities pursuant to this
Agreement or (2) with respect to which Applicant has been
assigned pole attachment or conduit occupancy space. The
notice shall identify the transferee, if any, to whom any
such pole, duct, conduit, or right-of-way is to be conveyed
or transferred.
(b) SWBT represents that prior to the effective date of this
Agreement, and prior to enactment of the Telecommunications
Act of 1996, SWBT entered into one or more "joint use pole
agreements" with electric utilities located in this State
and that such agreements may require SWBT to transfer or
convey poles to such electric utilities from time to time.
Nothing contained in this Agreement shall abridge the rights
of SWBT or any electric utility under any contract executed
prior to the effective date of this Agreement. In the event
of any transfer or conveyance of poles to an electric
utility pursuant to such a joint pole agreement, SWBT will,
at Applicant's request, provide Applicant and the transferee
utility with such information as may be necessary to
minimize any burdens to Applicant which may arise out of or
in connection with the transfer or conveyance.
(c) Transfers of SWBT's poles, ducts, conduits, and
rights-of-way shall be subject to Applicant's rights at the
time of transfer. Applicant shall, at the request of SWBT or
the transferee, provide SWBT or the transferee with all
information required to assess Applicant's rights,
post-transfer
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intentions with respect to continued occupancy, and
willingness to negotiate new rates, terms, and conditions of
access. Applicant shall not unreasonably refuse to negotiate
with the transferee. If the transferee itself is a local
exchange carrier or other utility subject to the Pole
Attachment Act, Applicant shall, at the request of the
transferee, negotiate in good faith new rates, terms, and
conditions of access.
(d) Transfers or conveyances of poles, ducts, conduits, or
rights-of-way to any entity controlling, controlled by, or
under common control with SWBT or to any entity which
acquires or succeeds to ownership of substantially all of
SWBT's assets shall be subject to Applicant's rights under
this Agreement and licenses subject to this Agreement.
4.04 No Effect on SWBT's Rights to Manage its Poles, Ducts, Conduits,
and Rights-of-Way. Subject to Applicant's rights under this Agreement and
applicable federal and state laws, rules, regulations, and commission orders,
including, but not limited to, 47 C.F.R. Section 1.1403 (requiring 60 days'
notice of contemplated modifications), SWBT may (a) locate, relocate, move,
replace, modify, maintain, and remove all poles, ducts, conduits, and
rights-of-way subject to this Agreement at any time and in any manner as SWBT
deems appropriate and (b) enter into new agreements or arrangements with other
persons or entities permitting them to attach facilities to SWBT's poles or
place facilities in or on SWBT's ducts, conduits, or rights-of-way.
4.05 No Right to Interfere. Except to the extent expressly provided by
the provisions of this Agreement, the provisions of this Agreement shall not be
construed as authorizing either party to this Agreement, or persons acting on
their behalf, to rearrange or interfere in any way with (a) the facilities of
the other party or joint users, (b) the use of or access to such facilities by
the other party or joint users, or (c) the ability of either party or joint
users to conduct normal business operations, serve their respective customers,
or avail themselves of new business opportunities.
4.06 Required Franchises, Permits, Certificates, and Licenses. This
Agreement shall not be construed as relieving either party from any obligations
it may have to obtain legal authority to construct, operate, maintain, repair,
and remove its facilities on public or private property (including but not
limited to any required franchises, permits, certificates, licenses, easements,
or the like) from all appropriate public authorities and private persons or
entities.
4.07 DISCLAIMER OF WARRANTIES. SWBT MAKES NO REPRESENTATIONS THAT
SWBT'S POLES, DUCTS, CONDUITS, OR RIGHTS-OF-WAY ARE SUITABLE FOR APPLICANT'S
INTENDED USES. SWBT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN THIS AGREEMENT, SWBT MAKES NO IMPLIED
WARRANTIES OF ANY KIND.
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4.08 Third-party Beneficiaries. Except as may be specifically set forth
in this Agreement, this Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
ARTICLE 5: ACCESS TO RIGHTS-OF-WAY
5.01 Public Rights-of-Way. SWBT and Applicant agree that neither party
has the right to restrict or interfere with the other party's lawful access to
and use of public rights-of-way, including public rights-of-way which pass over
property owned by either party. Except as otherwise specifically provided in
this Agreement, SWBT and Applicant shall each be responsible for obtaining their
own rights-of-way and permission to use real or personal property owned or
controlled by any governmental body.
5.02 Private Rights-of-Way Not Owned or Controlled by Either Party.
SWBT and Applicant agree that neither party shall restrict or interfere with the
other party's access to or right to occupy property owned by third-parties which
is not subject to the other party's control, including property as to which
either party has access subject to non-exclusive rights-of-way. Subject to the
procedures set forth in Section 5.04 below, each party shall make its own,
independent legal assessment of its right to enter upon or use the property of
third-party property owners and shall bear all expenses, including legal
expenses, involved in making such determinations.
5.03 Access to Rights-of-Way Generally. Each pole attachment and
conduit occupancy assignment or license made, issued, or subject to this
Agreement shall include access to and use of all associated rights-of-way
including, but not limited to, rights-of-way required by Applicant for ingress,
egress, or other access to any sites where SWBT's poles or any part of SWBT's
conduit system are located, but only to the extent, if any, that SWBT has the
legal authority to grant such access and use. At locations where SWBT has access
to third-party property pursuant to non-exclusive rights-of-way, SWBT shall not
interfere with Applicant's negotiations with third-party property owners for
similar access or with Applicant's access to such property pursuant to easements
or other rights-of-ways obtained by Applicant from the property owner; provided,
however, that neither party shall conduct activities on such right-of-way which
interfere with the facilities of the other party or with the other party's
access to and use of its own facilities. At locations where SWBT has obtained
exclusive rights-of-way from third-party property owners or otherwise controls
the right-of-way, SWBT shall, to the extent space is available, and subject to
reasonable safety, reliability, and engineering conditions, provide access to
Applicant and third parties on a nondiscriminatory, first-come, first-served
basis, provided that the underlying agreement with the property owner permits
SWBT to provide such access, and provided further that Applicant agrees to
indemnify, on request defend, and hold SWBT harmless from any injury, loss,
damage, claim, or liability arising out of or in connection with such access or
use. Such access shall be granted, on a case-by-case basis, in the form of a
license, sublicense, sub-easement, or other mutually acceptable writing. Except
as otherwise agreed to by the parties, SWBT's
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charges for such access (obtained from SWBT rather than from the third-party
property owner) shall include (a) a pro rata portion of the charges (including
but not limited to one-time charges and recurring charges), if any, paid by SWBT
to obtain the right-of-way plus (b) any other documented legal, administrative,
and engineering costs incurred by SWBT in obtaining the right-of-way and
processing Applicant's request for access. Applicant's pro rata portion of the
charge paid by SWBT shall be negotiated on a case-by-case basis and shall take
into account the size of the area used by Applicant and the number of users
occupying the right-of-way.
5.04 Special Procedures for Obtaining Access to Third-party Property.
Although SWBT will afford access to rights-of-way owned or controlled by it and
permit Applicant to utilize SWBT's rights-of-way to the extent that SWBT has
legal authority to do so, Applicant acknowledges that SWBT may not own or
control certain rights-of-way to the extent necessary to permit Applicant full
access to such rights-of-way. The following general principles shall be applied
with respect to access to rights-of-way on third-party property in those
situations in which SWBT does not have authority to permit Applicant access or
either party has a good faith belief that SWBT does not have such authority:
(a) Applicant will first attempt to obtain right-of-way directly
from the property owner.
(b) If Applicant has the right of eminent domain under state
law, Applicant will independently attempt to obtain the
right-of-way it seeks through the exercise of that right.
(c) If Applicant is unable to obtain access to a right-of-way
under subsections (a) or (b) above, Applicant may request in
writing that SWBT exercise its right of eminent domain to
condemn the right-of-way for Applicant's use and SWBT will
respond to Applicant's written request within 45 days. SWBT
will exercise its right of eminent domain on Applicant's
behalf only if permitted to do so under applicable state
law, and only if Applicant agrees to bear all costs and
expenses, including but not limited to legal fees, arising
out of or in connection with the condemnation proceedings.
5.05 Access to Rights-of-Way Incident to the Use of CEVs and Similar
Structures. SWBT will provide Applicant nondiscriminatory access, consistent
with the requirements of the Pole Attachment Act and Telecommunications Act of
1996, and as provided in Sections 5.03 and 5.04 above, to rights-of-way
containing Controlled Environment Vaults (CEVs), huts, cabinets, and other
similar structures. SWBT will place no restrictions on access to such
rights-of-way that are more restrictive than those SWBT places on itself;
provided, however, that neither party shall conduct activities on such
rights-of-way which interfere with the facilities of the other party, with the
privacy of communications carried over the other party's network, or with the
other party's access to and use of its own facilities. This section relates only
to access to rights-of-way and
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shall not be construed as granting access to the CEVs, huts, cabinets, and
similar structures located on such rights-of-way. Access, if any, to CEVs, huts,
cabinets, and similar structures, and to ducts, conduits, and risers which serve
no purpose other than to provide a means of entering or exiting such structures,
shall be governed by the tariff, agreement, or order, if any, granting Applicant
access to such structures.
5.06 Access to Building Entrance Facilities, Building Distribution
Facilities, and Equipment Rooms. The parties acknowledge that ownership and
control of building entrance and distribution ducts, building entrance and
distribution conduits, building entrance and building distribution space,
equipment rooms, equipment closets, mechanical rooms, telephone communications
rooms, and similar spaces will vary from location to location and that the
respective rights of third-party property owners, tenants in buildings owned by
third-party property owners, telecommunications carriers, cable television
systems, and other providers of telecommunications services with respect to such
ducts, conduits, and spaces must be determined on a case-by-case basis. Each
party shall, when feasible, directly obtain from third-party property owners
such access to building entrance and building distribution ducts, building
entrance and building distribution conduits, building entrance and distribution
space, equipment rooms, equipment closets, mechanical rooms, telephone
communications rooms, and other similar areas as may be needed by such party to
serve the building owner and tenants located within buildings owned by third
parties or to access other space in the building occupied or to be occupied by
such party. In those situations in which Applicant cannot obtain from the
building owner access on terms satisfactory to Applicant, Applicant may request
access from SWBT as provided in Sections 5.03-5.04 of this Agreement; provided,
however, that a separate, building-specific notice of intent to occupy under
Section 8.02(b) or license application under Section 9.02, including such
additional information as may be necessary to identify the space to be occupied
and the facilities to be placed in such space, shall be required for access to
the facilities and space subject to this section. Any such notice or application
shall conspicuously note on its face that access to building entrance or
building distribution facilities or space is being sought. Applicant
acknowledges that SWBT must, before providing access to building space and
facilities located on or within third-party property, review applicable legal
documents and physical arrangements relating to the property, including physical
arrangements within the building. Upon completion of that review, SWBT will
notify Applicant whether Applicant's request can be granted under this
Agreement, will require access arrangements under a tariff or other applicable
agreement, or will require other special handling (e.g., direct negotiations
with the third-party property owner). Pending such notice, Applicant may not
occupy any duct, conduit, or space subject to this section pursuant to Section
8.03 without SWBT's express written consent but may exercise occupancy rights
obtained directly from the building owner. If SWBT has lawful authority to
provide such access and is required by the Pole Attachment Act to do so, SWBT
shall provide Applicant access under this Agreement. Such access shall be
negotiated on a case-by-case basis taking into account any special legal,
technical, security, or construction considerations applicable to the ducts,
conduits, or space which Applicant seeks to access. Such access, when provided,
shall only include access to
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ducts, conduits, and available space (as distinguished from access to cables and
other equipment not subject to the Pole Attachment Act). Such access shall be
subject to such reasonable terms and conditions as may be appropriate to protect
the equipment and other property of the parties and third parties, the
reliability of the parties' networks and the networks of third parties, and the
privacy of communications carried over the parties' networks and networks of
third parties.
(a) Applicant's access, if any, to building entrance ducts and
building entrance conduits entering SWBT-owned buildings
(including but not limited to central offices) and access,
if any, to other building entrance and building distribution
facilities and space located within such buildings shall be
arranged under and shall be subject to tariffs, agreements,
and, if applicable, commission or court orders establishing
such access rights rather than this Agreement.
(b) Applicant's access to and use of building entrance ducts,
building entrance conduits, building entrance space, and
other building entrance facilities owned and controlled by
third-parties shall be obtained by Applicant through direct
negotiations between Applicant and the third-party property
owners who own and control access to such facilities. If
SWBT owns a building entrance duct, building entrance
conduit, or other building entrance space, or if SWBT has
sufficient control over a building entrance duct, building
entrance conduit, or other building entrance space to permit
other telecommunications carriers or cable television
systems to have access to such ducts, conduits, or space
without approval or consent from the third-party property
owner, SWBT shall, if adequate capacity is available, and
subject to reasonable safety, reliability, and engineering
conditions, provide access to Applicant and other
telecommunications carriers and cable television systems on
a nondiscriminatory, first-come, first-served basis;
provided, however, that Applicant agrees to indemnify, on
request defend, and hold SWBT harmless from any injury,
loss, damage, claim or liability arising out of or in
connection with Applicant's access to or use of such
building entrance ducts, building entrance conduits, or
other building entrance space. Such access shall be granted,
on a case-by-case basis, in the form of a license,
sublicense, easement, sub-easement, or other mutually
acceptable writing and shall not include access to or the
right to use SWBT's cables or other SWBT telecommunications
equipment occupying such ducts, conduits, or space. Except
as otherwise agreed to by the parties, SWBT's charge for
such access (obtained from SWBT rather than from the
third-party property owner) shall include (1) a pro rata
portion of all charges (including but not limited to
one-time charges and recurring charges), if any, paid by
SWBT to obtain the building entrance duct, building entrance
conduit, or building entrance space and (2) any other
documented legal, administrative, engineering costs and
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construction costs incurred by SWBT to obtain such duct,
conduit, or space, process Applicant's request for access,
or prepare the facilities for Applicant's occupancy or use.
SWBT's charges to Applicant under this subsection shall be
calculated and negotiated on a case-by-case basis.
(c) Applicant's access to and use of building distribution
ducts, building distribution conduits, building distribution
space, and other building distribution facilities owned and
controlled by third-parties shall be obtained by Applicant
through direct negotiations between Applicant and the
third-party property owners who own and control access to
such facilities. If SWBT owns a building distribution duct,
building distribution conduit, or other building
distribution space, or if SWBT has sufficient control over a
building distribution duct, building distribution conduit,
or other building distribution space to permit other
telecommunications carriers or cable television systems to
have access to such duct, conduit, or space without approval
or consent from the third-party property owner, SWBT shall,
if adequate capacity is available, and subject to reasonable
safety, reliability, and engineering conditions, provide
access to Applicant and other telecommunications carriers
and cable television systems on a nondiscriminatory,
first-come, first-served basis; provided, however, that
Applicant agrees to indemnify, on request defend, and hold
SWBT harmless from any injury, loss, damage, claim or
liability arising out of or in connection with Applicant's
access to or use of such building distribution ducts,
building distribution conduits, or other building
distribution space. Such access shall be granted, on a
case-by-case basis, in the form of a license, sublicense,
easement, sub-easement, or other mutually acceptable writing
and shall not include access to or the right to use SWBT's
cables or other SWBT telecommunications equipment occupying
such ducts, conduits, or space. Except as otherwise agreed
to by the parties, SWBT's charges for such access (obtained
from SWBT rather than from the third-party property owner)
shall include (1) a pro rata portion of all charges
(including but not limited to one-time charges and recurring
charges) paid by SWBT to obtain the building distribution
duct, building distribution conduit, or building
distribution space and (2) any other documented legal,
administrative, engineering costs and construction costs
incurred by SWBT to obtain such duct, conduit, or space,
process Applicant's request for access, or prepare the
facilities for Applicant's occupancy or use. SWBT's charges
to Applicant under this subsection shall be calculated and
negotiated on a case-by-case basis.
(d) Access to equipment rooms, equipment closets, mechanical
rooms, telephone communications rooms, and similar areas
located in buildings owned and controlled by third-parties
shall be subject to access as provided in subsection (c);
provided, however, that when any such room
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or space is leased to SWBT on an exclusive basis (as may be
the case if the room or space will be used to house remote
switching equipment, pair gain equipment, or other network
equipment used to provide or support telecommunications
services to customers at locations outside the building in
which such room is located), access, if any, shall be also
subject to facilities collocation tariffs, agreements, or
arrangements.
(e) Nothing contained in this section shall be construed as
authorizing Applicant to occupy space owned or controlled by
third parties or to utilize third-party facilities or
property without permission or authority from the owner of
such property, where such permission or authority is
required. Neither this section nor any license or permission
granted under or subject to this section shall be construed
as a representation by SWBT to Applicant that Applicant has
the right to have access to or occupy any duct, conduit, or
space owned and controlled by a third-party property owner
or to utilize any telecommunications equipment owned or
controlled by SWBT or any third party (including but not
limited to owner- or tenant-owned cables, wires, and
equipment located on the customer side of any network
interface device).
(f) If Applicant has been granted access to a building entrance
or building distribution duct, conduit, or space pursuant to
this section, Applicant shall, at SWBT's request, relinquish
such access to SWBT if it is subsequently determined that
Applicant's use of such space will preclude SWBT from
meeting carrier- or provider-of-last-resort obligations to
customers on the premises affected.
ARTICLE 6: SPECIFICATIONS
6.01 Compliance with Requirements, Specifications, and Standards.
Applicant agrees that Applicant's facilities attached to SWBT's poles or
occupying space in SWBT's ducts, conduits, and rights-of-way shall be attached,
placed, constructed, maintained, repaired, and removed in full compliance with
the requirements, specifications, and standards specified in this Agreement.
6.02 Design to Minimize the Need for Access to SWBT's Poles, Ducts, and
Conduits. The parties shall each design their facilities to minimize the need
for the parties to access SWBT's poles, ducts, and conduits.
6.03 Infrequent Construction Techniques and Connectivity Solutions.
Unless precluded by documented engineering criteria or written guidelines SWBT
applied to itself as of January 1, 1996, and consistent with considerations of
safety, reliability, and sound engineering practice, SWBT will permit Applicant
at its own expense to utilize the following techniques to avoid high or unusual
expenditures: (a) placement of pole attachments on both the "field" side and
"road" side of a pole; (b) placement of extension
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arms or stand-off brackets on poles; and (c) building conduit branches into
SWBT's conduit systems. Applicant acknowledges that use of the above techniques
will be rare, will be permitted only on a case-by-case basis, and must be
performed in a manner which does not jeopardize the structural integrity of
SWBT's facilities, the safety of personnel working on or in SWBT's poles, ducts,
or conduits, and does not render unusable other available space on the pole or
in the duct or conduit. Except as otherwise agreed to by the parties in writing,
extension arms or stand-off brackets, if utilized, shall be installed as
make-ready work in accordance with SWBT's specifications and at Applicant's
expense. Once installed, extension arms and stand-off brackets shall become part
of the pole and shall be owned by SWBT. Unused capacity on any such extension
arms or stand-off brackets shall be deemed "available" (as defined in Section
3.07) for assignment.
6.04 Published Standards. SWBT and Applicant agree that the following
standards equally apply to either party with respect to facilities attached to
or placed in SWBT's poles, ducts, conduits, and rights-of-way and further agree
that facilities shall be placed, constructed, maintained, repaired, and removed
in accordance with current (as of the date when such work is performed) editions
of the following publications:
(a) the Blue Book Manual of Construction Procedures, Special
Report SR-TAP-001421, published by Bell Communications
Research, Inc. ("Bellcore"), and sometimes referred to as
the "Blue Book";
(b) the National Electrical Safety Code ("NESC"), published by
the Institute of Electrical and Electronic Engineers, Inc.
("IEEE"); and
(c) the National Electrical Code ("NEC"), published by the
National Fire Protection Association ("NFPA").
6.05 Additional Electrical Design Specifications: Conduit. The parties
agree that, in addition to the specifications and requirements referred to in
Sections 6.01-6.04 above, facilities placed in SWBT's conduit system after the
effective date of this Agreement shall meet the electrical design specifications
set forth in this section.
(a) No facilities shall be placed in SWBT's conduit system in
violation of FCC regulations, including regulations relating
to electrical interference. In addition, neither party shall
place any facility in SWBT's conduit system which causes or
may cause electrical interference with the facilities of the
other party or joint users sufficient to jeopardize network
integrity or degrade the quality of any communications
services offered by either party or a joint user. If either
party is notified by the other party or a joint user that
its facilities are causing, or have the potential to cause,
unacceptable levels of electrical interference, the party
notified shall either correct the problem, remove the
facility, or initiate good faith negotiations with the
complaining party or joint user to resolve the issue.
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(b) Facilities placed in SWBT's conduit system shall not be
designed to use the earth as the sole conductor for any part
of the circuits.
(c) Facilities placed in SWBT's conduit system and carrying more
than 50 volts AC (rms) to ground or 135 volts DC to ground
shall be enclosed in an effectively grounded sheath or
shield.
(d) No coaxial cable shall be placed in SWBT's conduit system
unless such cable meets the voltage limitations of Article
820 of the National Electrical Code.
(e) Coaxial cable placed in SWBT's conduit system may carry
continuous DC voltages up to 1800 volts to ground where the
conductor current will not exceed one-half ampere and where
such cable has two separate grounded metal sheaths or
shields and a suitable insulating jacket over the outer
sheath or shield. The power supply shall be so designed and
maintained that the total current carried over the outer
sheath shall not exceed 200 microamperes under normal
conditions. Conditions which would increase the current over
this level shall be cleared promptly.
(f) The integrity of SWBT's conduit system and overall safety of
personnel require that "dielectric cable" be used within
SWBT's conduit system when a cable facility utilizes a duct
or route shared in the same trench by any electric
transmission facilities such as the facilities of a power
utility.
6.06 Additional Physical Design Specifications: Conduit. Facilities
placed in SWBT's conduit system following the effective date of this Agreement
shall meet all of the following physical design specifications:
(a) Except as otherwise specifically agreed in this Agreement or
licenses subject to this Agreement, Applicant's facilities
shall enter SWBT's conduit system at locations consistent
with the physical design specifications that SWBT applies to
itself (typically through a manhole) or at such other
designated locations agreed upon in writing (e.g., through
the licensing process) by the parties in accordance with
Section 6.03 (infrequent construction techniques and
connectivity solutions).
(b) Cables bound or wrapped with cloth or having any kind of
fibrous coverings or impregnated with an adhesive material
shall not be placed in SWBT's conduit or ducts.
(c) Neither party shall circumvent the corrosion mitigation
measures of the other party or joint users.
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(d) New construction splices in cables (including but not
limited to fiber optic and twisted pair cables) shall be
located in manholes, pull boxes or handholes.
6.07 Efficient Use of Conduit. To ensure efficient use of conduits,
SWBT will, when cable diameters permit, install inner ducts in multiples that
fully utilize duct space (typically three or four inner ducts in a full
four-inch duct) as needed for SWBT's own business purposes and to accommodate
Applicant and other joint users; provided, however, that SWBT will not be
required to install inner duct in advance of need or in anticipation of
potential future requests for access by Applicant and other joint users. In
addition, the parties shall, in accordance with SWBT's duct selection standards,
install cables in inner duct when cable diameters permit.
6.08 Specifications Applicable to Connections: Conduit. Except as
otherwise specifically agreed in this Agreement or licenses subject to this
Agreement, or as mutually agreed upon by the parties in writing, the following
specifications apply to connections of Applicant's ducts and conduits to SWBT's
conduit system:
(a) Applicant shall not bore, make, or enlarge any hole in, or
otherwise structurally modify or alter any manhole,
handhole, duct, conduit, or other facility which is part of
SWBT's conduit system except as provided in this Agreement,
in licenses subject to this Agreement, or as mutually agreed
upon by the parties in writing.
(b) Nothing contained in subsection (a) shall be construed as
precluding Applicant or qualified personnel acting on
Applicant's behalf from reattaching cable racks or
performing similar routine work which is minor in nature and
associated with the placement and splicing of Applicant's
cable.
(c) Where Applicant's duct or facility physically connects with
SWBT's conduit system, the section of Applicant's duct or
facility which connects to SWBT's conduit system shall be
installed by SWBT or its contractor at Applicant's expense
(which will be SWBT's actual costs or the price charged SWBT
by the contractor performing such work). SWBT will perform
this work in an interval consistent with the intervals SWBT
performs the same or similar types of work for itself. If
SWBT's interval for beginning or completing this work does
not meet Applicant's needs, Applicant may arrange for the
work to be performed by an authorized contractor selected by
Applicant from a list, jointly developed by Applicant and
SWBT, of mutually agreed contractors qualified to perform
such work. Work performed by an authorized contractor
selected by Applicant to perform work under this subsection
shall be performed in accordance with both parties'
specifications and in accordance with both parties'
standards and practices. Each party shall
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indemnify, on request defend, and hold the other party
harmless from any injuries, losses, damages, claims, or
liabilities resulting from the performance of work by the
indemnifying party or by persons acting on the indemnifying
party's behalf under this subsection.
(d) SWBT will have the option to monitor the entrance and exit
of Applicant's facilities into SWBT's conduit system and the
physical placement of Applicant's facilities in and removal
of such facilities from any part of SWBT's conduit system.
Notice requirements for such monitoring are addressed in
Section 6.11 of this Agreement.
(e) If Applicant constructs or utilizes a duct (other than a
duct owned or controlled by SWBT) which is connected to
SWBT's conduit system, the duct and all connections between
that duct and SWBT's conduit system shall be sealed to
prevent the entry of gases or liquids into SWBT's conduit
system. If Applicant's duct enters a building, it shall also
be sealed where it enters the building and at all other
locations necessary to prevent the entry of gases and
liquids into SWBT's conduit system.
6.09 General Requirements Relating to Personnel, Equipment, Materials,
and Public Safety. Except as otherwise specifically provided in this Agreement,
Applicant shall be responsible for selecting the employees and contractors who
will perform work on Applicant's behalf on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way. Applicant, its contractors,
subcontractors, and other vendors acting on Applicant's behalf shall also be
responsible for selecting the personnel who perform work on Applicant's behalf
at such sites, directing the work performed by such personnel, compensating
their respective employees, and complying with all applicable laws, rules,
regulations, and agency orders relating to withholding taxes, social security
taxes, and other employment-related taxes. The provisions of this section are
intended to protect the integrity of the networks, facilities and operations of
SWBT, Applicant and joint users, to protect the health and safety of persons
working on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, to assure the financial responsibility of all persons and
entities performing work on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way, and to protect the public at large. The
requirements of this section (other than the provisions of subsection (h)) shall
be reciprocal and shall apply to SWBT and personnel acting on SWBT's behalf to
the same extent they apply to Applicant.
(a) Contractors, subcontractors, and other vendors, including
authorized contractors, performing work on Applicant's
behalf on, within, or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way shall meet the same
financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and vendors performing work on SWBT's behalf
on, within, or in the vicinity of such
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poles, ducts, conduits, or rights-of-way. SWBT shall advise
Applicant of SWBT's requirements and any changes in such
requirements. Applicant shall be solely responsible for
assuring compliance with such requirements by contractors,
subcontractors, and other vendors acting on Applicant's
behalf and shall be liable to SWBT for any injury, loss, or
damage suffered by SWBT as a result of its failure to do so.
(b) Only properly trained persons shall work on, within, or in
the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Applicant shall be responsible for
determining that all such persons acting on Applicant's
behalf have proper training.
(c) Neither Applicant nor any person acting on Applicant's
behalf shall permit any person to climb or work on SWBT's
poles or in the vicinity of SWBT's poles, or enter SWBT's
manholes or work within or in the vicinity of SWBT's conduit
system, unless such person has the training, skill, and
experience required to recognize potentially dangerous
conditions relating to the pole or conduit system and to
perform the work safely.
(d) Neither Applicant nor any person acting on Applicant's
behalf shall permit any person acting on Applicant's behalf
to perform any work on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way without first
verifying, to the extent practicable, on each date when such
work is to be performed, that conditions at the work site
(including but not limited to the physical condition of the
pole or any part of SWBT's conduit system) are sufficiently
safe for the work to be performed. If Applicant or any
person acting on Applicant's behalf determines that the
condition of any pole, duct, conduit, conduit system, or
right-of-way is not safe enough for the work to be
performed, Applicant shall notify SWBT of conditions at the
site and shall not proceed with the work until Applicant is
satisfied that the work can be safely performed.
(e) Neither Applicant nor any person acting on Applicant's
behalf shall knowingly permit defective equipment or
materials to be used on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way.
(f) When Applicant or personnel performing work on Applicant's
behalf are working on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way located within,
under, over, adjacent to, or in the vicinity of streets,
highways, alleys or other traveled rights-of-way, such
personnel shall follow procedures which Applicant deems
appropriate for the protection of persons and property.
Applicant and its contractors
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shall be responsible, at all times, for determining and
implementing the specific steps required to protect persons
and property at the site. Applicant and its contractors
shall provide all traffic control and warning devices
required to protect pedestrian and vehicular traffic,
workers, and property from danger. Applicant and its
contractors shall have sole responsibility for the safety
of all personnel performing work on Applicant's behalf, for
the safety of bystanders, and for insuring that all
operations performed by persons acting on Applicant's
behalf conform to current OSHA regulations and all other
governmental rules, ordinances or statutes.
(g) Neither Applicant nor any persons acting on Applicant's
behalf shall engage in any conduct which damages public or
private property in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way, interferes with the use or
enjoyment of such public or private property except as
expressly permitted by the owner of such property, or
creates a hazard or nuisance on such property (including but
not limited to a hazard or nuisance resulting from any
abandonment of Applicant's facilities, failure to remove
such facilities or any construction debris from the
property, failure to erect warning signs or barricades as
may be necessary to exclude others from the premises or give
notice to others of unsafe conditions on the premises while
work performed on Applicant's behalf is in progress, or
failure to restore the property to a safe condition after
such work has been completed).
(h) Applicant shall promptly suspend activities on, within, or
in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way (other than sites owned or controlled by
Applicant) if notified by SWBT that such activities create
an unreasonable risk of injury to persons or property
(including unreasonable risks of service interruptions).
Applicant shall not resume such activities on or in the
vicinity of SWBT's poles or rights-of-way until Applicant is
satisfied that the work may safely proceed and that any
hazardous conditions at the site have been rectified and
shall not resume such activities within or in the vicinity
of SWBT's conduit system until both Applicant and SWBT are
satisfied that the work may safely proceed and that
hazardous conditions at the site have been rectified. In the
event that SWBT requires Applicant to suspend work
activities and it is later determined that there was no
reasonable basis for the work suspension, SWBT shall
reimburse Applicant for actual costs resulting from the
delay.
(i) All personnel acting on Applicant's behalf shall, while
working on or in SWBT's poles, ducts, conduits, or
rights-of-way, carry with them suitable identification and
shall, upon the request of any SWBT employee or
representative, produce such identification.
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(j) Applicant and persons acting on Applicant's behalf are
encouraged to report unsafe conditions on, within, or in the
vicinity of SWBT's poles or conduit system to SWBT.
(k) Applicant shall establish sufficient controls and safeguards
to assure compliance with all provisions of this section.
6.10 Specific Requirements Relating to Personnel, Equipment, Materials,
and Construction Practices Within or in the Vicinity of SWBT's Conduit Systems.
When Applicant, its contractors, and other persons acting on Applicant's behalf
perform work for Applicant within or in the vicinity of SWBT's ducts, conduits,
and rights-of-way where such ducts or conduits are located, they will be guided
by the following:
(a) Except as may be mutually agreed upon by the parties in
writing, Applicant shall not "rod" or clear any duct or
inner duct in SWBT's conduit system other than a duct or
inner duct assigned to Applicant. Following the assignment
of a specific duct or inner duct to Applicant, Applicant may
request that SWBT rod or clear the duct or inner duct. If
the duct or inner duct cannot be cleared, SWBT will assign
the next available duct or inner duct to Applicant.
Applicant's request for assignment of the next available
duct shall be in writing, may be transmitted to SWBT via fax
or other transmission media mutually agreed upon by the
parties, and shall be processed within the same intervals
applicable to the processing of similar requests by SWBT's
own personnel.
(b) Personnel performing work within SWBT's conduit system on
either party's behalf shall not climb on, step on, or
otherwise disturb the cables, air pipes, equipment, or other
facilities located in any manhole or other part of SWBT's
conduit system.
(c) Personnel performing work within or in the vicinity of
SWBT's conduit system (including any manhole) on either
party's behalf shall, upon completing their work, make
reasonable efforts to remove all tools, unused materials,
wire clippings, cable sheathing and other materials brought
by them to the work site.
(d) All of Applicant's facilities shall be firmly secured and
supported in accordance with Bellcore and industry standards
and any applicable construction standards adopted by SWBT
and applicable to SWBT's own facilities.
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(e) Applicant's facilities shall be plainly identified with
Applicant's name in each manhole with a firmly affixed
permanent tag that meets the identification standards set by
SWBT for its own facilities.
(f) Manhole pumping and purging required in order to allow
Applicant's work operations to proceed shall be performed by
Applicant or its contractor in accordance with the
requirements of Sections 6.14 and 6.15 of this Agreement.
(g) Planks or other types of platforms shall be supported only
by cable racks.
(h) Any leak detection liquid or device used by Applicant or
personnel performing work on Applicant's behalf within or in
the vicinity of SWBT's conduit system shall be of a type
approved by SWBT and included on SWBT's then-current list of
approved types of leak-detection liquids and devices;
provided, however, that Applicant may use any type of leak
detection liquid or device which meets Bellcore's published
standards if SWBT has not provided Applicant SWBT's list of
approved types of leak detection liquids or devices at least
60 days in advance of Applicant's work.
(i) Applicant and its contractors shall be responsible for
providing proper ventilation while work is being performed
in SWBT's conduit system on Applicant's behalf. Except for
protective screens, no temporary cover shall be placed over
an open manhole unless it is at least four feet above the
surface level of the manhole opening.
(j) Smoking or the use of any open flame is prohibited in
manholes, in any other portion of the conduit system, or
within 10 feet of any open manhole entrance.
(k) Artificial lighting, when required by Applicant, will be
provided by Applicant. Only explosion-proof lighting
fixtures shall be used.
(l) Neither Applicant nor personnel performing work on
Applicant's behalf shall allow any combustible gas, vapor,
liquid, or material to accumulate in SWBT's conduit system
(including any manhole) during work operations performed
within or in the vicinity of SWBT's conduit system.
(m) Applicant shall comply with the standards set by SWBT for
its own personnel restricting the use of spark producing
tools, equipment, and devices (including but not limited to
such tools as electric drills and hammers, meggers,
breakdown sets, induction sets, and the like) in
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manholes and other portions of SWBT's conduit system,
provided that such standards have been communicated in
writing to Applicant at least 60 days in advance of the
construction, installation, or placement of Applicant's
facilities within SWBT's conduit system.
(n) Cable lubricants used in conduit systems shall be of a type
or types approved by SWBT and included on SWBT's
then-current list of approved types of cable lubricants;
provided, however, that Applicant may use any type of cable
lubricant which meets Bellcore's published standards if SWBT
has not provided Applicant SWBT's list of approved types of
cable lubricants at least 60 days in advance of Applicant's
work.
6.11 Opening of Manholes and Access to Conduit. The following
requirements apply to the opening of SWBT's manholes and access to SWBT's
conduit system.
(a) Applicant will notify SWBT not less than 48 hours in advance
before entering SWBT's conduit system to perform
non-emergency work operations. Such operations shall be
conducted during normal business hours except as otherwise
agreed by the parties. The notice shall state the general
nature of the work to be performed. As a courtesy, Applicant
shall, when feasible, provide SWBT with 10 working days
advance notice before entering SWBT's conduit system. SWBT
shall, within 10 working days after the effective date of
this Agreement, advise Applicant of the manner in which
notices required by this section shall be given.
(b) An authorized employee or representative of SWBT may be
present as a construction inspector at any time when
Applicant or personnel acting on Applicant's behalf enter or
perform work within SWBT's conduit system. Such inspectors
may inspect the performance and quality of the work and
monitor the work for compliance with the terms, conditions,
and specifications of this Agreement or, in the case of
facilities modification, capacity expansion or make-ready
work, the plans and specifications of the facilities
modification, capacity expansion, or make-ready project.
When SWBT inspectors are present, Applicant and its
contractors shall have sole authority, responsibility, and
control over the method or manner by which the work is to be
performed. SWBT's inspectors may call violations to
Applicant's attention but shall have no authority to direct
or advise Applicant or personnel acting on Applicant's
behalf concerning the method or manner by which the work is
to be performed; provided, however, that nothing contained
in this subsection shall relieve Applicant from complying
with any requirements of this Agreement.
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(c) The parties contemplate that Applicant may need to perform
operations in SWBT's conduit system other than during normal
business hours and may on occasion require access to
manholes on shorter notice than contemplated in subsection
(a) above. Under these circumstances, Applicant shall notify
SWBT as soon as is reasonably possible of its intent to
enter and perform work in the conduit system and SWBT shall
not, without due cause and justification, insist on literal
compliance with scheduling requirements of subsection (a).
SWBT will establish procedures enabling SWBT to receive
notices from Applicant under this subsection 24 hours a day,
seven days a week.
(d) Each party must obtain any necessary authorization from
appropriate authorities to open manholes for such party's
own conduit work and operations therein.
(e) Applicant shall reimburse SWBT for costs associated with the
presence of construction inspectors only as specified in
APPENDIX I and only as permitted by applicable laws, rules,
regulations, and commission orders. SWBT shall not charge
Applicant for more than one such construction inspector per
site at any given time.
(f) If the presence of SWBT personnel at the site is requested
by Applicant or, in Applicant's opinion, is integral to
successful completion of the work, Applicant shall pay the
costs of having such personnel present.
6.12 OSHA Compliance. The parties agree that:
(a) facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way shall be constructed,
placed, maintained, repaired, and removed in accordance with
the Occupational Safety and Health Act (OSHA) and all rules
and regulations promulgated thereunder;
(b) all persons acting on such party's behalf shall, when
working on, within, or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way, comply with OSHA and all
rules and regulations thereunder; and
(c) Applicant shall establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
6.13 Hazardous Substances. Applicant acknowledges that, from time to
time, hazardous substances (as defined in Section 3.19 of this Agreement) may
enter SWBT's conduit system and accumulate in manholes or other conduit
facilities and that hazardous substances may be present at other sites where
SWBT's poles, ducts, conduits, or rights-of-way are located.
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(a) Applicant may, at its expense, perform such inspections and
tests at the site of any pole, duct, conduit, or
right-of-way occupied by or assigned to Applicant as
Applicant may deem necessary to determine the presence at
such sites of hazardous substances. SWBT will assist
Applicant, at Applicant's request and expense, in the
performance of such inspections and tests.
(b) SWBT makes no representations to Applicant or personnel
performing work on Applicant's behalf that SWBT's poles,
ducts, conduits, or rights-of-way will be free from
hazardous substances at any particular time. Before entering
a manhole or performing any work within or in the vicinity
of SWBT's conduit system or any other site subject to access
under this Agreement, Applicant or personnel acting on
Applicant's behalf shall independently determine, to their
satisfaction, whether such hazardous substances are present
and conduct their work operations accordingly.
(c) Each party shall promptly notify the other of hazardous
substances known by such party to be present within or in
the vicinity of poles, ducts, conduits, or rights-of-way
occupied by or assigned to Applicant pursuant to this
Agreement if, in the sole judgment of such party, such
hazardous substances create a serious danger to (1) the
health or safety of personnel working within or in the
vicinity of the conduit or (2) the physical condition of the
other party's facilities placed or to be placed within the
conduit.
(d) Nothing contained in this Agreement (including but not
limited to the acknowledgments and representations set forth
in this section) shall relieve either party from its
responsibility to comply with all applicable environmental
laws or its responsibility for any liability arising out of
such party's failure to comply with such laws. Nothing
contained in this Agreement shall be construed as relieving
SWBT of liability for hazardous substances present at any
site subject to this Agreement or as relieving either party
of liability for introducing hazardous substances to the
site or causing or contributing to the release of any such
substances. Failure to comply with the requirements of this
section may, however, be considered in determining issues
relating to negligence, causation of injury, and comparative
responsibility for injuries to persons, property, and the
environment.
6.14 Compliance with Environmental Laws and Regulations. Applicant and
SWBT agree to comply with the following provisions relating to compliance with
environmental laws and regulations.
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(a) Facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way following the effective
date of this Agreement shall be constructed, placed,
maintained, repaired, and removed in accordance with all
applicable federal, state, and local environmental statutes,
ordinances, rules, regulations, and other laws.
(b) All persons acting on Applicant's or SWBT's behalf,
including but not limited to the parties' employees,
agents, contractors, and subcontractors, shall, when
working on, within or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way, comply with all
applicable federal, state, and local environmental laws,
including but not limited to all environmental statutes,
ordinances, rules, and regulations. Applicant and personnel
acting on Applicant's behalf are expected to be familiar
with their obligations under environmental laws such as the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Sections 9601 et seq.), the Toxic
Substance Control Act (15 U.S.C. Sections 2601-2629), the
Clean Water Act (33 U.S.C. Sections 1251 et seq.), and the
Safe Drinking Water Act (42 U.S.C. Sections 300f-300j).
(c) The parties shall each establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
(d) From and after the effective date of this Agreement, neither
party nor personnel acting on either party's behalf shall
discharge or release hazardous substances onto or from the
site of any SWBT pole, duct, conduit, or right-of-way.
Neither Applicant nor SWBT nor personnel acting on either
party's behalf shall discharge water or any other substance
from any SWBT manhole or other conduit facility onto public
or private property, including but not limited to any storm
water drainage system, without first determining that such
discharge would not violate any environmental law, create
any environmental risk or hazard, or damage the property of
any person. Applicant will be expected to test such water or
substance for hazardous substances in accordance with
then-applicable SWBT standards and practices.
(e) Applicant and SWBT and all personnel performing work on
Applicant's or SWBT's behalf shall, when working on, within,
or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, comply with such additional standards,
practices, and requirements as SWBT may from time to time
adopt to comply with environmental laws, provided that such
standards are communicated in writing to Applicant at least
60 days in advance of Applicant's work.
6.15 Compliance with Other Governmental Requirements (Including
Aeronautical Navigation Safeguards). Facilities attached to SWBT's poles or
placed in
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SWBT's ducts, conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the ordinances, rules, and
regulations of any governing body having jurisdiction of the subject matter
(including but not limited to any valid ordinances, rules, and regulations
requiring permits, certificates, licenses or the like). Applicant and SWBT shall
comply with all statutes, ordinances, rules, regulations, and other laws
requiring the marking and lighting of aerial wires, cables, and other structures
to ensure that such wires, cables, and structures are not a hazard to
aeronautical navigation.
6.16 Differences in Specifications. To the extent that there may be
differences in the specifications, the most stringent specification will apply
except as otherwise specifically provided by SWBT in writing. Applicant will
consult with SWBT when Applicant is uncertain as to which specification is to be
followed.
6.17 Responsibility for the Condition of Facilities. Each party will be
responsible at all times for the condition of its facilities (including but not
limited to those extending from SWBT's poles, ducts, conduits, or rights-of-way
directly to any other location) and for its compliance with the requirements and
specifications of this article and all applicable laws, rules, regulations, and
ordinances.
ARTICLE 7: PRIMARY POINTS OF CONTACT, ACCESS TO RECORDS,
AND PRE-OCCUPANCY INSPECTIONS
7.01 Designation of Primary Points of Contact. Each party will, at the
request of the other party, designate a primary point of contact to facilitate
communications between the parties and the timely processing of Applicant's
applications for access to SWBT's poles, ducts, conduits, and rights-of-way
located within this State. Designations of primary points of contact will be
made by written notices including the name, title, address, phone number, and
fax number of the person designated as the primary point of contact; provided,
however, that unless and until a different designation is made, SWBT's primary
point of contact shall be the Utility Liaison Supervisor identified in APPENDIX
VIII. Designation of primary points of contact pursuant to this section will not
affect notice requirements or other legal requirements set forth in other
provisions of this Agreement.
7.02 Determinations by Applicant of Suitability and Availability.
Applicant shall make its own, independent assessment of the suitability of
SWBT's poles, ducts, conduits, and rights-of-way for Applicant's intended
purposes.
7.03 Access to Records Relating to SWBT's Poles, Ducts, Conduits, and
Rights-of-Way. This section establishes procedures through which certain records
and information relating to SWBT's poles, ducts, conduits, and rights-of-way
will be made available to Applicant for planning and other purposes. Access to
such records and information will be conditioned on Applicant's execution of a
nondisclosure agreement equivalent in substance to the Nondisclosure Agreement
attached to this Agreement as
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APPENDIX V or such other nondisclosure agreement as shall be mutually acceptable
to the parties, and no person acting on Applicant's behalf will be granted
access to such records and information without first signing such a
nondisclosure agreement. Applicant will reimburse SWBT for all reasonable costs
incurred by SWBT in granting Applicant's requests for access to records and
information under this section.
(a) Applicant may, at any time after the effective date of this
Agreement, request permission to inspect SWBT's pole and
conduit maps and records, cable plat maps, and other plant
location records, if any, recording or logging assignments
of pole, duct, and conduit space. Applicant will be
permitted to examine these records during regular business
hours at a location where copies of such records are
maintained or at such other location as may be mutually
agreed upon by the parties. Access to such maps and records
will be by appointment only, and SWBT will make such maps
and records available for inspection by Applicant on two
business days advance notice; provided, however, that
Applicant will, as a courtesy, when feasible, provide SWBT
with 10 business days advance notice of its intent to
examine such records.
(b) The access described in subsection (a) shall include the
right to make copies, at Applicant's expense, except for
cable plat maps, which shall be made available for
inspection only. In all instances, such access shall include
the ability to take notes and make drawings with references
to those maps and records. No references to cable counts or
circuit information may be included in any such copies,
notes, or drawings. With respect to other cable-specific or
customer-specific information, Applicant's copies, notes, or
drawings may include only such information as needed for
bona fide engineering and construction purposes (e.g.,
proposing cable consolidations and identifying plant
discrepancies) and not for sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and
similar activities. Applicant's copies, notes, and drawings
may include estimates regarding the physical characteristics
(such as size and weight) of cables when necessary to make
engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts,
conduits, and rights-of-way for Applicant's intended uses.
(c) SWBT will provide Applicant the best information available
from SWBT's current pole and conduit maps and records, cable
plat maps, and other outside plant and construction records.
SWBT represents that such records reflect approximate
geographical locations of the facilities depicted and may
not accurately reflect information such as:
(1) the exact location of the facilities depicted;
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(2) the physical size, characteristics, or condition of the
facilities depicted;
(3) the ducts or inner ducts presently occupied, assigned,
or available within any particular conduit segment or
manhole;
(4) the arrangement of facilities attached to a pole, the
position of facilities suspended between poles or their
relationship to each other and to the ground, or the
positioning of cables and other facilities housed
within ducts, conduits, manholes or other portions of
SWBT's conduit system; and
(5) other information which must be assessed before it can
be determined that space is available on or in a pole,
duct, or conduit for the attachment or occupancy of
Applicant's facilities or that the poles, ducts, or
conduits depicted are suitable for Applicant's intended
use.
7.04 Pre-occupancy Inspection of Poles, Ducts, Conduits, and
Rights-of-Way. Applicant shall be permitted to view and inspect specified poles,
ducts, conduits, and rights-of-way on a pre-occupancy basis as provided in this
section.
(a) After the effective date of this Agreement, Applicant may
view specified poles, ducts, conduits, and rights-of-way on
a pre-occupancy basis. Nothing contained in this section
shall preclude Applicant from visually inspecting SWBT's
poles, ducts, conduits, or rights-of-way from any vantage
point lawfully accessible to Applicant without SWBT's
permission.
(b) Applicant shall not enter any SWBT manhole for the purpose
of performing a pre-occupancy inspection without complying
with all applicable requirements set forth in Article 6 of
this Agreement, including but not limited to the provisions
of Section 6.11 relating to the opening of manholes.
ARTICLE 8: POLE, DUCT, AND CONDUIT SPACE ASSIGNMENTS
8.01 Selection of Space. Applicant will select the space Applicant will
occupy on SWBT's poles or in SWBT's conduit systems. Applicant's selections will
be based on the same criteria SWBT applies to itself. To enable Applicant to
make such selections in accordance with SWBT's criteria, SWBT will provide
Applicant information about the network guidelines and engineering protocols
used by SWBT in determining the placement of facilities on SWBT's poles and in
SWBT's conduit systems. In conduit systems owned or controlled by SWBT,
maintenance ducts (as defined in Section 3.25) shall not be considered available
for Applicant's use except as specifically provided
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elsewhere in this Agreement. All other ducts, inner ducts, sub-ducts, and
partitioned conduits which are not assigned or occupied shall be deemed
available for use by SWBT, Applicant, and third parties entitled to access under
the Pole Attachment Act.
8.02 Pole, Duct, and Conduit Space Assignments. Pole, duct, and conduit
space selected by Applicant will be assigned to Applicant as provided in this
section. Information received by SWBT in connection with this section shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
(a) After Applicant's application for a pole attachment or
conduit occupancy license has been received by SWBT, the
pole, duct, and conduit space selected by Applicant in such
application will be assigned to Applicant for a
pre-occupancy period not to exceed 12 months. The assignment
(and date and time of assignment) will be logged and
recorded in the appropriate SWBT records. If such space has
been provisionally assigned to Applicant as authorized below
in subsection (b), the 12-month pre-occupancy assignment
period will begin on the date the provisional assignment is
recorded in SWBT's records or the date of SWBT's receipt of
Applicant's notice of intent to occupy under subsection (b),
whichever date first occurs.
(b) SWBT shall, within 60 days after the effective date of this
Agreement, adopt interim procedures which will enable pole,
duct, and conduit space to be provisionally assigned to
Applicant and other applicants prior to the submission of
formal applications required pursuant to Section 9.02 of
this Agreement. Where indicated below, the interim
procedures will apply to the assignment of space to SWBT as
well as to Applicant and other applicants. SWBT may, on 60
days advance notice to Applicant, revise such interim
procedures if such procedures prove to be unworkable, in
which event Applicant may challenge SWBT's decision in
accordance with procedures available to Applicant under
applicable federal and state laws and regulations. The
procedures will enable Applicant and other applicants, by
written notice, to advise SWBT of their intent to occupy
unassigned space which appears, from SWBT's records, to be
available for assignment. Upon receipt of such notice, SWBT
shall date-and-time stamp the notice and provisionally
assign the space selected by Applicant or such other
applicant by logging and recording the assignment (and date
and time of assignment) in the appropriate SWBT records,
which records will be available for inspection as provided
in Section 7.03 of this Agreement. Space provisionally
assigned to Applicant or such other applicant will not be
available for assignment to any other person or entity,
including SWBT. Notwithstanding such provisional assignment,
Applicant shall not occupy such space without first
obtaining a license, except as provided in Section 8.03.
The following additional requirements shall apply.
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(1) Before giving SWBT notice of its intent to occupy
unassigned space, Applicant shall make a good faith
determination that it actually plans to occupy such
space. The assignment process shall not be used by
either party for the purpose of holding or reserving
space which such party does not plan to use or for the
purpose of precluding SWBT or any other person or
entity from utilizing or having access to SWBT's poles,
ducts, conduits, or rights-of-way.
(2) With respect to unassigned conduit occupancy space, the
notice must include all information required to enable
SWBT and joint users, including other persons or
entities which may from time to time seek space in the
same ducts and conduits, to determine the specific
space which Applicant desires to occupy. The notice
must, therefore, include, at a minimum, the following
information:
(i) the specific conduit sections, and each manhole,
to be occupied;
(ii) the number of ducts, and number of inner ducts,
to be occupied by Applicant within each conduit
section;
(iii) the physical size (diameter) of the cables to be
placed in such duct, if known, or the maximum and
minimum sizes of the cables which may be placed
if more than one size cable is being considered
for the space to be occupied;
(iv) the anticipated use by Applicant of any
infrequent construction techniques and
connectivity solutions authorized under Section
6.03 to avoid high or unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete
construction at the sites specified in the
notice;
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section
8.03 of this Agreement; and
(vii) if applicable, a conspicuous statement, as
required by Section 5.06 of this Agreement, that
the notice pertains to a building entrance or
building distribution duct or conduit or other
space within a building.
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(3) With respect to unassigned pole space, such notice must
include all information required to enable SWBT and
other joint users, including other persons or entities
seeking space on the same poles, to determine the
specific space which Applicant desires to occupy. The
notice must, therefore, include, at a minimum, the
following information:
(i) the specific poles to be occupied;
(ii) the specific space on each pole to be occupied,
including the height (distance from the ground)
of the attachment and the side (road or field)
where the attachment is to be made;
(iii) the anticipated number and types of cables to be
attached, together with the anticipated physical
size (diameter) and weight (weight per foot) of
such cables, and the anticipated number and types
of strands, if any, to be used to support the
cables, such information to be sufficient to give
notice to SWBT and other joint users of the
remaining space on the pole available and what
facilities modification, capacity expansion, or
make-ready work may be required of subsequent
applicants as a result of the provisional
assignment of space to Applicant;
(iv) the anticipated use by Applicant of any
infrequent construction techniques and
connectivity solutions authorized under Section
6.03 to avoid high or unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete
construction at the sites specified in the
notice; and
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section
8.03 of this Agreement.
(4) No later than 30 days after giving such notice,
Applicant shall file an application under Section 9.02
or the provisional assignment will lapse.
(5) As stated in Section 7.03(c), SWBT does not represent
that its records accurately reflect the information
necessary to enable Applicant to rely upon a
records-based assignment process. SWBT shall have no
duty to verify that space provisionally assigned
pursuant to this subsection is actually available.
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(c) Assignments made prior to the issuance of a license will be
provisional assignments and will be subject to modification
if it is subsequently determined that the space selected by
or assigned to Applicant is already occupied or that a
different assignment is required to comply with SWBT's
standards for assigning pole, duct, and conduit occupancy
space.
(d) Applicant's obligation to pay semiannual pole attachment or
conduit occupancy fees will commence from the date of
assignment or provisional assignment, as logged and recorded
in the appropriate SWBT records.
(e) During the 12-month assignment period following the date
space is assigned to Applicant and entered into the
appropriate SWBT record, SWBT shall not occupy or use such
space without Applicant's permission, shall not assign such
space to any party other than Applicant, and shall not
knowingly permit any party other than Applicant to occupy or
use such space without Applicant's permission except as
otherwise specifically provided in this Agreement. The
assignment to Applicant will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if Applicant has not occupied such
assigned space within such 12-month period; provided,
however, that if Applicant's failure to occupy the space
within such 12-month period results from SWBT's failure to
perform make-ready work on schedule, the parties shall
negotiate a single extension of the assignment period, which
extension shall not extend the assignment period beyond
three months from the date of completion of SWBT's
make-ready work; and, provided further, that if Applicant
can demonstrate that its failure to occupy the space within
such 12-month period results from the actions of SWBT or
third parties other than persons acting on Applicant's
behalf, or from acts of God, the assignment may be extended
for a period no longer than three months from the date
Applicant is first able to commence construction activities
at the site involved. Assignments to third parties shall be
subject to the same rules applicable to Applicant under this
subsection. Extensions permitted under this subsection must
be requested in writing before expiration of the original
12-month period and shall be recorded on the appropriate
SWBT records available for inspection under Section 7.03.
(f) SWBT may assign space to itself by making appropriate
entries in the same records used to log assignments to
Applicant and third parties. If SWBT assigns pole, duct, or
conduit space to itself, such assignment will automatically
lapse 12 months after the date the assignment has been
entered into the appropriate SWBT record if SWBT has not
occupied such assigned space within such 12-month period;
provided,
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however, that if SWBT's failure to occupy the space within
such 12-month period results from the actions of Applicant
or third parties other than persons acting on SWBT's behalf,
or from acts of God, SWBT's assignment may be extended for a
period no longer than three months from the date SWBT is
able to commence construction at the site involved.
Extensions permitted under this subsection must be recorded
before expiration of the original 12-month period on the
appropriate SWBT records available for inspection under
Section 7.03.
(g) If facilities modifications, capacity expansions, or other
make-ready work are required due to the assignment of space
to either party under this section, the party to whom such
space has been assigned will reimburse the person or entity
incurring the costs for such facilities modifications,
capacity expansions, or make-ready work if the party to whom
such space has been assigned fails to occupy the assigned
space within the 12-month assignment period or any extension
thereof.
(h) Except as provided in subsections (e)-(f) above, assignments
shall not be extended, renewed, or sequentially repeated in
any manner (other than by actual occupancy) that enables
Applicant, SWBT, or any joint user to preclude access by
others to unused pole attachment or conduit occupancy space
for any period greater than 12 months after the date of
initial assignment.
(i) At Applicant's election, Applicant may file an application
for access which specifically requests that the space sought
by Applicant not be assigned to Applicant immediately and
not be recorded immediately in the SWBT records available
for inspection by other telecommunications carriers, cable
television systems, or other providers of telecommunications
services under Section 7.03 of this Agreement. In that
event, the space sought by Applicant will not be assigned to
Applicant and will remain available for assignment to others
without restriction until such time as such space is
formally assigned to Applicant in accordance with
Applicant's written instructions and the assignment is
recorded in the records available for inspection under
Section 7.03. The assignment shall be made no later than the
date of issuance to Applicant of a license confirming that
Applicant has the right to occupy the space described in the
license. In the event that Applicant elects to proceed under
this subsection, Applicant's obligation to pay pole
attachment and conduit occupancy fees shall not commence
until the date the assignment is recorded in the appropriate
SWBT records and Applicant shall bear the risks that (1) the
space sought by Applicant will be assigned to and occupied
by another person or entity or (2) circumstances will occur
which may require that SWBT reevaluate
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Applicant's application and repeat the field inspection
portion of the pre-license survey at Applicant's expense.
(j) Notices and applications including assignment requests will
be date- and time-stamped on receipt. Because space will be
selected and further assignments made based on entries
logged and recorded in the appropriate SWBT records, the
date and time of assignment will be the date and time when
the assignment is recorded rather than the date and time of
receipt of the application or notice requesting such
assignment. Although SWBT's clerical personnel will promptly
process assignment requests included in applications and
notices transmitted to SWBT by mail, courier, fax, or other
transmission media, SWBT shall not be liable for any failure
by Applicant to obtain the space desired by Applicant due to
delay in logging assignment requests. Applicant acknowledges
that, to maximize the probability that Applicant will be
assigned the space Applicant desires, Applicant should, when
possible, submit applications and notices including
assignment requests in person to SWBT at the site where the
applicable records are maintained and should countersign the
entry reflecting the assignment and time of assignment.
8.03 Immediate Occupancy. SWBT shall, within 60
days after the effective date of this Agreement, adopt interim procedures which
will provide Applicant the ability to attach or place facilities on or in SWBT's
poles, ducts, conduits, and rights-of-way on an immediate basis when such space
is available for Applicant's use and no make-ready work or infrequent
construction techniques or connectivity solutions are required. SWBT may, on 60
days advance notice to Applicant, revise or terminate such interim procedures if
they prove to be unworkable, in which event Applicant may seek renegotiation of
this Agreement or challenge SWBT's decision in accordance with procedures
available to Applicant under applicable federal and state laws, regulations, and
commission orders. The special procedures established under this section shall
supplement, rather than replace, the regular assignment and licensing procedures
set forth in Articles 8-10 of this Agreement, are intended to be used only under
special circumstances (e.g., when the regular procedures allow insufficient time
to meet customer service commitments or resolve non-routine construction or
network contingencies), shall not be used on a routine basis, and shall be
consistent with subsections (a)-(f) below.
(a) Upon giving SWBT the notice required by this subsection,
Applicant may immediately occupy space assigned or
provisionally assigned to Applicant pursuant to Section 8.02
of this Agreement. The notice shall be contained in either a
notice of intent to occupy as provided in Section 8.02(b) or
a license application under Section 9.02. Applicant shall
not give such notice or occupy such space without first
reviewing SWBT's records and determining that the records
reflect that the space sought is available.
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(b) Applicant shall not occupy space which has not been assigned
or provisionally assigned to Applicant. The assignment must
be recorded on the appropriate SWBT records, as provided in
Section 8.02, prior to Applicant's occupancy. If Applicant
subsequently determines that the records are inaccurate and
that the space assigned to Applicant is not available, or
that the space assigned is not suitable for Applicant's
intended use, Applicant shall, within one business day,
notify SWBT in writing that it no longer intends to occupy
the space earlier assigned and is releasing the assignment.
Except as otherwise provided in this subsection, Applicant
shall not occupy other space on the pole or in the duct or
conduit without first obtaining an assignment or provisional
assignment of the space which Applicant will occupy. To
avoid high or unusual expenditures resulting from
unanticipated conditions at the site, Applicant may occupy
space not assigned to Applicant subject to the following
terms and conditions.
(1) Applicant may occupy the next available space shown on
SWBT's records as available at the time of Applicant's
last review of the records. Applicant shall not
knowingly occupy space occupied by or assigned to SWBT
or any third party without consent of the party to whom
the space has been assigned.
(2) Within one business day after occupying such space,
Applicant shall submit to SWBT a written notice of
intent to occupy or an application for the space
occupied showing the reason for Applicant's use of the
space occupied.
(3) Applicant shall bear the risk that space occupied by
Applicant pursuant to this section was assigned to SWBT
or a third party during the period between Applicant's
last review of the records and Applicant's occupancy of
such space. After occupying space not previously
assigned to Applicant, Applicant shall review the
records and promptly notify the affected party if
Applicant determines that it has occupied space
assigned to such party. At the request of the party to
whom such space has been assigned, Applicant shall,
within 24 hours, or within such other period of time
mutually agreed to by the parties affected, remove its
facilities from the space in question if the parties
affected cannot reach an acceptable alternative
solution. SWBT and Applicant anticipate that all
parties affected will act in good faith to work out
acceptable solutions and that the parties affected will
not insist on strict adherence to the 24-hour removal
requirement unless there is a legitimate business need
for compelling removal within such time period.
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(4) SWBT shall be entitled to recover from Applicant actual
costs, if any, directly incurred by SWBT as a result of
Applicant's decision under this subsection to occupy
space subject to a valid prior assignment to SWBT.
Applicant shall indemnify, on request defend, and save
SWBT harmless from any injury, loss, damage, liability,
or claim asserted against SWBT by any third party
resulting from Applicant's decision under this
subsection to occupy space assigned to such third
party.
(c) Nothing in this section authorizes Applicant to place its
facilities on or in any pole, duct, or conduit space already
occupied by the facilities of SWBT or a third party, even if
the presence of such facilities is not reflected on SWBT's
records.
(d) Nothing in this section authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires make-ready work (other than third-party make-ready
work arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity solution
described in Section 6.03.
(e) If Applicant has not done so already, within 24 hours after
occupying space pursuant to this section, Applicant will
submit to SWBT an application for the space occupied as
provided in Section 9.02 of this Agreement. The application
may be submitted by fax.
(f) Applicant will bear all risks resulting from the possibility
that assigned space which appears from the records to be
available is not available or in suitable condition to be
used by Applicant and shall indemnify, on request defend,
and hold SWBT harmless from any injury, loss, damage, claim,
or liability (including but not limited to third-party
claims) resulting from Applicant's occupancy of space in
violation of this section.
ARTICLE 9: APPLICATIONS AND PRE-LICENSE SURVEYS
9.01 Licenses Required. Except as otherwise specifically permitted in
this Agreement, Applicant shall apply in writing for and receive a license
before attaching facilities to specified SWBT poles or placing facilities within
specified SWBT ducts, conduits, manholes, or handholes. License applications and
information received by SWBT in connection with such applications shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
9.02 Application Form. To apply for a pole attachment or conduit
occupancy license under this Agreement, Applicant shall submit to SWBT two
signed copies of the
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appropriate application forms. SWBT represents that the forms specified in
subsections (a)-(b) are forms in use prior to the effective date of this
Agreement and that SWBT is in the process of revising such forms to conform to
the provisions of this Agreement and to streamline the application process. The
parties therefore agree that the forms specified in subsections (a) and (b) will
be interim forms only. SWBT reserves the right to change the format and content
of these forms upon 60 days written notice to Applicant.
(a) To apply for a pole attachment license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9433 ("Pole Attachments"). An
application for a pole attachment license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9433 and SW-9434
are attached to this Agreement as parts of APPENDIX III.
(b) To apply for a conduit occupancy license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9435 ("Conduit Occupancy"). An
application for a conduit occupancy license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9434 and SW-9435
are attached to this Agreement as parts of APPENDIX III.
(c) Each application for a license under this Agreement shall
include, at a minimum, the following information:
(1) the poles, ducts, and conduits (including all manholes)
along Applicant's proposed route to or within which
Applicant desires to attach or place its facilities;
(2) a description of the facilities to be attached to
SWBT's poles and a description of the facilities to be
placed within each component of SWBT's conduit system
(including but not limited to ducts, conduits,
manholes, and handholes) along the proposed route;
(3) for poles, the proposed points of attachment;
(4) for building entrance or building distribution ducts or
conduits or other space within a building, a
conspicuous statement, as required
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by Section 5.06 of this Agreement, that the application
pertains to a building entrance or building
distribution duct or conduit or other space within a
building;
(5) if applicable, a conspicuous notation that the space
requested is not to be assigned (or billed) to
Applicant until SWBT has received Applicant's written
instruction to make such assignment or issued a license
authorizing Applicant to occupy the space requested;
and
(6) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement.
(d) Facilities descriptions which apply to multiple pole
attachments or conduit occupancies need only be described
once on any form. Facilities descriptions shall include, at
a minimum, the following information:
(1) the number and types of cables, including the physical
size (diameter) and weight (weight per foot);
(2) the number and types of strands, if any, which will be
used to support the cables, including the rated holding
capacity expressed in thousand pound increments (e.g.,
2.2M) of such strands; and
(3) sufficient information to identify and describe the
physical characteristics (size, dimensions, and weight)
of apparatus enclosures and other facilities to be
attached to SWBT's poles or placed in SWBT's conduit
system.
(e) When it appears to Applicant that facilities modification,
capacity expansion, or make-ready work may be required to
accommodate Applicant's access requests, Applicant shall
describe the facilities modification, capacity expansion, or
make-ready work which Applicant proposes. Applicant shall
also describe its plans, if any, to use any infrequent
construction technique or connectivity solution authorized
under Section 6.03 to avoid high or unusual expenditures and
state its reasons for the use of such technique or solution.
(f) Applicant acknowledges that the poles along a particular
pole line or route may include poles owned by firms (such as
electric utilities) other than SWBT, that it may be
necessary for SWBT to rearrange its facilities or perform
other make-ready work on poles other than poles it owns or
controls in order to accommodate Applicant's request for
access to SWBT's poles and that, at the time an application
is submitted, it may be difficult for Applicant to determine
with certainty whether a particular
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pole is owned or controlled by SWBT or by another entity.
Accordingly, the application shall, to the extent feasible,
identify all poles utilized by SWBT (without regard to
ownership) along Applicant's proposed route.
(g) Each application for a license under this Agreement shall be
accompanied by a construction schedule showing Applicant's
projected dates for beginning and completing construction at
the sites specified in the application. Information on this
schedule may be used by SWBT's engineering and outside plant
construction personnel in scheduling work required to
process Applicant's applications and scheduling such
capacity expansions, make-ready work, and facilities
modifications, if any, as may be necessary to accommodate
Applicant's facilities.
(h) Applicant may include multiple cables in a single license
application and may provide multiple services (e.g., CATV
and non-CATV services) under the same cable sheath or
jacket. When both CATV and non-CATV services are provided
under the same cable sheath or jacket, or CATV and non-CATV
services are provided using different cables attached or
lashed to the same strand or otherwise occupying the same
space on a pole or the same duct or inner duct within a
conduit, Applicant will so advise SWBT and SWBT shall, if
permitted by law, adjust its charges to enable SWBT to
charge Applicant the rate applicable to telecommunications
carriers rather than the rate applicable to cable television
systems solely to provide cable service.
9.03 Cooperation in the Application Process. The orderly processing of
applications submitted by Applicant and other firms seeking access to SWBT's
poles, ducts, conduits, and rights-of-way requires good faith cooperation and
coordination between SWBT's personnel and personnel acting on behalf of
Applicant and other firms seeking access. The parties therefore agree to the
following transitional procedures which will remain in effect during the term of
this Agreement unless earlier modified by mutual agreement of the parties.
(a) Before submitting a formal written application for access to
SWBT's poles, ducts, conduits, and rights-of-way, the firm
submitting the application shall make a good faith
determination that it actually plans to attach facilities to
or place facilities within the poles, ducts, conduits, or
rights-of-way specified in the application. Applications
shall not be submitted for the purpose of holding or
reserving space which the applicant does not plan to use or
for the purpose of precluding SWBT or any other provider of
telecommunications or cable television services from using
such poles, ducts, conduits, or rights-of-way.
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(b) Applicant shall only submit applications for access to
poles, ducts, conduits, and rights-of-way which it plans to
use within one year following the date access is granted and
shall use its best efforts to submit applications in an
orderly manner in accordance with Applicant's needs. If
Applicant contemplates the need to submit more than 10
applications within any 45-day period with respect to poles,
ducts, conduits, and rights-of-way within the territory of
any single SWBT construction district, Applicant shall give
SWBT advance notice as promptly as is reasonably
practicable.
(c) No more than 300 poles shall be the subject of any single
pole attachment license application.
(d) No more than 20 manholes shall be the subject of any single
conduit occupancy license application.
9.04 Applicant's Priorities. When Applicant has multiple applications
on file within a single SWBT construction district, Applicant shall, at SWBT's
request, designate its desired priority of completion of pre-license surveys,
facilities modifications, capacity expansions, and make-ready work with respect
to all such applications.
9.05 Pre-license Survey. A pre-license survey (including a review of
records and field inspection, if necessary) will be completed by SWBT after
Applicant has submitted its written license application as specified in Section
9.02 of this Agreement. SWBT shall not, without due cause and justification,
repeat pre-occupancy survey work performed by Applicant.
(a) The field inspection portion of the pre-license survey,
which includes the visual inspection of existing pole and
conduit facilities, shall be performed by SWBT or its
authorized representative. Primary purposes of the field
inspection will be to enable SWBT to (1) confirm or
determine the facilities modification, capacity expansion,
and make-ready work, if any, necessary to accommodate
Applicant's facilities; (2) plan and engineer the facilities
modification, capacity expansion, and make-ready work, if
any, required to prepare SWBT's poles, ducts, conduits,
rights-of-way, and associated facilities for Applicant's
proposed attachments or occupancy; and (3) estimate the
costs associated with such facilities modification, capacity
expansion, or make-ready work. SWBT may dispense with the
field inspection if it appears that the information
necessary to process Applicant's license application is
already available from existing sources, including the
application forms and such other information as may be
available to SWBT. If Applicant has occupied the space
requested before the issuance of a license, a
post-installation inspection of Applicant's
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facilities may be performed, in place of the field
inspection portion of the pre-license survey, to determine
whether such facilities are in compliance with the
specifications of Article 6 and other provisions of this
Agreement. In performing such inspection, SWBT will not,
without due cause and justification, repeat pre-occupancy
survey work performed by Applicant.
(b) The administrative processing portion of the pre-license
survey (which includes processing the application and
reviewing records) will be performed by SWBT.
(c) Before performing any portion of the pre-license survey,
SWBT shall obtain Applicant's written authorization to
perform such work. Authorization may be given, when
possible, when the application is submitted. No
authorization shall be required for post-installation
inspections of Applicant's facilities when installation has
occurred before the issuance of a license.
ARTICLE 10: ISSUANCE AND DENIAL OF LICENSES
(INCLUDING FACILITIES MODIFICATIONS,
CAPACITY EXPANSIONS, AND MAKE-READY WORK
10.01 Response Within 45 Days. Within 45 days of Applicant's submission
of a license application pursuant to Section 9.02 of this Agreement, or within
such other period of time as may be mutually agreed upon in writing by the
parties, SWBT shall respond to the application. The response shall state whether
the application is being granted or denied. If denial is anticipated, or if SWBT
personnel involved in the processing of Applicant's request for access become
aware of hazardous substances at the site requested by Applicant, SWBT shall
promptly advise Applicant and shall, at Applicant's request, discuss
alternatives to denial and issues associated with the presence of such hazardous
substances. Additional state-specific response and notice requirements, if any,
shall be addressed by an addendum to this Agreement.
(a) If access is granted, SWBT shall, no later than 45 days
after Applicant's submission of the license application,
further advise Applicant in writing (1) what facilities
modifications, capacity expansions, or make-ready work, if
any, will be required to prepare SWBT's pole or conduit
facilities, (2) provide Applicant an estimate of charges for
such facilities modifications, capacity expansions, or
make-ready work and (3) disclose to Applicant any hazardous
substances known by SWBT to be present at the site.
(b) SWBT may take into account issues of capacity, safety,
reliability, and engineering when considering requests for
access, provided the assessment of such factors is done in a
nondiscriminatory manner. If
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access is denied, SWBT shall confirm the denial in writing
by the 45th day after the receipt by SWBT of Applicant's
completed application. A denial of access shall be specific,
shall include all relevant evidence and information
supporting the denial, and shall explain how such evidence
and information relates to a denial of access for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. If Applicant in its
completed application sets forth in writing specific
proposals for expanding capacity, the denial statement shall
specifically address such proposals.
(c) Applicant agrees that if, at any time prior to the 45th day,
it has determined that it no longer seeks access to specific
poles, ducts, or conduit facilities, Applicant shall
promptly withdraw or amend its application, thereby
minimizing the administrative burdens on SWBT of processing
and responding to the application.
(d) Notwithstanding the 45-day deadline, SWBT will, pursuant to
Section 8.03 of this Agreement, make available to Applicant
for immediate occupancy any pole, duct, or conduit space
which is not currently assigned, not designated as a
maintenance duct, and not subject to applicable make-ready
requirements.
(e) If SWBT fails to respond in writing within 30 days of SWBT's
documented receipt of a license application pursuant to
Section 9.02 of this Agreement, or within such other period
of time as may be mutually agreed upon in writing by the
parties, Applicant may by written notice inquire whether
SWBT intends to deny Applicant's request for access. After
such notice has been given and receipt by SWBT of a properly
submitted license application has been confirmed, SWBT's
failure to respond in writing within 15 days after receipt
of the notice shall be deemed to constitute approval of the
request for access. In such event, Applicant shall be
entitled to occupy the space requested without the formality
of a license; provided, however, that nothing contained in
this subsection shall authorize Applicant to occupy space
already occupied or subject to a prior valid space
assignment to SWBT or any third-party; and provided further
that nothing in this subsection authorizes Applicant,
without first obtaining SWBT's written authorization, to (1)
place its facilities on any pole or in any duct or conduit
that requires make-ready work (other than third-party
make-ready work arranged directly by Applicant) or (2)
utilize any infrequent construction technique or
connectivity solution described in Section 6.03.
10.02 Obligation to Construct or Modify Facilities; Capacity Expansions.
SWBT may grant access subject to Applicant's approval of such make-ready work
(including facilities modifications) as may be required to expand capacity to
accommodate
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Applicant's request, in which event Applicant shall either accept
such conditions, initiate good faith negotiations to explore other potential
accommodations, or withdraw its request for access. If SWBT does not offer to
expand capacity and denies Applicant's request for access, SWBT shall promptly
notify Applicant of such determination. SWBT shall not deny Applicant's request
for access on lack of capacity grounds when capacity can be expanded as provided
in this section and in Section 6.03 (infrequent construction techniques and
connectivity solutions).
(a) At Applicant's request, SWBT will replace, expand, or modify
its poles and conduit system, or otherwise expand the
capacity of such facilities to accommodate the placement of
Applicant's facilities; provided, however, that such
modifications shall be consistent with the capacity, safety,
reliability, and engineering considerations which SWBT would
apply to itself if the work were performed for SWBT's own
benefit. Outside plant facilities modifications and capacity
expansions contemplated by this subsection include, but are
not limited to, installation of inner duct, cable
consolidations and the removal of cables that are retired or
inactive (dead). Except as otherwise specifically provided
in this section, SWBT may recover from Applicant the costs
of facilities modifications and capacity expansions to make
space available for Applicant's facilities and charges for
such modifications and expansions shall be determined and
billed as provided in APPENDIX I of this Agreement.
(b) SWBT will, at its own expense, install inner duct in SWBT's
conduit system as necessary to make space available for
Applicant's facilities. Inner duct installations to
accommodate Applicant's facilities will be performed by SWBT
within the same time intervals which would apply if SWBT
were performing such installations for itself. If SWBT's
intervals for beginning or completing inner duct
installation do not meet Applicant's needs, Applicant may
arrange for the inner duct installation to be performed by
an authorized contractor selected by Applicant from a list,
jointly developed and maintained by the parties, of
contractors mutually approved as qualified to perform inner
duct installations. Applicant may install the inner duct
itself if Applicant is on the list of mutually approved
contractors at the time the work is performed. When inner
duct is installed in SWBT's conduit system by Applicant or
an authorized contractor selected by Applicant, SWBT will
provide the inner-ducting materials to be installed and
Applicant shall bear all other installation expenses.
Applicant shall give SWBT sufficient advance notice of the
materials needed to enable SWBT to provide such materials to
Applicant on a timely basis. Applicant shall return all
unused materials, including unused inner duct and reels, to
SWBT or purchase them from SWBT. Inner duct installed by
Applicant or an authorized contractor selected by Applicant
shall be installed in accordance with
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SWBT's specifications and in accordance with the same
standards and practices which would be followed if the inner
duct were being installed by SWBT or SWBT's contractors.
Applicant shall indemnify, on request defend, and hold SWBT
harmless for any injuries, losses, damages, claims, or
liabilities directly resulting from the installation of
inner duct by Applicant or any authorized contractor
selected by Applicant under this subsection. Applicant shall
not, without SWBT's prior written approval, arrange for
inner duct installation to be performed by subcontractors
who are not authorized contractors.
(c) SWBT shall, at its expense, remove cables that are retired
or inactive (dead) to free-up requested duct and pole space,
provided that such removal is reasonably feasible (i.e.,
cable pulls easily without incident). If a section of cable
is "frozen" in a duct and would require excavation to
remove, Applicant may, at its option, request that SWBT
excavate the obstruction or, in the alternative, arrange for
excavation of the obstruction to be performed by an
authorized contractor selected by Applicant from a list,
jointly developed and maintained by the parties, of
contractors mutually approved as qualified to perform such
excavations. Applicant may excavate the obstruction itself
if Applicant is on the list of mutually approved contractors
at the time the work is performed. Such excavations will be
at Applicant's expense. Removal of the remainder of the
cable will be at SWBT's expense. Excavation work performed
by Applicant or an authorized contractor selected by
Applicant shall be performed in accordance with SWBT's
specifications and in accordance with the same standards and
practices which would be followed if such excavation work
were being performed by SWBT or SWBT's contractors. Neither
Applicant nor any authorized contractor selected by
Applicant to perform excavation work under this subsection
shall conduct facility excavation activities in any manner
which jeopardizes or degrades the integrity of SWBT's
structures or interferes with any existing use of the
facilities. Applicant shall indemnify, on request defend,
and hold SWBT harmless for any injuries, losses, damages,
claims, or liabilities directly resulting from the
performance of excavation work by Applicant or any
authorized contractor selected by Applicant under this
subsection. Applicant shall not, without SWBT's prior
written approval, arrange for excavation work to be
performed under this subsection by subcontractors who are
not qualified contractors.
10.03 Issuance of Licenses and Immediate Access When No Make-ready Work
is Required. If, on the basis of Applicant's representations or SWBT's field
inspection, if any, SWBT determines that no make-ready work is necessary to
accommodate Applicant's facilities, SWBT will issue a license without performing
make-ready work and pole attachment or conduit occupancy space will be made
available to Applicant for
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immediate occupancy. Immediate occupancy prior to the issuance of a license
shall be governed by Section 8.03.
10.04 Make-ready Work. If SWBT determines that make-ready work will be
necessary to accommodate Applicant's facilities, SWBT shall promptly notify
Applicant of the make-ready work proposed to enable the accommodation of
Applicant's facilities.
(a) The notice shall be given in writing no later than 45 days
after the receipt by SWBT of Applicant's completed
application pursuant to Section 9.02 of this Agreement or
within such other period of time as may be mutually agreed
upon in writing by the parties.
(b) The notice will include SWBT's estimate of make-ready
charges, which estimate shall be stated on SWBT Form SW-9434
("Access Application and Make-Ready Authorization"), a copy
of which is attached hereto as part of APPENDIX III.
(c) Applicant shall have 20 days (the "acceptance period") after
receiving SWBT's estimate of make-ready charges to authorize
completion of the make-ready work proposed by SWBT or to
advise SWBT of its willingness to perform the proposed
make-ready work itself. If Applicant advises SWBT that it is
willing to perform the make-ready work proposed by SWBT in
accordance with SWBT's plans and specifications, SWBT will
not, without due cause and justification, refuse to accept
Applicant's offer to perform the work. Authorization shall
be accomplished by Applicant's signing the estimate and
returning it to SWBT within the 20-day acceptance period.
(d) Within the 20-day acceptance period, the parties may
negotiate modifications of the make-ready work to be
performed. If the parties reach agreement through
negotiation, a new estimate shall be prepared and
authorization shall be accomplished by Applicant's signing
the revised estimate and returning it to SWBT within the
original 20-day acceptance period, or within such period of
time as may be mutually agreed upon by the parties.
(e) If Applicant does not sign and return the estimate within
the 20-day acceptance period, or within such other period of
time as may be mutually agreed upon in writing by the
parties, Applicant shall notify SWBT in writing by the 20th
day whether Applicant is withdrawing its application,
electing to perform the make-ready work itself as provided
in subsection (c) or electing to treat SWBT's make-ready
requirements as a denial of access.
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(1) If no such notice is given by the 20th day, or such
later date as may be mutually agreed upon by the
parties, SWBT shall contact Applicant to determine
whether Applicant intends to withdraw its application.
Applicant shall be deemed to have withdrawn its
application if, in response to SWBT's inquiry,
Applicant does not immediately sign and return the
estimate to SWBT.
(2) If Applicant timely notifies SWBT that it is electing
to treat SWBT's make-ready requirements as a denial of
access, SWBT shall, within 20 days after receiving the
notice, provide Applicant with a written statement
explaining its decision to grant access only if the
specified make-ready work is performed. The statement
shall be specific, shall include all relevant evidence
and information supporting SWBT's decision to grant
access only if the specified make-ready work is
performed, and shall explain how such evidence and
information relates to SWBT's decision for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. The statement shall
also set forth the basis for SWBT's make-ready
proposals and specifically address SWBT's rationale for
rejecting Applicant's alternative written proposals, if
any.
10.05 Performance of Make-ready Work. Except as otherwise specifically
provided in Section 10.02 and in this section, make-ready work shall be
performed by SWBT or by contractors, subcontractors, or other persons acting on
SWBT's behalf and shall be performed by SWBT in accordance with the same time
intervals which would be applicable if SWBT were performing the work for itself.
(a) Applicant and SWBT will mutually establish and maintain for
each SWBT construction district lists of authorized
contractors which may be selected by Applicant to perform
make-ready work when SWBT's interval for beginning or
completing such make-ready work does not meet Applicant's
needs. At Applicant's request, Applicant will be included on
such lists upon Applicant's demonstrating that (1) its
personnel are qualified to perform such work in accordance
with SWBT's specifications and (2) Applicant meets the
financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and other vendors performing the same or
similar work on SWBT's behalf or the self-insurance
requirements of Section 23.02.
(b) If SWBT's interval for beginning or completing make-ready
work does not meet Applicant's needs, Applicant may (1)
perform the make-ready work itself, if Applicant is on the
applicable list of authorized contractors at the time the
work is to be performed or (2) arrange for the work to be
performed by an authorized contractor selected by Applicant
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from the applicable list of authorized contractors. Subject
to the availability of personnel, Applicant may also request
that SWBT perform the work on an expedited basis; provided,
however, that make-ready work will not be performed on an
expedited basis unless Applicant first approves any overtime
or premium rates or charges associated with performance of
the work on an expedited basis.
(c) From time to time, additional contractors, subcontractors or
other vendors may be jointly approved by Applicant and SWBT
to perform specific make-ready work in the event that the
work load exceeds the capacity of the authorized contractors
on the approved list to perform the make-ready work in a
timely manner.
(d) Make-ready work performed by Applicant, by an authorized
contractor selected by Applicant, or by a contractor,
subcontractor, or other vendor jointly approved by the
parties under subsection (c) shall be performed in
accordance with SWBT's specifications and in accordance with
the same standards and practices which would be followed if
such excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor authorized contractors
selected by Applicant to perform make-ready work under this
section shall conduct such work in any manner which
jeopardizes or degrades the integrity of SWBT's structures
or interferes with any existing use of SWBT's facilities.
Applicant and any authorized contractor selected by
Applicant to perform make-ready work shall indemnify, on
request defend, and hold SWBT harmless from any and all
injuries, losses, damages, claims, or liabilities directly
resulting from their activities under this section.
(e) Nothing contained in this section authorizes Applicant, any
authorized contractor selected by Applicant, or any other
person acting on Applicant's behalf to consolidate SWBT's
cables.
10.06 Multiple Applications. Applications shall be processed on a
first-come, first-served basis. Applications filed on the same date shall be
treated as having been filed simultaneously and shall be processed accordingly.
10.07 Payments to Others for Expenses Incurred in Transferring or
Arranging Their Facilities. Applicant shall make arrangements with the owners of
other facilities attached to SWBT's poles or occupying space in SWBT's conduit
system regarding reimbursement for any expenses incurred by them in transferring
or rearranging their facilities to accommodate the attachment or placement of
Applicant's facilities to or in SWBT's poles, ducts, and conduits.
10.08 Reimbursement for the Creation or Use of Additional Capacity. As a
result of facilities modification, capacity expansion, or other make-ready work
performed to
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accommodate Applicant's facilities, additional capacity may become
available on SWBT's poles or in its conduit system. In such event, Applicant
shall not have a preferential right to utilize such additional capacity in the
future and shall not be entitled to any pole attachment or conduit occupancy
fees subsequently paid to SWBT for the use of such additional capacity. SWBT
shall, however, establish procedures for giving Applicant notice of the
subsequent use by SWBT or third parties of additional space or capacity created
at Applicant's expense. If SWBT utilizes additional space or capacity created at
Applicant's expense, SWBT will reimburse Applicant on a pro-rata basis for
SWBT's share, if any, of Applicant's capacity expansion costs, to the extent
reimbursement is required by the Pole Attachment Act and applicable rules,
regulations, and commission orders. If any third party later utilizes any such
additional space or capacity, SWBT shall, at the request of Applicant or such
third party, provide such information as may be available to SWBT to assist
Applicant and such third party in determining the amount, if any, which such
third party may owe Applicant as its pro-rata share of Applicant's capacity
expansion costs. Nothing contained in this section shall be construed as
conferring or imposing on SWBT any right or duty to determine the amounts owing
by a third party to Applicant, to collect or remit any such amounts to
Applicant, to resolve or adjudicate disputes over reimbursement between
Applicant and third parties, to deny a third party access to SWBT's poles,
ducts, conduits, or rights-of-way due to such third party's failure to satisfy
Applicant's reimbursement demands, or to take any other action to enforce
Applicant's reimbursement rights against any third party. In like manner, for
additional capacity created by SWBT from and after the date of enactment of the
Telecommunications Act of 1996, SWBT shall be entitled to recover from Applicant
and third parties, to the full extent permitted by law, their pro-rata shares of
such capacity expansion costs incurred by SWBT. To the extent that either party
seeks to avail itself of this cost-saving mechanism, such party shall be
responsible for maintaining adequate records documenting the costs subject to
reimbursement, including but not limited to costs incurred for facilities
modification and capacity expansion work performed directly by such party or
contractors performing work on such party's behalf.
10.09 License and Attachment. After all required make-ready work is
completed, SWBT will issue a license confirming that Applicant may attach
specified facilities to SWBT's poles or place specified facilities in SWBT's
conduit system. Applicant shall have access to attach or place only those
facilities specifically described in licenses subject to this Agreement, and no
others, except as otherwise specifically provided in (a) Sections 8.03 and 12.03
or other provisions of this Agreement, (b) any other written agreement between
the parties providing for such access, or (c) the provisions of any applicable
tariffs or commission orders.
ARTICLE 11: CONSTRUCTION OF APPLICANT'S FACILITIES
11.01 Responsibility for Attaching and Placing Facilities. Each party
shall be responsible for the actual attachment of its own facilities to SWBT's
poles and the placement of such facilities in SWBT's ducts, conduits, and
rights-of-way and shall be solely responsible for all costs and expenses
incurred by it or on its behalf in connection
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with such activities. In this regard, each party and its contractors shall be
solely responsible for (a) paying all persons and entities who provide
materials, labor, access to real or personal property, or other goods or
services in connection with the construction and attachment of its facilities
and (b) directing the activities of all personnel acting on such party's behalf
while they are physically present on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way.
11.02 Construction Schedule. After the issuance of a license, Applicant
shall provide SWBT with an updated construction schedule and thereafter keep
SWBT informed of anticipated changes in the construction schedule. Construction
schedules received by SWBT shall be subject to the provisions of Article 28 of
this Agreement (Confidentiality of Information). Construction schedules required
by this section shall include, at a minimum, the following information:
(a) the name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
(b) the names of each contractor and subcontractor which will be
involved in the construction activities;
(c) the estimated dates when construction will begin and end;
and
(d) the approximate dates when Applicant or personnel working on
Applicant's behalf will be performing construction work in
connection with the attachment of Applicant's facilities to
SWBT's poles or the placement of Applicant's facilities in
any part of SWBT's conduit system.
ARTICLE 12: USE AND ROUTINE MAINTENANCE
OF APPLICANT'S FACILITIES
12.01 Use of Applicant's Facilities. Each license subject to this
Agreement authorizes Applicant to have access to Applicant's facilities on or
within SWBT's poles, ducts, and conduits as needed for the purpose of serving
Applicant's customers.
12.02 Routine Maintenance of Applicant's Facilities. Each license
subject to this Agreement authorizes Applicant to engage in routine maintenance
of facilities located on or within SWBT's poles, ducts, and conduits. Routine
maintenance does not include the replacement or modification of Applicant's
facilities in any manner which results in Applicant's facilities differing
substantially in size, weight, or physical characteristics from the facilities
described in Applicant's license.
12.03 Installation of Drive Rings and J-Hooks. Applicant may install
drive rings and J-hooks on SWBT's poles for the attachment of drop wires as
specified in this section.
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(a) Drive rings and J-hooks may be installed as specified in
pole attachment licenses issued to Applicant.
(b) If attachment space has already been licensed to Applicant
on a given SWBT pole, Applicant may install drive rings and
J-hooks within the space assigned to Applicant (typically
six inches above and six inches below Applicant's point of
attachment on the pole if the point of attachment is in the
center of the space assigned to Applicant) without applying
for or obtaining a new or amended license. No additional
attachment charges shall apply with respect to drive rings
and J-hooks installed in Applicant's licensed attachment
space.
(c) Applicant's first choice for placement of drive rings and
J-hooks shall be the licensed attachment space assigned to
Applicant as provided in subsection (b) above; provided,
however, that if attachment space already licensed to
Applicant on a given SWBT pole is not adequate for
Applicant's drive rings or J-hooks, Applicant may, when
necessary, and without applying for or obtaining a new or
amended license, install such drive rings and J-hooks above
or below Applicant's licensed attachment space as described
in subsection (b) above. No additional attachment charges
shall apply with respect to drive rings and J-hooks
installed outside Applicant's licensed attachment space as
permitted in this subsection.
(d) If Applicant has not already been licensed attachment space
on a given SWBT pole, Applicant may, when necessary, install
drive rings and J-hooks to unassigned space on such pole
without first obtaining a license for such attachment and
shall, promptly following such installation, notify SWBT of
the attachment. Such notification shall be made on a form to
be developed by SWBT for this purpose and shall constitute
an application for a license. Such application may be
conditionally granted without a pre-license survey or other
inquiry by SWBT, and SWBT shall not be required to process
the application, log the attachment as an assignment in its
outside plant records, or issue a permanent license for the
attachment unless specifically requested by Applicant to do
so; provided, however, that a conditionally granted
application under this subsection shall be subject to
revocation if it is subsequently determined that such
attachment has been made in violation of subsection (e) of
this section or other provisions of this Agreement.
Drive-rings and J-hooks installed pursuant to this
subsection are pole attachments and charges for such
attachments shall be determined in accordance with the Pole
Attachment Act and applicable rules, regulations, and
commission orders.
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(e) Notwithstanding the provisions of subsections (c)-(d) above,
Applicant may not install drive rings and J-hooks in space
assigned to SWBT or another joint user without the approval
of SWBT or such other joint user and may not install drive
rings and J-hooks in unassigned space in any manner which
will block or preclude the subsequent occupancy or use of
space by SWBT or other joint users. If the presence of
Applicant's facilities in space not assigned to Applicant
will block or preclude the use of assigned or otherwise
assignable space by SWBT or other joint users, Applicant
shall, on SWBT's request, promptly relocate the facilities
in order to accommodate the facilities of other users and
shall bear all expenses associated with such relocation.
(f) SWBT may not install drive rings or J-hooks in space
assigned to Applicant without Applicant's approval and
shall, at Applicant's request, and at SWBT's expense,
promptly relocate or, if necessary, remove, any drive rings
or J-hooks installed in violation of this subsection. If
SWBT drive rings or J-hooks have been installed in space
subsequently assigned to Applicant, or if the presence of
SWBT drive rings or J-hooks blocks or precludes the use of
otherwise assignable space on SWBT's poles, SWBT shall, at
Applicant's request, relocate such facilities, if it is
feasible to do so, as make-ready work.
(g) Applicant shall, at the request of SWBT or another joint
user, at Applicant's expense, promptly relocate or, if
necessary, remove any drive rings and J-hooks placed on
SWBT's poles other than as permitted in this section.
12.04 Short-term Use of Maintenance Ducts for Repair and Maintenance
Activities. Maintenance ducts shall be available, on a nondiscriminatory basis,
for short-term (not to exceed 30 days) non-emergency maintenance or repair
activities by any person or entity (including but not limited to SWBT,
Applicant, other local service providers, and other joint users) with facilities
in the conduit section in which the maintenance duct is located; provided,
however, that use of the maintenance duct for non-emergency maintenance and
repair activities must be scheduled by SWBT. A person or entity using the
maintenance duct for non-emergency maintenance or repair activities shall
immediately notify SWBT of such use and must either vacate the maintenance duct
within 30 days or, with SWBT's consent, which consent shall not be unreasonably
withheld, rearrange its facilities to ensure that at least one full-sized
replacement maintenance duct (or, if the designated maintenance duct was an
inner duct, a suitable replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such person or entity
occupies the maintenance duct. Cables temporarily placed in the maintenance duct
on a non-emergency basis shall be subject to such accommodations as may be
necessary to rectify emergencies which may occur while the maintenance duct is
occupied.
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12.05 Responsibility for Maintenance of Facilities. Each party shall be
solely responsible for maintaining its own facilities and (a) paying all persons
and entities who provide materials, labor, access to real or personal property,
or other goods or services in connection with the maintenance of such party's
facilities and (b) directing the activities of all such personnel while they are
physically present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
12.06 Information Concerning the Maintenance of Applicant's Facilities.
Promptly after the issuance of a license, Applicant shall provide SWBT with the
name, title, business address, and business telephone number of the manager
responsible for routine maintenance of Applicant's facilities and shall
thereafter notify SWBT of changes to such information. The manager responsible
for routine maintenance of Applicant's facilities shall, on SWBT's request,
identify any contractor, subcontractor, or other person performing maintenance
activities on Applicant's behalf at a specified site.
ARTICLE 13: MODIFICATION OF APPLICANT'S FACILITIES
13.01 Notification of Planned Modifications. Applicant shall notify SWBT
in writing at least 30 days before adding to, relocating, replacing or otherwise
modifying its facilities already attached to a SWBT pole or located in any SWBT
duct or conduit. The notice shall contain sufficient information to enable SWBT
to determine whether the proposed addition, relocation, replacement, or
modification is within the scope of Applicant's present license or requires a
new or amended license. No notice shall be required for such routine
modifications as the installation or placement of drive rings or J-hooks,
terminals, and other ancillary apparatus routinely used in providing service to
customers, having no effect on the structural integrity of SWBT's poles, ducts,
or conduits, and having no effect on the ability of SWBT or joint users to use
or have access to SWBT's poles, ducts, conduits, or rights-of-way.
13.02 New or Amended License Required. A new or amended license
will be required if the proposed addition, relocation, replacement, or
modification:
(a) requires that Applicant occupy additional space on SWBT's
poles (except on a temporary basis in the event of an
emergency);
(b) requires that Applicant occupy additional space (other than
space in the maintenance duct in accordance with Sections
12.04, 13.03, and 15.02 of this Agreement) in any SWBT duct
or conduit except on a temporary basis in the event of an
emergency;
(c) results in the facilities attached to SWBT's poles or placed
in SWBT's ducts or conduits being different from those
described in Applicant's current license (e.g., different
duct or size increase causing a need to recalculate storm
loadings, guying, or pole class); or
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(d) requires additional holding capacity on a permanent basis.
13.03 Use of Maintenance Duct in Connection with Facility Modifications
and Replacements. Non-emergency access to the maintenance duct in connection
with facilities modifications and replacements shall be subject to the
provisions of Section 12.04 of this Agreement.
13.04 Replacement of Facilities and Spinning/Overlashing Additional
Cables. Applicant may replace existing facilities with new facilities occupying
the same pole, duct, or conduit space, and may spin or overlash additional
cables to its own existing facilities; provided, however, that such activities
shall not be considered to be routine maintenance and shall be subject to the
requirements of this article.
13.05 Streamlined Procedures for the Issuance of Amended Licenses. SWBT
may streamline procedures for the issuance of amended licenses with respect to
proposed additions, relocations, replacements, or modifications of Applicant's
facilities when it appears to SWBT that the proposed additions, relocations,
replacements, or modifications will not require make-ready work by SWBT, will
not interfere with SWBT's use of its poles, conduit systems, or facilities
attached or connected thereto or contained therein, and will not interfere with
the use of existing facilities attached or connected thereto or contained
therein by joint users.
ARTICLE 14: REQUIRED REARRANGEMENTS
OF APPLICANT'S FACILITIES
14.01 Notice of Planned Modifications. The parties acknowledge that the
Pole Attachment Act recites in part that "Whenever the owner of a pole, duct,
conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or
right-of-way, the owner shall provide written notification of such action to any
entity that has obtained an attachment to such conduit or right-of-way so that
such entity may have a reasonable opportunity to add to or modify its existing
attachment." The parties further acknowledge that the FCC, in the First
Interconnection Order in CC Docket No. 96-98, recites that "... absent a private
agreement establishing notification procedures, written notification of a
modification must be provided to parties holding attachments on the facility to
be modified at least 60 days prior to the commencement of the physical
modification itself." This article is intended by the parties to alter the
above-described notification requirements only as provided in Section 14.02(b)
below.
14.02 Required Rearrangement of Applicant's Facilities. Applicant
acknowledges that, from time to time, it may be necessary or desirable for SWBT
to rearrange facilities on or within its poles or conduit systems, change out
poles, add poles to a pole line, relocate or reconstruct poles, pole lines,
conduit segments, or conduit runs, enlarge manholes, reinforce conduit, or
otherwise modify poles, pole lines, or portions of its conduit system and that
such changes may be necessitated by SWBT's own business needs or by factors
outside of SWBT's control, such as the decision by a municipality to
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widen streets or the decision by a third party to seek access to SWBT's poles,
ducts, conduits, or rights-of-way.
(a) Applicant agrees that Applicant will cooperate with SWBT and
joint users in making such rearrangements as may be
necessary to enable such changes to be made and that costs
incurred by Applicant in making such rearrangements shall,
in the absence of a specific agreement to the contrary, be
borne by the parties in accordance with then applicable
statutes, rules, regulations, and commission orders,
including the Pole Attachment Act, rules, regulations, and
commission orders thereunder.
(b) Whenever feasible, SWBT shall give Applicant not less than
60 days prior written notice of the need for Applicant to
rearrange its facilities pursuant to this section. The
notice shall state the date by which such rearrangements are
to be completed. Applicant shall complete such
rearrangements within the time prescribed in the notice.
SWBT may request that such modification be made within a
shorter period of time, in which event Applicant shall not
refuse to comply such request without due cause and
justification. In determining due cause and justification,
the following factors, among others, may be considered:
(1) the circumstances under which the rearrangements are
sought (e.g., street-widening project, request by a
competing provider for access);
(2) the timeliness of SWBT's request to Applicant;
(3) the nature and number of rearrangements sought;
(4) the impact on the ability of the parties and joint
users to meet customer service needs; and
(5) risks of service interruption to customers of the
parties and joint users.
(c) Nothing contained in this article shall preclude Applicant
from advising SWBT, within 60 days from the date of the
notice, of its desire to add to or modify its existing
attachment.
ARTICLE 15: EMERGENCY REPAIRS AND POLE REPLACEMENTS
15.01 Applicability. The parties acknowledge that in the event of an
emergency, services provided by the parties and joint users to their respective
customers may be interrupted, that it may not be possible for all service
providers with facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, or rights-of-way to restore service to all customers at the same time,
that disputes may arise between the parties concerning the
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manner in which emergency repairs shall be made, that it is essential that
decisions be made quickly, and that it is highly desirable that all service
providers utilizing SWBT's poles, ducts, conduits, and rights-of-way enter into
appropriate arrangements relating to emergency repairs and service restoration.
In the absence of prearranged agreements, it is expected that disputes will be
immediately resolved at the site by the affected parties present based upon the
criteria set forth in Section 15.05 of this Agreement. The provisions of this
article shall apply in the absence of more comprehensive agreements relating to
emergency repairs.
15.02 Responsibility for Emergency Repairs; Access to Maintenance Duct.
In general, each party shall be responsible for making emergency repairs to its
own facilities and for formulating appropriate plans and practices enabling such
party to make such repairs.
(a) Nothing contained in this Agreement shall be construed as
requiring either party to perform any repair or service
restoration work of any kind with respect to the other
party's facilities or the facilities of joint users.
(b) Maintenance ducts shall be available, on a nondiscriminatory
basis, for emergency repair activities by any person or
entity (including but not limited to SWBT, Applicant, other
local service providers, and other joint users) with
facilities in the conduit section in which the maintenance
duct is located; provided, however, that a person or entity
using the maintenance duct for emergency repair activities
shall immediately notify SWBT of such use and must either
vacate the maintenance duct within 30 days or, with SWBT's
consent, which consent shall not be unreasonably withheld,
rearrange its facilities to ensure that at least one
full-sized replacement maintenance duct (or, if the
designated maintenance duct was an inner duct, a suitable
replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such
person or entity occupies the maintenance duct. The parties
agree not to exceed 30 days' use except in unusual
emergencies that may require longer than 30 days to rectify.
(c) If necessary, other unoccupied ducts or inner ducts may be
used on a short-term basis when the maintenance duct is
unavailable. Any such use shall be subject to the same rules
applicable to the maintenance duct and shall be subject to
the rights of any party or joint user to whom such duct or
inner duct has been assigned.
15.03 Designation of Emergency Repair Coordinators and Other
Information. For each SWBT construction district, Applicant shall provide SWBT
with the emergency contact number of Applicant's designated point of contact for
coordinating the handling of emergency repairs of Applicant's facilities and
shall thereafter notify SWBT of changes to such information.
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15.04 Reporting of Conditions Requiring Emergency Repairs. As a
courtesy, each party shall endeavor to notify the other party at the earliest
practicable opportunity after discovering any condition on or in any of SWBT's
poles, ducts, conduits, or rights-of-way requiring emergency repairs to the
other party's facilities.
15.05 Order of Precedence of Work Operations; Access to Maintenance Duct
and Other Unoccupied Ducts in Emergency Situations. When notice and coordination
are practicable, SWBT, Applicant, and other affected parties shall coordinate
repair and other work operations in emergency situations involving service
disruptions. Disputes will be immediately resolved at the site by the affected
parties present in accordance with the following principles.
(a) Emergency service restoration work requirements shall take
precedence over other work operations.
(b) Except as otherwise agreed upon by the parties, restoration
of lines for emergency services providers (e.g., 911, fire,
police, and hospital lines) shall be given the highest
priority and temporary occupancy of the maintenance duct
(and, if necessary, other unoccupied ducts) shall be
assigned in a manner consistent with this priority.
Secondary priority shall be given to restoring services to
the local service providers with the greatest numbers of
local lines out of service due to the emergency being
rectified. The parties shall exercise good faith in
assigning priorities, shall base their decisions on the best
information then available to them at the site in question,
and may, by mutual agreement at the site, take other factors
into consideration in assigning priorities and sequencing
service restoration activities.
(c) SWBT shall determine the order of precedence of work
operations and assignment of duct space in the maintenance
duct (and other unoccupied ducts) only if the affected
parties present are unable to reach prompt agreement;
provided, however, that these decisions shall be made by
SWBT on a nondiscriminatory basis in accordance with the
principles set forth in this section.
15.06 Unilateral Corrective Action. When either party reasonably
believes that, due to the condition of the other party's facilities placed on,
within, or in the vicinity of SWBT's poles, ducts, conduits, or rights-of-way,
there is an immediate or imminent threat to the safety or health of employees or
any other person, to the physical integrity or functioning of either party, or
either party's ability to meet its service obligations, either party may
unilaterally perform such limited corrective work as may be necessary to prevent
or mitigate against the injury threatened. For example, if facilities of the
other party have become detached or partially detached from a pole, or detached
or partially
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detached from supporting racks or wall supports within a manhole,
either party may reattach them as provided in this section but shall not be
obligated to do so.
(a) Before performing any corrective work involving facilities
of the other party, SWBT or Applicant shall first attempt to
notify the other party. After such notice has been given,
the parties shall coordinate corrective work.
(b) When an emergency situation exists such that advance notice
and coordination are not practicable, either party may
perform corrective work without first giving notice to the
other party and shall promptly notify the other party of the
corrective work performed and the reason why notice was not
given.
15.07 Emergency Pole Replacements. Applicant will cooperate fully
with SWBT when emergency pole replacements are required.
(a) When emergency pole replacements are required, SWBT shall
promptly make a good faith effort to contact Applicant to
notify Applicant of the emergency and to determine whether
Applicant will respond to the emergency in a timely manner.
(b) If notified by SWBT that an emergency exists which will
require the replacement of a pole, Applicant shall transfer
its facilities immediately, provided such transfer is
necessary to rectify the emergency. If the transfer is to a
SWBT replacement pole, the transfer shall be in accordance
with SWBT's placement instructions.
(c) If Applicant is unable to respond to the emergency situation
immediately, Applicant shall so advise SWBT and thereby
authorize SWBT (or any joint user sharing the pole with
SWBT) to perform such emergency-necessitated transfers (and
associated facilities rearrangements) on Applicant's behalf.
15.08 Expenses Associated with Emergency Repairs. Each party shall bear
all reasonable expenses arising out of or in connection with emergency repairs
of its own facilities and transfers or rearrangements of such facilities
associated with emergency pole replacements made in accordance with the
provisions of this article.
(a) Each party shall be solely responsible for paying all
persons and entities who provide materials, labor, access to
real or personal property, or other goods or services in
connection with any such repair, transfer, or rearrangement
of such party's facilities.
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(b) Applicant shall reimburse SWBT for the costs incurred by
SWBT for work performed by SWBT on Applicant's behalf in
accordance with the provisions of this article; provided,
however, that when the costs incurred by SWBT are for work
performed in part for Applicant and in part for SWBT and
third parties, Applicant shall only reimburse SWBT for
Applicant's pro-rata share of the costs.
ARTICLE 16: INSPECTION BY SWBT OF APPLICANT'S FACILITIES
16.01 SWBT's Right to Make Periodic or Spot Inspections. SWBT shall have
the right, but not the duty, to make periodic or spot inspections at any time of
any or all facilities attached to SWBT's poles or placed within SWBT's poles,
ducts, conduits, or rights-of-way. Inspections of Applicant's facilities may be
conducted for the purpose of determining whether facilities attached to SWBT's
poles or placed in SWBT's conduit system are in compliance with the terms of
this Agreement and conform to licenses subject to this Agreement. Charges for
inspections shall be allocated among all parties benefiting from the inspection
in accordance with the Pole Attachment Act and applicable rules, regulations,
and commission orders. When an inspection is conducted for the specific purpose
of auditing or investigating Applicant's compliance with this Agreement, SWBT
may charge Applicant for inspection expenses only if the inspection reflects
that Applicant is in substantial noncompliance with the terms of this Agreement.
If the inspection reflects that Applicant's facilities are not in compliance
with the terms of this Agreement, Applicant shall bring its facilities into
compliance promptly after being notified of such noncompliance and shall notify
SWBT in writing when the facilities have been brought into compliance.
16.02 Report of Inspection Results. SWBT will provide Applicant the
results of any inspection of Applicant's facilities performed under Section
16.01 of this Agreement.
16.03 Post-installation Inspections. This article does not apply to
post-installation inspections performed as part of a pre-license survey in those
cases when Applicant has occupied space on or in SWBT's poles, ducts, conduits,
or rights-of-way prior to the issuance of a license pursuant to Section 8.03 of
this Agreement.
ARTICLE 17: TAGGING OF FACILITIES AND
UNAUTHORIZED ATTACHMENTS
17.01 Facilities to Be Marked. Applicant shall tag or otherwise mark all
of Applicant's facilities placed on or in SWBT's poles, ducts, conduits, and
rights-of-way in a manner sufficient to identify the facilities as Applicant's
facilities.
17.02 Removal of Untagged Facilities. Subject to the provisions of
subsections (a)-(d) of this section, SWBT may, without notice to any person or
entity, remove from SWBT's poles or any part of SWBT's conduit system any
untagged or unmarked facilities, including any such facilities owned or used by
Applicant, if SWBT determines
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that such facilities are not the subject of a current license authorizing their
continued attachment to SWBT's poles or occupancy of SWBT's conduit system and
are not otherwise lawfully present on SWBT's poles or in SWBT's conduit system.
(a) Before removing any such untagged or unmarked facilities,
SWBT shall first attempt to determine whether the facilities
are being used by Applicant or any other firm, are
authorized by any license subject to this Agreement, or are
otherwise lawfully present on SWBT's poles or in SWBT's
conduit system.
(b) SWBT shall not remove untagged or unmarked facilities which
are thought to be operational without first making
reasonable efforts to (1) determine the identity of the
owner or other person or entity thought to be responsible
for the facilities and (2) give advance written notice to
such person or entity.
(c) If the facilities appear to be facilities of Applicant
described in a current license or application subject to
this Agreement, SWBT shall give written notice to Applicant
requesting Applicant to tag or mark the facilities within 60
days and Applicant shall either tag the facilities within
the 60-day period, advise SWBT in writing of its schedule
for tagging the facilities, or notify SWBT in writing that
it disclaims ownership of or responsibility for the
facilities. If Applicant disclaims ownership of or
responsibility for the facilities, Applicant shall disclose
to SWBT the identity of the owner or other person or entity,
if any, thought by Applicant to be responsible for the
facilities.
(d) If the facilities appear to be facilities used by Applicant
but not subject to a current license granted under this
Agreement, the provisions of Sections 17.05-17.12 shall
apply.
17.03 Verification That Presently Attached Facilities Are Subject to
Existing Licenses. Applicant warrants and represents that, to the best of its
information and belief, all facilities presently owned or used by Applicant and
attached to SWBT's poles or occupying space within any part of SWBT's conduit
system in this State have been disclosed to SWBT and are subject to current
licenses or are otherwise lawfully present on or in SWBT's poles, ducts, and
conduits. If Applicant determines that any such facilities are not the subject
of current licenses, Applicant shall so advise SWBT and promptly apply for
licenses for such facilities or remove the facilities from SWBT's poles or
conduits. Nothing contained in this section shall be construed as requiring
Applicant to make a field audit of its existing facilities to confirm the
licensing status of its facilities as a prerequisite to entering into this
Agreement.
17.04 Updating of Plant Location Records. Applicant shall furnish SWBT,
upon request, with such information as may from time to time be necessary for
SWBT to
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correct and update SWBT's pole and conduit maps and records, cable plat
maps, and other plant location records recording or logging assignments of pole,
duct, and conduit space.
17.05 Notice to Applicant. If any of Applicant's facilities for which no
license is presently in effect are found attached to SWBT's poles or anchors or
within any part of SWBT's conduit system, SWBT, without prejudice to other
rights or remedies available to SWBT under this Agreement, and without prejudice
to any rights or remedies which may exist independent of this Agreement, shall
send a written notice to Applicant advising Applicant that no license is
presently in effect with respect to the facilities and that Applicant must,
within 60 days, respond to the notice as provided in Section 17.06 of this
Agreement.
17.06 Applicant's Response. Within 60 days after receiving a notice
under Section 17.05 of this Agreement, Applicant shall acknowledge receipt of
the notice and submit to SWBT, in writing, either:
(a) a denial or disclaimer of ownership or other interest in the
facilities, together with an explanation of the factual and
claimed legal basis for such denial or disclaimer;
(b) a statement that the facilities are the subject of a current
license, together with an explanation of the factual and
claimed legal basis for Applicant's assertion that the
facilities are currently licensed, or a statement that no
license is required, and an explanation of the factual and
claimed legal basis for that assertion; or
(c) an application for a new or amended license with respect to
such facilities, together with a full and complete
explanation of the circumstances under which such facilities
were attached to, placed within, or allowed to remain on or
in SWBT's poles or any part of SWBT's conduit system. Such
explanation shall include, at a minimum, the following:
(1) the date (or estimated date) when such facilities were
attached to SWBT's poles or placed in SWBT's conduit
system, and the factual basis supporting Applicant's
selection of such date (or estimated date); and
(2) the factual basis for Applicant's assertion, if any,
that decisions to attach, place or allow the facilities
to remain on or in SWBT's poles or conduit system were
made in good faith and without intent to circumvent
SWBT's pole attachment or conduit occupancy licensing
requirements.
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17.07 Denial or Disclaimer of Ownership or Other Interest. Applicant's
submission to SWBT of a denial or disclaimer of ownership or other interest in
the facilities shall constitute Applicant's waiver of any objection Applicant
may have to SWBT's removal of the facilities. Submission of such a denial or
disclaimer shall not be construed as an agreement by Applicant to pay any
charges associated with removal of the facilities and shall be deemed to be a
denial of any such responsibility; provided, however, that nothing contained in
this section shall prohibit SWBT from invoking the dispute resolution process or
filing suit, in a court of competent jurisdiction, to establish that Applicant
is liable to SWBT for the costs of removal notwithstanding its denial or
disclaimer.
17.08 Review by SWBT of Licensing Status. Within 15 business days after
receiving Applicant's statement that the facilities are the subject of a current
license or that no license is required, SWBT shall review Applicant's
explanation of the factual and claimed legal basis for Applicant's assertions
and shall advise Applicant, in writing, whether it agrees or disagrees with
Applicant's assertions. If SWBT agrees with Applicant's assertions, the parties
may amend the applicable license and no further action shall be required of
Applicant. If SWBT does not accept Applicant's position, Applicant shall, within
15 business days, apply for a new or amended license as provided by Section
17.06(c) of this Agreement.
17.09 Approval of License and Retroactive Charges. If SWBT approves
Applicant's application for a new or amended license, Applicant shall be liable
to SWBT for all fees and charges associated with the unauthorized attachments as
specified in Section 17.10 of this Agreement. The issuance of a new or amended
license as provided by this article shall not operate retroactively or
constitute a waiver by SWBT of any of its rights or privileges under this
Agreement or otherwise.
17.10 Fees and Charges. This section applies to fees and charges with
respect to Applicant's facilities placed on or in SWBT pole, duct, or conduit
space which has not been assigned to Applicant. Applicant shall be liable to
SWBT for all fees and charges associated with any such unauthorized pole
attachments or conduit occupancy for which it is responsible. Attachment and
occupancy fees and charges shall continue to accrue until the unauthorized
facilities are removed from SWBT's poles or conduit system and shall include,
but not be limited to, all fees and charges which would have been due and
payable if Applicant and its predecessors had continuously complied with all
applicable SWBT licensing requirements. Such fees and charges shall be due and
payable 30 days after the date of the bill or invoice stating such fees and
charges. The parties shall engage in good faith discussions to reach a mutually
agreed determination as to the amount due and owing. In some cases, it may be
impractical, unduly difficult, or uneconomical to determine the actual amount of
fees which would have been due and payable if all licensing requirements had
been met. Therefore, if the parties, through good faith discussions fail to
reach agreement on the amount due and owing, and if the amount due and owing
cannot be determined due to Applicant's inability to provide the information
required to determine the correct amount, the amount owing with respect to each
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unauthorized attachment or occupancy shall be equal to three times the annual
attachment and occupancy fees in effect on the date Applicant is notified by
SWBT of the unauthorized attachment or occupancy. Payment of such fees shall be
deemed liquidated damages and not a penalty. In addition, Applicant shall
rearrange or remove its unauthorized facilities at SWBT's request to comply with
applicable placement standards, shall remove its facilities from any space
occupied by or assigned to SWBT or another joint user, and shall pay SWBT for
all costs incurred by SWBT in connection with any facilities rearrangements,
modifications, or replacements necessitated as a result of the presence of
Applicant's unauthorized facilities.
17.11 Removal of Unauthorized Attachments. If Applicant does not apply
for a new or amended pole attachment license with respect to unauthorized
facilities within the specified period of time, or if such application is
received and specifically disapproved, SWBT shall by written notice request to
Applicant to remove its unauthorized facilities not less than 60 days from the
date of notice and Applicant shall remove the facilities within the time
specified in the notice; provided, however, that SWBT may request Applicant to
remove such facilities at an earlier date if such earlier removal is necessary
for reasons beyond SWBT's control. If the facilities have not been removed
within the time specified in the notice, SWBT may, at SWBT's option, remove
Applicant's facilities at Applicant's expense.
17.12 No Ratification of Unlicensed Attachments or Unauthorized Use of
SWBT's Facilities. No act or failure to act by SWBT with regard to any
unlicensed attachment or occupancy or unauthorized use of SWBT's facilities
shall be deemed to constitute a ratification by SWBT of the unlicensed
attachment or occupancy or unauthorized use, nor shall the payment by Applicant
of fees and charges for unauthorized pole attachments or conduit occupancy
exonerate Applicant from civil or criminal liability for any deliberate trespass
or other illegal or wrongful conduct in connection with the placement or use of
such unauthorized facilities.
ARTICLE 18: REMOVAL OF APPLICANT'S FACILITIES
18.01 Responsibility for Removing Facilities. Applicant shall be
responsible for and shall bear all expenses arising out of or in connection with
the removal of its facilities from SWBT's poles, ducts, conduits, and
rights-of-way. Such removals shall be performed in accordance with the
provisions of this article.
(a) When practicable, Applicant shall give SWBT at least 30
days' advance notice in writing of its intent to remove
facilities from any part of SWBT's conduit system and the
proposed method of removal. The notice shall include the
locations of the facilities to be removed, the name and
telephone number of the manager responsible for removal of
the facilities, and the estimated dates when removal of the
facilities will begin and end.
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(b) Applicant shall, if requested by SWBT to do so, place a pull
mandrel (slug) through all or any specified part of the duct
which was occupied by Applicant.
(c) Except as otherwise agreed upon in writing by the parties,
Applicant must, after removing its facilities, plug all
previously occupied ducts at the entrances to SWBT's
manholes (if SWBT would itself plug the ducts under the same
circumstances) in accordance with the standards set by SWBT
for its own operations, provided that such standards have
been communicated in writing to Applicant at least 60 days
in advance of the removal of Applicant's facilities.
(d) Applicant shall be solely responsible for the removal of its
own facilities from SWBT's poles, ducts, conduits, and
rights-of-way and for (1) paying all persons and entities
which provide materials, labor, access to real or personal
property, or other goods or services in connection with the
removal of Applicant's facilities from SWBT's poles, ducts,
conduits, or rights-of-way and (2) directing the activities
of all such personnel while they are physically present on,
within, or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way.
(e) When Applicant no longer intends to occupy space on a SWBT
pole or in a SWBT duct or conduit, Applicant will provide
written notification to SWBT that it wishes to terminate the
license with respect to such space and will remove its
facilities from the space described in the notice. Upon
removal of Applicant's facilities, the license shall
terminate and the space shall be available for reassignment.
18.02 Removal of Facilities Not in Active Use. At SWBT's request,
Applicant shall remove from SWBT's poles, ducts, conduits, and rights-of-way any
of Applicant's facilities which are no longer in active use; provided, however,
that Applicant shall not be required to remove such facilities when due cause
and justification exists for allowing them to remain in place. Applicant shall
not be required to remove retired or inactive (dead) cables that have been
overlashed by other facilities which remain in active use unless removal
expenses are paid by the person or entity requesting removal of such facilities.
Applicant shall not be required to remove cables that would require excavation
to remove unless the person or entity requesting removal of such cables bears
the expenses of such excavation in a manner analogous to the provisions of
Section 10.02(c) of this Agreement. Applicant shall not abandon any of its
facilities by leaving them on SWBT's poles, in SWBT's ducts, conduits, or
rights-of-way, at any location where they may block or obstruct access to SWBT's
poles or any part of SWBT's conduit system, or on any public or private property
(other than property owned or controlled by Applicant) in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
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18.03 Removal Following Termination of License. Applicant shall remove
its facilities from SWBT's poles, ducts, conduits, or rights-of-way within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after termination of the license authorizing the attachment of such
facilities to SWBT's poles or the placement of such facilities in SWBT's ducts,
conduits, or rights-of-way.
18.04 Removal Following Replacement of Facilities. Applicant shall
remove facilities no longer in service from SWBT's poles or conduit system
within 60 days, or within such other period of time as shall be mutually
agreeable to the parties, after the date Applicant replaces existing facilities
on a pole or in a conduit with substitute facilities on the same pole or in the
same conduit; provided, however, that removal of facilities from the maintenance
duct shall be governed by Sections 12.04, 13.03, and 15.02 of this Agreement and
not by this section.
18.05 Removal to Avoid Forfeiture. If the presence of Applicant's
facilities on SWBT's poles or in SWBT's ducts, conduits, or rights-of-way would
cause a forfeiture of the rights of SWBT to occupy the property where such pole,
duct, conduit, or right-of-way is located, SWBT will promptly notify Applicant
in writing and Applicant shall not, without due cause and justification, refuse
to remove its facilities within such time as may be required to prevent such
forfeiture. SWBT will give Applicant not less than 60 days from the date of
notice to remove Applicant's facilities unless prior removal is required to
prevent the forfeiture of SWBT's rights. At Applicant's request, the parties
will engage in good faith negotiations with each other, with joint users, and
with third-party property owners and cooperatively take such other steps as may
be necessary to avoid the unnecessary removal of Applicant's facilities in the
face of a threatened forfeiture.
18.06 Notice of Completion of Removal Activities. Applicant shall give
written notice to SWBT stating the date on which the removal of its facilities
from SWBT's poles, ducts, conduits, and rights-of-way has been completed.
Charges shall continue to accrue with respect to such facilities until
Applicant's facilities have been removed, pull mandrels (slugs) have been pulled
if required by Section 18.01(b) of this Agreement, Applicant has plugged all
previously occupied ducts at the entrances to SWBT's manholes as required by
Section 18.01(c) of this Agreement, and the notice required by this section has
been given.
18.07 Removal of Facilities by SWBT; Notice of Intent to Remove. If
Applicant fails to remove its facilities from SWBT's poles, ducts, or conduits
in accordance with the provisions of Sections 18.01-18.06 of this Agreement,
SWBT may remove such facilities and store them at Applicant's expense in a
public warehouse or elsewhere without being deemed guilty of trespass or
conversion and without becoming liable to Applicant for any injury, loss, or
damage resulting from such actions. SWBT shall give Applicant not less than 60
days prior written notice of its intent to remove Applicant's facilities
pursuant to this section. The notice shall state:
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(a) the date when SWBT plans to commence removal of Applicant's
facilities, and that Applicant may remove the facilities at
Applicant's sole cost and expense at any time before the
date specified;
(b) SWBT's plans with respect to disposition of the facilities
removed; and
(c) that Applicant's failure to remove the facilities or make
alternative arrangements with SWBT for removal and
disposition of the facilities shall constitute an
abandonment of the facilities and of any interest therein.
18.08 Removal of Facilities by SWBT. If SWBT removes any of Applicant's
facilities pursuant to this article, Applicant shall reimburse SWBT for SWBT's
costs in connection with the removal, storage, delivery, or other disposition of
the removed facilities.
18.09 Reattachment or Subsequent Attachment Following Removal. After
Applicant's facilities have been properly removed pursuant to the provisions of
this article, neither the removed facilities nor replacement facilities shall be
attached to SWBT's poles or placed in SWBT's conduit system until Applicant has
first submitted new applications for the facilities and complied with the
provisions of this Agreement.
ARTICLE 19: RATES, FEES, CHARGES, AND BILLING
19.01 Rates, Charges and Fees Subject to Applicable Laws, Regulations,
Rules, and Commission Orders. All rates, charges and fees set forth in this
Agreement, including rates, charges and fees set forth in APPENDIX I (Schedule
of Rates, Fees, and Charges), shall be subject to all applicable federal and
state laws, rules, regulations, and commission orders, including but not limited
to (a) the Pole Attachment Act and rules, regulations, and commission orders
issued thereunder and (b) applicable orders of the State Commission in
interconnection arbitration proceedings.
19.02 Schedule of Rates, Fees, and Charges. SWBT's current schedule of
rates, fees, and charges is attached to this Agreement as APPENDIX I and
incorporated herein as an integral part of this Agreement.
19.03 Pole Attachment and Conduit Occupancy Fees. Until such time as the
FCC authorizes the charging of different rates to cable television systems and
telecommunications carriers, SWBT's annual rates for access to poles, ducts,
conduits, and rights-of-way shall be the same for cable television systems and
telecommunications carriers. For all attachments to SWBT's poles and occupancy
of SWBT's ducts and conduits, Applicant will pay SWBT's semiannual pole
attachment and conduit occupancy fees as specified in APPENDIX I. Pole
attachment and conduit occupancy fees shall be assessed and billed with respect
to (a) occupied space whether or not subject to a current license and (b)
assigned space as well as occupied space. Fees for pole attachments shall
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be based on the number of Applicant's pole attachments as of the date of billing
by SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders. Fees for conduit occupancy shall be based on the number
of duct feet occupied by or assigned to Applicant as of the date of billing by
SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders.
19.04 Billing for and Payment of Pole Attachment and Conduit Occupancy
Fees. Pole Attachment and conduit occupancy fees under this Agreement and
licenses subject to this Agreement shall be payable semiannually in advance.
(a) Bills shall be submitted to Applicant for two semiannual
billing periods, the first period including charges for the
months of January through June and the second including
charges for the months of July through December.
(b) Charges associated with newly licensed pole attachments and
conduit occupancy shall be prorated on a daily basis and
billed with the next semiannual bill.
(c) Charges shall be adjusted and retroactively prorated on a
daily basis following the removal of Applicant's facilities
and shall be retroactively adjusted as a credit on the next
semiannual bill.
19.05 Application Fees. SWBT does not currently charge application fees
in connection with requests for access to poles, ducts, conduits, and
rights-of-way. SWBT does, however, impose charges, on a case-by case basis, for
work performed in processing applications for access and preparing SWBT's poles,
ducts, conduits, and rights-of-way to accommodate the facilities of parties
seeking access.
19.06 Charges for Pre-license Survey Work. Subject to applicable
commission orders, Applicant will pay SWBT's charges for pre-license survey work
associated with the processing of Applicant's request for access. SWBT's
pre-license survey charges are not set on a fixed fee basis and will vary from
case-to-case depending on such factors as the number and location of the poles,
ducts, conduits, and rights-of-way subject to Applicant's access request, the
completeness and quality of information submitted by the Applicant in its
application, the nature of the facilities to be placed by Applicant, and the
nature and extent of facilities modification, capacity expansion, and make-ready
work proposed by Applicant.
19.07 Charges for Facilities Modifications, Capacity Expansions, and
Make-ready Work. Subject to applicable commission orders, Applicant will pay
SWBT's charges for facilities modification, capacity expansion, and make-ready
work performed by SWBT, or by persons acting on SWBT's behalf, as provided in
other provisions of this Agreement and APPENDIX I.
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19.08 Contract Administration Fee. Subject to applicable commission
orders, SWBT may charge Applicant a one-time contract administration as provided
in APPENDIX I. This fee, if applicable, shall be assessed for work performed in
the initial processing of this Agreement and shall be non-refundable upon
acceptance of this Agreement by SWBT.
19.09 Administrative Record-keeping Fees. Subject to applicable
commission orders, SWBT may charge Applicant cost-based administrative
record-keeping fees (e.g., fees associated with records and billing changes
resulting from the sale, consolidation, or other transfer of Applicant's
business or facilities, name changes, and the like) as provided in APPENDIX I.
19.10 Charges for Work Performed by SWBT Employees. Except as otherwise
specifically required by applicable commission orders, SWBT's charges to
Applicant for worked performed by SWBT employees pursuant to this Agreement
shall be computed by multiplying the fully loaded hourly rates for such
employees times the number of hours required to perform the work. Disputes over
SWBT's charges for work performed by SWBT employees, including disputes between
the parties concerning the number of hours required to perform the work, shall
be subject to the dispute resolution procedures of Article 30. Notwithstanding
the execution of this Agreement, Applicant shall have the right to challenge the
methodology utilized by SWBT to determine hourly rates for SWBT employees at any
time in any forum having jurisdiction over the subject matter.
19.11 Due Date for Payment, Interest on Past Due Invoices, Remedies for
Non-payment, and Procedures for Disputing Charges. For fees and charges other
than charges for make-ready work, each bill or invoice submitted by SWBT to
Applicant shall state the date that payment is due, which date shall be not less
than 60 days after the date of the bill or invoice. Applicant will pay each such
bill or invoice on or before the stated due date. For make-ready work, the
payment due date shall be not less than 30 days after the date of the bill or
invoice.
(a) Interest on past due bills and invoices shall accrue at the
rate of 12% per annum, or the maximum rate allowed by law,
whichever is less.
(b) Applicant's failure to pay SWBT's fees and charges shall be
grounds for terminating this Agreement and licenses subject
to this Agreement.
(c) If Applicant fails to pay, when due, any fees or charges
billed to Applicant under this Agreement, and any portion of
such fees or charges remains unpaid more that 15 calendar
days after the due date, SWBT may send Applicant a written
notice advising Applicant that this Agreement, or specified
licenses subject to this Agreement, may be terminated if
such fees or charges are not paid within 15 calendar days
after the date of the notice. Applicant must remit to SWBT
all such unpaid fees or charges, whether disputed or
undisputed, within 15 days
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after the date of the notice. If Applicant pays disputed
fees under protest, and it is later determined that such
fees or any portion thereof should be refunded, the portion
of fees to be refunded shall be refunded with interest at
the rate of 12% per annum or the maximum rate allowed by
law, whichever is less.
(d) Applicant may dispute any fees or charges billed by SWBT to
Applicant under this Agreement by invoking the dispute
resolution procedures set forth in Article 30 of this
Agreement.
(e) If Applicant does not dispute such fees or charges and any
portion of such undisputed fees or charges remains unpaid 30
calendar days after the date of the notice, SWBT may, to the
extent permitted by the Pole Attachment Act and applicable
rules, regulations, and commission orders, terminate this
Agreement and licenses subject to this Agreement, suspend
the processing of pending applications for access to SWBT's
poles, ducts, conduits, and rights-of-way located in this
State, and refuse to accept further applications for access
until such undisputed fees or charges, together with accrued
interest thereon, have been paid in full.
19.12 Modification of Rates, Fees and Charges. Subject to applicable
federal and state laws, rules, regulations, and commission orders, SWBT shall
have the right to modify all rates, charges and fees set forth in this
Agreement, including but not limited to those listed in APPENDIX I, as provided
in this section.
(a) Upon written notice to Applicant, SWBT may change, on a
going-forward basis, the amounts of any rates, fees or
charges assessed under this Agreement. Pole attachment and
conduit occupancy rates shall not be increased more than
once annually.
(1) The notice shall state the effective date of the
changes, which, in the event of a rate increase, shall
be no earlier than the 60th day after the notice is
given.
(2) The changes shall be effective on the effective date
stated in the notice unless stayed or prohibited by a
court or agency of competent jurisdiction.
(3) The changes shall be reflected on the first semiannual
bill issued on or after the effective date specified in
the notice.
(b) If the rates, fees and charges set forth in the notice are
not acceptable to Applicant, Applicant may, notwithstanding
any other provisions of this Agreement, at Applicant's
option (1) seek the renegotiation of this Agreement, (2)
terminate this Agreement, or (3) seek relief through the
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dispute resolution process or before a court or agency of
competent jurisdiction.
19.13 Disputes Over Charging Methodologies. The parties acknowledge that
the Pole Attachment Act grants the FCC regulatory authority over the rates,
terms, and conditions of access to poles, ducts, conduits, and rights-of-way.
The parties further acknowledge that, as of the date of this Agreement, this
State has not elected to assume reverse preemptive regulatory authority over
such rates, terms, and conditions by certifying to the FCC that it has made such
election. Accordingly, complaints concerning and challenges to SWBT's charging
methodologies shall be brought, in the first instance, before the FCC in
accordance with FCC procedural rules unless this State elects to preempt FCC
regulation of pole attachment rates, terms, and conditions of access; provided,
however, that nothing contained in this section shall be construed as affecting
the right of either party to seek relief from any court or agency of competent
jurisdiction in connection with the negotiation, arbitration, and approval of
interconnection agreements under 47 U.S.C. Section 252.
ARTICLE 20: PERFORMANCE AND PAYMENT BONDS
20.01 Bond May Be Required. SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to execute
performance and payment bonds (or provide other forms of security) in amounts
and on terms sufficient to guarantee the performance of their respective
obligations arising out of or in connection with this Agreement only as provided
in subsections (a)-(b) of this section and Section 20.02. Bonds shall not be
required for entities meeting all self-insurance requirements of Section 23.02
of this Agreement.
(a) If Applicant elects to perform make-ready or facilities
modification work under Section 6.08(c) or Sections
10.02-10.05 of this Agreement, SWBT may require Applicant,
authorized contractors, and other persons acting on
Applicant's behalf to execute bonds equivalent to those
which would be required by SWBT if the work had been
performed by contractors, subcontractors, or other persons
selected directly by SWBT. No bonds shall be required of
Applicant, authorized contractors, or other persons acting
on Applicant's behalf except in those situations where a
bond would be required if the work were being performed on
SWBT's behalf.
(b) No other bond shall be required of Applicant to secure
obligations arising under this Agreement in the absence of
due cause and justification.
(c) If a bond or similar form of assurance is required of
Applicant, an authorized contractor, or other person acting
on Applicant's behalf, Applicant shall promptly submit to
SWBT, upon request, adequate proof that the bond remains in
full force and effect and provide certification
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from the company issuing the bond that the bond will not be
cancelled, changed or materially altered without first
providing SWBT 60 days written notice.
(d) SWBT may communicate directly with the issuer of any bond
required by SWBT pursuant to this section to verify the
terms of the bond, to confirm that the bond remains in
force, and to make demand on the issuer for payment or
performance of any obligations secured by the bond.
20.02 Payment and Performance Bonds in Favor of Contractors and
Subcontractors. Applicant shall be responsible for paying all employees,
contractors, subcontractors, mechanics, materialmen and other persons or
entities performing work or providing materials in connection with (a) the
performance of facilities modification, capacity expansion, or make-ready work
by Applicant, authorized contractors, or other persons acting on Applicant's
behalf under Sections 6.08(c) and 10.02-10.05 of this Agreement or (b) the
construction, attachment, use, inspection, maintenance, repair, rearrangement,
modification, and removal of any of Applicant's facilities attached or to be
attached to SWBT's poles or placed or to be placed within SWBT's ducts,
conduits, or rights-of-way. In the event any claim or demand is made on SWBT by
any such employee, contractor, subcontractor, mechanic, materialman, or other
person or entity providing such materials or performing such work, SWBT may
require, in addition to any security provided under Section 20.01 of this
Agreement, that Applicant execute payment or performance bonds, or provide such
other security, as SWBT may deem reasonable or necessary to protect SWBT from
any such claim or demand.
ARTICLE 21: INDEMNIFICATION
21.01 Risks Associated with Outside Plant Operations. The parties
acknowledge that SWBT's outside plant facilities include thousands of miles of
pole lines, conduits, and rights-of-way located on public and private property
throughout SWBT's service area, that SWBT cannot control or continuously monitor
activities that occur at these sites, and that the risks associated with outside
plant operations and facilities are not similar to the risks associated with
operations occurring inside SWBT's central offices and other secure SWBT
buildings and structures. The parties further acknowledge that the presence of
multiple firms on or in poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT requires that liability risks be fairly allocated between the
parties and that it is the parties' intent to allocate such risks in a just,
reasonable, and nondiscriminatory manner which addresses known risks associated
with the outside plant environment and activities and conditions at outside
plant locations.
21.02 Control of Premises. Applicant acknowledges that its employees and
other persons acting on Applicant's behalf, and employees of joint users and
other persons acting on behalf of joint users, will be present, without
supervision or control by SWBT, and in many cases without SWBT's knowledge, on,
within, and in the vicinity of
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SWBT's poles, ducts, conduits, and rights-of-way. During those times when
Applicant's employees and personnel are present at such sites, Applicant shall
be deemed, for the purpose of allocating liabilities between the parties, to be
an independent contractor in control of the premises except as otherwise
provided in this section. Although SWBT inspectors may be present at the site of
work being performed by Applicant or persons acting on Applicant's behalf, such
inspectors shall have no authority to direct Applicant or personnel acting on
Applicant's behalf concerning the method or manner by which the work is to be
performed, and the presence of a SWBT inspector shall not result in SWBT's being
deemed to be in control of the premises. When both parties are present and
performing work operations at a site subject to this section, SWBT and Applicant
shall be deemed to be jointly in control of the premises. When poles, ducts,
conduits, or rights-of-way occupy property owned by third parties, neither party
shall be deemed to be in control of the premises, except as otherwise provided
by law, at times when such party's work operations are not in progress. Work
operations shall be considered to be in progress from the time work commences
until such work is completed whether or not employees of a party or persons
acting on such party's behalf are actually present at the site.
21.03 INDEMNITY AGAINST AND LIMITATIONS OF LIABILITY WITH RESPECT TO
CERTAIN NEGLIGENT ACTS AND OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS
INDEMNIFYING EACH PARTY FROM LIABILITIES ARISING OUT OF OR IN CONNECTION WITH
CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY. THIS ARTICLE ALSO INCLUDES
PROVISIONS LIMITING THE LIABILITIES OF EACH PARTY ARISING OUT OF OR IN
CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY.
21.04 Indemnities Excluded. Except as otherwise specifically provided in
this article, neither party (as an "indemnifying party") shall be required to
indemnify or defend the other party (as an "indemnified party") against, or hold
the indemnified party harmless from, any suit, claim, demand, loss, damage,
liability, fine, penalty, or expense arising out of:
(a) any breach by the indemnified party of any provision of this
Agreement or any breach by the indemnified party of the
parties' interconnection agreement, if any;
(b) the violation of any law by any employee of the indemnified
party or other person acting on the indemnified party's
behalf;
(c) willful or intentional misconduct or gross negligence
committed by any employee of the indemnified party or by any
other person acting on the indemnified party's behalf; or
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(d) any negligent act or acts committed by any employee of the
indemnified party or other person acting on the indemnified
party's behalf, if such negligent act or acts are the sole
producing cause of the injury, loss, or damage giving rise
to the suit, claim, demand, loss, damage, liability, fine,
penalty, or expense for which indemnity is requested.
21.05 Workplace Injuries. The parties acknowledge that injuries may
occur at sites where work is being performed by or for either party and that
primary responsibility for preventing workplace injuries shall be placed on the
party controlling work operations at the site. Workplace injuries may result
from any of variety of causes, including but not limited to electrocution
associated with contact with electric power lines on poles or use of defective
equipment, falls from poles resulting from the negligence of the injured person
or co-workers or due to the existence of unsafe conditions on or in the vicinity
of the pole, cave-ins and other accidents at excavation sites, explosion of
combustible gases within or in the vicinity of a conduit system, exposure to
hazardous substances or noxious gases at the site, acts of God, and acts and
omissions of third parties over whom neither party has control. Except as
expressly provided in this Agreement to the contrary, each party shall
indemnify, on request defend, and hold the other party harmless from any and all
suits, claims, demands, losses, damages, liabilities, fines, penalties, or
expenses of every kind and character, on account of or in connection with any
injury, loss, or damage suffered by any person, which arises out of or in
connection with the personal injury or death of any employee of the indemnifying
party (or other person acting on the indemnifying party's behalf) if such injury
or death results, in whole or in part, from any occurrence or condition on,
within, or in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way;
provided, however, that Applicant's indemnification duties under this section
shall arise only if the person injured is present at such site in connection
with the performance or anticipated performance of any act required or permitted
to be performed by Applicant or by persons acting on Applicant's behalf pursuant
to this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with any injury, sickness, disease, or death of any employee of
the indemnifying party or any person acting on the indemnifying party's behalf
attributable or allegedly attributable to occurrences or conditions on, within,
or in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way. EXCEPT
AS PROVIDED ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL ARISE EVEN IF THE INJURY,
SICKNESS, DISEASE, OR DEATH WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFIED PARTY.
21.06 Other Claims Brought Against Either Party by Employees and Other
Persons Acting on the Other Party's Behalf. Nothing contained in this Agreement
shall create any contractual liability or other liability on the part of either
party to any employee, contractor, or subcontractor of the other party or any
other person acting on the other party's behalf. Each party shall indemnify, on
request defend, and hold the other
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party harmless from any and all suits, claims, demands, losses, damages,
liabilities, or expenses of every kind and character (other than workplace
injury claims subject to Section 21.05 above) made, brought, or sought against
the indemnified party by any employee, contractor, or subcontractor of the
indemnifying party or by any other person acting on the indemnifying party's
behalf; provided, however, that this section shall apply only to suits, claims,
demands, losses, damages, liabilities, or expenses related to the subject matter
of this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with the employment relationship or other claimed relationship
between the indemnifying party and the employee, contractor, subcontractor, or
other person acting on the indemnifying party's behalf; claims arising out of
disputes over payments due or allegedly due to any employee, contractor,
subcontractor, or other person acting on the indemnifying party's behalf; and
claims arising out of other contract disputes between the indemnifying party and
the employee, contractor, subcontractor, or other person acting on the
indemnifying party's behalf. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.07 Claims Brought Against Either Party by Vendors, Suppliers,
Customers, and other Persons in Privity of Contract with the Other Party. The
parties acknowledge that neither party controls the contractual relationships
between the other party and vendors, suppliers, customers, and other persons in
privity of contract with the other party and that nothing contained in this
Agreement shall create any contractual or other liability of either party to any
vendor, supplier, customer, or other person or entity in privity of contract
with the other party. Each party shall indemnify, on request defend, and hold
the other party harmless from any and all suits, claims, demands, losses,
damages, liabilities, or expenses of every kind and character, made, brought, or
sought against the indemnified party by any vendor, supplier, or customer of the
indemnifying party or by any other person or entity in privity with the
indemnifying party; provided, however, that this section shall apply only to
suits, claims, demands, losses, damages, liabilities, or expenses related to the
subject matter of this Agreement or Applicant's use of SWBT's poles, ducts,
conduits, or rights-of-way. The indemnifying party may not, as a defense to any
obligations of the indemnifying party under this section, assert that the
indemnified party's claims against the indemnifying party are barred by any
tariff or contract limitation of liability applicable to the indemnifying
party's vendor, supplier, or customer or to such other person in privity of
contract with the indemnifying party. Indemnities provided by this section shall
be subject to the exclusions set forth in Section 21.04 and include but are not
limited to indemnities for claims against either party arising out of or in
connection with the failure by the other party to meet its obligations
(including but not limited to contract and tariff obligations) to such other
party's customers and suppliers. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
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SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.08 Claims Brought Against Either Party by Such Party's Own Employees,
Contractors, Subcontractors, or Other Persons Acting on Such Party's Behalf, and
Claims Brought Against Either Party by Such Party's Own Vendors, Suppliers,
Customers, or Other Persons in Privity of Contract with Such Party. Neither
party shall be entitled to indemnity, contribution, or subrogation from or by
the other party with respect to any suits, claims, demands, losses, damages,
liabilities, or expenses, of any kind or character, made, brought, or sought
against such party by any employee, contractor, or subcontractor of such party,
by any other person acting on behalf of such party, by any vendor, supplier, or
customer of such party, or by any other person or entity in privity of contract
with such party, if such suit, claim, demand, loss, damage, liability, or
expense arises directly out of or in connection with the subject matter of this
Agreement or the use by Applicant of SWBT's poles, ducts, conduits, or
rights-of-way. Indemnities excluded by this section include, but are not limited
to, indemnities for claims against either party arising out of or in connection
with employment-related disputes between either party and its employees; claims
against either party by contractors, subcontractors, and suppliers performing
work or supplying materials to SWBT sites at the request of such party; and
other failures by either party to meet its obligations (including but not
limited to contract and tariff obligations) to such party's own customers and
suppliers. THE INDEMNIFICATION EXCLUSIONS OF THIS SECTION SHALL APPLY EVEN IF
THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM WAS
ATTRIBUTABLE IN PART TO THE NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFYING
PARTY BUT SHALL NOT APPLY IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM AROSE FROM WILLFUL OR INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE COMMITTED BY ANY EMPLOYEE OF THE INDEMNIFYING PARTY OR ANY OTHER
PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF OR AROSE FROM ANY NEGLIGENT ACT
OR ACTS COMMITTED BY ANY EMPLOYEE OF THE INDEMNIFYING PARTY OR OTHER PERSON
ACTING ON THE INDEMNIFYING PARTY'S BEHALF, IF SUCH NEGLIGENT ACT OR ACTS ARE THE
SOLE PRODUCING CAUSE OF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE SUIT,
CLAIM, DEMAND, LOSS, DAMAGE, LIABILITY, FINE, PENALTY, OR EXPENSE FOR WHICH
INDEMNITY IS REQUESTED.
21.09 Injuries to Third Parties and Third-party Property Owners
Resulting from the Parties' Conduct. Each party shall indemnify, on request
defend, and hold the other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or expenses, of every
kind and character, on account of or in connection with the personal injury or
death of any third party or physical damage to real or personal property owned
by a third party, arising, in whole or in part, out of or in connection with the
conduct of employees of the indemnifying party or other persons acting on the
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indemnifying party's behalf while such employees or other persons are present
on, within, or in the vicinity of any SWBT pole, duct, conduit, or right-of-way
in connection with the performance or anticipated performance of any act
required or authorized to be performed pursuant to this Agreement. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities arising out of or in
connection with personal injury, death, and property damage claims by third
parties based on willful or intentional misconduct and negligent acts and
omissions of the indemnifying party.
21.10 Indemnification for Environmental Claims. The parties acknowledge
that hazardous substances may be present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way; that employees and other
persons acting on the parties' behalf working on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way should be familiar with
environmental laws and environmental concerns which arise in outside plant
contexts; that all such employees and other persons should be prepared to
recognize and deal with environmental contingencies existing at specific sites;
and that liabilities associated with environmental claims arising out of or in
connection with the subject matter of this Agreement shall be allocated between
the parties as set forth in this section.
(a) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the violation or breach, by any employee of
the indemnifying party or other person acting on the
indemnifying party's behalf, of (1) any federal, state, or
local environmental statute, rule, regulation, ordinance, or
other law or (2) any provision or requirement of this
Agreement dealing with hazardous substances or protection of
the environment.
(b) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the release or discharge, onto any public or
private property, of any hazardous substances, regardless of
the source of such hazardous substances, by any employee of
the indemnifying party, or by any person acting on the
indemnifying party's behalf, while present on, within, or in
the vicinity of any SWBT pole, duct, conduit, or
right-of-way. Indemnities provided by this subsection
include but are not limited to indemnities arising out of or
in connection with the release or discharge of water and
other substances from SWBT's manholes or other conduit
facilities.
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(c) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the removal or disposal of any hazardous
substances by the indemnifying party or by any person acting
on the indemnifying party's behalf, or arising out of or in
connection with the subsequent storage, processing or other
handling of such hazardous substances by any person or
entity after they have been removed by the indemnifying
party or persons acting on the indemnifying party's behalf
from the site of any SWBT pole, duct, conduit, or
right-of-way. For the purposes of this subsection, any
person or entity removing or disposing of hazardous
substances at the request of the indemnifying party or at
the request of any person acting on the indemnifying party's
behalf, and any person or entity subsequently receiving,
storing, processing, or otherwise handling such hazardous
substances shall be considered to be a person acting on the
indemnifying party's behalf.
(d) Except as otherwise specifically provided in this section,
neither party shall be required to indemnify or defend the
other party against, or hold the other party harmless from
any loss, damage, claim, demand, suit, liability, fine,
penalty or expense for which the other party may be liable
under any federal, state, or local environmental statute,
rule, regulation, ordinance, or other law.
21.11 Miscellaneous Claims. Applicant shall indemnify, on request
defend, and hold SWBT harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, and expenses, of every kind and
character, made, brought, or sought against SWBT by any person or entity,
arising out of or in connection with the subject matter of this Agreement and
based on either:
(a) claims for taxes, municipal fees, franchise fees,
right-to-use fees, and other special charges assessed on
SWBT due to the placement or presence of Applicant's
facilities on or within SWBT's poles, ducts, conduits, or
rights-of-way; or
(b) claims based on the violation by Applicant of any third
party's intellectual property rights, including but not
limited to claims for copyright infringement, patent
infringement, or unauthorized use or transmission of
television or radio broadcast programs or other program
material.
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21.12 Applicant's General Indemnity Obligations to SWBT. This section
applies only in those situations not expressly covered by Sections 21.05-21.11
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from Applicant's enforcement of its rights against SWBT pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
and subject to the exclusions set forth in Section 21.04, Applicant shall
indemnify, on request defend, and hold SWBT harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, and expenses,
of every kind and character, on account of or in connection with any injury,
loss, or damage to any person or property, or to the environment, arising out of
or in connection with Applicant's access to or use of SWBT's poles, ducts,
conduits, or rights-of-way, Applicant's performance of any acts authorized under
this Agreement, or the presence or activities of Applicant's employees or other
personnel acting on Applicant's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
21.13 SWBT's General Indemnity Obligations to Applicant. This section
applies only in those situations not expressly covered by Sections 21.05-21.10
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from SWBT's enforcement of its rights against Applicant pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
SWBT shall indemnify, on request defend, and hold Applicant harmless from any
and all suits, claims, demands, losses, damages, liabilities, fines, penalties,
and expenses, of every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the environment,
arising out of or in connection with SWBT's access to or use of SWBT's poles,
ducts, conduits, or rights-of-way, SWBT's performance of any acts authorized
under this Agreement, or the presence or activities of SWBT's employees or other
personnel acting on SWBT's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
21.14 No Rights, Claims, Causes of Action, or Remedies for the Benefit
of Third Parties. Nothing contained in this article is intended to create any
rights, claims, causes of action, or remedies for the benefit of any third
party.
21.15 Assertion of Limitation of Liability Defenses. Each party shall
diligently assert the limitation of liability provisions of any applicable
tariff or contract in any case involving injury, loss, or damage to any customer
of such party for which the other party is not exempt from indemnification
liabilities to the indemnified party under this Agreement.
21.16 Indemnity Liabilities Not Subject to Article 22 Limitations of
Liability. Indemnity liabilities under this article shall not be subject to
Article 22 limitations of liability.
21.17 Defense of Suits. Upon request by the indemnified party, the
indemnifying party shall defend any suit brought against the indemnified party
for any injury, loss, or
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damage subject to indemnification under this Agreement. The indemnified party
shall notify the indemnifying party promptly in writing of any written claims,
lawsuits, or demands for which the indemnifying party may be responsible under
this Agreement. The indemnified party shall cooperate in every reasonable way to
facilitate defense or settlement. The indemnifying party shall have the right to
control and conduct the defense and settlement of any action or claim subject to
consultation of the indemnified party. The indemnifying party shall not be
responsible for any settlement unless the indemnifying party approved such
settlement in advance and agrees to be bound by the settlement agreement.
ARTICLE 22: LIABILITIES AND LIMITATIONS OF LIABILITY
22.01 LIMITATIONS OF LIABILITY WITH RESPECT TO NEGLIGENT ACTS AND
OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS LIMITING THE LIABILITIES OF EACH
PARTY ARISING OUT OF OR IN CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS
OF SUCH PARTY.
22.02 LIMITATIONS OF LIABILITY IN GENERAL. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN SECTIONS 21.16 AND 22.05, NEITHER PARTY'S LIABILITY TO THE OTHER
PARTY FOR DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY NEGLIGENT ACT OR
OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT OR
TORT, SHALL EXCEED IN THE AGGREGATE FOR ANY CALENDAR YEAR THE GREATER OF
$250,000, OR THE TOTAL AMOUNT CHARGED BY SWBT TO APPLICANT UNDER THIS AGREEMENT
FOR THE CALENDAR YEARS WHEN THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY
OCCURRED. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS LIMITING
EITHER PARTY'S LIABILITY FOR ACTS OR OMISSIONS CONSTITUTING WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE BY SUCH PARTY.
22.03 EXCLUSION OF LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE LIABLE 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 ANY ACT OR FAILURE TO ACT PURSUANT TO THIS
AGREEMENT, EVEN IF THE OTHER PARTY HAS ADVISED SUCH PARTY OF THE POSSIBILITY OF
SUCH DAMAGES. THIS SECTION LIMITS EACH PARTY'S LIABILITY FOR INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION
WITH NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF SUCH PARTY BUT
DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR INTENTIONAL MISCONDUCT.
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22.04 SWBT Not Liable to Applicant for Acts of Third Parties or Acts of
God. By affording Applicant access to poles, ducts, conduits, and rights-of-way
owned or controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by Applicant. Except as specifically
provided in Section 22.05 of this Agreement, Applicant assumes all risks of
injury, loss, or damage (and the consequences of any such injury, loss, or
damage) to Applicant's facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, or rights-of-way, and SWBT shall not be liable to Applicant for
any damages to Applicant's facilities other than as provided in Section 22.05.
In no event shall SWBT be liable to Applicant under this Agreement for any
injury, loss, or damage resulting from the acts or omissions of (1) any joint
user or any person acting on a joint user's behalf, (2) any governmental body or
governmental employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invitee, trespasser, or
other person present at the site or in the vicinity of any SWBT pole, duct,
conduit, or right-of-way in any capacity other than as a SWBT employee or person
acting on SWBT's behalf. In no event shall SWBT be liable to Applicant under
this Agreement for injuries, losses, or damages resulting from acts of God
(including but not limited to storms, floods, fires, and earthquakes), wars,
civil disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than SWBT's
employees or persons acting on SWBT's behalf, or other causes beyond SWBT's
control which occur at sites subject to this Agreement.
22.05 Damage to Facilities. Except as otherwise specifically provided in
this section, neither party shall be liable to the other party for any injury,
loss, or damage (or for the direct or indirect consequences of any such injury,
loss, or damage) to such other party's facilities attached to SWBT's poles or
placed within or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way.
(a) Each party (the "responsible party"), and persons acting on
behalf of the responsible party, shall exercise due care to
avoid damaging the facilities of the other party (the
"injured party"). In the event such damage occurs, the
responsible party or persons acting on behalf of the
responsible party shall immediately report such damages to
the injured party, and the injured party shall promptly make
such arrangements as may be necessary to restore service to
its customers using the facilities affected.
(b) The responsible party shall reimburse the injured party for
the actual costs incurred by the injured party for repair of
facilities damaged by the willful misconduct, grossly
negligent acts, grossly negligent omissions, and negligent
acts (but not negligent omissions other than grossly
negligent omissions) of employees of the responsible party.
(c) The responsible party shall reimburse the injured party for
the actual costs incurred by the injured party for repair of
facilities damaged by the
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willful misconduct, grossly negligent acts or omissions,
and negligent acts (but not negligent omissions other than
grossly negligent omissions) of independent contractors
acting on the responsible party's behalf; provided, however,
that the injured party shall be limited to recovery of those
costs which cannot be recovered from the independent
contractor causing the damage. The responsible party shall
not be liable to the injured party under this section until
the injured party's claims against the independent
contractor causing the damage have been adjudicated or
settled and the amount of the injured party's claim against
the responsible party is determinable.
(d) NEITHER PARTY SHALL BE REQUIRED BY THIS SECTION TO REIMBURSE
THE OTHER PARTY FOR COSTS INCURRED AS A RESULT OF NEGLIGENT
OMISSIONS OTHER THAN GROSSLY NEGLIGENT OMISSIONS COVERED BY
SUBSECTIONS (c)-(d) OF THIS SECTION.
(e) THIS SECTION LIMITS, BUT DOES NOT EXCLUDE, THE RESPONSIBLE
PARTY'S LIABILITY TO THE INJURED PARTY FOR DAMAGES CAUSED BY
NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OF THE
RESPONSIBLE PARTY AND PERSONS ACTING ON THE RESPONSIBLE
PARTY'S BEHALF.
22.06 No Limitations of Liability in Contravention of Federal or State
Law. Nothing contained in this article shall be construed as exempting either
party from any liability, or limiting such party's liability, in contravention
of federal law or in contravention of the laws of this State.
22.07 Claims Against Third Parties. Nothing contained in this article
shall be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to contractors,
subcontractors, or persons (other than the other party's employees) acting on
the other party's behalf.
ARTICLE 23: INSURANCE
23.01 Insurance Required. Applicant shall comply with the insurance
requirements specified in this section.
(a) Unless Applicant has provided proof of self-insurance as
permitted in Section 23.02 below, Applicant shall obtain and
maintain in full force and effect, for so long as this
Agreement remains in effect, insurance policies specified in
APPENDIX IV of this Agreement. Each policy shall name SWBT
as an additional insured and shall include provisions
requiring the insurer to give SWBT notice of any lapse,
cancellation, or
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termination of the policy or any modification to the policy
affecting SWBT's rights under the policy, including but not
limited to any decrease in coverage or increase in
deductibles.
(b) Except as provided in this subsection, exclusions from
coverage or deductibles, other than those expressly
permitted in APPENDIX IV, must be approved in writing by
SWBT. For authorized contractors and other contractors
performing work on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way on Applicant's
behalf, exclusions from coverage or deductibles, other than
those expressly permitted in APPENDIX IV, must be approved
in writing by Applicant.
(c) Authorized contractors and other contractors performing work
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way on Applicant's behalf shall be
required to meet the same insurance requirements applicable
to contractors performing similar work on SWBT's behalf.
Applicant shall be responsible for securing compliance by
its contractors with this requirement and shall be liable to
SWBT for any damages resulting from its failure to do so.
(d) Self-insurance shall be permitted for persons and entities
(including but not limited to Applicant and authorized
contractors) meeting the self-insurance requirements set
forth in Section 23.02.
23.02 Proof of Insurance or Self-insurance. Proof of insurance or
self-insurance shall be made pursuant to the provisions of this section.
(a) Applicant shall submit to SWBT adequate proof (as determined
by SWBT) that the companies insuring Applicant are providing
all coverages required by this Agreement. Applicant's
insurers shall provide SWBT with certifications that
required coverages will not be cancelled, changed or
materially altered (e.g., by increasing deductibles or
altering exclusions from coverage) except after 30 days
written notice to SWBT.
(b) SWBT will accept certified proof of a person or entity's
qualification as a self-insurer for Workers' Compensation
and Employers Liability, where self-insurance is permitted,
upon receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. SWBT will accept self-insurance by
a person or entity in lieu of other Commercial General
Liability and Automobile Liability Coverage if such person
or entity warrants that its net worth, as shown by its most
recent audited financial statement with no negative notes,
is at least 10 times the minimum liability limits set forth
in APPENDIX IV and SWBT is satisfied that
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such entity will be able to meet its liability obligations
under this Agreement.
(c) Applicant shall be responsible for determining whether
contractors and other persons present on Applicant's behalf
on, within, and in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way meet the self-insurance
requirements of this subsection. Applicant may accept
certified proof of any such person's or entity's
qualification as a self-insurer for Workers' Compensation
and Employers Liability, where self-insurance is permitted,
upon receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. Applicant may accept proof of
self-insurance by a person or entity in lieu of other
Commercial General Liability and Automobile Liability
Coverage if such person or entity warrants that its net
worth, as shown by its most recent audited financial
statement with no negative notes, is at least 10 times the
minimum liability limits set forth in APPENDIX IV and
Applicant is satisfied that such entity will be able to meet
its liability obligations with respect to activities
performed on, within, and in the vicinity of SWBT's poles,
ducts, conduits, and rights-of-way.
23.03 Licensing Contingent on Proof of Insurance. All insurance required
in accordance with APPENDIX IV, or self-insurance as permitted in Section 23.02,
must be in effect before SWBT will issue pole attachment or conduit occupancy
licenses under this Agreement and shall remain in force until all of Applicant's
facilities have been removed from SWBT's poles, ducts, conduits, and
rights-of-way.
23.04 Failure to Obtain or Maintain Coverage. Applicant's failure to
obtain and maintain the required levels and types of insurance coverage required
under this Agreement shall be grounds for termination of this Agreement and
licenses subject to this Agreement. If an insurance carrier shall at any time
notify Applicant or SWBT that any policy or policies of insurance required under
this Agreement will be cancelled or changed in any manner which will result in
Applicant's failure to meet the requirements of this Agreement, SWBT may
terminate this Agreement and all licenses subject to this Agreement not less
than 60 days after giving Applicant written notice of its intention to do so,
and such termination shall be effective on the termination date specified in the
notice unless Applicant has obtained (or made arrangements satisfactory to SWBT
to obtain) the required coverage from another source. In the alternative, SWBT
may, in its sole discretion, elect to take such action as may be necessary to
keep such policy in effect with the required coverages.
ARTICLE 24: ASSIGNMENT OF RIGHTS
24.01 Assignment Permitted. Neither party may assign or otherwise
transfer its rights or obligations under this Agreement except as provided in
this section.
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(a) SWBT may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without Applicant's consent, to any entity controlling,
controlled by, or under common control with SWBT or which
acquires or succeeds to ownership of substantially all of
SWBT's assets.
(b) Applicant may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without SWBT's consent, to: any telecommunications carrier
or cable system operator which (1) is entitled to access to
SWBT's poles, ducts, conduits, and rights-of-way under the
Pole Attachment Act and (2) controls, is controlled by, or
is under common control with Applicant or acquires and
succeeds to ownership of substantially all of Applicant's
assets; provided, however, that such assignment shall not be
effective until Applicant has given SWBT written notice of
the assignment pursuant to Section 24.03 and guaranteed the
performance of Applicant's assignee or successor.
Applicant's assignee or successor shall assume all
outstanding obligations of Applicant under this Agreement,
including but not limited to all liabilities and contingent
liabilities of Applicant arising out of or in connection
with this Agreement.
(c) Applicant may, ancillary to a bona fide loan transaction
between Applicant and any lender, and without SWBT's
consent, grant security interests or make collateral
assignments in substantially all of Applicant's assets,
including Applicant's rights under this Agreement, subject
to the express terms of this Agreement. In the event
Applicant's lender, in the bona fide exercise of its rights
as a secured lender, forecloses on its security interest or
arranges for a third party to acquire Applicant's assets
through public or private sale or through an Agreement with
Applicant, Applicant's lender or the third party acquiring
Applicant's rights under this Agreement shall assume all
outstanding obligations of Applicant under the agreement and
provide proof satisfactory to SWBT that such lender or third
party has complied or will comply with all requirements
established under this Agreement. Notwithstanding any
provisions of this Agreement to the contrary, such
foreclosure by Applicant's lender or acquisition of assets
by such third party shall not constitute a breach of this
Agreement and, upon such foreclosure or acquisition,
Applicant's lender or such third party shall succeed to all
rights and remedies of Applicant under this Agreement (other
than those rights and remedies, if any, which have not been
transferred and, if Applicant is a debtor under the Federal
Bankruptcy Code, those rights, if any, which remain a part
of the debtor's estate notwithstanding an attempted
foreclosure or transfer) and to all duties and obligations
of Applicant under the Agreement, including liability to
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SWBT for any act, omission, default, or obligation that
arose or occurred under the Agreement prior to the date on
which such lender or third party succeeds to the rights of
Applicant under the Agreement, as applicable.
(1) In the event Applicant or Applicant's lender requests
that SWBT, in connection with a bona fide loan
transaction between Applicant and Applicant's lender,
sign any additional consents, or make other
accommodations to protect such lender's interest,
Applicant or Applicant's lender shall reimburse SWBT
for all expenses incurred by SWBT in connection with
such requests and accommodations, including but not
limited to in-house or outside legal expenses incurred
by SWBT in processing the request.
(2) In the event Applicant or Applicant's lender desires
that SWBT provide notices to Applicant's lender or
permit Applicant's lender, in the event of a breach, to
cure any default or termination event if Applicant
fails to do so, Applicant shall notify SWBT's
authorized agent, as designated in Article 29 of this
Agreement, that such notices may be sent to Applicant's
lender as well to Applicant. Nothing contained in this
subsection shall be construed as imposing any duty on
SWBT in favor of Applicant's lender, and this section
shall not be construed to provide Applicant's lender or
any other third parties with any rights, claims, causes
of action of any kind. Applicant waives any and all
claims or causes of action, of every kind and
character, past, present, or future, arising out of or
in connection with the giving of any notice to
Applicant's lender pursuant to this section or any
failure to give such notice.
(d) Either party may assign or transfer rights or obligations
under this Agreement on such terms and conditions as are
mutually acceptable to the other party and with such other
party's prior written consent, which consent may be withheld
only for due cause and justification.
(e) No assignment or transfer by Applicant of rights under this
Agreement, licenses subject to this Agreement, or
authorizations granted under this Agreement shall be
effective until Applicant, its successors, and assigns have
complied with the provisions of this article, secured SWBT's
prior written consent to the assignment or transfer, if
necessary, and given SWBT notice of the assignment or
transfer pursuant to Section 24.03.
(f) Except as otherwise expressly provided in this article,
neither this Agreement, nor any licenses or authorizations
subject to this Agreement, shall inure to the benefit of
Applicant's successors or assigns without SWBT's prior
written consent.
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24.02 Incorporations, Mergers, Acquisitions, and Other Changes in
Applicant's Legal Identity. When the legal identity or status of Applicant
changes, whether by incorporation, reincorporation, merger, acquisition, or
otherwise, such change shall be treated as an assignment subject to the
provisions of this article.
24.03 Notice of Assignment. Applicant shall provide SWBT with 60
days advance notice in writing of any assignment.
24.04 Assignment Shall Not Relieve Applicant of Prior Obligations.
Except as otherwise expressly agreed by SWBT in writing, no assignment permitted
by SWBT under this Agreement shall relieve Applicant of any obligations arising
under or in connection with this Agreement, including but not limited to
indemnity obligations under Article 21 of this Agreement or the interconnection
agreement, if any.
24.05 Satisfaction of Existing Obligations and Assumption of Contingent
Liabilities. SWBT may condition its approval of any requested assignment or
transfer on the assignee's or successor's payment or satisfaction of all
outstanding obligations of Applicant under this Agreement and the assignee's or
successor's assumption of any liabilities, or contingent liabilities, of
Applicant arising out of or in connection with this Agreement.
24.06 Satisfaction of All Other Licensing Requirements. Applicant's
assignee or successor must, within 60 days following the assignment, provide
proof satisfactory to SWBT that such assignee or successor has complied or will
comply with all licensing requirements established under this Agreement,
including but not limited to requirements that such assignee or successor
verify, to the best of its information and belief, as provided in Section 17.03,
that all facilities owned or used by such assignee or successor and presently
attached to SWBT's poles or placed within any portion of SWBT's conduit system
within this State have been disclosed to SWBT and are subject to existing
licenses and that such assignee or successor has complied with the insurance
requirements set forth in Article 23 of this Agreement.
24.07 Additional Post-Assignment Requirements. Applicant's
assignee or successor shall, within 60 days following the assignment:
(a) sign this Agreement as an assignee or successor expressly
agreeing to be bound by all provisions of this Agreement and
licenses subject to this Agreement;
(b) provide proof, satisfactory to SWBT, of such assignee's
assumption of the obligations of this Agreement; and
(c) pay a one-time contract administration fee, as provided in
APPENDIX I of this Agreement, if no Master Agreement for
Access to SWBT's Poles,
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Ducts, Conduits, or Rights-of-Way between SWBT and such
assignee is in effect for this State, or an administrative
record-keeping fee as provided in APPENDIX I of this
Agreement, if there is a Master Agreement in effect for this
State.
24.08 Sublicenses Prohibited. Nothing contained in this Agreement shall
be construed as granting Applicant the right to sublicense any rights under this
Agreement or licenses subject to this Agreement to any third party. Except as
otherwise expressly permitted in this Agreement, Applicant shall not allow third
party to attach or place facilities to or in pole or conduit space occupied by
or assigned to Applicant or to utilize such space.
ARTICLE 25: TERMINATION OF AGREEMENT OR LICENSES;
REMEDIES FOR BREACHES
25.01 Termination Due to Non-Use of Facilities or Loss of Required
Authority. Applicant shall, by written notice to SWBT, terminate this Agreement
and all licenses subject to this Agreement if Applicant ceases to have authority
to do business or ceases to do business in this State, ceases to have authority
to provide or ceases to provide cable television services in this State (if
Applicant is cable television system having access to SWBT's poles, ducts,
conduits or rights-of-way solely to provide cable television service), ceases to
have authority to provide or ceases to provide telecommunications services in
this State (if Applicant is a telecommunications carrier which does not also
have authority to provide cable television service in this State), or ceases to
make active use of SWBT's poles, ducts, conduits, and rights-of-way in this
State. Applicant shall, by written notice to SWBT, terminate individual licenses
subject to this Agreement if (a) Applicant ceases to utilize the pole attachment
or conduit occupancy space subject to such licenses or (b) Applicant's
permission to use or have access to particular poles, ducts, conduits, or
rights-of-way has been revoked, denied, or terminated for reasons of safety or
any other lawful reason by any federal, state, or local governmental authority
or third-party property owner having authority to revoke, deny, or terminate
such use or access. Responsibility for terminating this Agreement or individual
licenses under the circumstances set forth in this section shall be a
contractual obligation imposed on Applicant, and the failure by Applicant to
terminate this Agreement or individual licenses pursuant to this section shall
be a material breach of this Agreement.
25.02 Limitation, Termination, or Refusal of Access for Certain Material
Breaches. Applicant's access to SWBT's poles, ducts, conduits, and rights-of-way
shall not materially interfere with or impair service over any facilities of
SWBT or any joint user, cause material damage to SWBT's plant or the plant of
any joint user, impair the privacy of communications carried over the facilities
of SWBT or any joint user, or create serious hazards to the health or safety of
any persons working on, within, or in the vicinity of SWBT's poles, ducts,
rights-of-way or to the public. Upon reasonable notice and opportunity to cure,
SWBT may limit, terminate or refuse access if Applicant violates this provision;
provided, however, that such limitation, termination or refusal will be
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limited to Applicant's access to poles, ducts, conduits, and rights-of-way
located in the SWBT construction district in which the violation occurs, shall
be as narrowly limited in time and geographic scope as may be necessary to
enable Applicant to adopt suitable controls to prevent further violations, and
shall be subject to review, at Applicant's request, pursuant to the dispute
resolution procedures set forth in this Agreement (or, if applicable, the
parties' interconnection agreement) or, as permitted by law, before any court,
agency, or other tribunal having jurisdiction over the subject matter. In the
event Applicant invokes dispute resolution procedures or seeks review before a
court, agency, or other tribunal having jurisdiction of the subject matter, the
limitation, termination, or refusal of access may be stayed or suspended by
agreement of the parties or by order of the tribunal having jurisdiction over
the parties' dispute.
25.03 Notice and Opportunity to Cure Breach. In the event of any claimed
breach of this Agreement by either party, the aggrieved party may give written
notice of such claimed breach as provided in this section.
(a) The notice shall set forth in reasonable detail:
(1) the conduct or circumstances complained of, together
with the complaining party's legal basis for asserting
that a breach has occurred;
(2) the action believed necessary to cure the alleged
breach; and
(3) any other matter the complaining party desires to
include in the notice.
(b) Except as provided in Section 25.02 and subsection (c) of
this section, the complaining party shall not be entitled to
pursue any remedies available under this Agreement or
relevant law unless such notice is given and (1) the
breaching party fails to cure the breach within 30 days of
such notice, if the breach is one which can be cured within
30 days, or (2) the breaching party fails to commence
promptly and pursue diligently a cure of the breach, if the
required cure is such that more than 30 days will be
required to effect such cure; provided, however, that
nothing contained in this section shall preclude either
party from invoking the dispute resolution procedures set
forth in Article 30 of this Agreement, or any complaint or
dispute resolution procedures offered by the FCC or State
Commission, at any time.
(c) Nothing contained in this section shall preclude either
party from filing a complaint or bringing suit in any court,
agency, or other tribunal of competent jurisdiction to
restrain or enjoin any conduct of the other party which
threatens the complaining party with irreparable injury,
loss
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or damage without first giving the notice otherwise required
by subsection (b).
25.04 Remedies for Breach. Subject to the provisions of this article and
the dispute resolution procedures of Article 30, either party may terminate this
Agreement in the event of a material breach by the other party or exercise any
other legal or equitable right which such party may have to enforce the
provisions of this Agreement. Except as otherwise specifically provided in
Section 30.07, in any action based on an alleged breach of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred by
such party, including but not limited to reasonable attorneys' fees.
ARTICLE 26: FAILURE TO ENFORCE
26.01 No Waiver. The failure by either party to take action to enforce
compliance with any of the terms or conditions of this Agreement, to give notice
of any breach, or to terminate this Agreement or any license or authorization
subject to this Agreement shall not constitute a waiver or relinquishment of any
term or condition of this Agreement, a waiver or relinquishment of the right to
give notice of breach, or waiver or relinquishment of any right to terminate
this Agreement. Notwithstanding any such failure, all terms and conditions of
this Agreement and all rights of either party hereunder shall be and remain at
all times in full force and effect.
ARTICLE 27: EFFECTIVE DATE, TERM, AND ELECTIVE TERMINATION
27.01 Effective Date. This Agreement shall be effective as of the ___
day of __________, 199_, or, if this Agreement has been entered into as an
appendix, attachment, or exhibit to an interconnection agreement between the
parties, the date of approval by the State Commission of the interconnection
agreement, whichever date first occurs.
27.02 Initial Term. Unless sooner terminated as herein provided, the
initial term of this Agreement shall run from the effective date until the end
of the calendar year which includes the effective date.
27.03 Automatic Renewal. Unless sooner terminated as herein provided,
this Agreement shall be automatically renewed for successive one-year terms
beginning on the first day of each calendar year after the effective date.
27.04 Elective Termination. Either party may terminate this Agreement by
giving the other party at least six months prior written notice as provided in
this section.
(a) Applicant may terminate this Agreement with or without
cause.
(b) The parties acknowledge that the Pole Attachment Act, 47
U.S.C. Section 224(e), as added by the Telecommunications
Act of 1996, expressly
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directs the FCC to promulgate new regulations governing
charges to telecommunications carriers for access to poles,
ducts, conduits, and rights-of-way and that such new
regulations are to take effect five years after the date of
enactment of the Telecommunications Act of 1996 (that is,
February 8, 2001). The parties further acknowledge that due
to nondiscrimination requirements, it is desirable that
formal attachment agreements establishing rates, terms, and
conditions of access be revised simultaneously, to the
extent possible. Accordingly, the parties agree that SWBT
may terminate this Agreement only for cause during the
period beginning with the effective date of this Agreement
through February 8, 2001. Thereafter, SWBT may terminate
this Agreement with or without cause, subject to the
provisions of subsection (d) and Section 27.05 below.
(c) The notice of termination shall state the effective date of
termination, which date shall be no earlier than the last to
occur of the following dates: the last day of the current
term of this Agreement or six months after the date the
notice is given.
(d) The elective termination of this Agreement by SWBT under
this section shall not require immediate removal of
Applicant's facilities from poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT and shall be
subject to the provisions of Section 27.05 below; provided,
however, that Applicant shall, within 60 days after the
effective date of the termination, either initiate
negotiations for continued access to SWBT's poles, ducts,
conduits, and rights-of-way or remove its facilities in
accordance with the provisions of Article 18 of this
Agreement.
27.05 Effect of Elective Termination. Elective termination of this
Agreement by Applicant, as permitted under Section 27.04 of this Agreement,
shall not affect Applicant's liabilities and obligations incurred under this
Agreement prior to the effective date of termination and shall not entitle
Applicant to the refund of any advance payment made to SWBT under this
Agreement. Elective termination of this Agreement by SWBT shall not affect
SWBT's obligations to afford access to SWBT's poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT as required by the Pole Attachment
Act, the Telecommunications Act of 1996, and other applicable laws, regulations,
and commission orders.
ARTICLE 28: CONFIDENTIALITY OF INFORMATION
28.01 Information Provided by Applicant to SWBT. Except as otherwise
specifically provided in this Agreement, all company-specific and
customer-specific information submitted by Applicant to SWBT in connection with
this Agreement (including but not limited to information submitted in connection
with Applicant's applications for the assignment of pole attachment and
occupancy space and for pole
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attachment and conduit occupancy licenses) shall be deemed to be "confidential"
or "proprietary" information of Applicant and shall be subject to the terms set
forth in this article. Confidential or proprietary information specifically
includes information or knowledge related to Applicant's review of records
regarding a particular market area, or relating to assignment of space to
Applicant in a particular market area, and further includes knowledge or
information about the timing of Applicant's request for or review of records or
its inquiry about SWBT facilities. This article does not limit the use by SWBT
of aggregate information relating to the occupancy and use of SWBT's poles,
ducts, conduits, and rights-of-way by firms other than SWBT (that is,
information submitted by Applicant and aggregated by SWBT in a manner that does
not directly or indirectly identify Applicant).
28.02 Access Limited to Persons with a Need to Know. Confidential or
proprietary information provided by Applicant to SWBT in connection with this
Agreement shall not be disclosed to, shared with, or accessed by any person or
persons (including but not limited to personnel involved in sales, marketing,
competitive intelligence, competitive analysis, strategic planning, and similar
activities) other than those who have a need to know such information for the
limited purposes set forth in Sections 28.03-28.06.
28.03 Permitted Uses of Applicant's Confidential Information.
Notwithstanding the provisions of Sections 28.01 and 28.02 above, SWBT and
persons acting on SWBT's behalf may utilize Applicant's confidential or
proprietary information for the following purposes: (a) posting information, as
necessary, to SWBT's outside plant records; (b) placing, constructing,
installing, operating, utilizing, maintaining, monitoring, inspecting,
repairing, relocating, transferring, conveying, removing, or managing SWBT's
poles, ducts, conduits, and rights-of-way and any SWBT facilities located on,
within, or in the vicinity of such poles, ducts, conduits, and rights-of-way;
(c) performing SWBT's obligations under this Agreement and similar agreements
with third parties; (d) performing SWBT's general obligations to afford
nondiscriminatory access to telecommunications carriers and cable television
systems under the Pole Attachment Act; (e) determining which of SWBT's poles,
ducts, conduits, and rights-of-way are (or may in the future be) available for
SWBT's own use, and making planning, engineering, construction, and budgeting
decisions relating to SWBT's poles, ducts, conduits, and rights-of-way; (f)
preparing cost studies; (g) responding to regulatory requests for information;
(h) maintaining SWBT's financial accounting records; and (i) complying with
other legal requirements relating to poles, ducts, conduits, and rights-of-way.
28.04 Access by Third Parties. Information reflecting the assignment of
pole attachment and conduit occupancy space to Applicant may be made available
to personnel of third parties seeking access to SWBT's records under provisions,
and subject to protections, equivalent to those contained and required by
Section 7.03 of this Agreement.
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28.05 Defense of Claims. In the event of a dispute between SWBT and any
person or entity, including Applicant, concerning SWBT's performance of this
Agreement, satisfaction of obligations under similar agreements with third
parties, compliance with the Pole Attachment Act, compliance with the
Telecommunications Act of 1996, or compliance with other federal, state, or
local laws, regulations, commission orders, and the like, SWBT may utilize
confidential or proprietary information submitted by Applicant in connection
with this Agreement as may be reasonable or necessary to demonstrate compliance,
protect itself from allegations of wrongdoing, or comply with subpoenas, court
orders, or reasonable discovery requests; provided, however, that SWBT shall not
disclose Applicant's proprietary or confidential information without first, at
SWBT's option: (a) obtaining an agreed protective order or nondisclosure
agreement that preserves the confidential and proprietary nature of Applicant's
information; (b) seeking such a protective order as provided by law if no agreed
protective order or nondisclosure agreement can be obtained; or (c) providing
Applicant notice of the subpoena, demand, or order and an opportunity to take
affirmative steps of its own to protect such proprietary or confidential
information.
28.06 Response to Subpoenas, Court Orders, and Agency Orders. Nothing
contained in this article shall be construed as precluding SWBT from complying
with any subpoena, civil or criminal investigative demand, or other order issued
or entered by a court or agency of competent jurisdiction; provided, however,
that SWBT shall not disclose Applicant's proprietary or confidential information
without first, at SWBT's option: (a) obtaining an agreed protective order or
nondisclosure agreement that preserves the confidential and proprietary nature
of Applicant's information; (b) seeking such a protective order as provided by
law if no agreed protective order or nondisclosure agreement can be obtained; or
(c) providing Applicant notice of the subpoena, demand, or order and an
opportunity to take affirmative steps of its own to protect such proprietary or
confidential information.
28.07 Other Uses of Confidential Information. No other uses of
confidential information received from Applicant pursuant to this Agreement are
authorized or permitted without Applicant's express written consent.
ARTICLE 29: NOTICES
29.01 Notices to Applicant. Except as otherwise provided in APPENDIX VI
("Notices to Applicant"), all written notices required to be given to Applicant
shall be delivered or mailed to Applicant's duly authorized agent or attorney,
as designated in this section.
(a) Such notice may be delivered to Applicant's duly authorized
agent or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to Applicant's duly authorized
agent or attorney by registered or certified mail, return
receipt requested. When
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notice is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official depository
under the care and control of the United States Postal
Service and shall be deemed to have been given three days
after the date of deposit.
(c) Applicant may authorize delivery of the notice by telephonic
document transfer to the Applicant's duly authorized agent
or attorney. Notice by telephonic document transfer after
5:00 p.m. local time of the recipient shall be deemed given
on the following day.
(d) Notices to Applicant shall be sent to the authorized agent
or attorney designated below:
Name: ______________________________________________________
Title: _____________________________________________________
Firm: ______________________________________________________
Address: ___________________________________________________
City/State/Zip: ____________________________________________
29.02 Notices to SWBT. Except as otherwise provided in APPENDIX VII
("Notices to SWBT"), all written notices required to be given to SWBT shall be
delivered or mailed to SWBT's duly authorized agent or attorney, as designated
in this section.
(a) Such notice may be delivered to SWBT's duly authorized agent
or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to SWBT's duly authorized agent or
attorney by registered or certified mail, return receipt
requested. When notice is given by mail, such notice shall
be complete upon deposit of the notice, enclosed in a
postpaid, properly addressed wrapper, in a post office or
official depository under the care and control of the United
States Postal Service and shall be deemed to have been given
three days after the date of deposit.
(c) SWBT may authorize delivery of the notice by telephonic
document transfer to SWBT's duly authorized agent or
attorney. Notice by telephonic document transfer after 5:00
p.m. local time of the recipient shall be deemed given on
the following day.
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(d) On the effective date of this Agreement, and until further
notice to Applicant, SWBT's duly authorized agent shall be
the Utility Liaison Supervisor ("ULS") designated in
APPENDIX VIII.
29.03 Changes in Notice Requirements. Either party may, from time to
time, change notice addressees and addresses by giving written notice of such
change to the other party. Such notice shall state, at a minimum, the name,
title, firm, and full address of the new addressee.
ARTICLE 30: DISPUTE RESOLUTION
30.01 Purpose. The provisions of this article are intended to minimize
litigation between the parties with respect to disputes arising in connection
with this Agreement and shall be construed accordingly. Any dispute between the
parties arising under this Agreement may be submitted by either party for
resolution under this article.
30.02 Exclusive Remedy for Monetary Claims under $25,000. Except for
actions seeking injunctive relief related to the purposes of this Agreement or
suits to compel compliance with the dispute resolution processes set forth in
this article, the parties agree to use the dispute resolution processes set
forth in this Agreement as their sole remedy with respect to any monetary claim
of $25,000 or less which arises out of or in connection with this Agreement.
30.03 Prerequisite to Litigation. The provisions of this article shall
also apply to all disputes, without regard to the amount in controversy, in
which Applicant contests charges billed by SWBT to Applicant under the terms of
this Agreement. No suit, except for actions seeking injunctive relief related to
the purposes of this Agreement or suits to compel compliance with the dispute
resolution processes set forth in this article, shall be filed by either party
against the other with respect to such contested charges until the parties have
engaged in good faith negotiations as provided in Section 30.04, and, if the
parties agree, in mediation under Section 30.05.
30.04 Good Faith Negotiation. Good faith negotiation as provided in
this section shall be the first step in the dispute resolution process.
(a) With respect to any dispute subject to the provisions of
this article, either party may initiate negotiation
proceedings by writing a certified or registered letter to
the other party setting forth the particulars of the
dispute, the terms of the Agreement that are involved, and a
suggested resolution of the problem.
(b) The recipient of the letter shall respond within 21 days to
the proposed solution. The recipient shall either agree to
the proposed solution or explain its disagreement.
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(c) If the correspondence does not resolve the dispute, each
party, at the request of either party, will appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve the dispute. The
location, form, frequency, duration, and conclusion of these
discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such
as mediation to assist in the negotiations.
(d) Discussions and correspondence among the representatives as
provided by this section are for purposes of settlement, are
exempt from discovery and production, and shall not be
admissible in arbitration, judicial, regulatory, or other
proceedings in any forum.
30.05 Mediation. If the parties agree to mediation, the mediation may be
conducted as provided in this section or in such other manner as may be mutually
agreeable to the parties.
(a) If agreed to by the parties, the dispute shall be referred
to the nearest office of the American Arbitration
Association, or such other mediator as may be selected by
agreement of the parties, for mediation, that is, an
informal, non-binding conference or conferences between the
parties in which a mediator will seek to guide the parties
to a resolution of the dispute.
(b) If the dispute is referred to the American Arbitration
Association, the parties are free to select any mutually
acceptable panel member from the list of mediators at the
American Arbitration Association. If the parties cannot
agree or have no particular choice of a mediator and simply
request that the American Arbitration Association assign a
mediator to the dispute, then a list and resumes of
available mediators, numbering one more than there are
parties, will be sent to the parties, each of whom may
strike one name leaving the remaining name as the mediator.
If more than one name remains, the designated mediator shall
be selected by the Administrator of the American Arbitration
Association from the remaining names.
(c) Mediation sessions shall be private.
(d) All records, reports or other documents considered by the
mediator shall be confidential.
(e) The parties agree that the mediator shall not be compelled
to divulge confidential materials or to testify about the
mediation in arbitration, regulatory, judicial, or other
proceedings in any forum.
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<PAGE> 387
(f) The parties agree to maintain the confidentiality of the
mediation and shall not rely on, or introduce as evidence in
any arbitration, judicial, or other proceeding:
(1) views expressed or suggestions made by the other party
with respect to a possible settlement of the dispute;
(2) admissions made by the other party during the mediation
proceedings;
(3) proposals made or views expressed by the mediator; or
(4) the fact that the other party had or had not indicated
willingness to accept a proposal for settlement made by
the mediator.
(g) Subsections (e) and (f) of this section shall apply to
anything said, done or occurring in the course of the
mediation, including any private caucus or discussions
between the mediator and any party or counsel before or
after the joint mediation session. There shall be no
stenographic record of the mediation process, except to
memorialize a settlement record.
(h) The mediation process shall be considered settlement
negotiation for the purpose of all state and federal rules
protecting disclosures made during such conferences from
later discovery or use in evidence. All conduct, statements,
promises, offers, views, and opinions, oral or written, made
during the mediation by any party or a party's agent,
employee, or attorney are confidential and, where
appropriate, are to be considered work product and
privileged. Such conduct, statements, promises, offers,
views, and opinions shall not be subject to discovery or
admissible for any purpose, including impeachment, in any
litigation or other proceeding involving the parties;
provided, however, that evidence otherwise subject to
discovery or admissible is not excluded from discovery or
admission in evidence simply as a result of its having been
used in connection with this settlement process.
30.06 Arbitration. If negotiations and mediations do not resolve the
dispute within 90 days after the initiation of dispute resolution proceedings as
provided in subsection (a) of Section 30.04 of this Agreement, the dispute shall
be submitted to binding arbitration by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association if the
dispute involves any monetary claim of $25,000 or less which arises out of or in
connection with this Agreement. The parties may voluntarily elect to arbitrate
disputes in which the amount in controversy exceeds $25,000, but they shall not
be required by this Agreement to do so.
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<PAGE> 388
(a) Either party may demand such arbitration in accordance with
the procedures set out in the Commercial Arbitration Rules.
(b) Discovery shall be controlled by the arbitrator and shall be
permitted to the extent set out in this subsection.
(1) Each party may submit in writing to any other party,
and such other party shall so respond, to a maximum of
any combination of 35 of the following:
interrogatories, document production requests, and
requests for admissions. The interrogatories, document
production requests, and requests for admissions shall
not have subparts.
(2) Additional discovery may be permitted upon mutual
agreement of the parties or upon order of the
arbitrator on a showing of good cause.
(c) The arbitrator shall control the scheduling so as to process
the matter expeditiously. The times set forth in this
subsection shall apply unless extended upon mutual agreement
of the parties or by the arbitrator on a showing of good
cause.
(1) The arbitration hearing shall commence within 60 days
of the demand for arbitration and shall be held, in the
absence of agreement by the parties to a different
venue, in St. Louis, Missouri.
(2) The parties shall submit written briefs five days before
the hearing.
(3) The arbitrator shall rule on the dispute by issuing a
written opinion within 30 days after the close of
hearings.
(4) The arbitrator shall have no authority to order punitive
or consequential damages.
(5) Judgment upon the award rendered by the arbitrator may
be entered in any court of competent jurisdiction.
30.07 Costs. Except as specifically provided in this section, each party
shall bear its own costs of all dispute resolution procedures under this
article.
(a) A party seeking discovery shall reimburse the responding
party for the costs incurred by the responding party in
producing documents.
(b) The parties shall equally split the fees of the arbitration
and the arbitrator.
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30.08 No Abridgment of Rights under the Communications Act of 1934 or
the Pole Attachment Act. Nothing contained in this article shall abridge the
rights of either party to seek relief from the FCC with respect to any dispute
subject to the jurisdiction of the FCC under the Communications Act of 1934 or
the Pole Attachment Act, or from the State Commission with respect to any
dispute subject to its jurisdiction, except that the parties may not seek relief
from the FCC or the State Commission with respect to any dispute that has
already been resolved by mediation under Section 30.05 or by binding arbitration
under Section 30.06.
ARTICLE 31: ACCESS TO APPLICANT'S
POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY
31.01 No Reciprocal Access to Applicant's Facilities. This Agreement
does not include provisions for reciprocal access by SWBT to Applicant's poles,
ducts, conduits, and rights-of-way.
ARTICLE 32: GENERAL PROVISIONS
32.01 Entire Agreement. This Agreement, together with the
interconnection agreement, if any, to which this Agreement is an
appendix,attachment, or exhibit, sets forth the entire understanding and
agreement of the parties.
32.02 Prior Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, whether written or oral, between Applicant and
SWBT relating to the placement and maintenance of Applicant's facilities on and
within SWBT's poles, ducts, and conduits within this State.
32.03 Amendments Shall Be in Writing. Except as otherwise specifically
provided to the contrary by other provisions of this Agreement, the terms and
conditions of this Agreement shall not be amended, changed or altered except in
writing and with approval by authorized representatives of both parties.
32.04 Survival of Obligations. Any liabilities or obligations of either
party for acts or omissions prior to the termination of this Agreement, any
obligations of either party under provisions of this Agreement relating to
confidential and proprietary information, indemnification, limitations of
liability, and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or be performed after) termination of this Agreement,
will survive the termination of this Agreement.
32.05 Multiple Counterparts. This Agreement may be executed in
multiple counterparts.
32.06 Effect on Licenses Issued Under Prior Agreements. All currently
effective pole attachment and conduit occupancy licenses granted to Applicant
shall, on the
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<PAGE> 390
effective date of this Agreement, be subject to the rates, terms, conditions,
and procedures set forth in this Agreement.
32.07 Force Majeure. Except as otherwise specifically provided in this
Agreement, neither party will be liable for any delay or failure in performance
of any part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, disputes,
freight embargoes, earthquakes, volcanic actions, wars, civil disturbances,
cable cuts, or other causes beyond the reasonable control of the party claiming
excusable delay or other failure to perform; provided, however, that Force
Majeure will not include acts of any governmental authority relating to
environmental, health, or safety conditions at work locations. If any Force
Majeure condition occurs, the party whose performance fails or is delayed
because of such Force Majeure condition will give prompt notice to the other
party, and, upon cessation of such Force Majeure condition, will give like
notice and commence performance hereunder as promptly as reasonably practicable.
32.08 Severability. If any article, section, subsection, or other
provision or portion of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not materially alter
the essence of this Agreement as to either party, the invalidity of such
provision shall not render this entire Agreement unenforceable and this
Agreement shall be administered as if it did not contain the invalid provision.
32.09 Choice of Law. Except to the extent that federal law controls any
aspect of this Agreement, the validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and duties of the
parties will be governed by the laws of this State, applied without regard to
the provisions of this State's laws relating to conflicts-of-laws.
32.10 Changes in the Law. Because the primary purpose of this Agreement
is to provide access to poles, ducts, conduits, and rights-of-way in accordance
with the Pole Attachment Act, as amended by the Telecommunications Act of 1996
and subsequent amendments, the parties contemplate that changes in this
Agreement may from time to time be necessary or desirable to conform to changes
in the Pole Attachment Act as that Act is amended, interpreted, and applied.
This Agreement is based in large part on regulatory decisions by the FCC, which
has jurisdiction over the rates, terms, and conditions of access to poles,
ducts, conduits, and rights-of-way (except to the extent that such jurisdiction
has been pre-empted by individual states) and decisions by the State Commission.
More specifically, this Agreement is based in large part on the FCC's First
Interconnection Order in CC Docket No. 96-98, on FCC rules announced with the
First Interconnection Order, and on Arbitration Orders by the State Commission.
[ ] Applicant desires to have access to SWBT's poles, ducts,
conduits, and rights-of-way on terms that are not less
favorable than those obtained by firms participating in
interconnection arbitration
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proceedings before the State Commission. Applicant also
desires to have access to SWBT's poles, ducts, conduits,
and rights-of-way to the full extent permitted under the
FCC's First Interconnection Order in CC Docket No. 96-98.
SWBT is entering into this Agreement for the purpose of
providing nondiscriminatory access in compliance with the
Pole Attachment Act and regulatory decisions thereunder,
including decisions by the State Commission in
interconnection arbitration proceedings in which
Applicant is not a party. Each party is entering into
this Agreement based on current interpretations of the
law by the FCC and State Commission. In the event of any
changes in the Pole Attachment Act, changes in applicable
FCC or State Commission rulings, or judicial
determinations that such rulings are erroneous or
invalid, each party shall, at the request of the other,
engage in good faith negotiations to supplement, amend or
replace any provisions of this Agreement affected by such
changes or determinations and to conform this Agreement
to changes in the underlying laws on which the Agreement
is based.
[ ] This Agreement has been entered into as a result of
private negotiation between the parties and arbitration
by the State Commission, acting pursuant to the
Telecommunications Act of 1996. If the actions of any
legislative bodies, courts, or regulatory agencies of
competent jurisdiction invalidate, modify, or stay the
enforcement of laws, rules, regulations, or commission
orders that were the basis for a provision of this
Agreement (including but not limited to any provision of
this Agreement required by any arbitration award approved
by the State Commission), the affected provision shall be
invalidated, modified, or stayed as required by action of
the legislative body, court, or regulatory agency. In the
event of such a change in the law, each party shall
expend diligent efforts to arrive at an agreement
respecting the modifications to the Agreement required by
the law or requested in good faith by the other party. If
negotiations fail, disputes between the parties
concerning interpretation of the actions required or
provisions affected by such governmental actions shall be
resolved pursuant to the dispute resolution process
provided for in the interconnection agreement or this
Agreement; provided, however, that this section shall not
be construed as precluding either party from seeking
appropriate relief from the FCC in connection with the
parties' rights and obligations under the Pole Attachment
Act. In the event of any material change in the law, each
party agrees to enter into good faith negotiations to
conform this Agreement to the changes in the law.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
SOUTHWESTERN BELL TELEPHONE COMPANY
By: ____________________________________________________________________
Signature of SWBT's Authorized Officer/Employee
____________________________________________________________________
Name of SWBT's Authorized Officer/Employee (Printed or Typed)
____________________________________________________________________
Position/Title of SWBT's Authorized Officer/Employee
____________________________________________________________________
Date
____________________________________________________________________
City and State of Execution by SWBT
__________________________________________________________________________
Applicant's Name (Printed or Typed)
By: ____________________________________________________________________
Signature of Applicant's Authorized Officer/Employee
____________________________________________________________________
Name of Authorized Officer/Employee (Printed or Typed)
____________________________________________________________________
Position/Title of Authorized Officer/Employee
____________________________________________________________________
Date
____________________________________________________________________
City and State of Execution by Applicant
PAGE 108
<PAGE> 393
Agreement No. _______________________
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (ARKANSAS) -- PAGE 1 OF 4
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and sets forth
the rates, fees and charges to be paid by Applicant to SWBT pursuant to the
Master Agreement and licenses subject to the Master Agreement. The rates, fees,
and charges set forth in this Appendix shall be subject to all applicable laws,
rules, regulations, and commission orders as provided in Section 19.01 of the
Master Agreement and shall be subject to revision as provided in Section 19.12
of the Master Agreement.
A) Pole Attachment Fees
1) General
a) For billing purposes, pole attachments shall be considered
i) to have commenced on the first to occur of the following
dates: the date of assignment (or provisional assignment) of
pole attachment space, the date a license for such pole
attachment is issued, or the date of actual attachment and
ii) to have ended on the last to occur of the following
dates: the date Applicant's assignment lapses or is
relinquished, the date of actual removal of the attached
facilities from SWBT's pole, or the date of termination of
Applicant's license.
b) Fees shall be payable semiannually in advance on the first
days of January and July and shall be prorated on a daily
basis as provided in Section 19.04. Fees for pole
attachments shall be based on the number of pole attachments
as of the date of billing. If Applicant occupies more than
one usable space on a pole, separate attachment fees shall
apply to each space occupied. For billing purposes, a single
pole attachment includes the point of attachment and all
facilities located in the usable space on the pole in the
space assigned to Applicant (typically six inches above and
six inches below the point of attachment), together with
routine ancillary apparatus such as anchors, anchor/guy
strands, drive rings, J-hooks, dead-end clamps, and other
apparatus which does not interfere with the ability of SWBT
to occupy or assign usable space on the pole other than the
usable space licensed to Applicant. Fees for pole space
assignments and unauthorized pole attachments shall be
billed in the same manner as if a license had been issued.
2) Fees (1997 Rates)
Semiannual Pole Attachment Fees Annual Semiannual
Per pole attachment (cable service only) $ 2.35 $ 1.175
------ -------
Per pole attachment (telecommunications
carriers) $ 2.35 $ 1.175
------ -------
Per pole attachment (other) $ N/A $ N/A
------ -------
<PAGE> 394
APPENDIX I
SCHEDULE OF FEES AND CHARGES (ARKANSAS) -- PAGE 2 OF 4
B) Conduit Occupancy Fees
1) General
a) For billing purposes, conduit occupancy shall be considered
to have i) begun on the first to occur of the following
dates: the date of assignment (or provisional assignment) of
conduit occupancy space, the date a license for such conduit
occupancy is issued, or the date of actual occupancy; and
ii) ended on the last to occur of the following dates: the
date Applicant's assignment lapses or is relinquished, the
date of actual removal of the attached facilities from
SWBT's conduit, or the date of termination of Applicant's
license. Occupancy ends when facilities have been removed
from SWBT's conduit system and required post-removal
procedures (e.g., plugging - - ducts) have been completed.
Fees for conduit space assignments and unauthorized conduit
occupancy shall be billed in the same manner as if a license
had been issued.
b) Fees shall be payable semiannually in advance on the first
days of January and July.
(2) Fees (1997 Rates)
Semiannual Per Foot Conduit Occupancy Fees Annual Semiannual
Full duct/duct foot (cable service only) $ 0.41/ft $ 0.205/ft
---------- -----------
Full duct/duct foot (telecommunications
carriers) $ 0.41/ft $ 0.205/ft
---------- -----------
Full duct/duct foot (other) $ N/A $ N/A
---------- -----------
Half duct/duct foot (cable service only)* $ 0.205/ft $ 0.1025/ft
---------- -----------
Half duct/duct foot (telecommunications
carriers)* $ 0.205/ft $ 0.1025/ft
---------- -----------
Half duct/duct foot (other)* $ N/A $ N/A
---------- -----------
*Each inner duct is billed at the half duct rate.
a) Facility footage shall be measured i) from the center of one
manhole to the center of an adjacent manhole if the facility
runs between two manholes, ii) from the center of a manhole
to the end of a duct not terminated in a manhole, or iii)
from the center of a manhole to the property line if the
duct is connected at the property line to a duct owned and
controlled by a third-party property owner.
b) Semiannual full duct conduit occupancy fees will apply to
the first facility placed in a previously unoccupied duct
except as provided in c)-d) below.
c) If two or more facilities occupy a duct that has not been
subdivided by inner duct, a semiannual half duct conduit
occupancy fee will be charged for each facility placed in
the duct.
<PAGE> 395
Agreement No. __________
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES (ANKANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and contains
administrative forms referred to in the Master Agreement or used in connection
with the provision of access to SWBT's poles, ducts, conduits, and
rights-of-way. The forms are forms presently in use and have not been conformed
to the Master Agreement. The forms may be further revised by SWBT to conform to
the Master Agreement and revised from time to time to reflect changes in the
applicable law, changes in the Master Agreement, and changes in the procedures
through which access to poles, ducts, conduits, and rights-of-way is afforded by
SWBT to Applicant and others.
SW-9433: Pole Attachments
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole
Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of Conduit
Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by Applicant
<PAGE> 396
<TABLE>
<S><C>
[LOGO] Southwestern Bell Telephone
Retention Period: Active, Plus 5 Years Pole Attachments PAGE ___ OF ____
FIRM'S NAME: _____________________________ [ ] Provisional, Records Based Assignment TYPE: __________
AGREEMENT No.: ___________________________ [ ] Pre-Occupancy Survey
APPLICATION No.: _________________________ (CATV, Telecom, Other)
Item Record Pole Ownership Street Proposed Guy Make Ready Make Ready Pole Mntd
# # # SWBT or Address Attachment Rq'd Work Description Apparatus
Power Height Y or N Y or N Height
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
TOTAL
Number of Cables _____________________ Other Notes: ______________________________
Weight/per ft. and Size/O.D. ____________ ____________________________________________
Number and Types of Strands ____________ ___________________________________________
Date: _____________
Time: _____________
SIGNED: ____________________________________ SIGNED: ____________________________________
SWBT Representative Applicant's Representative
/ / Official File Copy, If Checked in Red
</TABLE>
SW-9433
(Rev. 3-97)
<PAGE> 397
SW9433
POLE ATTACHMENTS
FORM INSTRUCTIONS
From SW9433 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete the
SW9433 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring pole attachment space
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant elects
to a Provisional, Records Based Assignment. The form will be signed and dated at
the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or the SWBT mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company based on SWBT's records.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Not required for Provisional, Records Based assignment.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based assignment.
Pole Mntd Apparatus Height: Not required for Provisional, Records Based
assignment.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs
that the Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the Provisional,
Records Based Assignment was made.
<PAGE> 398
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by SWBT.
[ ] Pre-Occupancy Survey: This would be checked when this form is being used as
a Pre-Occupancy Survey. The form would be completed in its entirety and signed
by the applicant and submitted to SWBT for review in obtaining pole attachment
space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Record #: The SWBT paper record or mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company.
Street Address: Applicant will provide street address or geographical reference
point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Applicant will state if a guy is required. (Yes or No).
Make Ready Work: Applicant will state if make ready work is required. (Yes or
No).
Make Ready Description: Applicant will give description of make ready
work required.
Pole Mntd Apparatus Height: Applicant will state any proposed apparatus that
would be placed on the pole. (Terminal, etc.)
Number of Cables: Applicant will state the number of cables that will be placed
on the pole.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 399
<TABLE>
<S><C>
[LOGO] Southwestern Bell Telephone Access Application and Make-Ready Authorization
Retention Period: Active, plus 5 years (Request for Access to Poles, Ducts, Conduit)
Name of Applicant ______________________________________________________________
Agreement No. __________________________________________________________________
Application No. ________________________________________________________________
Provisional Assignment
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for a provisional assignment of space in anticipation of a
nonexclusive license of communication facilities to access the quantity of SWBT
facilities indicated below:
______ SWBT poles _____ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant desires immediate assignment of space and acknowledges that the
effective date is ____________________. Applicant agrees to provide an
application for assignment/access/occupancy of the assigned space within 30 days
from the date of the assignment, or forfeit the assignment.
Expiration Date: ___________________
Assignment/Access/Occupancy
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for occupancy of space through a nonexclusive license of
communication facilities to access the quantity of SWBT facilities indicated
below:
______ SWBT poles ______ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant authorizes SWBT to perform the required pre-licensing survey
including any field inspections required to evaluate capacity, safety,
reliability, and engineering standards; and to determine the cost, if any, of
required modifications or make-ready work.
Expiration Date: _____________________
Applicant's Estimated Construction Start Date: ________________________
Applicant's Estimated Construction Completion Date: ___________________
Authorized by Applicant: __________________________________________
Signature Title
Date: ____________________________
Make-Ready Work
Estimated Costs Hours Rate Total
Constr. Labor ____ x $___________ $_____________
Material XXX x $ XXX $_____________
Engr. Design ____ ___________ $_____________
Total ____ x $___________ $_____________
Estimated SWBT Completion Date
/ / No Make-Ready Work Required / / No Make-Ready Work Required under 8.03(a)
/ / Make-Ready Work will be completed by applicant's authorized contractor.
/ / I authorize SWBT to complete the required make-ready work. Payments due upon 50% completion and 100%
completion. Costs will be based upon actual costs incurred by SWBT. (This may vary depending on state)
___________________________________________________ Date: _____________________________
Applicant's Signature Title
License No. __________________ Authorized by SWBT: _________________________________
Date: _________________________ Signature Title
/ / Official File Copy, If Checked In Red
</TABLE>
<PAGE> 400
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
Form SW-9434 is used to request access to poles, ducts, and conduit; to transmit
notice of Provisional Assignments; and to provide other information required in
the access process.
REQUIRED INFORMATION
NAME OF APPLICANT. Name of firm requesting space on poles or in conduit.
AGREEMENT NO. Number obtained from the Master Agreement Number.
APPLICATION NO. Will be provided by applicant in sequential ascending order.
PROVISIONAL ASSIGNMENT BOX DATA
"ATTACHED DOCUMENTS" Copies of the Assignment Of Space Logs showing the
applicant's entries for the requested space or completed Forms SW-9433
or SW-9435 if appropriate. Assignment is not official until the
required data is entered in the Assignment Of Space Log.
_____ SWBT POLES The number of poles for which space is
requested.
_____ FEET SWBT WHOLE DUCT The accumulated Center-to-Center
measurements for the Whole Duct to be occupied. To be used
ONLY FOR CABLES TOO LARGE IN DIAMETER (Typically copper
conductor cables.) to fit in SWBT standard innerduct
_____ FEET SWBT INNERDUCT The accumulated Center-to-Center
measurements for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
PROVISIONAL ASSIGNMENT EXPIRATION DATE: 30 calendar days from the date
entered in the Assignment of Space Log (i.e., Date Application
must be submitted to hold the assignment of space.)
ASSIGNMENT/ACCESS/OCCUPANCY BOX DATA
"ATTACHED DOCUMENTS" Completed Forms SW-9433 and/or SW-9435.
_____ SWBT POLES The number of poles to be accessed.
_____ FEET SWBT WHOLE DUCT The accumulated Center-to-Center
measurements for the Whole Duct to be occupied. To be used
ONLY FOR CABLES TOO LARGE IN DIAMETER (Typically copper
conductor cables.) to fit in SWBT standard innerduct
_____ FEET SWBT INNERDUCT The accumulated Center-to-Center
measurements for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
ASSIGNMENT EXPIRATION DATE: 12 Months from the date entered in
Assignment Of Space Log (Date facilities must be placed to avoid
forfeiture of assigned space.)
PAGE 1
<PAGE> 401
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
APPLICANT'S ESTIMATED CONSTRUCTION START DATE: Current "best estimate" of the
date project construction will begin. "ASAP" IS NOT AN ACCEPTABLE DATE.
APPLICANT'S ESTIMATED CONSTRUCTION COMPLETION DATE: Current "best estimate" of
the date placements and splicing will be completed. "ASAP" IS NOT AN ACCEPTABLE
DATE.
AUTHORIZED BY APPLICANT: Signature and Title of the Applicant's representative
authorizing the request for access and payment (if any) of related SWBT
engineering charges in connection with such access.
DATE: Date of authorization by Applicant's representative.
MAKE-READY WORK BOX DATA
ESTIMATED COSTS: SWBT will calculate data for Construction Labor,
Material, and Engineering Design hours and summarize the TOTAL
estimated SWBT Make-Ready Costs.
ESTIMATED SWBT COMPLETION DATE: SWBT Engineering will provide the
estimated completion date of SWBT Make-Ready Work based upon current
scheduling loads.
[ ] NO MAKE-READY WORK REQUIRED. Applicant should check this box if it
has determined that fully code/specifications-compliant access can be
granted without any work or modifications by SWBT or other parties. If
inner duct must be placed, box should not be checked.
[ ] MAKE-READY WORK WILL BE COMPLETED BY APPLICANT'S AUTHORIZED
CONTRACTOR. If Applicant plans to utilize a mutually approved
authorized contractor to perform ALL the Make-Ready work, this box only
should be checked.
[ ] I AUTHORIZE SWBT TO COMPLETE THE REQUIRED MAKE-READY WORK.... If
Applicant wants SWBT to perform all the Make-Ready Work, this box only
should be checked.
IF SOME MAKE-READY WORK MUST BE DONE BY SWBT AND SOME WILL BE DONE BY
THE APPLICANT'S AUTHORIZED CONTRACTOR, THE LAST TWO BOXES SHOULD BE
CHECKED. A DETAILED DESCRIPTION OF THE WORK TO BE DONE BY SWBT MUST BE
INCLUDED.
APPLICANT'S SIGNATURE, TITLE AND DATE:
If the No Make-Ready Work Required box is checked by
Applicant, Applicant's Signature confirms the accuracy of the
current Applicant construction schedule. If the Not Make-Ready
Work Required under 8.03(a) box is checked, Applicant confirms
conditions under 8.03 Immediate Occupancy apply.
If Make-Ready Work will be completed by Applicant's Authorized
contractor is checked, Applicant's signature concurs with any
changes in proposed Make-Ready work identified by SWBT and
confirms the accuracy of the current schedule.
If SWBT will perform any Make-Ready Work, Applicant's
signature authorizes payment to SWBT of actual cost to perform
the required make-ready work.
LICENSE NO. ______ AUTHORIZED BY SWBT: The SWBT State ULS will authorize, date,
and issue the License No. on the SW-9434 which becomes the Applicant's
License For Access.
PAGE 2
<PAGE> 402
<TABLE>
<S><C>
[LOGO] Southwestern Bell Telephone
Retention Period: Active, Plus 5 Years Conduit Occupancy PAGE ___ OF ____
FIRM'S NAME: ____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT NO.: __________________________ [ ] Pre-Occupancy Survey TYPE: __________
APPLICATION NO.: ________________________
(CATV, Telecom, Other)
ITEM OPER. RECORD MANHOLE STREET DISTANCE TO PROPOSED MAKE READY MAKE READY
# # # # ADDRESS NEXT MANHOLE DUCT OR WORK DESCRIPTION
1 (CTR TO CTR) INNERDUCT Y OR N
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
TOTAL
NUMBER OF CABLES ___________________ SPLICE INFORMATION MANHOLE # ___________________, DETAILS ________________
SIZE OF CABLE (O.D. INCHES) ______________ SPLICE INFORMATION MANHOLE # ____________________, DETAILS ________________
SLACK LOOP INFO. MANHOLE # ____________________, DETAILS ________________
SLACK LOOP INFO. MANHOLE # ____________________, DETAILS ________________
Date: _____________
Time: _____________
SIGNED: ____________________________________ SIGNED: _________________________________
SWBT Representative Applicant's Representative
/ / Official File Copy, If Checked in Red
SW-9435
</TABLE>
<PAGE> 403
SW9435
CONDUIT OCCUPANCY
FORM INSTRUCTIONS
From SW9435 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete the
SW9435 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring duct and/or inner duct space.
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant would
make a Provisional, Records Based Assignment. The form will be signed and dated
at the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: Applicant indicates that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Proposed Duct or Inner duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based assignment.
Number of Cables: Applicant will enter the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Slack Loop Info. Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the Provisional,
Records Based Assignment was made.
<PAGE> 404
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Pre-Occupancy Survey: Applicable when this form is being used as a
Pre-Occupancy Survey. The form would be completed in its entirety by the
applicant and submitted to SWBT for review in obtaining conduit space.
Type: Applicant indicates that they are a CATV, a Telecommunications Carrier or
a firm other than the aforementioned two.
Oper. #: Applicant will provide the operation number when required. The same
operation number may very well be referenced on an attached map.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Distance to Manhole: Applicant will state the distance from manhole to manhole
in feet.
Proposed Duct or Inner duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Applicant will state if make ready work is required.
(Yes or No)
Make Ready Description: Applicant will give description of make ready work
required.
Number of Cables: Applicant will indicate the number of cables.
Size of Cable (O.D. Inches): Applicant will indicate size of cable.
Splice Information Manhole #: Applicant will enter any relevant splice
information.
Details: Applicant will provide any relevant details regarding splice
information.
Slack Loop Info. Manhole #: Applicant will provide.
Details: Applicant will provide any relevant Slack Loop Information.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 405
[LOGO]
SOUTHWESTERN BELL SW-9436A
TELEPHONE (Rev. 5-89)
Ref: 002-011-900SW
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
Page ____ of _____
Agreement Number _____________________
_____________________________________
(Licensee)
_____________________________________
(Address)
_____________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the License Agreement between us,
dated ________, 19__, notice is hereby given that the licenses covering
attachments to the following poles and/or anchors and/or utilization of
anchor/guy strand is surrendered (or modified as indicated in Licensee's prior
notification to Licensor, dated ___________________, 19___,) effective
_______________________.
<TABLE>
<CAPTION>
DATE FAC.
ANCHOR A/GS RMVD. OR
POLE NO. (ASSOC. POLE NO.) LIC. NO. & DATE SURRENDEER OR MODIFICATION MODIFIED
<S> <C> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Date Notification Received _____________________
_____________________________________________________
Date Modification Accepted _____________________ Name of Licensee
By _____________________________________________
Discontinued: By ________________________________________________
Poles _______________ Title _______________________________________________
Anchors ______________________
Anchor/Guy Strands ____________________
</TABLE>
REF: 002-011-900SW
<PAGE> 406
[LOGO]
SOUTHWESTERN BELL
Telephone
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY APPLICANT
Page ____ of _____
License Agreement # ______________
_________________________________________
(Applicant)
_________________________________________
(Address)
_________________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the Licensing Agreement between
us, dated ________, 19__, notice is hereby given that the licenses covering
occupancy of the following conduit are surrendered (or modified as indicated in
Applicant's prior notification to SWBT, dated ___________________, 19___,)
effective _________.
<TABLE>
<CAPTION> DATE
FAC. RMVD. OR
CONDUIT LOCATION LIC. NO. & DATE SURRENDER OR MODIFICATION MODIFIED
<S> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Date Notification Received _____________________ ______________________________________
S Date Modification Accepted _____________________ (Applicant)
W By _____________________________________________
B Discontinued: __________________________________ By ___________________________________
T (Name of Authorized Agent)
Total duct footage ___________ Title _____________________________
(Title of Authorized Agent)
</TABLE>
Ref: 002-011-900SW SW-9436B
(Rev. 6-96)
<PAGE> 407
[LOGO]
SOUTHWESTERN BELL
Telephone
NOTIFICATION OF UNAUTHORIZED
ATTACHMENTS BY APPLICANT
Applicant Name ________________________________
In accordance with the terms and conditions of the License Agreement between us,
dated _____, 19__, notice is hereby given that the license covering
attachments to the following is unauthorized (as indicated in Applicant's prior
agreement to SWBT, dated ______________________, 19___,) effective
____________________.
SOUTHWESTERN BELL TELEPHONE
By: _______________________
Title: ____________________
<TABLE>
<CAPTION>
POLE NO. LOCATION DATE FAC.
OR (ASSOC. POLE NO.) RMVD. OR
CONDUIT # MANHOLES involved LIC. NO. & DATE UNAUTHORIZED ATTACHMENT MODIFIED
<S> <C> <C> <C> <C>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
_________________________________
SKETCH OF NAME OF APPLICANT
UNAUTHORIZED
ATTACHMENTS / / BY _____________________________
ATTACHED
DATE NOTIFICATION TITLE __________________________
SENT ____________________
</TABLE>
REF: SW002-011-900 SW-9436C
(Rev. 6-96)
<PAGE> 408
Agreement No. __________
APPENDIX IV
INSURANCE REQUIREMENTS (ARKANSAS) -- PAGE 1 OF 4
This Appendix IV is an integral part of the Master Agreement for Access
to Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
1) Premises. As used in this Appendix, the term "premises" refers to
any site located on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way and any location where Applicant or any person acting
on Applicant's behalf may be physically present while traveling to or departing
from any such site.
2) Requirements Applicable to Applicant and All Persons and Entities
Acting on Applicant's Behalf. Applicant shall maintain, at all times during the
term of this Master Agreement, all insurance and coverages set forth below. Such
insurance and coverages shall not only cover Applicant but all contractors,
subcontractors, and other persons or entities acting on Applicant's behalf at
the premises described in 1) above. Applicant should require that all
contractors, subcontractors, and other persons or entities acting on Applicant's
behalf at premises described in 1) above obtain the same insurance and
coverages.
3) Workers' Compensation Insurance. Applicant shall maintain, at all
times during the term of this Agreement, Workers' Compensation Insurance and
Employer's Liability Insurance with minimum limits of $100,000 for bodily
injury-each accident, $100,000 for bodily injury by disease-each employee, and
$500,000 for bodily injury by disease-policy limits, for all employees
performing work or otherwise present on the premises described in 1) above. Such
insurance must comply with the Workers' Compensation laws of this State and
shall provide coverage, at a minimum, for all benefits required by such Worker's
Compensation laws. Applicant shall require any contractor, subcontractor, or
other person or entity acting on Applicant's behalf to provide Workers'
Compensation Insurance and Employer's Liability Insurance for their respective
employees unless such employees are covered by the protection afforded by
Applicant.
4) General Liability Insurance. To protect SWBT and any joint user from
any liability for bodily injury or property damage, Applicant shall maintain, at
all times during the term of this Agreement, General Liability insurance
satisfactory to SWBT. SWBT shall be added as an additional insured in the
standard policy or an endorsement thereto. Applicant shall also require any
contractor, subcontractor, or other person or entity acting on Applicant's
behalf to provide General Liability coverage with the same limits and with SWBT
added as an additional insured unless such contractor, subcontractor, or other
person or entity is covered by the General Liability protection afforded by
Applicant.
a) The following coverages must be included in (and may not be
excluded from) the policy or policies obtained to satisfy
the General Liability insurance requirements of Applicant
and any contractor, subcontractor, or other person or entity
acting on Applicant's behalf. The coverages may be provided
by the standard policy or endorsements thereto. Exclusion
endorsements deleting these coverages will not be accepted.
<PAGE> 409
APPENDIX IV
INSURANCE REQUIREMENTS (ARKANSAS) -- PAGE 2 OF 4
1) Personal Injury and Advertising Injury coverage.
2) Premises/Operations coverage, including also coverage
for any newly acquired ownership or controlled
premises or operations.
3) Independent Contractors coverage to provide
protection for Applicant's contractors,
subcontractors, and other persons or entities acting
on Applicant's behalf.
4) Explosion, Collapse, and Underground Hazard (XCU)
coverage.
5) Completed Operations coverage providing for bodily
injury and property damage liabilities which may
occur once the operations have been completed or
abandoned.
6) Contractual Liability coverage to provide financial
responsibility for the Applicant to meet its
indemnification obligations.
7) Broad Form Property Damage (BFPD) coverage for damage
to property in the care or custody of Applicant and
damage to work performed by or on behalf of the
Applicant.
b) Minimum policy limits shall be as follows:
General Aggregate Limit: $1,000,000.
Sublimit for all bodily injury, property damages, or medical
expenses incurred in any one occurrence: $1,000,000.
Sublimit for personal injury and advertising: $1,000,000.
Products/Operations Aggregate Limit: $1,000,000.
Each occurrence sublimit for Products/Operations:
$1,000,000.
c) No coverage shall be deleted from the standard policy
without notification of individual exclusions being attached
for review and acceptance.
d) Policy language or endorsements adding SWBT as an additional
insured shall not include exclusions or exceptions which
defeat the purpose of protecting SWBT
<PAGE> 410
APPENDIX IV
INSURANCE REQUIREMENTS (ARKANSAS) -- PAGE 3 OF 4
from any liability for bodily injury or property damage
arising out of Applicant's operations.
5) Automobile Liability insurance. The parties contemplate that
Applicant and personnel acting on Applicant's behalf will utilize automobiles,
trucks, and other motor vehicles on public and private property, including
public rights of way, in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Accordingly, Applicant shall maintain, at all times during the
term of this Agreement, Automobile Liability insurance with minimum limits of
$1,000,000 combined single limits per occurrence for bodily injury and property
damage which may arise out of the operation or use of motor vehicles of any
type. Coverage shall extend to "any auto" -- that is, coverage shall be extended
to all owned, non-owned, and hired vehicles used by Applicant or by any person
or entity acting on Applicant's behalf in connection with any work performed, or
to be performed, on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way.
6) Layering of General Liability and Automobile Liability coverages.
Applicant's insurance may be written via a primary policy with either an excess
or umbrella form over the primary policy. If coverage is written in this manner,
the total of the combined policy limits must meet or exceed the minimum limits
specified in this Agreement.
7) Deductibles. No deductibles shall be allowed without the express
written consent of SWBT.
8) Claims Made Policies. Claims Made Policies will not be accepted.
9) Proof of Insurance. Certificates of Insurance stating the types
of insurance and policy limits provided the insured, or other proof of insurance
satisfactory to SWBT, must be received by SWBT prior to the issuance of any
licenses pursuant to this Agreement and before Applicant or any person acting on
Applicant's behalf performs any work on the premises described in 1) above.
a) Certificates of Insurance using the insurance industry
standard ACORD form are preferred.
b) Certificates provided with respect to General Liability
policies and certificates provided with respect to
Automobile Liability policies shall indicate SWBT as an
Additional Insured.
c) Deductibles, if permitted, shall be listed on the
Certificate of Insurance.
d) The cancellation clause on the certificate of insurance
shall be amended to read as follows:
<PAGE> 411
APPENDIX IV
INSURANCE REQUIREMENTS (ARKANSAS) -- PAGE 4 OF 4
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED OR MATERIALLY CHANGED BEFORE THE EXPIRATION
DATE, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT."
A certificate which does not include the phrase "or
materially changed" does not meet SWBT's requirements. A
certificate reciting that the issuing company will "endeavor
to" mail 30 days written notice to the certificate holder
does not meet SWBT's requirements. The language "but failure
to mail such notice shall impose no obligation or liability
of any kind upon the company, its agents, or
representatives" or similar language must be deleted from
the certificate.
e) The certificate holder shall be:
Southwestern Bell Telephone Company
1111 W. Capitol, Room 525
Little Rock, Arkansas 72201
ATTENTION: Utility Liaison Supervisor
f) Failure to object to any coverage described in a certificate
shall not constitute written permission from SWBT to any
variance from or alteration of any requirement set forth in
this Appendix and shall not be construed as a waiver by SWBT
of any rights under this Agreement.
10) Rating of Insurers. SWBT requires that companies affording
insurance coverage have a B+VII or better rating, as rated in the current A.M.
Best Key Rating Guide for Property and Casualty Insurance Companies.
11) Self-insurance. If authorized in the Master Agreement,
self-insurance shall be allowed in lieu of the above requirements upon
Applicant's submission of proof that it has met the self-insurance requirements
stated in the Master Agreement.
<PAGE> 412
Agreement No. __________
APPENDIX V
NONDISCLOSURE AGREEMENT (ARKANSAS) -- PAGE 1 OF 4
Nondisclosure Agreement (SWBT Pole, Duct, Conduit, and Right-of-Way)
This Nondisclosure Agreement, effective as of the ___ day of
_______________, 19__, has been entered into by and between Southwestern Bell
Telephone Company ("SWBT"), a Missouri corporation, and the undersigned person
or firm ("Recipient") as a condition of access to certain records and
information maintained by SWBT. The parties stipulate and agree as follows:
1) SWBT maintains records and information, including but not limited to
outside plant engineering and construction records, which relate to poles,
ducts, conduits, and rights-of-way which SWBT owns or controls. SWBT represents
that such records and information are not made generally available for
inspection or copying by the public and include business, economic, and
engineering information (including but not limited to plans, designs, maps,
diagrams, cable counts and cable-specific information, circuit records, and
other competitively sensitive information) which SWBT intends to keep secret and
which has economic value by virtue of not being generally known to or readily
ascertainable by the public, including SWBT's competitors.
2) SWBT has agreed to make certain of its records and information
relating to poles, ducts, conduits, and rights-of-way available to cable
television systems and telecommunications carriers who are presently entitled
under federal law to have access to the poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT.
3) Recipient represents that Recipient is a cable television system or
telecommunications carrier entitled under federal law to access to poles, ducts,
conduits, and rights-of-way owned or controlled by SWBT, or, if an individual,
that he or she is acting on behalf of _________________________________________,
which is such a cable television system or telecommunications carrier. Recipient
further represents that Recipient is seeking access to SWBT's records and
information relating to poles, ducts, conduits, and rights-of-way for the
limited purpose of enabling engineering and construction personnel employed by
or acting on behalf of such cable television system or telecommunications
carrier to make engineering and construction decisions necessary to utilize
SWBT's poles, ducts, conduits, and rights-of-way.
4) SWBT agrees that permitted uses of records and information
concerning SWBT's poles, ducts, conduits, and rights-of-way are (a) determining
which poles, ducts, conduits, and rights-of-way owned or controlled by SWBT are
available for use by such cable television systems or telecommunications
carriers as permitted by federal law, (b) designing, engineering, constructing,
installing, maintaining, and removing equipment which is to be attached to or
placed within such poles, ducts, conduits, and rights-of-way, and (c) contesting
decisions, if any, by SWBT not to provide access to such poles, ducts, conduits,
and rights-of-
<PAGE> 413
APPENDIX V
NONDISCLOSURE AGREEMENT (ARKANSAS) -- PAGE 2 OF 4
way as requested. No other uses of such records or information are authorized or
permitted under this Agreement.
5) Recipient agrees that Recipient will not use, or permit any other
person or entity to use or have access to SWBT's records and information
relating to poles, ducts, conduits, or rights-of-way or information for any
purpose other than the limited purposes stated in 4) above and that such records
and information shall not be disclosed or shared with any person or persons
other than those who have a need to know such information for such limited
purposes. Recipient specifically agrees that such records and information shall
not be used or accessed by any person involved in sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and similar activities.
Recipient further agrees that Recipient shall not furnish copies of such records
or disclose information contained in such records to any person or entity which
has not executed and delivered to SWBT a counterpart of this Agreement prior to
receipt of such copies or information.
6) Recipient agrees that Recipient will not without SWBT's express
written authorization copy, duplicate, sketch, draw, photograph, download,
photocopy, scan, replicate, transmit, deliver, send, mail, communicate, or
convey any of SWBT's records relating to poles, ducts, conduits, or
rights-of-way. Recipient further agrees that Recipient will not conceal, alter,
or destroy any SWBT records furnished to Recipient pursuant to this Agreement.
7) Notwithstanding the provisions of 6) above, and except as provided
in 8) below, Recipient may copy, take notes from, make, and use (for the limited
purposes specified herein) drawings with reference to the following records
provided by SWBT to Recipient for inspection: pole and conduit route maps, cable
plat maps, and plant location records reflecting approximate locations of SWBT's
existing poles, ducts, conduits, and rights-of-way. All such copies, notes, and
drawings (whether in hardcopy or electronic form) shall be marked with the
legend: "PROPRIETARY INFORMATION: NOT FOR USE BY OR DISCLOSURE TO ANY PERSON WHO
HAS NOT EXECUTED A NONDISCLOSURE AGREEMENT (SWBT POLE, DUCT, CONDUIT, AND
RIGHT-OF-WAY)."
8) No references to cable counts, cable designations or cable-specific
information, circuit information, or customer-specific information of any kind
may be included in any copies, notes, or drawings made pursuant to 7) above;
provided, however, that Recipient may make estimates regarding the physical
characteristics (such as size and weight) of the cables being surveyed when
necessary to make engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits, or rights-of-way
for Recipient/Applicant's intended uses.
<PAGE> 414
APPENDIX V
NONDISCLOSURE AGREEMENT (ARKANSAS) -- PAGE 3 OF 4
9) All records and information relating to poles, ducts, conduits, and
rights-of-way provided to Recipient/Applicant by SWBT (whether in writing,
orally, or in electronic or other formats) shall be deemed to be proprietary
information subject to this Agreement without regard to whether such
information, at the time of disclosure, has been marked with restrictive
notations such as "Proprietary," "Restricted Proprietary," "Confidential," "Not
to Be Copied or Reproduced," or the like.
10) This Agreement applies only to records and information provided to
Recipient by SWBT and does not apply to records and information obtained by
Recipient from other lawful sources.
11) This Agreement does not prohibit the disclosure of records or
information in response to subpoenas and/or orders of a governmental agency or
court of competent jurisdiction. In the event Recipient receives an agency or
court subpoena requiring such disclosure, Recipient shall immediately, and in no
event later than five calendar days after receipt, notify SWBT in writing.
12) The Parties agree that, in the event of a breach or threatened
breach of this Agreement, SWBT may seek any and all relief available in law or
in equity as a remedy for such breach, including but not limited to monetary
damages, specific performance, and injunctive relief. The Parties acknowledge
that SWBT's records and information relating to poles, ducts, conduits, and
rights-of-way include valuable and unique information and that disclosure of
such information (including circuit information) will result in irreparable
injury to SWBT. In the event of any breach of this Agreement for which legal or
equitable relief is sought, SWBT shall be entitled to recover from Recipient all
reasonable attorney's fees and other reasonable costs (including but not limited
to fees of expert witnesses) incurred by SWBT in connection with the prosecution
of its claims against Recipient.
13) This Agreement shall be effective on the effective date shown above
and shall remain in full force and effect until terminated by either party as
provided herein. Either party may, at any time, with or without cause, terminate
this Agreement by giving the other party 60 days' advance written notice of its
decision to terminate. The parties further agree that termination of this
Agreement shall have no effect on the duty of any person or entity, including
Recipient, to abide by all terms of this Agreement with respect to records and
information received by Recipient while this Agreement is in effect.
14) This Agreement shall benefit and be binding on the parties below
and their respective heirs, successors, and assigns.
15) This Agreement will be governed by the laws of the State of
Arkansas.
<PAGE> 415
APPENDIX V
NONDISCLOSURE AGREEMENT (ARKANSAS) -- PAGE 4 OF 4
16) This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter hereof, and none of the
terms of this Agreement may be amended or modified except by written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by their duly authorized representatives,
in duplicate, as of the dates set forth below.
____________________________________ Southwestern Bell Telephone Company
Recipient (Print or Type Name)
By _________________________________ By _________________________________
Signature of Recipient Signature
or Representative
____________________________________ ____________________________________
Name (Printed or Typed) Name (Printed or Typed)
____________________________________ ____________________________________
Address Address
____________________________________ ____________________________________
City, State, and Zip Code City, State, and Zip Code
____________________________________ ____________________________________
Phone Phone
____________________________________ ____________________________________
Date Date
<PAGE> 416
Agreement No. __________
APPENDIX VI
NOTICES TO APPLICANT (ARKANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Notices in general. Except as otherwise stated in this Appendix, all
notices to Applicant shall be given to Applicant's duly authorized agent or
attorney as specified in Section 29.01 of the Master Agreement.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by Applicant from time to time in accordance
with the provisions of Section 29.03 of the Master Agreement.
Special notice provisions. The following special notice provisions, if
any, shall apply:
<PAGE> 417
Agreement No. __________
APPENDIX VII
NOTICES TO SWBT (ARKANSAS) -- PAGE 1 OF 3
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Utility Liaison Supervisor (ULS). Except as otherwise stated in this
Appendix, all notices to SWBT shall be given to the Utility Liaison Supervisor
(ULS) designated in APPENDIX VIII of the Master Agreement. The Utility Liaison
Supervisor is generally responsible for coordinating applications for access to
SWBT's poles, ducts, conduits, and rights-of-way and serving as Applicant's
initial point of contact for matters arising out of or in connection with the
administration of the Master Agreement. Notices to the ULS shall be given in
writing in the manner prescribed in Section 29.02. Notices to be sent to the ULS
include, but are not limited to, notices under the following provisions of the
Master Agreement.
7.01 Notification of Designation of Primary Point of Contact
7.03(a) Notification of intent to review records
8.XX All Notifications in Article 8
9.XX All Notifications in Article 9
10.04(e) Notification Regarding Make-Ready Work
12.03(d) Notification of placing J-hook on non-licensed pole
12.04 Notification of occupation of maintenance duct for
short-term use
12.06 Notification of Applicant's maintenance contact
13.01 Notification of planned modifications
14.02(c) Notification of Applicant's desire to add to or modify
its existing attachment
15.02(b) Notification of occupation of maintenance duct for
short-term emergency use
15.03 Notification of emergency repair coordinators
16.01 Notification that facilities have been brought into
compliance
17.02(c) Disclaimer of ownership or responsibility for untagged
facilities
<PAGE> 418
APPENDIX VII
NOTICES TO SWBT (ARKANSAS) -- PAGE 2 OF 3
17.06 Notification of Applicant's response to ownership of
facilities in question
18.01(a) Notice of intent to remove facilities
18.01(e) Notice of intent to terminate license
18.06 Notification of completion of removal of facilities
20.01(c) Notification of change of bond
21.17 Notification of claims
23.XX All notifications of insurance coverage in Article 23
24.03 Notification of assignment
25.01 Notification of termination
25.03 Notification of cure of breach
27.04 Notice of elective termination
29.03 Notification of change in notice requirements
Other notices. The following notices may be given orally or in writing
(including fax) and shall be given to SWBT's Local Service Provider Center
(LSPC) at 1-800-486-5598 instead of the ULS.
6.05(a) Notifications relating to electrical interference
6.09(d) Notifications of unsafe conditions
6.11(a) Notification of manhole entry
6.13(c) Notification of environmental contaminants
10.02(b) Notification of materials required for
self-provisioning of inner duct
15.04 Notification of conditions requiring emergency repair
<PAGE> 419
APPENDIX VII
NOTICES TO SWBT (ARKANSAS) -- PAGE 3 OF 3
15.06(a) Notification of performing corrective work on emergency
repair. (advanced notice)
15.06(b) Notification of performing corrective work on emergency
repair. (no advanced notice)
Additional information and questions concerning notice requirements.
The ULS, as Applicant's initial point of contact, will provide additional
information to Applicant concerning notification procedures for notices to be
given to LSPC. Questions to SWBT concerning notice requirements should be
directed to the ULS. The ULS is not authorized to provide Applicant legal advice
with respect to notice requirements. Questions by Applicant's personnel and
other persons acting on Applicant's behalf concerning Applicant's legal
obligations should be directed to Applicant's legal counsel or such other
personnel as Applicant may direct.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by SWBT from time to time in accordance with
the provisions of Section 29.03 of the Master Agreement.
<PAGE> 420
Agreement No. __________
APPENDIX VIII
IDENTIFICATION OF UTILITIY LIAISON SUPERVISOR (ARKANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
The Utility Liaison Supervisor for Arkansas is named below. Notices to
the Utility Liaison Supervisor should be addressed as follow:
Name: Willena Slocum
Title: Utility Liaison Supervisor
Firm: Southwestern Bell Telephone Company
Address: 1111 W. Capitol, Room 525
City/State/Zip: Little Rock, Arkansas 72201
<PAGE> 1
EXHIBIT 10.21
INDEX
<TABLE>
<S> <C>
SWBT/Digital Teleport, Inc. (Kansas) Tab 1
800 Tab 2
911 Tab 3
AIN Tab 4
BCR Tab 5
CH Tab 6
CNAM Tab 7
DCO Tab 8
DA Tab 9
FGA Tab 10
HOST Tab 11
ITR Tab 12
LIDB-AS Tab 13
LIDB-V Tab 14
MAP Tab 15
OSS Tab 16
OS Tab 17
NIM/Physical Collocation Agreement Tab 18
SS7 Tab 19
RECORDING Tab 20
RESALE Tab 21
UNE Tab 22
WIRELESS Tab 23
WP Tab 24
TP Tab 25
PORT Tab 26
Poles, Ducts, Conduits & ROW Tab 27
</TABLE>
<PAGE> 2
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252
OF THE TELECOMMUNICATIONS ACT OF 1996
by and between
SOUTHWESTERN BELL TELEPHONE COMPANY
and
DIGITAL TELEPORT, INC.
<PAGE> 3
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 1 OF 3
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1.0 DEFINITIONS........................................................................ 1
2.0 INTERPRETATION AND CONSTRUCTION.................................................... 5
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES....................... 5
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)...................................... 5
4.1 Scope.......................................................................... 6
4.2 Interconnection Coverage....................................................... 6
4.3 Methods for Interconnection.................................................... 7
4.4 Physical Architecture.......................................................... 8
4.5 Technical Specifications....................................................... 9
4.6 Interconnection in Additional Metropolitan Exchange Areas...................... 9
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO SECTION
251(c)(2).......................................................................... 10
5.1 Scope of Traffic............................................................... 10
5.2 Responsibilities of the Parties................................................ 10
5.3 Reciprocal Compensation for Termination of Local Traffic ...................... 11
5.4 Reciprocal Compensation for Transit Traffic ................................... 12
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange
Traffic........................................................................ 12
5.6 Compensation for Origination and Termination of Switched Access Service Traffic
to or From an IXC (Meet-Point Billing (MPB) Arrangements)...................... 12
5.7 Billing Arrangements for Compensation for Termination of IntraLATA, Local,
Transit, and Optional Calling Area Traffic..................................... 15
5.8 Compensation for "Porting" Optional Calling Area Numbers....................... 16
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2).......... 16
6.1 Scope of Traffic .............................................................. 16
6.2 Trunk Group Architecture Traffic Routing....................................... 16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC ............................... 17
7.1 Information Services Traffic .................................................. 17
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic .............. 17
7.3 Wireless Traffic............................................................... 17
8.0 SIGNALING ......................................................................... 18
9.0 NUMBERING ......................................................................... 18
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv).......... l9
</TABLE>
<PAGE> 4
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 2 OF 3
<TABLE>
<CAPTION>
<S> <C> <C>
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x) ............................................................ 20
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5) ............................................ 20
13.0 COLLOCATION -- SECTION 251(c)(6) .................................................. 20
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271(c)(2)(B)(xi)...................... 21
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2).............. 21
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4) and 271 (c)(2)(B)(iii)................ 21
17.0 DATABASE ACCESS -- SECTION 271(c)(2)(B)(x) ........................................ 21
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS................................................... 21
19.0 COORDINATED REPAIR CALLS .......................................................... 22
20.0 OTHER SERVICES 271 (c)(B)(2)(vii) and 271(c)(2)(B)(viii) .......................... 22
20.1 White Pages .................................................................. 22
20.2 Calling Name Information ..................................................... 22
20.3 Billing/Collecting/Remitting ................................................. 23
20.4 911/E911 Service ............................................................. 23
20.5 Directory Assistance (DA) .................................................... 23
20.6 Operator Services ............................................................ 23
20.7 Clearinghouse Services ....................................................... 23
20.8 Hosting ...................................................................... 23
20.9 Signaling System 7 Interconnection ........................................... 23
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES ........................................... 23
22.0 EFFECTIVE DATE, TERM, AND TERMINATION ............................................. 25
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES ...................................... 26
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION ..................... 26
25.0 SEVERABILITY ...................................................................... 26
26.0 INTELLECTUAL PROPERTY ............................................................. 27
27.0 INDEMNIFICATION ................................................................... 27
</TABLE>
<PAGE> 5
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 3 OF 3
<TABLE>
<S> <C> <C>
28.0 LIMITATION OF LIABILITY ........................................................... 29
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES ....................................... 29
29.1 Certain Definitions .......................................................... 29
29.2 Specified Performance Breach ................................................. 30
29.3 Liquidated Damages ........................................................... 30
29.4 Limitations .................................................................. 30
29.5 Sole Remedy .................................................................. 31
29.6 Records ...................................................................... 31
30.0 REGULATORY APPROVAL ............................................................... 31
31.0 MISCELLANEOUS...................................................................... 31
31.1 Authorization................................................................ 31
31.2 Compliance and Certification................................................. 32
31.3 Law Enforcement.............................................................. 32
31.4 Independent Contractor....................................................... 33
31.5 Force Majeure................................................................ 33
31.6 Confidentiality.............................................................. 33
31.7 Governing Law................................................................ 35
31.8 Taxes........................................................................ 35
31.9 Non-Assignment............................................................... 36
31.10 Non-Waiver................................................................... 37
31.11 Audits....................................................................... 37
31.12 Disputed Amounts............................................................. 37
31.13 Disputed Resolutions......................................................... 38
31.14 Notices...................................................................... 38
31.15 Publicity and Use of Trademarks or Service Marks............................. 39
31.16 Section 252(i) Obligations................................................... 39
31.17 Joint Work Product........................................................... 40
31.18 Intervening Law.............................................................. 40
31.19 No Third Party Beneficiaries; Disclaimer of Agency........................... 40
31.20 No License................................................................... 41
31.21 Survival..................................................................... 41
31.23 Scope of Agreement........................................................... 41
31.24 Entire Agreement............................................................. 41
</TABLE>
<PAGE> 6
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 1 OF 42
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE
TELECOMMUNICATIONS ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Bell Telephone Company, a Missouri Corporation ("SWBT"), and Digital Teleport,
Inc. ("DTI").
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 Kansas; and
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 DTI, a competitive local
exchange carrier, is certified by the Kansas Corporation Commission, as
required.
NOW, THEREFORE, DTI 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 number 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:
<PAGE> 7
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 2 OF 42
(i) "End Office Switches" which are Class 5 switches where end
user Exchange Services are directly connected and offered; and
(ii) "Tandem Office Switches" or "Tandems" which are
Class 4 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 (combination Class 5/Class 4).
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 includes, but is not limited to, collocation of 38 GHz
basic transmission equipment, provided it complies with the guidelines in
SWBT's current Physical Collocation 02/14/97 Technical Publication provided to
DTI.
1.9 "Commission" means the Kansas Corporation Commission.
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 cross connect
rate element which is used to designate 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 DTI 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.
<PAGE> 8
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 3 OF 42
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. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps third-level
in the time division multiplex hierarchy. In the time-division multiplexing
hierarchy of the telephone network, DS3 is defined as the third level of
multiplexing.
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,
directly or indirectly, interLATA or intraLATA Telephone 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 in order to
originate or terminate traffic to/from DTI's end users.
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
<PAGE> 9
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 4 OF 42
1.25 "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.
1.26 "Local Traffic," for purposes of intercompany compensation, is if (i)
the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "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).
1.28 "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 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.
1.29 "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.
1.30 "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.
1.31 "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.
1.32 "Network Element Bona Fide Request" means the process described [in
Appendix BFR 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.
<PAGE> 10
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 5 OF 42
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 "Telephone Exchange Services"
1.35 "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-l/STS-1) and higher rates are
direct multiples of the base rate, up to 13.22 Gpbs.
1.36 "Telephone Exchange Service" is as defined in the Act.
1.37 "Wire Center" means an occupied structure or portion thereof in which
a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative, regulatory,
judicial order, rule or regulations, or other legal action that revises or
reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and 95-185 or any
applicable order or arbitration award purporting to apply the provisions of the
federal Act, the Parties reserve all of their rights and remedies, including
those to amend, alter, or revise this Agreement.
3.0 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 by modifying or updating Appendix DCO.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(C)(2)
<PAGE> 11
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 6 OF 42
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 sub-section
7.2).
4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and shall
interconnect their facilities as stated below:
4.2.1. DTI shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which DTI chooses
to offer local exchange service, DTI, 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 DTI will terminate its
traffic will be called SWBT Interconnection Wire Centers and
are identified in Appendix DCO. As DTI initiates Exchange
Service operations in additional SWBT exchange areas, SWBT and
DTI shall agree upon additional SWBT Interconnection Wire
Centers in each new exchange area. DTI agrees that if SWBT
establishes additional tandems in an exchange area within
which DTI offers local exchange service, DTI will interconnect
to the additional tandems.
b. Interconnection to a SWBT local tandem(s) will
provide DTI local access to the SWBT end offices and NXXs
which subtend that tandem(s), and to other Local Exchange
Carriers ("LECs") (subject to sub-section 5.4) which are
connected to that tandem(s). Interconnection to SWBT EO(s)
will provide DTI access only to the NXXs served by that
individual EO(s) to which DTI interconnects.
c. Interconnection to a SWBT access tandem will
provide DTI interexchange access to SWBT, IXCs, LECs and CRMS
providers (subject to sub-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 DTI access to SWBT's EOs with
the same functionality described in (b) above.
<PAGE> 12
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 7 OF 42
d. Where DTI requires ancillary services (e.g.,
Directory Assistance, Operator Assistance, E911/911)
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 DTI's facilities under terms and
conditions no less favorable than those identified in sub-section 4.2.1, above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods 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 DTI provides
fiber cable and connects to its equipment located in the SWBT Wire Center. DTI
owns and maintains DTI's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where DTI provides
fiber cable to SWBT for connection to DTI-designated basic transmission
equipment dedicated solely for DTI'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 DTI provides fiber cable
to SWBT for connection to SWBT-designated basic transmission equipment located
at the SWBT Interconnection Wire Center and dedicated solely for DTI'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 network facilities
exist, either Party may lease facilities from the other Party at rates no
greater than SWBT Access Tariff rates.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties agree to
interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix MSFI attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
4.3.6 The Parties may agree to utilize another Interconnection Method as
may be determined to be technically feasible in the future.
<PAGE> 13
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 8 OF 42
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 above. 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.
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.
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4.5 TECHNICAL SPECIFICATIONS
4.5.1 DTI and SWBT shall work cooperatively to install and maintain a
reliable network. DTI 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 DTI 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 and incorporated by reference. Appendix TP will
herein assist the Parties in meeting their respective Interconnection
responsibilities. Copies of the publications listed in Appendix TP have been
or shall be provided to DTI by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If DTI decides to offer Telephone Exchange Services in any other
Metropolitan Exchange and Areas in which SWBT also offers Telephone Exchange
Services, DTI 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 DTI has designated in the Metropolitan Exchange Area; (ii) DTI's
requested Interconnection Activation Date; and (iii) a non-binding forecast of
DTI's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall designate
the Wire Center that DTI has identified as its initial Routing Point in the
Metropolitan Exchange Area as DTI 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 (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 the one-hundred
and fiftieth (150th) day following the date on which DTI delivered notice to
SWBT of the need to establish Interconnection pursuant to Section 4.6.1 above.
Within ten (10) business days of SWBT's receipt of DTI's notice, SWBT and DTI
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.
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5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT
TO SECTION 251(C)(2)
5.1 SCOPE OF TRAFFIC
This Section 5.0 prescribes parameters for Traffic Exchange trunk groups
the Parties shall establish over the Interconnections specified in Section 4.0.
The Parties shall employ the Traffic Exchange trunk groups specified in this
Section 5.0 and in Appendix ITR. The Parties shall employ for the transmission
and routing of all Local and IntraLATA Toll Traffic between the Parties'
respective Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between DTI 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.
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.
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 Toll Traffic in direct proportion to the
minutes of use (MOU) of calls exchanged with CPN information. If the percentage
of calls passed with CPN is less than ninety percent (90%), all calls passed
without CPN will be billed as switched access.
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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 sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this
Section 5.3 apply only to the termination of Local
Traffic, except as explicitly noted.
ii) The Parties agree to compensate each
other for the termination of Local Traffic on a minute
of use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem 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 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.
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5.3.4 Local Traffic Interconnection Rates
Serving Method Prices Per MOU
-------------- --------------
Tandem Served $.00975
------------- --------------
End Office Served $.00720
----------------- --------------
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 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 MOUs between a Party and third party networks that transit the
other Party's tandem switch. The originating Party is responsible for the
appropriate rates unless otherwise specified. The Transit Traffic rate element
is only applicable when calls do not originate with (or terminate to) the
transit Party's end user. 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 Parties agree to apply the
Optional Area Transit rate to traffic terminating to
third party incumbent LECs 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, which is
attached hereto and incorporated by reference, may traverse the SWBT tandem and
terminate in other third party LEC exchange areas. Although direct connections
could be used for this traffic, SWBT agrees to transit this traffic for the
rate of $0.006 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 $0.003
------------- --------------
Optional Area Transit $0.004
--------------------- --------------
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5.4.2 All other traffic transits a tandem shall be treated as Meet-Point
Billing Traffic as described in Section 5.6 below or as intraLATA interexchange
traffic as described in Section 5.5.3 below, unless otherwise agreed.
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.
5.5 RECIPROCAL COMPENSATION FOR TERMINATION OF INTRALATA
INTEREXCHANGE TRAFFIC
5.5.1 The parties also agree to apply the OCA compensation rate of $0.021
per MOU for traffic terminating to DTI end users in other incumbent LEC
exchange 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.
5.5.2 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 or as otherwise mutually agreed. 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 or as otherwise mutually
agreed.
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. DTI'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/multiple 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, DTI
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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 14 OF 42
percentages applicable to this Agreement are set forth in Appendix DCO. The
actual rate values for each element shall be the rates contained in that
Party's own applicable access rates.
5.6.4 The Parties, as applicable, 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/multiple tariff method, as described in the MECAB document. Each
Party will render a bill to the IXC in accordance with its own rate structure
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 BAR/BACR number.
5.6.9 Each Party will provide the other with the Exchange Access detailed
usage data within thirty (30) days of the end of the billing period. SWBT will
perform assembly and editing, messages processing and provision of Access
Usage Records in accordance with Appendix Recording, attached hereto and
incorporated by reference. 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 DTI provides
SWBT with Access Usage Records, SWBT will compensate DTI on the same terms as
DTI 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 DTI's request,
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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SWBT will negotiate a mutual and reciprocal charge for provision of Summary
Usage Data Records.
5.6.10 Errors may be discovered by DTI, the IXC or SWBT. Both SWBT
and DTI 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 sub-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
DTI. Reference to this technical publication is included in Appendix TP.
(a) Where DTI 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 DTI Less Direct End Office
Terminating MOUs Recorded By SWBT Equals Total MOUs To Be
Compensated As Tandem Traffic
(b) Where DTI has direct/high usage trunks to a third
party with overflow trunking through a SWBT tandem, DTI must
differentiate the originating MOU records for the Parties to
ascertain how many MOUs should be compensated as Transit
Traffic. If DTI 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.
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GENERAL TERMS AND CONDITIONS
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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.
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 Optional Calling Area telephone number is
ported, DTI will compensate SWBT $12.20 monthly, per ported number.
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 above, for the transmission and routing of Exchange Access traffic
between DTI 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 will jointly provide tandem-transported
Switched Exchange Access Services to IXCs to enable DTI's end users to
originate and terminate traffic to/from such IXCs.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Switched Exchange Access to allow DTI end users to
originate and terminate traffic to/from any IXCs which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow DTI'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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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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 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 to 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.
7.3 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. 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 such CMRS providers, and the other Party
shall be obligated to enter into an agreement with such CMRS provider for the
termination of wireless to landline traffic.
7.3.2 DTI shall pay the Local Transit Traffic rate to SWBT for calls that
originate on DTI's network and are sent to SWBT for termination to a CMRS
Provider as long as such Traffic can be identified as wireless traffic. SWBT
shall pay the Local Transit Traffic rate to DTI for such calls that originate
on SWBT's network are sent through DTI for termination on a CMRS Provider's
network. Each Party shall be responsible for interconnection agreements with
CMRS providers for terminating compensation regarding traffic originating on
the Party's network and terminating on the CMRS provider's network.
7.3.3 When traffic is originated by either Party to a CMRS Provider, and
the traffic cannot be specifically identified as wireless traffic for purposes
of compensation between SWBT and DTI, the traffic will be rated either as
Local, Optional or Access and the appropriate compensation rate shall be paid
by the originating Party to the transiting Party. The originating
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 18 OF 42
Party agrees to indemnify the transiting Party for any claims of compensation
that may be made by the CMRS provider against the transiting Party regarding
compensation for such traffic.
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 DTI.
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(1), 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.
9.2 At a minimum, in those Metropolitan Exchange Areas where DTI intends
to provide local exchange service, DTI 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 DTI 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 DTI 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.
- --------------------
(1)Last published by the Industry Numbering Committee ("INC") as INC
95-0407-008, Revision 4/7/95, formerly ICCF 93-0729-010.
<PAGE> 24
GENERAL TERMS AND CONDITIONS
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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 per NXX to the Party formerly assigned the NXX.
10.0 RESALE -- SECTIONS 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 DTI 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 DTI RETAIL TELECOMMUNICATION SERVICES FOR RESALE
DTI shall make available its Telecommunications Services for resale at
wholesale rates to SWBT in accordance with Section 251(b)(1) of the Act.
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GENERAL TERMS AND CONDITIONS
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11.0 UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(C)(3), 271(C)(2)(B)
(II),(IV),(V),(VI),(X)
11.1 SWBT shall provide DTI 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 DTI shall make available to SWBT 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.
13.0 COLLOCATION--SECTION 251(C)(6)
13.1 SWBT shall provide to DTI 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 that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
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 DTI 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.
<PAGE> 26
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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 DTI 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 Local Dialing Parity to each other as
required under Section 251 (b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY--SECTION 251(B)(4) 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 and/or standard
agreements.
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
DTI 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, DTI will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
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.
<PAGE> 27
GENERAL TERMS AND CONDITIONS
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(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 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.
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GENERAL TERMS AND CONDITIONS
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20.3 BILLING/COLLECTING/REMITTING. The Parties will jointly agree to terms
and conditions for Billing, Collecting and Remitting for alternated billed
local message as described in 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 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.
20.7 CLEARINGHOUSE SERVICES. To the extent requested by DTI, 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.
20.8 HOSTING. At DTI's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an DTI for distribution to the appropriate billing and/or
processing location or for delivery to an DTI of such data via SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference
20.9 SIGNALING SYSTEM 7 INTERCONNECTION. At DTI's request, SWBT shall
perform SS7 interconnection services for DTI pursuant to Appendix SS7, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and DTI 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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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 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 26.0, each
Party shall provide, in its tariffs and contracts with its end users that
relate to any Telecommunications Service provided or contemplated under this
Agreement, that in no case shall such Party or any of its agents, contractors
or others retained by such parties be liable to any end user or third party for
(i) any Loss relating to or arising out of this Agreement, whether in contract
or tort, that exceeds the amount such Party would have charged the applicable
end user for the service(s) or function(s) that gave rise to such Loss, and
(ii) any Consequential Damages.
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
<PAGE> 30
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 25 OF 42
decides not to fully utilize industry guidelines, SWBT will provide DTI 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 ten (10) days after approval by the
Commission when it has determined that the Agreement complies with Sections 251
and 252 of the Act ("Effective Date").
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, below.
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.
22.4 If pursuant to Section 22.2, above, 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,
below. 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, below.
22.5 Upon termination or expiration of this Agreement in accordance with
this Section 22.0, above:
(a) each Party shall comply immediately with its
obligations set forth in Section 30.6, below; 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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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, below, 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 DTI 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.
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. The
Parties shall make authorization available to each other 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 DTI 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 the end user's
authorized agent. Further, when an end user abandons the premise, SWBT is free
to reclaim the unbundled network element facilities 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.
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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 INTELLECTUAL PROPERTY
LSP is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. SWBT will
provide a list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a request for
such a list by LSP. SWBT agrees to use its best efforts to facilitate the
obtaining of any necessary license or right to use agreement. SWBT makes no
warranties, express or implied, concerning LSP's (or any third party's) rights
with respect to intellectual property (including with limitation, patent,
copyright, and trade secret rights) or contract rights associated with LSP's
rights to interconnect with SWBT's network and to Unbundled Network Elements.
27.0 INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices, 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 service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
27.2 Except as otherwise provided herein or in specific appendices, 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 connection with the indemnifying provision of
services or functions under this Agreement.
27.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was
<PAGE> 33
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
PAGE 28 OF 42
provisioned by the Indemnified Party, unless the Loss was caused by the
gross negligence or intentional misconduct of the other (Indemnified) Party.
27.4 LSP agrees to indemnify, defend and hold harmless SWBT from any Loss
arising out of SWBT's provision of 911 services or out of LSP's end users' use
of the 911 service, whether suffered, made, instituted, or asserted by LSP 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.
27.5 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from
a Party's own communications or the communications of its end users.
27.6 SWBT shall be indemnified, defended, and held harmless by the LSP for
claims for patent, trademark, infringement or other infringement or
intellectual property rights, arising from the LSP's use of services or
unbundled elements provided under this Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation
of the Indemnified Party. The Indemnifying Party shall not be responsible for
any settlement unless the Indemnifying Party approved such settlement in
advance and agrees to be bound by the settlement agreement.
28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, or except as
otherwise provided in specific appendices, each Party's liability to the other
Party for any Loss relating to or arising out of any negligent act or omission
in its performance under this Agreement, whether in contract or tort, shall
not exceed in total the amount SWBT or LSP has to or would have charged the
other Party for the affected service(s) or function(s) which were not
performed or were otherwise improperly performed.
28.2 Except for Losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under
this section shall be limited to, that portion (as mutually agreed to by the
Parties) of the resulting expense caused by its own negligence or willful
misconduct or that of its agents, servants, contractors, or others acting in
aid or concert with it.
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28.3 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
indemnify, 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 attorney's
fees) and Consequential Damages of such third party.
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
29.1 CERTAIN DEFINITIONS. When used in this Section 29.0, the following
terms shall have the meanings indicated:
29.1.1 "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.
29.1.2 "Specified Activity" means any of the following activities:
(i) the installation by SWBT of unbundled
elements associated with DTI end user Lines;
(ii) SWBT's provision of Interim Number
Portability; or
(iii) the repair of out of service
problems for DTI ("Out of Service Repairs").
29.1.3 "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:
<TABLE>
<S> <C>
SPECIFIED ACTIVITY
- ------------------------------------------------------------------
(i) DTI End User Lines PERFORMANCE INTERVAL DATE
- ------------------------------------------------------------------
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 SWBTs
Receipt of valid Service Order
</TABLE>
<PAGE> 35
GENERAL TERMS AND CONDITIONS
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<TABLE>
<S> <C>
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 ten (10) business days from SWBT's
Order 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
- -----------------------------------------------------------------------
</TABLE>
29.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss of end
user opportunities, revenues and goodwill which DTI might sustain in the event
of a Specified Performance Breach; (2) the uncertainty, in the event of such a
Specified Performance Breach, of DTI having available to it customer
opportunities similar to those opportunities currently available to DTI; and
(3) the difficulty accurately ascertaining the amount of damages DTI would
sustain in the event of such a Specified Performance Breach, SWBT agrees to pay
DTI, subject to Section 29.4 below, damages as set forth in Section 29.3 below
in the event of the occurrence of a Specified Performance Breach.
29.3 LIQUIDATED DAMAGES. The damages payable by SWBT to DTI as a result of
a Specified Performance Breach shall be $75,000 for each Specified Performance
Breach (collectively, the "Liquidated Damages"). DTI 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 DTI 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 DTI would sustain if its
damages were readily ascertainable; and (c) DTI shall not be required to
provide any proof of the Liquidated Damages.
29.4 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 DTI 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 DTI; (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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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.
29.5 SOLE REMEDY. The Liquidated Damages shall be the sole and exclusive
remedy of DTI for SWBT's breach of the Performance Criteria or a Specified
Performance Breach as described in this Section 29.0 and shall be in lieu of
any other damages or credit DTI 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.
29.6 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 DTI such records in a self-reporting format on a monthly basis.
Notwithstanding Section 31.6.1, below, the Parties agree that such records
shall be deemed "Proprietary Information" under Section 31.6, below.
30.0 REGULATORY APPROVAL
30.1 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.
30.2 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. DTI 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.
31.0 MISCELLANEOUS
31.1 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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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authority to execute and deliver this Agreement and to
perform the obligations hereunder.
(b) DTI 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 its obligations
hereunder.
31.2 COMPLIANCE AND CERTIFICATION.
31.2.1 Each Party shall comply with all federal, state, and local laws,
rules, and regulations applicable to its performance under this Agreement.
31.2.2 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.
31.2.3 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.
31.3 LAW ENFORCEMENT.
31.3.1 SWBT and DTI shall handle law enforcement requests as follows:
(a) Intercept Devices: Local and federal law
enforcement agencies periodically request information or
assistance from local telephone service providers. When either
Party receives a request associated with an end user of the
other Party, it shall refer such request to the Party that
serves such end user, unless the request directs the receiving
Party to attach a pen register, trap-and-trace or form of
intercept on the Party's facilities, in which case that Party
shall comply with any valid request.
(b) Subpoenas: If a Party receives a subpoena for
information concerning an end user the Party knows to be an
end user of the other Party, it shall refer the subpoena to
the requesting party with an indication that the other Party
is the responsible company, unless the subpoena requests
records for a period of time during which the
<PAGE> 38
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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Party was the end user's service provider, in which case the
Party will respond to any valid request.
(c) Emergencies: If a Party receives a request from a
law enforcement agency for temporary number change, temporary
disconnect, or one-way denial of outbound calls for an end
user of the other Party by the receiving Party's switch, that
Party will comply with an valid emergency request. However,
neither Party shall be held liable for any claims or damages
arising from compliance with such requests on behalf of the
other Party's end user and the Party serving such end user
agrees to indemnify and hold the other Party harmless against
any and all such claims.
31.4 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.
31.5 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.
31.6 CONFIDENTIALITY.
31.6.1 All information, including but not limited to specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information, data, employee records, maps,
financial reports, and market data; (i) furnished by one Party (the "Disclosing
Party") to the other Party (the "Receiving Party") dealing with
customer-specific, facility-specific, or usage-specific information, other than
customer information communicated for the purpose of publication or directory
database inclusion, 911, call processing, billing or settlement or as otherwise
mutually agreed upon; or (ii)
<PAGE> 39
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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.
31.6.2 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.
31.6.3 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.
31.6.4 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;
(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;
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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(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 31.6 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.
31.6.5 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.
31.6.6 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.
31.7 GOVERNING LAW. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the FCC, the
exclusive jurisdiction and remedy for all such claims shall be as provided for
by the FCC and the Act. For all claims under this Agreement that are based upon
issues within the jurisdiction (primary or otherwise) of the Commission, the
exclusive jurisdiction for all such claims shall be with such Commission, and
the exclusive remedy for such claims shall be as provided for by such
Commission. In all other respects, this Agreement shall be governed by the
domestic laws of the State of Missouri without reference to conflict of law
provisions.
31.8 TAXES.
31.8.1 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") imposed on or with respect to the services provided by or to such Party,
except for any Tax on either party's corporate existence, status, or income.
Whenever possible, these amounts shall be billed as a separate item on the
invoice. To the extent a sale is claimed to be for resale tax exemption, the
purchasing party shall furnish the providing party a proper resale tax exemption
certificate as authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption.
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GENERAL TERMS AND CONDITIONS
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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.
31.8.2 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.
31.8.3 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.
31.8.4 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.
31.8.5 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.
31.9 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 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
<PAGE> 42
GENERAL TERMS AND CONDITIONS
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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.
31.10 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.
31.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
31.11.1 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.
31.12 DISPUTED AMOUNTS.
31.12.1 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.
<PAGE> 43
GENERAL TERMS AND CONDITIONS
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31.12.2 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.
31.12.3 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 31.12.2, above, then either
Party may file a complaint with the Commission to resolve such issues or
proceed with any other remedy pursuant to law or equity. The Commission may
direct release of any or all funds (including any accrued interest) in the
escrow account, plus applicable late fees, to be paid to either Party.
31.12.4 The Parties agree that all negotiations pursuant to this Section
31.12 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.
31.12.5 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.
31.13 DISPUTE RESOLUTION.
31.13.1 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.
31.13.2 For disputes other than disputed amounts under this Agreement or
its Appendices, each Party shall appoint a designated representative as set
forth in Section 31.12.2, above, and if unable to resolve the dispute, proceed
as set forth in Section 31.12.3, above.
31.14 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/DTI 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
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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.
<TABLE>
<S> <C> <C>
NOTICE CONTACT DTI CONTACT SWBT CONTACT
- -------------- ----------- ------------
NAME/TITLE Richard Weinstein Jeffrey Fields
STREET ADDRESS 11111 Dorsett Rd. One Bell Plaza, 525.07
CITY, STATE, ZIPCODE St. Louis, MO 63043 Dallas, TX 75202
TELEPHONE NUMBER 314-253-6600 214-464-5676
FAX NUMBER 314-253-6699 214-464-1486
24-HOUR NETWORK MGMT CONTACT DTI CONTACT SWBT CONTACT
- ---------------------------- ----------- ------------
NAME/TITLE Alan Ducheck NSMC Control
TELEPHONE NUMBER 314-253-6600 1-800-792-2662
FAX NUMBER 314-253-6699 1-972-301-6702
</TABLE>
31.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
31.15.1 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.
31.15.2 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.
31.16 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); 252(d)(1);
and 271(c)(2)(B(i) of the Act; or
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GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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(b) Exchange Access - Section 251(c)(2) and 271
(c)(2)(B)(ii) of the Act; or
(c) Unbundling - Section 251 (c)(3) and
271(c)(2)(B)(ii) of the Act; or
(d) Resale - Section 251(c)(4) and 271 (c)(2)(B)(xiv)
of the Act; or
(e) Collocation - Section 251(c)(6) and
271(c)(2)(B)(i) of the Act; or
(f) Number Portability - Section 251(b)(2) and
271(c)(2)(B)(xi) 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) and
271(c)(2)(B)(iii) 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).
31.17 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.
31.18 INTERVENING LAW. This Agreement is entered into as a result of both
private negotiation between the Parties and the incorporation of some of the
results of arbitration by the Commission. If the actions of Kansas 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 fail, disputes between the Parties concerning the
interpretation of the actions required or provisions affected by such
governmental actions shall be resolved pursuant to the dispute resolution
process provided for in this Agreement. The invalidation, stay, or modification
of the pricing provisions of the FCC's First Report and Order in CC Docket No.
9698 (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.
31.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This Agreement
is for the sole benefit of the Parties and their permitted assigns, and nothing
herein express or implied shall create or be construed to create any
third-party beneficiary rights hereunder. Except for
<PAGE> 46
GENERAL TERMS AND CONDITIONS
DTI - KANSAS
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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
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.
31.20 NO LICENSE. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
31.21 SURVIVAL. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
31.23 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.
31.24 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.
<PAGE> 47
GENERAL TERMS AND CONDITIONS
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 21 day of August, 1997.
DIGITAL TELEPORT, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
Signature: /s/ J.W. Sheehy Signature: /s/ Larry B. Cooper
------------------ ---------------------
Name: J. W. SHEEHY Name: Larry B. Cooper
----------------------- -------------------------
(Print or Type) (Print or Type)
Title: Vice President IC Title: General Manager-Competitive Provider
Support Account Team
---------------------- -------------------------------------
(Print or Type) (Print or Type)
<PAGE> 48
APPENDIX 800
PAGE 2 OF 7
Appendix 800
ACCESS TO THE TOLL FREE CALLING DATABASE
This Appendix sets forth the terms and conditions under which SWBT provides
Access to the Toll Free Calling Database.
I. DESCRIPTION
A. SWBT's 800 database, an ANSI SS7 call-related database system,
receives updates processed from the national Service
Management System (SMS). Customer records in the SMS are
created or modified by entities known as Responsible
Organizations (RespOrg) who obtain access to the SMS via the
800 Service Management System, Tariff F.C.C. No. 1. 800
Service Providers must either become their own RespOrg or use
the services of an established RespOrg. The services of a
RespOrg includes creating and updating 800 records in the SMS
to download in the 800 database(s). SWBT does not, either
through a tariff or contract, provide RespOrg service.
B. After the 800 customer record is created in the SMS, the SMS
downloads the records to the appropriate databases, depending
on the area of service chosen by the 800 subscriber. An 800
customer record is created in the SMS for each 800 number to
be activated. The SMS initiates all routing changes to update
information on a nationwide basis.
C. Access to the Toll Free Calling Database allows an LSP to
access SWBT's 800 database for the purpose of switch query and
database response. Access to the Toll Free Calling Database
supports the processing of toll free calls (e.g., 800 and 888)
where identification of the appropriate carrier (800 Service
Provider) to transport the call is dependent upon the full ten
digits of the toll free number (e.g., 1+800+NXX+XXXX). Access
to the Toll Free Calling Database includes all 800-type
dialing plans (i.e., 800 and 888 [and 877, 866, 855, 844, 833,
822, when available]).
D. Access to the Toll Free Calling Database provides the carrier
identification function required to determine the appropriate
routing of an 800 number based on the geographic origination
of the call, from a specific or any combination of NPA/NXX,
NPA or LATA.
E. There are three optional features available with 800 service:
Designated 10-Digit Translation, Call Validation and Call
Handling and Destination.
1. The Designated 10-Digit Translation feature converts
the 800 number into a designated 10-digit number. If
the 800 Service Provider provides the designated
10-digit number associated with the
<PAGE> 49
APPENDIX 800
PAGE 3 OF 7
800 number and requests delivery of the
designated 10-digit number in place of the
800 number, SWBT will deliver the
designated 10-digit number.
2. The Call Validation feature limits calls to
an 800 number to calls originating only
from an 800 Subscriber's customized service
area. Calls originating outside the area
will be screened and an out of band
recording will be returned to the calling
party.
3. The Call Handling and Destination feature
allows routing of 800 calls based on one or
any combination of the following: time of
day, day of week, percent allocation and
specific 10 digit ANI.
II. TERMS AND CONDITIONS
A. Access to the Toll Free Calling Database provided
under these terms and conditions is only available
for use in the provision of telephone exchange and
exchange access telecommunications services as
specified in the Telecommunications Act of 1996 and
any effective rules and regulations of the Federal
Communications Commission and the state Public
Service Commission.
B. Access to the Toll Free Calling Database is offered
separate and apart from other unbundled network
elements necessary for operation of the network
routing function addressed in these terms and
conditions, e.g., end office 800 SSP functionality
and CCS/SS7 signaling. This appendix is separate from
the prices, terms, conditions and billing for such
related elements, and in no way shall this appendix
be construed to circumvent the prices, terms,
conditions or billing as specified for such related
elements.
C. LSP shall address its queries to SWBT's database to
the alias point code of the STP pair identified by
SWBT. LSP's queries shall use subsystem number 0 in
the calling party address field and a translations
type of 254 with a routing indicator set to route on
global title. LSP acknowledges that such subsystem
number and translation type values are necessary for
SWBT to properly process queries to its 800 database.
D. Each Party warrants to the other that it shall send
queries and SS7 messages conforming to the ANSI
approved standards for SS7 protocol and pursuant to
the Specifications and Standards documents attached
and incorporated herein in Exhibit I. Both Parties
acknowledge that transmission in said protocol is
necessary for each Party to provision Access to the
Toll Free Calling Database (or the equivalent
thereof). Each Party reserves the right to modify its
network pursuant to other specifications and
standards, which may include Bellcore Specifications
defining specific service applications, message types
and formats, that
<PAGE> 50
APPENDIX 800
PAGE 4 OF 7
may become necessary to meet the prevailing demands
within the U.S. telecommunications industry. All such
changes shall be announced in accordance with the
then prevailing industry standard procedures. Each
party shall work cooperatively to coordinate any
necessary changes.
E. LSP acknowledges and agrees that CCS/SS7 network
overload due to extraordinary volumes of queries
and/or other SS7 network messages can and will have a
detrimental effect on the performance of SWBT's
CCS/SS7 network and its 800 database. LSP further
agrees that SWBT, at its sole discretion, may employ
certain automatic and/or manual overload controls
within SWBT's CCS/SS7 network to guard against these
detrimental effects. SWBT shall report to the LSP any
instances where overload controls are invoked due to
the LSP's CCS/SS7 network. LSP shall take immediate,
corrective actions as are necessary to cure the
conditions causing the overload situation.
F. During periods of 800 database system congestion,
SWBT shall utilize an automatic code gapping
procedure to control congestion that may affect the
service of all customers of SWBT's 800 database. The
automatic code gapping procedure used by SWBT shall
tell LSP's switch the gap (how long LSP's switch
should wait before sending another query) and the
duration (how long the switch should continue to
perform gapping). For example, during an overload
condition, the automatic code gapping procedure shall
tell SWBT's 800 database when to begin to drop one
out of three queries received. This code gapping
procedure shall be applied uniformly to all users of
SWBT's 800 database. SWBT reserves the right to
manually invoke the automatic code gapping procedure
to control congestion.
G. Prior to SWBT initiating service under this Appendix,
LSP shall provide an initial forecast of busy hour
query volumes. LSP shall update its busy hour
forecast for each upcoming calendar year (January -
December) by October 1 of the preceding year. LSP
shall provide such updates each year for the first
three (3) years of this Appendix. If, prior to the
establishment of a mutually agreeable service
effective date, in writing, SWB, at its discretion,
determines that it lacks adequate processing
capability to provide Access to the Toll Free Calling
Database to LSP, SWBT shall notify LSP of SWBT's
intent not to provide the services under this
Appendix and this Appendix will be void and have no
further effect.
H. LSP shall from time to time at SWBT's request,
provide additional forecasted information as deemed
necessary by SWBT for network planning in connection
with this offering.
I. SWBT shall test the Access to the Toll Free Calling
Database in conjunction with CCS/SS7 Interconnection
Service (e.g., SS7 Appendix)
<PAGE> 51
APPENDIX 800
PAGE 5 OF 7
as outlined in Bellcore Technical References
TR-NWT-000533, TR-NWT-000954, TR-TSV-000905, and TP
76638.
J. LSP shall only use Access to the Toll Free Calling
Database to determine the routing requirements for
originating 800 calls. Neither the LSP nor carrier
customers of the LSP if the LSP is acting on behalf
of other carriers, shall use the database information
to copy, store, maintain or create any table or
database of any kind or for any purpose. If the LSP
acts on behalf of other carriers to access SWBT's
Toll Free Calling Database, LSP shall prohibit such
carriers from copying, storing, maintaining, or
creating any table or database of any kind from any
response provided by SWBT after a query to SWBT's
Toll Free Calling Database. LSP shall only use this
network element in connection with the provision of
telephone exchange and exchange access services.
K. LSP shall ensure that it has sufficient link capacity
and related facilities to handle its signaling and
toll free traffic without adversely affecting other
network subscribers.
L. SWBT shall provide Access to the Toll Free Calling
Database as set forth in this Appendix only as such
elements are used for LSP's activities on behalf of
its Kansas local service customers where SWBT is the
incumbent local exchange carrier. LSP agrees that any
other use of SWBT's Toll Free Calling Database for
the provision of 800 database service by LSP will be
pursuant to the terms, conditions, rates, and charges
of SWBT's effective tariffs, as revised, for 800
database services.
M. This Appendix shall become effective on _____________
and shall continue for one (1) year from the
effective date of implementation of Access to the
Toll Free Calling Database. Thereafter, this
Appendix shall remain in effect unless terminated
by either party upon written notice given sixty
(60) days in advance of the termination date.
N. Ordering and billing inquiries for the elements
described herein shall be directed to the Local
Service Provider Service Center (LSPSC). Ordering
shall be done through the LSPSC using the standard
LSP order form and SWBT CCS7-2 Form, if applicable.
III. RATE REGULATIONS
A. LSP shall pay a Local Service Order Request Charge
for each LSP request for service order activity to
establish Access to the Toll Free Calling Database.
B. LSP shall pay the rates for Access to the Toll Free
Calling Database, as described in Section III D.
These rates and charges will apply for one (1)
<PAGE> 52
APPENDIX 800
PAGE 6 OF 7
year from the service effective date for each
exchange. After one (1) year, SWBT may change the
rates upon sixty (60) days' notice. SWBT may first
give such notice sixty days before the end of the
first year.
C. LSP shall pay a nonrecurring charge when an LSP
establishes or changes a signaling point code. The
rates and charges for Signaling Point Code(s) are
described in the SS7 Appendix. This charge also
applies to point code information provided by LSPs
allowing other telecommunications providers to use
the LSP's SS7 signaling network.
D. Prices for the four rate elements associated with
Access to the Toll Free Calling Database are as
follows:
1. Toll Free Database Query Rate Element $0.001020
2. Designated 10-Digit Translation Rate Element NC
3. Call Validation Rate Element NC
4. Call Handling and Destination Rate Element $0.000140
E. LSP shall pay the Toll Free Database query rate for
each query received and processed by SWB's database.
When applicable, the charge for the additional
features (Designated 10-Digit Translation, Call
Validation and Call Handling and Destination) are per
query and in addition to the Toll Free Database query
charge, and will also be paid by LSP.
IV. MONTHLY BILLING
SWBT shall render monthly billing statements to the
LSP, and remittance in full will be due within thirty
(30) days of receipt.
<PAGE> 53
APPENDIX 800
PAGE 7 OF 7
APPENDIX 800
EXHIBIT I
SPECIFICATIONS AND STANDARDS
Description of Subject Area
and Issuing Organization Document Number
Bellcore, SS7 Specifications
TR-NWT-000246
TR-NWT-000271
TR-NWT-000533
Bellcore, CCS Network Interface Specifications
TR-TSV-000905
TP 76638
TR-NWT-000954
<PAGE> 54
APPENDIX 911-MOKA
PAGE 2 OF 4
APPENDIX 911- KANSAS
Terms and Conditions for Providing Connection
to E911 Universal Emergency Number Service
This appendix between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide LSP's connection to E911 Universal Emergency Number
Service.
DEFINITIONS
The following definition is in addition to those in the Kansas General Exchange
Tariffs referenced below:
Independent Exchange Company (IEC): A local exchange telephone company,
including Local Service Providers (LSPs) who are certified by the state
commission, other than Southwestern Bell Telephone Company. An IEC may
also be a customer for Universal Emergency Number Service in order to
provide that service or elements of that service to legally authorized
agencies within the IEC's serving area.
TERMS AND CONDITIONS
The following is in addition to those terms and conditions in the Kansas General
Exchange Tariffs referenced below:
The Universal Emergency Number Service may be provided by Southwestern
Bell Telephone Company or jointly by Southwestern Bell Telephone
Company and an IEC.
SWBT shall provide LSP with a file containing the Master Street Address
Guide (MSAG) for the exchanges or communities specified in Exhibit I,
in accordance with the methods and procedures described in the document
"Operating Methods for Downloading and Maintaining End User Records in
SWBT's DBMS". SWBT shall provide LSP additional files with the entire
MSAG, including subsequent additions or updates to the MSAG in
accordance with the intervals specified in Exhibit I. In addition, SWBT
shall provide LSP with a statistical report in a timely fashion and in
accordance with the methods and procedures described in the above
mentioned document, for each file downloaded by LSP to SWBT's DBMS, so
that LSP may ensure the accuracy of the end user records. LSP will
attest it has been provided a copy of the document referenced above.
At a reasonable time prior to the establishment of E911 Service, LSP
shall download and maintain thereafter all information required to
establish records
<PAGE> 55
APPENDIX 911-MOKA
PAGE 3 OF 4
necessary for furnishing connection to E911 Service and shall promptly
notify SWBT in writing of any changes to be made to such records. LSP
shall adopt and comply with operating methods applicable to downloading
and maintaining LSP's end user records in SWBT's DBMS, as set forth in
the document referenced in the paragraph above.
LSP acknowledges that its end users in a single local calling scope may
be served by different PSAPs, and LSP shall be responsible for
providing facilities to route calls from its end users to the proper
E911 Control Office(s).
LSP shall connect its switches to the E911 Control Office by one-way
outgoing CAMA trunks dedicated for originating 911 emergency service
calls.
The parties agree that the E911 service is provided for the use of the
E911 Customer, and recognizes the authority of the E911 Customer to
establish service specifications and grant final approval (or denial)
of service configurations offered by SWBT and the LSP. The terms and
conditions of this appendix represent a plan for providing E911
service, for which LSP must obtain documentation of approval from the
appropriate E911 Customer(s) which have jurisdiction in the area(s) in
which LSP's customers are located. LSP shall provide such documentation
to SWBT prior to the use of LSP's E911 connection for actual emergency
calls.
Both parties agree to designate a representative who shall have the
authority to execute additional exhibits to this Appendix when
necessary to accommodate expansion of the geographic area of LSP into
the jurisdiction of additional PSAPs or to increase the number of CAMA
trunks. The designated representative for SWBT is Jeff Fields and for
LSP is Richard Weinstein.
The terms and conditions of this appendix are subject to renegotiation
in the event that the E911 Customer orders changes to the E911 service
that necessitate revision of this appendix.
RATES, TERMS AND CONDITIONS
E911 Universal Emergency Number Service will be provided utilizing the rates,
terms and conditions set forth in the following Kansas tariff, in addition to
those terms and conditions described previously in this Appendix:
SWBT's General Exchange Tariff Section 19 - Universal Emergency Number
Service (911)
<PAGE> 56
APPENDIX 911-MOKA
PAGE 4 OF 4
EXHIBIT I TO APPENDIX 9-1-1
<TABLE>
<CAPTION>
LSP SERVING AREA DESCRIPTION AND E9-1-1 INTERCONNECTION DETAILS
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LSP NAME & CONTACTS LSP "OCN" LSP Switch Name & Addr. Switch Type LSP NPA/NXX(s) included
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
CLLI Code #9-1-1 Trunks Requested
- ----------------------------------------------------------------------------------------------------------------------
E9-1-1 Manager LSP Telco ID
- ----------------------------------------------------------------------------------------------------------------------
"Connect Signal" Digits(4) "Default" PSAP
- ----------------------------------------------------------------------------------------------------------------------
1 - 1
- ----------------------------------------------------------------------------------------------------------------------
Database Administrator Estimated # of EAAs ETST Code
- ----------------------------------------------------------------------------------------------------------------------
LSP Service Area Definition:
- ---------------------------- -------------------------------------------------
Switch Site Contact
- ---------------------------- -------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
SWBT E9-1-1 SYSTEM CONFIGURATION ASSOCIATED WITH DESIGNATED E9-1-1 CONTROL OFFICE
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
E9-1-1 CONTROL OFFICE: PSAPs INCLUDED IN COMMUNITY E9-1-1 CUSTOMER and
- --------------------------------------------
CLLI Code: 9-1-1 SERVICE PLAN for MSAG PULL(3) AGENCY TYPE(see legend below)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
E9-1-1 Features Required:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
# of 9-1-1 Trunks from LSP:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
MSAG Update Interval: Monthly
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
FOOTNOTES: (1)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
(2)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
(3) MSAG will only include addresses within SWBT
- ----------------------------------------------------------------------------------------------------------------------
exchanges, unless specifically stated otherwise.
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
(4) Refer to network interface specifications in Exhibit III.
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
"TYPE of AGENCY" LEGEND: -----------------------------------------------------------------------------
HRC = Home Rule City
- ----------------------------------------------------------------------------------------------------------------------
ECD = Emergency Communications District
- ----------------------------------------------------------------------------------------------------------------------
COG = Council of Governments or Regional Planning Commission
- ----------------------------------------------------------------------------------------------------------------------
GLC = General Law City
- ----------------------------------------------------------------------------------------------------------------------
Cnty = County with special provisions (only applies to Dallas County)
- ----------------------------------------------------------------------------------------------------------------------
Date Prepared
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 57
<PAGE> 58
APPENDIX AIN
PAGE 2 OF 2
APPENDIX AIN
AIN CALL RELATED DATABASE
AIN is a Network Architecture that uses distributed intelligence in centralized
databases to control call processing and manage network information, rather than
performing those functions at every switch.
SWBT will provide LSP access to the SWBT's Service Creation Environment (SCE) to
design, create, test and deploy AIN-based features, equivalent to the access it
provides to itself, providing that security arrangements can be made. LSP
requests to use the SWBT SCE will be subject to request and review procedures to
be agreed upon by the Parties.
When LSP utilizes SWBT's Local Switching network element and requests SWBT to
provision such network element with a technically feasible AIN trigger, SWBT
will provide access to the appropriate AIN Call Related Database for the purpose
of invoking either an SWBT AIN feature or a LSP developed AIN feature as per
previous section.
When LSP utilizes its own local switch, SWBT will provide access to the
appropriate AIN Call Related Database for the purpose of invoking either an SWBT
AIN feature or a LSP developed AIN feature as per previous section.
SWBT will provide access to AIN Call Related databases in a nondiscriminatory
and competitively neutral manner. Any mediation, static or dynamic, will only
provide network reliability, protection, security and network management
functions consistent with the access service provided. Any network management
controls found necessary to protect the AIN SCP from an overload condition will
be applied based on nondiscriminatory guidelines and procedures either (1)
resident in the SWBT STP that serves the appropriate AIN SCP or (2) via manual
controls that are initiated from SWBT Network Elements. Such management controls
will be applied to the specific problem source, where ever that source is,
including SWBT, and not to all services unless a problem source cannot be
identified.
As requested by LSP, SWBT will provide specifications and information reasonably
necessary for LSP to utilize SWBT SCE as provided above.
SWBT SCP will partition and take reasonable steps to protect LSP service logic
and data from unauthorized access, execution or other types of compromise, where
technically feasible.
<PAGE> 59
APPENDIX BCR
PAGE 2 OF 5
APPENDIX BCR
BILLING, COLLECTING AND REMITTING
This Appendix sets forth the terms and conditions that apply to those
telecommunications services for which charges are billed and collected by one
Local Exchange Carrier (LEC) or LSP but earned by another LEC; and to establish
procedures for the billing, collecting and remitting of such charges and for
compensation for the services performed in connection with the billing,
collecting and remitting of such charges.
I. DEFINITIONS
A. BellCore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - Nationwide system used to
produce information reports that are used in the settlement of
LEC revenues recorded by one BCC (or LEC) and billed to an end
user of another BCC (or LEC) as described in accordance with
the BellCore Practice BR 981-200-110.
B. Charges - the amount approved or allowed by the appropriate
regulatory authority to be billed to an end user for any of
the services described in Section II., rendered by a LEC to an
end user.
C. Compensation - the amount to be paid by one Party to the other
Party for billing, collecting and remitting of charges as set
forth in Section IV.
D. IntraLATA - within a Local Access Transport Area (LATA) -
IntraLATA messages are those messages, either intrastate or
interstate, which originate and terminate within a LATA. The
term "IntraLATA messages," as used herein, shall only include
those that qualify for the BellCore Client Company BCC CATS
process.
E. InterLATA - between Local Access and Transport Areas (LATAs)
as defined in the FCC's CC Docket No. 78-72. InterLATA
messages are those messages which originate in one LATA and
terminate in a different LATA. The term "InterLATA messages"
as used herein, shall only include those that qualify for the
BellCore Client Company BCC CATS process.
F. Local Exchange Carrier (LEC) - as used in this Appendix shall
mean those Local Exchange Carriers or Local Service Providers
using BCC CATS as a message tracking system.
G. Local Message - Local messages are those messages which
originate and terminate within the area defined as the local
service area of the station from which the message originates.
H. Revenues - the sum of all or part of the charges as defined
above.
<PAGE> 60
APPENDIX BCR
PAGE 3 OF 5
II. SCOPE OF APPENDIX
This Appendix shall apply to procedures for the billing, collecting and
remitting of revenues (and compensation to either Party for billing,
collecting and remitting of such revenues) derived from the following
services:
A. LEC - carried (traffic transported by facilities belonging to
a LEC) local messages of the following types:
1. Local Message Service Charges Billed to a Calling Card or
to a Third Number.
2. Directory Assistance Calls Charged to a Calling Card or
to a Third Number.
3. Public Land Mobile Radiotelephone Transient-Unit Local
Message Service (Mobile Channel Usage Link Charge).
4. Maritime Mobile Radiotelephone Service and Aviation
Radiotelephone Service (Marine, Aircraft, High Speed
Train Radio Link Charges).
B. LEC-carried Interstate IntraLATA and Interstate InterLATA
telecommunications services that qualify for and flow through
the BCC CATS process as addressed in the BellCore Practice BR
981-200-110, of the following types:
1. Interstate IntraLATA Toll Service carried by an LEC and
charged to a Calling Card or a Third Number.
2. Interstate InterLATA Toll Service carried by an LEC and
charged to a Calling Card or a Third Number.
3. Radio Link Charges where service is provided by one LEC
and billed by another LEC.
III. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees to bill, collect and remit to SWBT the charges for
the services described in Section II. which charges are earned
by any LEC (including SWBT), but which are to be billed to end
users of the LSP.
B. In those cases in which the charges for the services listed in
Section II. are due any LEC other than SWBT, SWBT will arrange
to transfer these and charges to the appropriate company in
accordance with accepted industry standards.
<PAGE> 61
APPENDIX BCR
Page 4 of 5
C. Charges for the services listed in Section II. to be billed,
collected and by LSP for SWBT's benefit, shall be remitted by
LSP to SWBT within 30 days of the date of SWBT's bill to LSP
for such services.
D. SWBT agrees to bill and collect (or to have another LEC bill
and collect, where the appropriate), and to remit to LSP, the
charges for the services described in Section II., which
charges are earned by LSP, but which are to be billed by
another LEC (including SWBT) to the end users of that LEC.
E. Charges for the services listed in Section II. to be billed,
collected and remitted by SWBT or another LEC for LSP's
benefit, shall be remitted by SWBT to LSP within 30 days of the
date of LSP's bill to SWBT for such services.
F. The full amount of the charges transmitted to either Party for
billing, collecting and remitting shall be remitted by the
other Party, without setoff, abatement or reduction for any
purpose, other than to deduct the compensation, as described in
Section IV, due the Party for performing the end user billing
function. The Party billing the end user shall be responsible
for all uncollectible amounts related to the services described
remitted in Section II. Notwithstanding this paragraph, SWBT
may net amounts due to LSP under this Appendix against amounts
owed to SWBT when SWBT renders a bill to LSP hereunder.
G. Each Party will furnish to the other such information as may be
required for monthly billing and remitting purposes.
IV. COMPENSATION
A Party performing the services described in Section II. A. will
compensate the other Party in the amount of $.08 for each charge billed
for any service described in Section II.A. and subsequently remitted
pursuant to this Appendix by such other Party to the Party performing
the services described in Section II. A. A Party performing the
services described in Section II. B. will compensate the other Party in
the amount of $.05 for each charge billed for any service described in
Section II. B. and subsequently remitted pursuant to this Appendix by
such other Party to the Party performing the services described in
Section II. B. Such compensation shall be paid (unless a Party has
collected such compensation as described in Section III.F. above)
within 30 days of the date of a bill for such compensation by the Party
performing (or which has another LEC perform for it), the billing,
collecting and remitting functions described in Section III.
V. SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE
<PAGE> 62
APPENDIX BCR
Page 5 of 5
CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A
THIRD PARTY.
<PAGE> 63
APPENDIX CH
PAGE 2 OF 4
APPENDIX CLEARINGHOUSE (CH)
WHEREAS, SWBT operates a Clearinghouse (CH), as described below, for its own
behalf and that of participating LECs and LSPs, including LSP; and
WHEREAS, LSP wants to participate in the CH on the terms set forth herein;
The Parties agree to the following:
1. CLEARINGHOUSE DESCRIPTION
SWBT operates a CH for the purpose of facilitating the exchange of
certain alternatively billed intrastate intraLATA message toll call
records and the reporting of settlement revenues owed by and among
participating LECs and LSPs, including SWBT and LSP.
2. QUALIFYING MESSAGE CRITERIA
The only toll call messages that qualify for submission to SWBT for CH
processing are: (a) intrastate intraLATA sent collect (including
calling card, collect and third number) messages which are originated
in one LEC or LSP exchange, exclusively carried by a LEC or LSP over
LEC or LSP facilities and billed to a customer located in a second
LEC's or LSP exchange within the same state; or (b) intrastate
intraLATA sent collect (but limited to calling card and third number)
messages originated in one of SWBT's operating areas (located in parts
of Texas, Arkansas, Kansas, Missouri or Oklahoma), exclusively carried
by a LEC or LSP over LEC or LSP facilities, and billed to a customer
located in a second LEC's or LSP exchange and not in the originating
State.
3. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees that it will provide SWBT with billing records for CH
processing that are in an industry standard format acceptable to SWBT
and at a minimum will display the telephone number of the end user to
whom the call is to be billed, and data about the call sufficient for a
carrier to comply with all applicable state regulatory requirements.
For purposes of this Attachment, these records ("CH Records") will
detail intraLATA toll calls which were originated by use of the single
digit access code (i.e., 0+ and 0-) in one LEC or LSP exchange but are
to be billed to an end user in a second LEC's or LSP exchange. Such
records are referred to as category 92 records for CH processing
purposes. The term "CH Record" will mean the call detail attributed to
a single completed toll message.
LSP agrees that all CH Records it generates will display indicators
denoting whether category 92 Records should be forwarded to SWBT's CH.
LSP will retain its originating
<PAGE> 64
APPENDIX CH
PAGE 3 OF 4
records for ninety (90) days such that the category 92 Records can be
retransmitted to SWBT for CH processing, if needed.
B. SWBT will provide and maintain such systems as it believes are required
to furnish the CH service described herein. SWBT, in its capacity as
operator of the CH, agrees to retain all CH Records processed through
the CH for two (2) years.
C. LSP will timely furnish to SWBT all CH Records required by SWBT to
provide the CH service in accordance with the Technical Exhibit
Settlement Procedures (TESP) dated DD/MM/YEAR, or as otherwise mutually
agreed upon by the Parties. SWBT will provide the CH service in
accordance with the TESP, and such modifications as are subsequently
agreed upon.
D. Presently, in operating the CH, SWBT relies upon NXX codes to identify
messages for transmission to participating billing companies. To the
extent any subprocesses are required to settle CH messages due to the
use of ported numbers, such subprocessing will be the responsibility of
the porting entity.
4. PROCESSING CHARGE
LSP agrees to pay SWBT a processing charge in consideration of SWBT's
performance of CH services. This charge is $.02 per originated CH
Record processed on behalf of LSP.
5. BILLING CHARGE
LSP agrees to pay a $.05 per message charge to the LEC or LSP
responsible for billing the message, including SWBT, when SWBT bills
the message.
6. SETTLEMENT REPORT
SWBT will issue monthly reports containing the results of the
processing of CH Records to each participating LEC and LSP. These
reports list the (a) amounts owed by LSP for billing messages
originated by others; (b) amounts due to LSP for LSP-originated
messages billed by others; (c) applicable billing charges; and (d)
processing charges.
7. RETROACTIVE AND LOST MESSAGES
The Parties agree that processing of retroactive messages through the
CH is acceptable, if such messages utilize the industry standard format
for call records, pursuant to Section 3 of this Attachment. The Parties
agree that lost messages are the complete responsibility of the
originating LEC or LSP. If messages are lost by any Party, and cannot
be
<PAGE> 65
APPENDIX CH
PAGE 4 OF 4
recreated or retransmitted, the originating LEC or LSP will estimate
messages, minutes, and associated revenues based on the best available
data. No estimate will be made for messages which are more than two
years old at the time the estimate is made. The estimates will be
off-line calculations (i.e., not part of the routine CH processing) and
will be included as a supplement to the monthly settlement report.
8. LIMITATION OF LIABILITY
By agreeing to operate the CH, SWBT assumes no liability for any LEC's
or LSP's receipt of appropriate revenues due to it from any other
entity. LSP agrees that SWBT will not be liable to it for damages
(including, but not limited to, lost profits and exemplary damages)
which may be owed to it as a result of any inaccurate or insufficient
information resulting from any entity's actions, omissions, mistakes,
or negligence and upon which SWBT may have relied in preparing
settlement reports or performing any other act under this Attachment.
LSP agrees to indemnify and hold SWBT harmless against and with respect
to any and all third party claims, demands, liabilities or court
actions arising from any of its actions, omissions, mistakes or
negligence occurring during the course of SWBT's performance of CH
processing pursuant to this Attachment.
SWBT will not be liable for any losses or damages arising out of
errors, interruptions, defects, failures, or malfunction of the CH
services provided pursuant to this Attachment, including those arising
from associated equipment and data processing systems, except such
losses or damages caused by the sole negligence of SWBT. Any losses or
damage for which SWBT is held liable under this Attachment will in no
event exceed the amount of processing charges incurred by LSP for the
CH services provided hereunder during the period beginning at the time
SWBT receives notice of the error, interruption, defect, failure or
malfunction, to the time service is restored.
9. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 66
APPENDIX CNAM
Page 2 of 12
APPENDIX CNAM
This appendix contains the terms and conditions under which SWBT and LSP shall
provide CNAM Service Query service (or equivalent service):
1. Definitions
A. A-links mean a diverse pair of facilities connecting local end
office switching centers with Signaling Transfer Points.
B. Calling Name Delivery (CNAM) service enables the terminating end
user to identify the calling party by a displayed name before the call is
answered. The calling party's name, date and time of the call are retrieved from
an SCP database and delivered to the end user's premise between the first and
second ring for display on compatible customer premise equipment (CPE).
C. CNAM Service Query is SWBT's service that allows LSP to query SWBT's
Calling Name database for Calling Name information in order to deliver that
information to LSP's local subscribers.
D. Calling Name database means a Party's database containing current
Calling Name information of all working lines served or administered by that
Party, including the Calling Name information of any telecommunications company
participating in that Party's Calling Name database.
E. Calling Name information means telecommunications companies' records
of all their subscribers' names associated with one or more assigned ten-digit
telephone numbers.
F. Service Control Point (SCP) is a CCS network node where the Calling
Name database resides.
G. Service Point (SP) means a CCS network interface element capable of
initiating and/or terminating SS7 messages from an end office.
H. Service Switching Point (SSP) means the software capability within a
switching point that provides the SP with SS7 message preparation/interpretation
capability plus SS7 transmission/reception access ability.
I. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to SWBT's SS7 network,
LSP or a third
<PAGE> 67
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party initiating LSP's Calling Name Queries must connect with an SWBT STP in
order to connect to SWBT's SCP.
J. Common Channel Signaling (CCS) Network is an out-of-band,
packet-switched, signaling network used to transport supervision signals,
control signals, and data messages. CNAM Queries and Response messages are
transported across the CCS network.
K. Signaling System 7 (SS7) is the signaling protocol used by the CCS
network.
L. CNAM Service Query Rate applies to each CNAM Query received at the
SCP where a Party's Calling Name database resides.
M. Query Transport Rate applies to each CNAM Query transported through
a Party's interconnecting STP and between the STP and the Calling Name database.
SWBT and LSP shall list their STP locations in the National Exchange Carrier
Association, Inc. Tariff FCC No. 4.
N. Query means a message in American National Standards Institute's
(ANSI) standard SS7 signaling protocol which represents a request to a Calling
Name database for Calling Name information.
O. Response means an SS7 message which when appropriately interpreted
represents an answer to a Query.
P. Name Record Administering Companies means telecommunications
companies that administer telephone number assignments to the public and which
make their Calling Name information available in a Party's Calling Name
database.
2. Description of Service
A. SWBT shall provide LSP Calling Name information whenever LSP
initiates a Query from an SSP for such information associated with a call
terminating to a CNAM subscriber.
B. All Queries to SWBT's Calling Name database shall use a translation
type of 005 and a subsystem number in the calling party field mutually agreed
upon by the Parties. LSP acknowledges that such subsystem number and translation
type values are necessary for SWBT to properly process Queries to its Calling
Name database.
C. LSP warrants to SWBT that it shall send Queries conforming to the
ANSI approved standards for SS7 protocol and pursuant to the specification
standards documents identified in Exhibit A. Both Parties acknowledge that
transmission in said
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protocol is necessary for each party to provision CNAM Service Query. (Or the
equivalent thereof). Both Parties warrant that they shall send SS7 Messages that
comply with ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A. Each party reserves
the right to modify its network pursuant to other specifications standards,
which may include Bellcore specifications defining specific service
applications, message types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications industry. All such changes
shall be announced a minimum of 180 days in advance of implementation through
industry standard procedures. Each party will work cooperatively to coordinate
any necessary changes.
D. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's CCS/SS7 network. LSP
further agrees that SWBT, in its sole discretion, shall employ certain automatic
and/or manual overload controls within its CCS/SS7 network to guard against
these detrimental effects. SWBT shall report to LSP any instances where overload
controls are invoked due to LSP's CCS/SS7 network and LSP agrees in such cases
to take immediate corrective actions as are necessary to cure the conditions
causing the overload situation.
E. Prior to initiating service under this Agreement, LSP shall provide
to SWBT an initial forecast of busy hour Query volumes. If, prior to the
establishment of a mutually agreeable service effective date, in writing, SWBT,
at its discretion, determines that it lacks adequate storage or processing
capability to provide CNAM Service Query to LSP, SWBT shall notify LSP of its
intent not to provide the services under this Appendix and this Appendix will be
void and have no further effect.
F. Upon request, LSP shall update its busy hour forecast for each
upcoming calendar year (January - December) by October 1 of the preceding year.
LSP shall provide such updates each year for the first three (3) years of this
Agreement.
G. SWBT provides CNAM Service Query as set forth in this Appendix only
as such service is used for LSP's activities as a local service provider in
SWBT's traditional serving areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas. SWBT provides CNAM Service Query for interexchange
carriers, operator service providers, and other telecommunications companies
under separate contract rates. LSP agrees that any use of SWBT's LIDB for the
provision of CNAM Service Query by LSP, including, but not limited to, when LSP
acts as an LSP outside of SWBT's traditional serving areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas, and/or acts as an operator
service provider to other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange carrier, will be
pursuant to the standard terms, conditions, rates and charges of SWBT's non-LSP
contracts, as revised, for CNAM Service Query.
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3. Price and Payment
A. LSP shall pay a CNAM Service Query Rate of $0.0115 and a Query
Transport Rate of $0.0045 for each Query initiated into SWBT's Calling Name
database. Additional nonrecurring charges for point code activation of $15.35
and service order activity of $256.70 shall be applicable for all such activity
after the initial service order and initial point code activation. The per CNAM
Service Query rate SWBT charges hereunder may be increased upon sixty (60) days
written notice to the LSP unless LSP acts as an agent on behalf of other
carriers in which case ninety (90) days written notice shall be given. Upon such
notice, the Party receiving notice may terminate this Appendix without any
termination liability as provided in Section 5(B) of this Appendix. All tariffed
rates associated with Services provided hereunder are subject to change pursuant
to revisions of such tariffs.
B. SWBT shall record usage information for LSP's CNAM Queries
terminating to SWBT's Calling Name database. SWBT shall use its SCPs as the
source of usage data. SWBT shall aggregate usage by the point code of the
Query-originating SSP.
C. Based upon the data identified in Subsection 3.B above, SWBT shall
bill the LSP for its CNAM Queries on a monthly basis. The bill will be issued by
the fifteenth day of each month, and LSP shall pay the Subsection 3.B bill
within thirty (30) days of the bill issue date.
D. Depending on LSP's choice of method for transporting its Queries and
responses, LSP may be required to purchase certain other services, especially
services that may be provided pursuant to effective tariffs. In this event the
prices, terms, conditions and billing for such services will be specified in the
applicable tariff(s), and this Appendix shall not be construed to circumvent the
prices, terms, conditions, or billing as specified in the applicable tariff(s).
E. If there is a dispute associated with a monthly bill, the disputing
Party shall notify the other in writing within ninety (90) calendar days of the
date of said monthly bill or the dispute shall be waived. Each party agrees that
any amount of any monthly bill that the Party disputes will be paid by that
Party according to the terms of Subsection 3.C above. Any adjustments relating
to a disputed amount shall be reflected on the next monthly bill issued after
resolution. Any credit issued upon resolution of any dispute shall bear interest
at the rate specified in Subsection 3.C. above, payable on and as of the date
the credit is issued. Parties shall work cooperatively and use their best
efforts to resolve any disputes as quickly as possible.
F. If LSP acts as a telecommunications company other than a local
service provider, or if LSP acts as a local service provider in areas outside of
SWBT's traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and
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Texas, LSP will designate those point codes from which it originates CNAM
Service Queries as an LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri, Oklahoma
and Texas from those point codes which originate CNAM Service Queries for all
other aspects of its business. If LSP uses the same OPC to originate Queries for
its operations as an LSP within SWBT's traditional service areas in the states
of Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does for any other
aspect of its business, then LSP will provide SWBT with a percentage of use
factor that SWBT can use to apportion LSP's traffic between SWBT's terms and
conditions, rates and charges under this Appendix and the standard terms,
conditions, rates and charges under SWBT's non-LSP contracts. LSP will provide
this factor in a whole number between one (1) and one hundred (100) to indicate
the percentage of CNAM Service Queries LSP originates as an LSP acting as a
local service provider within SWBT's traditional service area in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas. A percentage of use factor of 1
(one) indicates that one percent of LSP's CNAM Service Queries originate as an
LSP acting as a local service provider within SWBT's traditional service areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A percentage
of use factor of 100 indicates that one hundred percent of LSP's traffic is from
LSP acting as a local service provider within SWBT's traditional service areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas.
G. Such percentage of use factors will be provided by LSP on the LIDB
Access Service Order Form used to establish the service. All updates to this
factor will be provided via a letter. If LSP does not furnish a percentage of
usage factor, LSP agrees that SWBT will apply a percentage of use factor of one
percent (1%).
H. LSP agrees to update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and October of each year,
LSP will forward to SWBT, to be received no later than fifteen (15) business
days after the first of each such month, a revised report showing the percentage
of use factors for the past three months ending the last day of December, March,
June, and September, respectively, for each OPC from which LSP originates CNAM
Service Query. Both parties agree that the revised report will serve as the
basis for the next three months billing. Both parties agree that no prorating or
backbilling will be done based on the report. SWBT will use the revised report
to apportion usage rate, monthly rates, and nonrecurring charges until a revised
report is received from LSP as set forth and agreed to herein.
I. Both parties agree that SWBT may, upon written request by Certified
U.S. mail (return receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage of use factor
provided by LSP. SWBT may request this detailed information annually. If the
audit results represent what SWBT considers to be a substantial deviation from
LSP's previously reported percentage of use for the period upon which the audit
is based, and that deviation is not
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due to seasonal changes or other identifiable reasons, LSP agrees to allow SWBT
to request such call detail records more than once annually. Both parties agree
that SWBT may make the call detail records available to an independent auditor
or to SWBT audit employees within thirty (30) days of the request at an agreed
upon location during normal business hours.
J. Both parties agree that if LSP fails to comply with SWBT's request
for auditable call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service for a period of
thirty (30) days. If at the conclusion of thirty (30) days, LSP still does not
comply with this request, both parties agree that SWBT may apply an assumed
percentage of use factor of one percent (1%).
4. Ownership of the Calling Name Information
A. Telecommunications companies depositing information in a Party's
Calling Name database retain full and complete ownership and control over such
Calling Names information in that Calling Name database. The querying Party
obtains no ownership interest by virtue of this Appendix.
B. LSP shall not copy, store, maintain or create any table or database
of any kind after initiation of, and based upon a response to, a CNAM Query to
SWBT's calling name database.
C. If LSP acts on behalf of other carriers, LSP shall prohibit its
Query-originating carrier customers from copying, storing, maintaining, or
creating any table or database of any kind from any Response provided by SWBT
after a CNAM Query to a Calling Name database.
5. Term and Termination
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Agreement and shall continue for two (2) years from the
date of implementation of CNAM Service Query (or the equivalent thereof).
Thereafter, this Appendix shall remain in effect unless terminated by either
party upon written notice given sixty (60) days in advance of the termination
date.
B. Should LSP terminate this Appendix within the first six (6) months
of this effective date, LSP agrees to pay SWBT an early termination sum equal to
two (2) times the average monthly volume of LSP's CNAM Queries times the rate
specified in Section 3(A) of this Appendix. The average monthly volume will be
calculated using the previous two (2) months' volume divided by two (2) or, if
less than two months, the monthly volume of the first month service was
provided.
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C. If at any time during the term of this Appendix a tariff for CNAM
Service Query (or the equivalent service thereof) becomes effective, the tariff
and all terms and conditions, including all rates, will supersede this Appendix.
Under these circumstances, no termination liability as provided in Section 5(B)
of this Appendix will apply.
D. If a party materially fails to perform its obligation under this
appendix, the other party, after notifying the non-performing party of the
failure to perform and allowing that party thirty (30) days after receipt of the
notice to cure such failure, may cancel this appendix immediately upon written
notice.
E. Notwithstanding anything to the contrary in this Appendix, if legal
or regulatory decisions or rules compel SWBT or LSP to terminate the Appendix,
SWBT and LSP shall have no liability to the other in connection with such
termination.
6. Limitation of Liability
A. LSP's sole and exclusive remedies against SWBT for injury, loss or
damage caused by or arising from anything said, omitted or done in connection
with this Appendix regardless of the form of action, whether in contract or in
tort (including negligence or strict liability) shall be the amount of actual
direct damages and in no event shall exceed the amount paid for CNAM Service
Queries.
B. The remedies in Section 6(A) of this Appendix shall be exclusive of
all other remedies against a Party, its affiliate, subsidiaries or parent
corporation, (including their directors, officers, employees or agents).
C. In no event shall SWBT have any liability for system outages or
inaccessibility, or for losses arising from the unauthorized use of the data by
CNAM Service Query purchasers.
D. CALLING NAME INFORMATION PROVIDED TO AN LSP HEREUNDER SHALL BE
PROVIDED "AS IS." SWBT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
ACCURACY OR COMPLETENESS OF THE CALLING NAME INFORMATION REGARDLESS OF WHOSE
CALLING NAME INFORMATION IS PROVIDED. AND, SWBT SHALL NOT BE HELD LIABLE FOR ANY
ACTIONS OR OMISSIONS ARISING OUT OF OR IN CONJUNCTION WITH LSP'S USE OF THE
CALLING NAME INFORMATION. NOTWITHSTANDING THE FOREGOING, SWBT WARRANTS THAT LSP
WILL BE ACCESSING THE SAME CALLING NAME DATABASE FOR CUSTOMER'S CNAM QUERIES AS
SWBT ACCESSES FOR ITS OWN QUERIES.
E. SWBT is furnishing access to its Calling Name database in order to
facilitate the LSP's provision of Calling Name Delivery Service (CNDS) to its
end
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users or to the end users of its Query-originating carrier customers, but not to
insure against the risk of completion of a call to a CNDS subscriber without the
display of the name of the caller. While each Party agrees to make every
reasonable attempt to provide accurate and current Calling Name information, the
Parties acknowledge that Calling Name information is the product of routine
business service order activity. LSP acknowledges that SWBT can furnish Calling
Name information only as accurate and current as the information has been
provided to SWBT for inclusion in its CNAM database. Therefore, SWBT, in
addition to the limitations of liability set forth, is not liable for
inaccuracies in the Calling Name information name records provided to LSP or to
its Query-originating carrier customers, except such inaccuracies caused by
SWBT's willful or wanton misconduct or gross negligence.
The Parties acknowledge that each Calling Name database limits the
Calling Name information length to fifteen (15) characters. As a result, the
Calling Name Information provided in a response to a Query may not reflect a
subscriber's full name. Name records of residential local telephone subscribers
will generally be stored in the form of last name followed by first name
(separated by a comma or space) to a maximum of fifteen (15) characters. Name
records of business local telephone subscribers will generally be stored in the
form of the first fifteen (15) characters of the listed business name that in
some cases may include abbreviations. The Parties also acknowledge that certain
local telephone service subscribers of Name Record Administering Companies may
require their name information to be restricted, altered, or rendered
unavailable. Therefore, in addition to the limitations of liability set forth in
Section 6 of this Appendix, SWBT is not liable for any and all liability,
claims, damages or actions including attorney's fees, resulting directly or
indirectly from the content of any Name Record contained in a Calling Name
database and provided to LSP or its Query-originating carrier customers, except
for such content related claims, damages or actions resulting from SWBT's
willful or wanton misconduct or gross negligence.
F. The Parties acknowledge that certain federal and/or state
regulations require that local exchange telephone companies make available to
their subscribers the ability to block the delivery of their telephone number
and/or name information to the terminating telephone when the subscriber
originates a telephone call. This blocking can either be on a call-by-call basis
or on an every call basis. Similarly, a party utilizing blocking services can
unblock on a call-by-call basis or every call basis. LSP acknowledges its
responsibility to and warrant that it will abide by information received in SS7
protocol during call set-up that the calling telephone service subscriber wishes
to block or unblock the delivery of telephone number and/or name information to
a CNDS subscriber. LSP agrees not to attempt to obtain the caller's name
information by originating a Query to SWBT's Calling Name database where the
subscriber attempted to block such information, nor will LSP block information a
subscriber attempted to unblock. Therefore, SWBT, in addition to the limitations
of liability set forth in this Section, is not liable for any failure by LSP or
its Query-originating carrier customers
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APPENDIX CNAM
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to abide by the caller's desire to block or unblock delivery of Calling Name
information, and LSP agrees to hold SWBT harmless from, and defend and indemnify
SWBT for, any and all liability, claims, damages or actions including attorney's
fees, resulting directly or indirectly from LSP or its Query-originating carrier
customers' failure to block or unblock delivery of the Calling Name information
when appropriate indication is provided, except for such privacy related claims,
damages or actions caused by SWBT's willful or wanton misconduct or gross
negligence.
G. In no event shall SWBT, its affiliates, subsidiaries or parent
corporation (including its directors, officers, employees or agents) have any
liability whatsoever to or through LSP for any indirect, special, or
consequential 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, even if SWBT has been advised of the
possibility of such damages.
7. Communication and Notices
A. Ordering and billing inquiries for the services described herein
from SWBT shall be directed to the Local Service Provider Service Center
(LSPSC). Ordering shall be done through the LSPSC using the form attached hereto
as Exhibit B.
8. Confidentiality
A. Identification. SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, it may disclose to the
other party proprietary or confidential customer, technical or business
information in written, graphic, oral or other tangible or intangible forms. In
order for such information to be considered "Proprietary Information" under this
Appendix, it must be marked "Confidential" or "Proprietary" or bear a marking of
similar import. Orally discussed information shall be considered Proprietary
Information only if contemporaneously identified as such and reduced to writing
and delivered to the other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall remain the
exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary Information to authorized
employees and other individuals who have a need to know the Proprietary
Information in order to perform its obligation under this Appendix.
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APPENDIX CNAM
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(3) To keep such Proprietary Information confidential and to use the
same level of care to prevent disclosure or unauthorized use of the received
Proprietary Information as it exercises in protecting its own Proprietary
Information of a similar nature.
(4) For a period of three (3) years following any disclosure, not to
copy or publish or disclose such Proprietary Information to others or authorize
anyone else to copy or publish or disclose such Proprietary Information to
others without the prior written approval of the Disclosing Party.
(5) To use such Proprietary Information only for purposes of
performing its obligations under this Appendix and for other purposes only upon
such terms as may be agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give notice to
the Disclosing Party of any demand to disclose or provide Proprietary
Information of the Disclosing Party to another person, under lawful process,
prior to disclosing or furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the Disclosing Party deems it
necessary to seek protective arrangements. The Receiving Party may disclose or
provide Proprietary Information of the Disclosing Party to meet the requirements
of a court, regulatory body or government agency having jurisdiction over the
Party; provided, however, that the Receiving Party shall notify the Disclosing
Party so as to give the Disclosing Party a reasonable opportunity to object to
such disclosure. The Disclosing Party may not unreasonably withhold approval of
protective arrangements provided by any such court, regulatory body or
government agency. Nothing herein requires either Party to support the position
of any person or entity as to whether any particular Proprietary Information is
proprietary under applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained in
this Appendix, the Proprietary Information described herein shall not be deemed
confidential or proprietary and the Receiving Party shall have no obligation to
prevent disclosure of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through no wrongful act of the
Receiving Party;
(3) is received from a third party without similar restriction
and without breach of this Section 8;
(4) is independently developed, produced or generated by the
Receiving Party;
(5) is furnished to a third party by the Disclosing Party
without a similar restriction on the third party's rights; or
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(6) is approved for release by written authorization of the
Disclosing Party, but only to the extent of such authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of Customer Queries for the
purposes of: (a) estimation of facilities usage for jurisdictional separations;
(b) engineering and network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the contrary
contained in this Agreement, a Party's ability to disclose Proprietary
Information or use disclosed Proprietary Information is subject to all
applicable statutes, decisions and regulatory rules concerning the disclosure
and use of such Proprietary Information which, by their express terms, mandate a
different handling of such information.
9. Mutuality
To the extent that LSP stores its own Calling Name information in a database,
LSP agrees that such Calling Name information shall be available to SWBT on
terms and conditions comparable to those contained in this Appendix. Such terms
and conditions shall include but not be limited to, making such Calling Name
information available on a platform technically similar to that employed by
SWBT, and at a rate comparable to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit A - Specifications and Standards
Exhibit B - LIDB Access Service Order Form [to be attached].
<PAGE> 77
Exhibit A
PAGE 1 OF 1
Specifications and Standards
Descriptions of Subject Area
and Issuing Organization Document Number
- ---------------------------- ---------------
A. Bellcore, SS7 Specifications TR-NPL-000246
B. ANSI, SS7 Specifications
- Message Transfer part T1.111
- Signaling Connection Control Tl.112
Part
- Transaction Capabilities T1.114
Application Part
C. Bellcore, CLASS Calling Name Delivery TR-NWT-001188
Generic Requirements
D. Bellcore, CCS Network Interface TR-TSV-000905
Specifications
<PAGE> 78
APPENDIX DCO
PAGE 2 OF 2
APPENDIX DCO
EXCHANGE:
- --------------------------------------------------------------------------------
DIRECTION(1) LSP LOCATION(2) DCO(3) NIP(4) INTERCONNECTION
[INSERT ADDRESS AND V&H METHOD
BELOW]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------
(1) This column will be completed by indicating the direction of the terminating
traffic (e.g., either LSP to SWBT or SWBT to LSP.)
(2) LSP LOCATION - The address of the LSP Location that will house LSP's
interconnection equipment and through which SWBT will terminate traffic on the
LSP's network.
(3) DESIGNATED CONNECTING OFFICE (DCO) - The address of the SWBT end office or
tandem through which the LSP will terminate traffic on SWBT's network.
(4) NETWORK INTERCONNECTION POINT or "NIP" - The NIP is the location where SWBT
and LSP facilities connect. The NIP will be identified by address and V&H
Coordinates. The NIP for traffic going from LSP to SWBT and going from SWBT to
LSP could be different. Where the physical interface occurs at a SWBT end office
or tandem, the NIP shall be located at the DCO. When SWBT and an LSP agree to
interconnect with a Mid-Span Fiber Interconnection (MSFI) the NIP is the
location where the fiber of SWBT and the fiber of the LSP is connected, unless
both Parties agree that the NIP is defined otherwise. Where the physical
interface occurs at the LSP location the NIP for that interconnection shall be
located at the LSP location.
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APPENDIX DA
PAGE 2 OF 5
APPENDIX DA
DIRECTORY ASSISTANCE SERVICE
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Directory Assistance Services (DA
Services) for LSP ("LSP").
I. SERVICES
SWBT will provide the following DA Services:
A. DIRECTORY ASSISTANCE (DA) - consists of providing subscriber
listing information (name, address, and published telephone
number or an indication of "non-published status") to LSP's
end users who dial 411 or NPA+555+1212 and whenever
appropriate, performing Non-Published and Non-List service
according to current SWBT methods and practices.
B. DIRECTORY ASSISTANCE CALL COMPLETION (DACC) - an optional
service in which SWBT completes a call to the requested number
on behalf of LSP's end user, utilizing an automated voice
system or with operator assistance. SWBT agrees to provide DA
with DACC upon request.
II. DEFINITIONS
The following terms are defined as set forth below:
A. Non-List Telephone Number - A telephone number that, at the
request of the telephone subscriber, is not published in a
telephone directory, but is available by calling a SWBT DA
operator.
B. Non-Published Number - A telephone number that, at the request
of the telephone subscriber, is neither published in a
telephone directory nor provided by a SWBT DA operator.
C. Published Number - A telephone number that is published in a
telephone directory and is available upon request by calling a
SWBT DA operator.
D. Call Branding - the procedure of identifying a providers name
audibly and distinctly to the consumer at the beginning of
each DA Services call, and prior to completion of a DACC
request.
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III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Where SWBT provides LSPs OS and DA services via
the same trunk, both the OS and DA calls will be branded with
the same brand. Where SWBT is only providing DA service on
behalf of the LSP, specific DA branding can be provided upon
request. Such branding will be provided pursuant paragraph B.
below.
B. CALL BRANDING - SWBT will brand DA in LSP's name based upon
the criteria outlined below:
1. LSP will provide SWBT with written specification of
its company name to be used in creating LSP specific
branding messages for its DA calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call
Branding as well as a charge per TOPS switch, per
subsequent load to change the brand. In addition, a
per call charge applies for every DA call handled by
SWBT on behalf of LSP when such services are provided
in conjunction with: i) the purchase of SWBT's
unbundled local switching; or ii) when multiple
brands are required on a single Operator Services
trunk. Prices for Call Branding are as outlined in
Exhibit II, attached hereto and incorporated herein.
C. DIRECTORY ASSISTANCE (DA) RATE/REFERENCE INFORMATION - SWBT
will provide LSP DA Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA Rate and Reference Information in
a mutually agreed to format or media thirty (30) days
in advance of the date when the DA Services are to be
undertaken.
2. LSP will inform SWBT, in writing, of any changes to
be made to such Rate/Reference Information ten (10)
working days prior to the effective Rate/Reference
change date. LSP acknowledges that it is responsible
to provide SWBT updated Rate/Reference Information in
advance of when the Rates/Reference Information are
to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the
applicable DA rates as provided by LSP.
An initial non-recurring charge will apply per TOPS switch for loading of LSP's
Operator Services Rate/Reference Information as well as a charge per TOPS switch
for each subsequent change to either the LSP's DA Services Rate or Reference
Information.
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IV. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of DA Services for LSP's local
serving area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown
in Exhibit I.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with
Automatic Number Identification (ANI) to each SWBT operator
switch. Should LSP seek to provide interexchange DA Service
under this agreement it is responsible for ordering the
necessary facilities. Nothing in this agreement in any way
changes the manner in which an interexchange Carrier obtains
access service for the purpose of originating or terminating
interexchange traffic.
C. Facilities necessary for the provision of DA Services shall be
provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of
service is met. Each party shall bear the costs for its own
facilities. LSP shall bear the costs of facilities necessary
for signaling and routing calls with Automatic Number
Identification (ANI) to each SWBT operator switch. SWBT shall
bear the cost of facilities and equipment necessary to provide
DA Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the DA Services are to be undertaken,
all end user listing records and information required by SWBT
to provide the DA Services.
E. LSP will keep end user listing records current using reporting
forms and procedures that are mutually acceptable to both
parties, and will inform SWBT, in writing, of any changes to
be made to such records. LSP will send the DA listing records
to SWBT via a local manual service order, T-TRAN, magnetic
tape or by any other mutually agreed to format or media.
F. SWBT will accumulate and provide LSP such data as necessary
for LSP to verify traffic volumes and bill its end users.
V. METHODS AND PRACTICES
SWBT will provide the DA Services to LSP's end users in accordance with
SWBT's DA methods and practices that are in effect at the time the DA
call is made, unless otherwise agreed in writing by both parties.
VI. PRICING
Pricing for DA Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached hereto and made part of this
Appendix. The prices will apply from the
<PAGE> 82
APPENDIX DA
PAGE 5 OF 5
service effective date through the term of this agreement as specified
in paragraph X., A. below. Beyond the specified term of this Appendix,
SWBT may change the prices for the provision of DA Services upon one
hundred-twenty (120) days' notice to LSP.
VII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
VIII. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless
SWBT from any and all losses, damages, or other liability
including attorneys fees that LSP may incur as a result of
claims, demands, wrongful death actions, or other suits
brought by any party that arise out of LSP's end users use of
DA Services. LSP shall defend against all end user claims just
as if LSP had provided such service to its end user with the
LSP's own operators and shall assert its tariff limitation of
liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SWBT employees and equipment associated with
provision of the DA Services. This provision includes but is
not limited to suits arising from disclosure of the telephone
number, address, or name associated with the telephone called
or the telephone used to call the DA Services.
IX. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force
for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one
hundred-twenty (120) days notice in writing from either Party
to the other.
B. If LSP terminates this agreement prior to the agreed-upon term
of this Appendix, LSP shall pay SWBT, within thirty (30) days
of the issuance of a final bill by SWBT, all amounts due for
actual services provided under this Appendix, plus estimated
monthly charges for the remainder of the term. Estimated
charges will be based on an average of the actual monthly
amounts billed by SWBT pursuant to this Appendix prior to its
termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit
II.
<PAGE> 83
APPENDIX DA - EXHIBIT I
PAGE 1 of 1
APPENDIX DA
DIRECTORY ASSISTANCE SERVICES EXCHANGE LIST
EFFECTIVE:_________________
(mm/dd/yr)
The following table depicts the services and exchanges covered by this Appendix:
- --------------------------------------------------------------------------------
SWBT SERVING LSP'S
OFFICE(S) OFFICE(S) TOLL (555) LOCAL (411) DACC
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 84
APPENDIX DA - EXHIBIT II
PAGE 1 OF 1
APPENDIX DA
KANSAS
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE: _______________
(mm/dd/yr)
The following rates will apply for each service element:
----------------------------------------------------------------------
A. DIRECTORY ASSISTANCE (DA)
This usage rate applies to each DA call.
Rate per call $0.433
----------------------------------------------------------------------
B. DIRECTORY ASSISTANCE CALL COMPLETION
DACC)
This usage rate applies to each DA call that has been completed to the
requested number.
Rate per completed call $0.24
----------------------------------------------------------------------
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand for
the establishment of Call Branding.
Rate per initial load $2,100.00
Rate per load for Brand change $2,100.00
Per Call(1) $0.02
----------------------------------------------------------------------
D. DA SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the
initial load of Carrier's DA Services Rate/Reference Information. An
additional non-recurring charge applies for each subsequent change to
Rate/Reference Information.
Rate per initial load $3,250.00
Rate per subsequent rate change $2,250.00
Rate per subsequent reference change $2,250.00
----------------------------------------------------------------------
- ------------------------
(1) A per call charge will apply when DA services are provided in conjunction
with i) unbundled local switching or ii) when multiple brands are required on a
single trunk.
<PAGE> 85
Appendix FGA
Page 2 of 7
APPENDIX FGA
This Appendix to Attachment Compensation sets forth the terms and conditions
under which the Parties will distribute revenue from the joint provision of
Feature Group A (FGA) Switched Access Services.
These services will be provided within a Local Access and Transport Area (LATA)
and/or an Extended Area Service (EAS) arrangement. The Primary Company will
compensate the Secondary Company only to the extent that it has not already been
compensated under its interstate or intrastate access service tariffs or other
settlement/contract arrangements. This Appendix is subject to applicable
tariffs.
1.0 DEFINITIONS
1.1 Local Access and Transport Area (LATA) means a pre-established
geographic area encompassing one or more local exchange areas within
which a Party may provide telecommunications services.
1.2 The term Extended Area Service (EAS) as used in this Appendix means the
provision of message telephone exchange service between two or more
local exchange service areas without a toll charge.
1.3 Subscriber Access Lines will mean a communication facility provided
under a general and/or exchange service tariff extended from a customer
premise to a central office switch which may be used to make and
receive exchange service calls, intrastate toll service or interstate
toll service calls.
1.4 Feature Group A Switched Access Service includes all facilities and
services rendered in furnishing FGA access service, both in EAS and
non-EAS (i.e., LATA wide terminations) areas, in accordance with the
schedule or charges, regulations, terms and conditions stated in the
interstate or intrastate access service tariffs of the Parties.
1.5 The Primary Company denotes the Party with the Primary office(s).
1.6 The Primary Office is an office which: (1) directly or jointly connects
to an interexchange carrier and /or end user: and (2) provides joint
FGA switched access service to that interexchange carrier and/or end
user with other end offices.
1.7 The Secondary Company denotes the Party with the secondary office(s).
<PAGE> 86
Appendix FGA
Page 3 of 7
1.8 The Secondary Office is any office involved in providing joint FGA
switched access to an Interexchange carrier and /or end user through
the switching facilities of the Primary office.
1.9 Revenues under this Appendix are those FGA Switched Access amounts due
the Primary and Secondary Companies under their applicable tariffs,
less uncollectible revenues. Revenues for any other services are not
included. Uncollectible revenues are those revenues the Primary Company
is unable to collect, using its regular established collection
procedures. The Primary Company may offset uncollectibles against
current revenue distribution.
1.10 Access Minutes or Minutes of Use (MOUs) are those minutes of use as
described in Part 69 of the Federal Communications Commission s Rules,
and are limited to those FGA MOUs which originate and /or terminate in
the Secondary Office(s) covered by this Appendix.
1.11 Currently Effective Tariff Rate means the approved tariff rate
effective on the first day of the month for which compensation is being
calculated.
2.0 UNDERTAKING OF THE PARTIES
2.1 The Secondary Company will notify the Primary Company of all tariff
rate revisions, affecting this Appendix which the FCC or other
appropriate regulatory authority allows to take effect, at least 30
days in advance of their effective date. Revenue distribution will be
based on the revised rates 45 days after the effective date of the
tariff revisions. However, if the secondary Company fails to notify the
Primary Company of a new rate within 30 days of its effective date, the
Primary company may delay implementation of the new rate until the next
month s revenue distribution cycle, and will not be required to adjust
the previous bills retroactive.
2.2 Each party will furnish to the other such information as may reasonably
be required for the administration, computation and distribution of
revenue, or otherwise to execute the provisions of this appendix.
3.0 ADMINISTRATION OF REVENUE DISTRIBUTION
The Primary Company will be responsible for the administration,
computation and distribution of the FGA access service revenues
collected on behalf of the Secondary Company.
4.0 MINUTES OF USE (MOUS) DEVELOPMENT
4.1 The Parties will calculate the amount of FGA revenues due each Party,
by determining the amount of FGA MOUs attributable to each Party as
described
<PAGE> 87
Appendix FGA
Page 4 of 7
below. The Primary Company will then multiply the MOUs by the rates in
the Secondary Company's applicable tariff to determine the amounts
tentatively due to the Secondary Company.
4.2 TERMINATING MOUS DEVELOPMENT
4.2.1 Actual monthly premium (charged at equal access end office) and
non-premium (charged at non-equal access end offices) terminating FGA
access MOUs for each office in the LATA or a FGA access EAS area will
be measured by the Primary Company.
4.2.2 Where the Primary Company cannot measure or identify the terminating
FGA MOUs by end office, terminating MOUs will be total unmeasured MOUs
allocated to the LATA. In this event, those MOUs will be distributed
based upon the ratio of each Party s subscriber access lines, as
identified in Exhibit B, which is attached hereto and made a part
hereof, to the total subscriber access lines in the FGA access area as
determined by the Primary Company.
4.3 ORIGINATING MOUS DEVELOPMENT
4.3.1 The Primary Company will derive and distribute monthly originating FGA
access MOUs, billed by the Primary Company, to each Secondary Company s
end office in the EAS calling area, as identified in Exhibit A, which
is attached hereto and made a part hereof, based upon a ration of each
Party s subscriber access lines to the total subscriber access lines in
the appropriate EAS area as determined by the Primary Company.
4.3.2 The parties recognize that since originating non-EAS calls to the FGA
service area are rated and billed as intraLATA toll, such usage is
assumed to be minimal. Therefore, originating FGA access MOUs will not
be distributed to end offices outside an EAS calling area.
5.0 CALCULATION OF REVENUE DISTRIBUTION
5.1 The amount of premium or non-premium revenues due each party each month
will be equal to the sum of Originating and Terminating premium or
non-premium revenue for each end office. These revenues will be
calculated by the Primary Company by multiplying each of the Secondary
Company s effective interstate and/or intrastate FGA switched access
tariff rate elements (except the Local Transport element described
below) by the appropriate MOU calculation under Sections 4.2.1 and
4.2.2.
5.2 Local Transport (or its equivalent under the Secondary Company s tariff
and called Transport in this agreement) compensation will be determined
for each company by multiplying each of the Secondary Company s
Transport rates by the
<PAGE> 88
Appendix FGA
Page 5 of 7
appropriate MOUs (as calculated under Sections 4.2.1 and 4.2.2.) by the
Secondary company s percentage ownership of facilities agreed on by the
Parties and set out in Exhibit B, which is attached hereto and made a
part hereof.
6.0 REVENUE DISTRIBUTION AMOUNTS, MONTHLY STATEMENTS AND PAYMENTS
6.1 The Primary Company each month will calculate and prepare a monthly
compensation statement reflecting the revenue distribution amounts for
FGA, both EAS and non-EAS, access service due the Secondary Company.
6.2 The monthly compensation statement will show, for each Secondary
Office, separately:
6.2.1 The total number of non-premium or premium terminating MOUs and
revenue.
6.2.2 The total number on non-premium or premium originating MOUs and
revenues.
6.2.3 The total compensation due the Secondary Company, by rate element.
6.2.4 The number of terminating MOUs recorded by the Primary Company.
6.2.5 The number of originating MOUs estimated by the Primary Company
pursuant to Section 4.3 contained herein.
6.2.6 The number of access lines used to prorate originating usage pursuant
to Section 4.3 contained herein.
6.2.7 The percent ownership factor, if any, used to prorate Local Transport
revenues.
6.2.8 Adjustments for uncollectibles.
6.3 Within 60 Calendar days after the end of each billing period, the
Primary Company will remit the compensation amount due the Secondary
Company. Where more than one compensation amount is due, they may be
combined into a single payment.
7.0 MISCELLANEOUS PROVISIONS
7.1 This appendix will remain in effect until terminated by thirty (30)
calendar day s notice by either Party to the other.
<PAGE> 89
Appendix FGA
Page 6 of 7
EXHIBIT A
EAS Locations for Originating and Terminating
Feature Group A Access Service
Primary Office Secondary Office
Company Company
CLLI CODE NPA-NXX CLLI CODE NPA-NXX
ACCESS LINE
<PAGE> 90
Appendix FGA
Page 7 of 7
EXHIBIT B
Location for LATA Wide Termination
of Feature Group A Access Service in
Non-EAS Calling Areas
SECONDARY OFFICE COMPANY
% Ownership of
CLLI CODE NPA-NXX Access Line Transport Facilities LATA
<PAGE> 91
Appendix HOST
Page 2 of 5
APPENDIX HOST
This Appendix sets forth the terms and conditions under which SWBT will perform
hosting responsibilities for LSP for (1) the provision of billable message data
and/or access usage data received from such LSP for distribution to the
appropriate billing and/or processing location via SWBT's in-region network or
via the nationwide Centralized Message Distribution System (CMDS) or (2)
billable message data and/or access usage data received from other Local
Exchange Carriers (LECs) or LSPs or from CMDS to be distributed to such LSP.
This Appendix covers hosting in region (i.e., Missouri, Arkansas, Kansas,
Oklahoma and Texas) and hosting out of region. Hosting out of region is only
available to an LSP that is a Full Status Revenue Accounting Office (RAO)
company.
I. DEFINITIONS
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group,
duration and time of day for a message which is subsequently
used by a LEC to bill access to an Interexchange Carrier
(IXC).
B. Bellcore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - nationwide system used to
produce information reports that are used in the settlement of
LEC or LSP revenues recorded by one BCC (or LEC or LSP within
the territory of that BCC) and billed to a customer of another
BCC (or LEC or LSP within the territory of that BCC) as
described in accordance with the Bellcore Practice BR
981-200-110.
C. Billable Message Record - a message record containing details
of a completed call which has been carried by a LEC over its
facilities or by LSP over its facilities and such record is to
be used to bill an end user.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange
Message Record (EMR) formatted billing data between a company
originating a message and the company billing for a message.
E. Exchange Message Record (EMR) - industry standard message
format as described in accordance with the Bellcore Practice
BR 010-200-010 which was developed to facilitate the exchange
of telecommunications message information.
F. Full Status Revenue Accounting Office (RAO) - an LSP or LEC
that is responsible for formatting EMR records, and for
editing and packing of such detail records into files for
distribution.
<PAGE> 92
Appendix HOST
Page 3 of 5
G. In-Region Hosting - includes the transport, using Hosting
Company network, of (1) billable message record data for LEC
or LSP transported messages and/or access usage record data
that originate in a region and are delivered by the LSP to
SWBT at a mutually agreed upon location within the territory
of SWBT to be sent to another LEC or LSP for billing; and (2)
billable message record data and/or access usage data received
from CMDS or another LEC or LSP to be delivered to the LSP for
billing to its end user located within the five state
territory of SWBT.
H. Out-of-Region Hosting - includes the transport, using the
national CMDS network, of (1) billable message record data for
LEC or LSP transported messages and/or access usage record
data that originate out of region and are delivered by the LSP
to SWBT and are to be sent to another LEC or LSP for billing;
and (2) billable message record data and/or access usage data
received from CMDS or another LEC or LSP to be delivered to
the LSP for billing to its end user located outside SWBT's
five state territory.
I. Non-Full Status Revenue Accounting Office (RAO) - An LSP or
LEC that has assigned responsibility to SWBT for editing,
sorting and placing billing message record detail and/or
access usage record detail into packs for distribution.
II. RESPONSIBILITIES OF THE PARTIES
A. All data forwarded from LSP must be in the industry standard
EMR format in accordance with Bellcore Practice BR
010-200-010. The LSP is responsible to ensure all appropriate
settlement plan indicators are included in the message detail,
i.e., the Bellcore Client Company Calling Card and Third
Number Settlement (BCC CATS) System. The LSP acknowledges that
the only message records subject to this Hosting Appendix are
those that arise from LEC or LSP transported billable messages
and/or access usage records to be used by a LEC or LSP for the
purpose of billing access to an IXC.
B. When LSP delivers billable message data and/or access usage
data to SWBT which must be forwarded to another location for
billing purposes, SWBT will accept data from the LSP, perform
edits to make message detail and access usage records
consistent with CMDS specifications, and use its in region
data network to forward this data to the appropriate billing
company or to access the national CMDS network in order to
deliver this data to the appropriate billing and/or processing
company.
If LSP is not a Full Status RAO Company, SWBT will also sort
billable message detail and access usage record detail by
Revenue Accounting Office, Operating Company Number or Service
Bureau and split data into packs for invoicing prior to using
its in region network to forward this data to the appropriate
billing company or to access the national CMDS network in
order to deliver such data to the appropriate billing company.
<PAGE> 93
Appendix HOST
Page 4 of 5
C. For billable message data and/or access usage data received by
SWBT for delivery to an LSP location, SWBT will use its in
region data network to receive this data from other LECs or
LSPs or from CMDS in order to deliver such billable message
data and/or access usage data to the agreed upon billing LSP
location.
III. BASIS OF COMPENSATION
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records that are received from LSP and destined for
delivery to another location for billing, at the rates listed below:
Per Record Charge
Full Status RAO Company
Hosting Company Network $.002
National CMDS Network $.005
Non-Full Status RAO Company
Hosting Company Network $.007
National CMDS Network $.010
As part of this per record charge, SWBT will provide Confirmation
and/or Error Reports and any Intercompany Settlement (ICS) Reports,
such as the Bellcore Client Company Calling Card and Third Number
Settlement System (BCC CATS), as needed.
LSP agrees to pay SWBT a per record charge for billable message records
and/or access usage records which are entered on a magnetic tape or
data file for delivery to the LSP, at the rate listed below:
Per Record Charge $.003
IV. LIABILITY
A. Any failure to populate accurate information in accordance
with Section II.A. will be the responsibility of the LSP.
B. SWBT will not be liable for any costs incurred by the LSP when
the LSP is transmitting data files via data lines and a
transmission failure results in the nonreceipt of data by
SWBT.
C. SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES
RESULTING FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS
APPENDIX.
D. SWBT shall not be liable for any losses or damages arising out
of errors, interruptions, defects, failures, or malfunction of
the services provided hereunder,
<PAGE> 94
Appendix HOST
Page 5 of 5
including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole
negligence of SWBT. Any losses or damage for which SWBT is
held liable under this Appendix shall in no event exceed the
amount of charges made for the services provided hereunder
during the period beginning at the time SWBT receives notice
of the error, interruption, defect, failure or malfunction to
the time service is restored.
E. The LSP agrees to release, defend, indemnify, and hold
harmless SWBT from any and all losses, damages, or other
liability, including attorney fees, that it may incur as a
result of claims, demands, or other suits brought by any party
that arise out of the use of this service by the LSP, its
customers or end users. The LSP shall defend SWBT against all
end user claims just as if LSP had provided such service to
its end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or
indirectly, by SWBT employees and equipment associated with
provision of this service. This includes, but is not limited
to suits arising from disclosure of any customer specific
information associated with either the originating or
terminating numbers used to provision this service.
VI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 95
APPENDIX ITR
PAGE 2 of 8
APPENDIX ITR
(TRUNKING REQUIREMENTS)
This Appendix provides descriptions of the trunking requirements for the LSP and
SWBT interconnection. The attached scenarios depict the recommended trunk groups
for local, intraLATA toll, interLATA "meet point", mass calling, E911 and
Operator Services interconnection. All references to incoming and outgoing trunk
groups are from the perspective of the LSP.
I. LOCAL TRAFFIC AND INTRALATA TOLL TRAFFIC
(a) The LSP Originating (The LSP to SWBT)
When SWBT has a combined local and access tandem in an
exchange, IntraLATA Toll Traffic may be combined with the
Local Traffic on the same trunk group. When SWBT has more than
one combined local and access tandem in an exchange, the LSP
shall provide a separate trunk group to each SWBT tandem. When
there are separate SWBT access and local tandems in an
exchange, a separate local trunk group shall be provided to
the local tandem and a separate IntraLATA toll trunk group
shall be provided to the access tandem. This trunk group(s)
shall be one-way or two-way directionalized outgoing only and
will utilize Signaling System 7 (SS7) or multifrequency (MF)
protocol signaling.
(b) The LSP Terminating (SWBT to LSP)
When SWBT has a combined local and access tandem, SWBT shall
normally combine the Local and IntraLATA Toll Traffic over a
single trunk group to the LSP. When SWBT has a separate access
and local tandem in an exchange, a trunk group shall be
established from each tandem to the LSP. This trunk group(s)
shall be one-way or two-way directionalized incoming only and
will utilize SS7 or MF protocol signaling.
(c) Direct End Office Trunking
The Parties shall establish direct end office primary high
usage trunk groups for Local Traffic and/or IntraLATA Toll
Traffic when end office traffic requires twelve or more
trunks. If LSP has established collocation to the end office,
the trunks shall be provisioned over the LSP collocation
facility. If the LSP has no collocation facilities, SWBT shall
provision the trunks from the NIP to the end office. IntraLATA
Toll Traffic shall be provided over a separate trunk group to
the SWBT access tandem.
<PAGE> 96
APPENDIX ITR
PAGE 3 of 8
II. ACCESS TOLL CONNECTING TRUNKS
InterLATA traffic shall be transported between the LSP Central Office
and the SWBT access tandem over a "meet point" trunk group separate
from local and intraLATA toll traffic. The access toll connecting trunk
group will be established for the transmission and routing of Exchange
Access traffic between the LSP's end users and interexchange carriers
via a SWBT access tandem. When SWBT has more than one access tandem
within an exchange, the LSP shall utilize a single access toll
connecting trunk group to one SWBT tandem within the exchange. This
trunk group may be set up as one-way or two-way (two-way is preferred)
and will utilize SS7 or MF protocol signaling. The traffic use code and
modifier for this trunk group should be MDJ (see Scenario 1, 2, 3, or
4).
III. 800 (888) TRAFFIC
If the LSP chooses SWBT to handle 800 (888) database queries from its
central office switches, all the LSP originating 800 (888) service
queries will be routed over the InterLATA Interexchange Carrier (MDJ)
trunk group. This traffic will include a combination of both InterLATA
Interexchange Carrier 800 (888) service and IntraLATA LEC 800 (888)
service that will be identified and segregated by carrier through the
database query handled through the SWBT tandem switch.
A separate trunk group from each Party to the other will be required
for IntraLATA 800 service if either Party chooses to handle the 800
database queries from its switch location. The purpose of the separate
trunk group is to provide for the segregation of originating 800
IntraLATA call volumes to ensure the proper billing of intercompany
settlement compensation.
The trunk group shall be set up as one-way outgoing only and will
utilize SS7 protocol signaling. The traffic use code and modifier for
this trunk group should be DD800J (see Scenario 1, 2, 3, or 4).
IV. E911
A segregated trunk group will be required to each appropriate E911
tandem within the exchange in which the LSP offers the Exchange
Service. This trunk group shall be set up as a one-way outgoing only
and shall utilize MF CAMA signaling. The traffic use code and modifier
for this trunk group shall be ESJ (see Scenario 1, 2, 3, or 4).
V. MASS CALLING (PUBLIC RESPONSE CHOKE NETWORK)
A segregated trunk group shall be required to the designated Public
Response Choke Network tandem in each serving area. This trunk group
shall be one-way outgoing only and shall utilize MF signaling. It is
recommended that this group be sized as follows:
<PAGE> 97
APPENDIX ITR
PAGE 4 of 8
<15001 access lines (AC) 2 trunks (min)
15001 to 25000 AC 3 trunks
25001 to 50000 AC 4 trunks
50001 to 75000 AC 5 trunks
>75000 AC 6 trunks (max)
The traffic use code and modifier for this trunk group shall be TOCRJ
(see Scenario 1, 2, 3, or 4).
VI. OPERATOR SERVICES
(a) No Operator Contract:
Inward Operator Assistance (Toll Center (TC) Code plus 121) -
The LSP may choose from two interconnection options for Inward
Operator Assistance as follows:
Option 1 - Interexchange Carrier (IXC) Carrier
The LSP may utilize the Interexchange Carrier Network (see
Scenario 6). The LSP operator will route its calls requiring
inward operator assistance through its designated IXC POP to
SWBT's TOPS tandem. SWBT shall route its calls requiring
inward operator assistance to the LSP's Designated Operator
Switch (TTC) through the designated IXC POP.
Option 2 - The LSP Operator Switch
The LSP reports its switch as the designated serving operator
switch (TTC) for its NPA-NXXs and requests SWBT to route its
calls requiring inward operator assistance to the LSP. This
option requires a segregated two-way (with MF signaling) trunk
group from SWBT's Access Tandem to the LSP switch. The traffic
use code and modifier for this trunk group should be OAJ (see
Scenario 7). The LSP's operator will route its calls requiring
inward operator assistance to SWBT's operator over an IXC
network.
(b) Operator Contract with SWBT:
(i) Directory Assistance (DA):
The LSP may contract for DA services only. A
segregated trunk group for these services would be
required to SWBT's TOPS tandem. This trunk group is
set up as one-way outgoing only and utilizes MF and
Operator Services signaling. The traffic use code and
modifier for this trunk group should be DAJ (see
Scenario 5).
<PAGE> 98
APPENDIX ITR
PAGE 5 of 8
(ii) Directory Assistance Call Completion (DACC):
The LSP contracting for DA services may also contract
for DACC. This requires a segregated one-way trunk
group to SWBT's TOPS tandem. This trunk group is set
up as one-way outgoing only and utilizes MF
signaling. The traffic use code and modifier for this
trunk group should be DACCJ (see Scenario 5).
(iii) Busy Line Verification:
When SWBT's operator is under contract to verify the
LSP's end user loop, SWBT will utilize a segregated
one-way with MF signaling trunk group from SWBT's
Access Tandem to the LSP switch. The traffic use code
and modifier for this trunk group should be VRJ (see
Scenario 5).
(iv) Operator Assistance (0+, 0-):
This service requires a one-way trunk group from the
LSP switch to SWBT's TOPS tandem. Two types of trunk
groups may be utilized. If the trunk group transports
DA/DACC, the trunk group will be designated as ETCMFJ
(0-, 0+, DA, DACC) (see Scenario 5). If DA is not
required or is transported on a segregated trunk
group, then the group will be designated as ETCM2J
(see Scenario 5). MF and Operator Services signaling
will be required on the trunk group.
VII. Trunk Design Blocking Criteria
Trunk forecasting and servicing for the Local and IntraLATA Toll trunk
groups shall be based on the industry standard objective of 2% overall
time consistent average busy season busy hour loads (1% from the End
Office to the Tandem and 1% from the Tandem to the End Office based on
Neil Wilkinson B.01M [Medium Day-to-Day Variation] until traffic data
is available ). Listed below are the trunk group types and their
objectives:
Trunk Group Type Blocking Objective (Neil Wilkinson M)
-----------------------------------------------------------------------
Local Tandem 1%
Local Direct 2%
IntraLATA Interexchange 1%
911 1%
Operator Services (DA/DACC) 1%
Operator Services (0+, 0-) 0.5%
InterLATA Tandem 0.5%
<PAGE> 99
APPENDIX ITR
PAGE 6 of 8
VIII. FORECASTING/SERVICING RESPONSIBILITIES
Both Parties agree to provide an initial forecast for establishing the
initial interconnection facilities. Subsequent forecasts will be
provided on a semi-annual basis concurrent with the publication of the
SWBT General Trunk Forecast including yearly forecasted trunk
quantities for all trunk groups described in this Appendix for a
minimum of three years and the use of Common Language Location
Identifier (CLLI-MSG) which is described in Bellcore documents
BR795-100-100 and BR795-400-100. Trunk servicing will be performed on a
monthly basis at a minimum.
SWBT shall be responsible for forecasting and servicing the trunk
groups terminating to the LSP. The LSP shall be responsible for
forecasting and servicing the trunk groups terminating to SWBT end
users and/or to be used for tandem transit to other provider's
networks, operator services and DA service, and interLATA toll service.
Standard trunk traffic engineering methods will be used as described in
Bell Communications Research, Inc. (Bellcore) document SR-TAP-000191,
Trunk Traffic Engineering Concepts and Applications.
IX. TRUNK SERVICING
1. Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an Access
Service Request ("ASR").
2. All Parties shall jointly manage the capacity of local
Interconnection Trunk Groups. Either Party may send the other
Party an ASR to initiate changes to the Local Interconnection
Trunk Groups that the ordering Party desires based on the
ordering Party's capacity assessment. The receiving Party will
issue a Firm Order Confirmation ("FOC") and a Design Layout
Record ("DLR") to the ordering Party within five (5) business
days after receipt of the ASR.
3. Orders that comprise a major project (i.e., new switch
deployment) shall be submitted in a timely fashion, and their
implementation shall be jointly planned and coordinated.
4. SWBT will process trunk service requests submitted via a
properly completed ASR within twenty (20) business days of
receipt of such ASR. Facilities must also be in place before
trunk orders can be completed.
5. In the event that a Party requires trunk servicing within
shorter time intervals than those provided for in this Article
XI due to a bona fide end user demand, such Party may
designate its ASR as an "Expedite" and the other Party shall
use best efforts to issue its FOC and DLR and install service
within the requested interval.
6. Each Party shall be responsible for engineering their networks
on their side of the NIP.
<PAGE> 100
APPENDIX ITR
PAGE 7 of 8
X. SERVICING OBJECTIVE/DATA EXCHANGE
Each Party agrees to service trunk groups to the foregoing blocking
criteria in a timely manner when trunk groups exceed measured blocking
thresholds on an average time consistent busy hour for a 20 business
day study period. Upon request, each Party will make available to the
other, trunk group measurement reports for trunk groups terminating in
the requesting Party's network. These reports will contain offered
load, measured in CCS (100 call seconds), that has been adjusted to
consider the effects of overflow, retrials and day-to-day variation.
They will also contain overflow CCS associated with the offered load,
day-to-day variation, peakedness factor, the date of the last week in
the four week study period and the number of valid days of measurement.
These reports shall be made available at a minimum on a semi-annual
basis upon request.
XI. SPECIFICATIONS
All DS-1 and DS-3 facilities utilized for trunking established or
employed by the Parties for purposes of this STC shall meet the
specifications set forth in SWBT's TP-76625 dated June, 1990 and
TP-76839 dated January, 1996.
XII. TRUNK FACILITY UNDER UTILIZATION
At least once a year the Parties shall exchange trunk group measurement
reports as detailed above for trunk groups terminating to the other
Party's network. Each Party will determine the required trunks for each
of the other Party's trunk groups for the previous 12 months. Required
trunks will be based on the Blocking Objectives under "Trunk Design
Blocking Criteria" above and time consistent average busy hour usage
measurements from the highest 4 consecutive week (20 business day)
study. Trunk groups with excess capacity will be identified to the
other Party as eligible for downsizing. Excess capacity exists when a
trunk group, on a modular trunk group design basis, has 48 trunks (2
modular digroups) or 10%, whichever is larger, over the required number
of trunks.
The party with excess trunking capacity will assess the trunk capacity
based on forecasted requirements and agrees to disconnect trunks in
excess of forecasted requirements for the next 12 months. If after 12
months the trunk group continues to have excess capacity the party
agrees to take timely steps to disconnect all excess capacity.
XIII. Where available and upon the request of the other Party, each Party
shall cooperate to ensure that its trunk groups are configured
utilizing the B8ZS ESF protocol for 64 kbps clear channel transmission
to allow for ISDN interoperability between the Parties' respective
networks.
<PAGE> 101
APPENDIX ITR
PAGE 8 of 8
XIV. INSTALLATION, MAINTENANCE, TESTING AND REPAIR. SWBT's standard
intervals for Feature Group D Switched Exchange Access Services will be
used for Interconnection trunks as specified in the most current SWBT
Accessible Letter, currently SWA96-036, dated April 15, 1996. The LSP
shall meet the same intervals for comparable installations,
maintenance, joint testing, and repair of its facilities and services
associated with or used in conjunction with Interconnection or shall
notify SWBT of its inability to do so and will negotiate such intervals
in good faith.
<PAGE> 102
APPENDIX ITR - SCENARIOS
PAGE 1 of 7
SCENARIO 1
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
2. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7 SIGNALING) #
5. MDJ INTERLATA ONLY (MF SIGNALING) @
6. MDJ INTERLATA ONLY (SS7 SIGNALING)
7. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and Feature
Group B over D.
# Required if SWBT does not perform the database query for the LSP.
Revised 6/17/96
LSP1.AF3
<PAGE> 103
APPENDIX ITR - SCENARIOS
PAGE 2 of 7
SCENARIO 2
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WITH SOME DIRECT END OFFICE, ILEC AND IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
4. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. MDJ INTERLATA ONLY (MF SIGNALING) @
8. MDJ INTERLATA ONLY (SS7 SIGNALING)
9. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and Feature
Group B over D.
# Required if SWBT does not perform the database query for the LSP.
Revised 6/17/96
LSP2.AF3
<PAGE> 104
APPENDIX ITR - SCENARIOS
PAGE 3 of 7
SCENARIO 3
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITHOUT DIRECT END OFFICE, ILEC OR IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. TOJ LOCAL ONLY (SS7 SIGNALING)
2. TGJ LOCAL ONLY (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
5. DDJ INTRALATA ONLY (SS7 SIGNALING)
6. TCJ INTRALATA ONLY (SS7 SIGNALING)
7. MDJ INTERLATA ONLY (SS7 SIGNALING)
8. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform the database query for the LSP.
Revised 12/30/96
LSP3.AF3
<PAGE> 105
APPENDIX ITR - SCENARIOS
PAGE 4 of 7
SCENARIO 4
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS
TANDEMS WITH SOME DIRECT END OFFICE, ILEC AND IXC TRUNKING
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. TOJ LOCAL ONLY (SS7 SIGNALING)
4. TGJ LOCAL ONLY (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. DDJ INTRALATA ONLY (SS7 SIGNALING)
8. TCJ INTRALATA ONLY (SS7 SIGNALING)
9. MDJ INTERLATA ONLY (SS7 SIGNALING)
10. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform database query for the LSP.
Revised 12/30/96
LSP4.AF3
<PAGE> 106
APPENDIX ITR - SCENARIOS
PAGE 5 of 7
SCENARIO 5
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS THE OPERATOR SERVICES PROVIDER FOR THE LSP
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. VRJ BUSY LINE VERIFICATION (MF SIGNALING) #
2. DAJ or DACCJ DIRECTORY ASSISTANCE or DIRECTORY ASSISTANCE CALL
COMPLETION (MF SIGNALING, OPERATOR SERVICES SIGNALING)
3. ETCM2J 0-, 0+ COMBINED COIN AND NONCOIN (MF SIGNALING, OPERATOR
SERVICES SIGNALING)
4. ETCMFJ 0-, 0+, DA, DACC COMBINED COIN AND NONCOIN (MF SIGNALING,
OPERATOR SERVICES SIGNALING)
# Busy Line Verification is sometimes trunked out from the TOPS Tandem rather
than the Access Tandem.
Revised 1/7/97
LSP5.AF3
<PAGE> 107
APPENDIX ITR - SCENARIOS
PAGE 6 OF 7
SCENARIO 6
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER FOR THE LSP
121 INWARD OPERATOR ASSISTANCE
[CHART]
Note: THIS SCENARIO WOULD USE EXISTING INTEREXCHANGE CARRIER NETWORK.
REVISED 6/17/96
LSP6.AF3
<PAGE> 108
APPENDIX ITR - SCENARIOS
PAGE 7 OF 7
SCENARIO 7
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM
WHERE SWBT IS NOT THE OPERATOR SERVICES PROVIDER
FOR THE LSP AND THE LSP'S SWITCH IS THE DESIGNATED
OPERATOR SWITCH (TTC) FOR 121 INWARD ASSISTANCE
[CHART]
TRAFFIC USE/MODIFIER DESCRIPTION
1. OAJ ACCESS TO INWARD OPERATOR (121) (MF SIGNALING)
REVISED 6/17/96
LSP7.AF3
<PAGE> 109
APPENDIX LIDB
Page 2
APPENDIX LIDB
AGREEMENT FOR THE PROVISION OF DATA BASE ADMINISTRATION
AND
LINE INFORMATION DATABASE (LIDB) STORAGE
This Appendix, between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide data base administration to store LSP's line/billing
records in SWBT's Line Information Data Base (LIDB).
WHEREAS, SWBT owns and maintains a Line Validation Administration System (LVAS)
that provides facilities for adding, deleting, and changing information in LIDB;
and
WHEREAS, SWBT maintains LIDB for various purposes, including the validation of
alternately billed service (ABS) requests and the provision of other services;
and
WHEREAS LSP desires to have SWBT use LVAS to administer LSP's line information
cords for the provision of services set forth in the exhibits attached to this
Appendix; and
WHEREAS SWBT is willing to provide, where equipment, processing capability and
hardware configurations permit, such LVAS services and LIDB storage for LSP; and
WHEREAS, SWBT owns and maintains a Sleuth System that provides facilities for
ABS fraud monitoring; and
WHEREAS LSP desires SWBT to use its Sleuth System for ABS fraud monitoring of
its telecommunications traffic.
NOW, THEREFORE, in consideration of the mutual promises and undertakings made,
the parties agree as follows:
1. DEFINITIONS
As used herein and for the purpose of this Appendix, the following
terms shall have the meanings set forth below:
A. Alternate Billing Services (ABS) - A service that allows end
users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect and third number billed calls.
B. Billed Number Screening (BNS) - A process which utilizes a
database to determine specific characteristics and/or end user
preferences with respect to a billed number.
<PAGE> 110
APPENDIX LIDB
PAGE 3
C. Calling Card Service (CCS) - A service which enables a calling
customer to bill a telephone call to a calling card number
with or without the help of an operator.
D. Data Base - An integrated collection of related data. In the
case of the LIDB, the data base is the line number and related
line information.
E. Data Base Administration Center (DBAC) - The LIDB input center
where the LVAS facility and administrative personnel are
currently located.
F. Exchange - For the purpose of this Appendix, a specific
NPA-NXX combination.
G. Group Record - Information in LIDB or LVAS that is common to
all lines or billing records in an NPA-NXX or NPA-RAO.
H. LIDB Editor - A database editor located at the SCP where LIDB
resides. LIDB ditor provides emergency access to LIDB that
bypasses the service management system for LIDB.
I. Line Validation Administration System (LVAS) - An off-line
administrative system, used by SWBT to add, delete and change
information in LIDB.
J. Line Information Data Base (LIDB) - The line information
database, which is an ANSI SS7 database system, functions as a
centralized repository for data storage and retrieval. LIDB
supports validation and recording of ABS requests. LIDB also
supports storage, retrieval and recording capabilities for
other information that can be associated with an end user's
line. Examples of such information are, or are expected to be,
originating screening information, ZIP code data and calling
name.
K. Line Record - Information in LIDB or LVAS that is specific to
a single telephone number or special billing number.
L. Personal Identification Number (PIN) - A confidential four
digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in the LIDB for those line numbers that have an
associated calling card.
M. Response - A single response in a set of predefined expected
responses to a request for information contained in a query
from a computer processor.
<PAGE> 111
APPENDIX LIDB
Page 4
N. Toll Billing Exception (TBE) - A LIDB option that allows end
users to restrict third number billing or collect calls to
their lines.
O. Service Management System (SMS) - An off-line system used to
access, create, modify, or update information in LIDB. For the
purposes of this appendix, the SMS for LIDB is LVAS.
P. Sleuth - An off-line administration system that SWBT uses to
monitor suspected occurrences of ABS-related fraud. Sleuth
uses a systematic pattern analysis of query message data to
identify potential incidences requiring fraud investigation.
Detection parameters are based upon vendor recommendations and
SWBT's analysis of collected data and are subject to change
from time to time.
Q. Special Billing Number (SBN) Account Groups - Line records in
LIDB that are based on an NPA-RAO numbering format. NPA-RAO
numbering formats are similar to NPA-NXX formats except that
the fourth digit of an NPA-RAO line record is either a zero
(0) or a one (1).
R. Tape Load Facility - A separate data entry point at the SCP
where LIDB resides. The Tape Load Facility provides direct
access to LIDB for data administration that bypasses the
service management system for SWBT's LIDB.
S. Translation Type - A code in the Signaling Connection Control
Point (SCCP) of the SS7 signaling message. Translation Types
are used for routing LIDB queries. Signal Transfer Points
(STPs) use Translation Types to identify the routing table
used to route a LIDB query. All LIDB queries against the same
exchange and Translation Type are routed to the same LIDB.
2. General Description
A. SWBT's LIDB is connected directly to a service management
system (i.e., LVAS), a database editor (i.e., LIDB Editor),
and a tape load facility. Each of these facilities, processes,
or systems, provide SWBT with the capability of creating,
modifying, changing, or deleting, line/billing records in
LIDB. SWBT's LIDB is also connected directly to an adjunct
fraud monitoring system (i.e., Sleuth).
B. SWBT will provide LSP with access to LVAS, LIDB Editor, and
tape load facility as set forth in this Appendix and the
Exhibit or Exhibits attached hereto. SWBT warrants that the
manner in which it provides such access to LSP will be
equivalent to the manner in which SWBT provides such access to
itself.
<PAGE> 112
APPENDIX LIDB
PAGE 5
C. SWBT will also provide LSP with fraud alerts from Sleuth as
set forth in this Appendix and in Exhibit IV (Sleuth). SWBT
warrants that it will provide fraud alerts to LSP using the
same fraud monitoring parameters as SWBT uses for itself.
D. From time-to-tome, SWBT enhances its LIDB to create new
services and/or LIDB functionalities. Such enhancements may
involve the creation of new line-level or group-level data
elements in LIDB. SWBT will coordinate with LSP to provide LSP
with the opportunity to update its data concurrent with SWBT's
updates of SWBT's own data. Both parties understand and agree
that some LIDB enhancements will require LSP to update its
line/billing records with new or different information.
E. Charges for the provisioning of Data Base Administration and
LIDB Storage are set forth in Exhibit II (Basis of
Compensation).
3. Service Description
3.1 LVAS
LVAS provides LSP with the capability to access, create,
modify or update information in LIDB. LVAS has two electronic interfaces. These
interfaces are the Service Order Entry Interface and the Interactive Interface.
3.1.1 Service Order Entry Interface
(A) The Service Order Entry Interface provides
LSP with unbundled access to SWBT's LVAS
that is equivalent to SWBT's own service
order entry process to LVAS. Service Order
Entry Interface allows LSP to electronically
transmit properly formatted records from
LSP's service order process into LVAS.
(B) LSP's access to the Service Order Entry
Interface will be through a remote access
facility (RAF). The RAF will provide SWBT
with a security gateway for LSP access to
the Service Order Entry Interface. The RAF
will verify the validity of LSP's
transmissions and limit LSP's access to
SWBT's Service Order Entry Interface to
LVAS. LSP does not gain access to any other
SMS, interface, database, or operations
support system through this Appendix.
(C) SWBT will provide LSP with the file transfer
protocol
<PAGE> 113
APPENDIX LIDB
PAGE 6
specifications LSP will use to administer
LSP's data over the Service Order Entry
Interface. LSP acknowledges that
transmission in such specified protocol is
necessary for SWBT to provide LSP with Data
Base Administration and Storage.
(D) LSP can choose the Service Order Entry
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific
documentation for properly formatting the
records LSP will transmit over the Service
Order Entry Interface.
(F) LSP understands that its record access
through the Service Order Entry Interface
will be limited to its own line/billing
records.
3.1.2 Interactive Interface
(A) The Interactive Interface provides LSP with
unbundled access to SWBT's LVAS that is
equivalent to SWBT's access at its LIDB
DBAC. Interactive Interface provides LSP
with the ability to have its own personnel
access LSP's records via an application
screen that is presented on a computer
monitor. Once LSP has accessed one of its
line/billing records, LSP can perform all of
the data administration tasks SWBT's LIDB
DBAC personnel can perform on SWBT
line/billing records.
(B) SWBT will provide LSP with Interactive
Interface through a modem. LSP understands
that its record access through the
Interactive Interface will be limited to its
own line/billing records.
(C) LSP will use hardware and software that is
compatible with LVAS hardware and software.
(D) LSP can choose to request the Interactive
Interface as its only interface to LVAS and
LIDB or the LSP can choose to use this
interface in conjunction with any other
interface that SWBT provides under this
Appendix except the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific
documentation in the form of screen prints
and prints of help screens.
<PAGE> 114
APPENDIX LIDB
PAGE 7
3.1.3 Manual Interface
(A) Manual Interface is available only if the
LSP has 1,000 line/billing records or less.
Manual Interface allows LSP to fax updates
to SWBT's LIDB DBAC. SWBT's LIDB DBAC
personnel will manually enter these faxed
updates into LVAS for LSP.
(B) Manual Interface is not available with any
other interface SWBT provides under this
Appendix.
(C) LSP understands that its record access
through the Manual Interface will be limited
to its own line/billing records.
3.2 Tape Load Facility Interface
(A) Tape Load Facility Interface provides LSP with
unbundled access to SWBT's Tape Load Facility in the
same manner that SWBT accesses this facility. Tape
Load Facility Interface allows LSP to create and
submit magnetic tapes for input into LIDB.
(B) The Tape Load Facility Interface is not an interface
to LVAS. The Tape Load Facility Interface is an entry
point to LIDB at the SCP where LIDB resides.
(C) The Tape Load Facility Interface is available only
when the amount of information is too large for LVAS
to accommodate. Both parties agree that these
situations normally occur during the initial load of
LSP's information into LIDB or when LIDB is updated
for a new product. The Tape Load Facility Interface
is not available for ongoing updates of information.
LSP may request the Tape Load Facility Interface only
when its updates exceed 100,000 line/billing records
over and above the LSP's normal daily update
processing.
(D) LSP will create its own tapes in formats specified in
GR-446-CORE, Issue 2, June 1994, as revised. Such
tapes will only include information associated with
LSP's line/billing records.
(E) LSP will deliver a separate set of tapes, each having
identical information to each SCP node on which LIDB
resides. SWBT will provide LSP with the name and
address of the SWBT employee designated to receive
the tapes at each location.
<PAGE> 115
APPENDIX LIDB
Page 8
(F) In addition to the tapes LSP will create and deliver
to the SCP node locations, LSP shall deliver an
additional set of tapes to the LVAS System
Administrator so that SWBT can load LSP's updates
into LVAS. LSP understand that these additional tapes
must contain information identical to the tapes
delivered to the SCP nodes, but that the format will
differ. SWBT shall provide LSP SWBT-specific
documentation for record formations of these
additional tapes. SWBT shall use these tapes to
create LSP records in LVAS that correspond with the
records being loaded into LIDB using the Tape Load
Facility Interface. SWBT shall provide LSP with the
name and address of the SWBT System Administrator to
whom the LVAS update tapes should be sent.
(G) SWBT and LSP shall negotiate mutually agreed upon
dates and times for tape loads of LSP data when such
loads are the result of an LSP request.
(H) LSP understands and agrees that its record access
through the Tape Load Facility Interface is only for
LSP's own line/billing records. LSP warrants that it
shall not use the Tape Load Facility Interface to
modify any group record. LSP further warrants that it
shall not use the Tape Load Facility Interface to
modify any line/billing record not belonging to LSP.
3.3 LIDB Editor Interface
(A) LIDB Editor Interface provides LSP with unbundled
access to SWBT's LIDB Editor equivalent to SWBT's
manner of access. LIDB Editor provides LSP with
emergency access to LIDB only when LVAS is unable to
access LIDB or is otherwise inoperable.
(B) LIDB Editor Interface is not an interface to LVAS.
LIDB Editor is an SCP tool accessible only by
authorized SWBT employees. LSP shall have access to
SWBT employees authorized to access LIDB Editor
during the same times and under the same conditions
that SWBT has access to LIDB Editor.
(C) LSP understands that its record access through the
LIDB Editor Interface is limited to its own
line/billing records.
3.4 Audits
SWBT shall provide LSP with access equivalent to SWBT's own
access to LVAS audit functionalities.
<PAGE> 116
APPENDIX LIDB
Page 9
3.4.1 LIDB Audits
(A) This audit is between LVAS and LIDB. This
audit verifies that LVAS records match LIDB
records. The LIDB Audit is against all line
records and group record information in LVAS
and LIDB, regardless of data ownership.
(B) SWBT shall run the LIDB audit continuously
throughout each and every day.
(C) SWBT shall create a "variance file" of all
LSP records that fail the LIDB audit. LSP
can access these files through the
Interactive Interface.
(D) LSP shall investigate accounts that fail the
LIDB audit and correct any discrepancies as
set forth in paragraph 3(H). LSP shall
correct all discrepancies using the LVAS
interface(s) LSP has requested under this
Appendix.
3.4.2 Billing System Audit
(A) This type of audit is between LVAS and
SWBT's billing system(s). This audit
verifies that LVAS records match SWBT's
billing system records.
(B) SWBT shall provide LSP with access
equivalent to SWBT's own access to the
billing system audit functionality. SWBT
shall provide LSP with a file containing LSP
records in LIDB. LSP shall specify if the
billing system audit tape will be delivered
by either magnetic tape or electronically
over the Service Order Entry Interface.
(C) LSP shall audit its LIDB accounts against
LSP's billing system and correct any
discrepancies as set forth in paragraph
3(H). LSP shall correct all discrepancies
using the LVAS interface(s) LSP has
requested under this Appendix.
(C) SWBT shall provide LSP scheduled and
unscheduled billing system audits as set
forth below:
(1) Scheduled Audits
SWBT shall provide LSP with a
billing system audit file
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APPENDIX LIDB
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twice per year. Such audit files
will represent LSP's entire data
store in LVAS. The Parties shall
mutually agree upon the dates such
audit files will be provided.
(2) Unscheduled Audits
LSP can request additional audit
files and SWBT will work
cooperatively to accommodate all
reasonable LSP requests for such
additional audit files. Charges for
additional audit files shall apply
as set forth in Exhibit II (Basis
for Compensation).
3.5 Sleuth
(A) Sleuth notification provides LSP with Sleuth alert
messages. Sleuth alert messages indicate potential
incidences of ABS-related fraud for investigation.
(B) Sleuth historical reports are available to LSP as set
forth in Exhibit IV (Sleuth).
3. Manner of Provisioning
(A) SWBT shall provide to LSP, on request, SWBT-specific
documentation regarding record formatting and associated
hardware requirements for LSP to access each of the interfaces
SWBT provides for LIDB data administration.
(B) LSP shall obtain, at its own expense, all necessary
documentation produced by non-SWBT entities such as Bellcore.
(C) Magnetic tapes submitted by LSP must conform to the hardware
specifications of each SCP node where LIDB resides. This
includes 9-track and 8mm tapes as well as other site-specific
limitations. SWBT shall provide LSP with all magnetic tape
hardware requirements upon request. LSP shall create the
magnetic tapes its submits for input into LIDB and LVAS over
the tape load interface.
(D) SWBT shall input information provided by LSP into LIDB for the
NPA-NXXs and/or NPA-RAOs set forth in Exhibit I, EXCHANGES TO
BE ADMINISTERED, attached hereto and made a part hereof. LSP
shall provide all information needed by SWBT to support the
services being requested. This information may include, but is
not limited to, Calling Card Service information, Toll Bill
Exception information (such as restrictions on collect and
third number billing), class of service information,
originating line number
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APPENDIX LIDB
PAGE 11
screening information, ZIP code information, and calling name
information.
(E) LSP shall furnish, prior to the initial LVAS load, and as
requested by SWBT thereafter, the following forecast data:
- the number of working lines per account group
- the number of working line numbers to be established
- the average number of monthly changes to these records
- the number of busy hour queries, by query type
- the number of annual queries by query type
If SWBT, at its discretion, determines that it lacks adequate
storage, or processing capability, prior to the initial
loading of LSP information, SWBT shall notify LSP of its
intent to not provide to LSP the Services under this Appendix
and this Appendix will be void.
(F) LSP shall furnish all line records and group records in a
format required by SWBT to establish records in LIDB for all
working line numbers, not just line numbers associated with
calling card PIN or Toll Billing Exceptions (TBE).
(G) LSP acknowledges that SWBT's LIDB is accessible by many
telecommunications companies and that these telecommunications
companies expect a high degree of accuracy in the response
information provided to their queries. LSP shall administer
its data in such a manner that SWBT's accuracy of response
information is not adversely impacted.
(H) LSP shall verify to SWBT the line information data residing in
LVAS by reviewing the listing of line information data
provided by SWBT's billing system audit file. LSP shall
provide to SWBT all additions, deletions, and corrections
resulting from its verification on, or before, the fourteenth
business day following its receipt of line information
verification reports produced by SWBT for audit processes.
(I) SWBT shall provide the functionality needed to perform certain
query/response functions on a call-by-call basis for the
line/billing records of LSP that reside in SWBT's LIDB. Those
query/response functions SWBT will perform are set forth in
the Exhibits.
(J) With respect to all matters covered by this Appendix, each
Party shall adopt and comply with SWBT standard operating
methods and procedures and shall observe the rules and
regulations which cover the administration of LVAS service and
the Sleuth System, as set forth in SWBT practices. The Parties
acknowledge that those practices may be changed by SWBT from
time to time.
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APPENDIX LIDB
Page 12
(K) Administration of the SCP on which LIDB resides, as well as
any system or query processing logic that applies to all data
resident on SWBT's LIDB is, and remains, the responsibility of
SWBT. LSP acknowledges that SWBT, in its role as system
administrator, may need to access any record in LIDB,
including any such records of LSP. SWBT shall limit such
access to those actions necessary to ensure the successful
operation and administration of SWBT's SCP and LIDB.
(L) LSP acknowledges that SWBT shall, in its sole discretion,
allow or negotiate any access to SWBT's LIDB. LSP does not
gain any ability, by virtue of this Appendix, to determine
which telecommunications companies are allowed to access
information in SWBT's LIDB. LSP acknowledges that when SWBT
allows a query originator to access SWBT data in SWBT's LIDB,
such query originators shall also have access to LSP's data
that is also stored in SWBT's LIDB.
(M) LSP acknowledges that SWBT does not have data screening
capability in LIDB. Data Screening is the ability of a LIDB
owner to deny complete or partial access to LIDB data or
processes.
4. Billing
Compensation to SWBT for data storage and administration service and
Sleuth services shall be based upon the rates set forth in Exhibit II
(Basis of Compensation), attached hereto and made a part hereof. These
rates will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
seventy-five (75) days' notice. SWBT may first give such notice
seventy-five days before the end of the first year.
4.1 SWBT Responsibilities
(A) SWBT shall determine, for billing purposes, the
number of access lines that are administered for each
NPA-NXX or NPA-RAO for which SWBT performs the
database administration function on behalf of LSP.
SWBT shall quantify access lines monthly.
(B) SWBT shall provide, upon written request, such data
as is reasonably necessary to verify billing charges
for data base administration update functions. SWBT
shall provide this information in standard SWBT LVAS
report formats.
(C) SWBT shall provide such data, as is reasonably
necessary, to enable the independent Billing
Information Systems (IBIS) billing statements to be
substantiated for query volumes of LSP line/billing
records that reside in
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APPENDIX LIDB
PAGE 13
SWBT's LIDB. SWBT shall provide this data to LSP in
standard Exchange Message Record (EMR) format.
4.2 LSP Responsibilities
(A) LSP shall pay SWBT the amounts billed for the
services rendered.
(B) LSP shall bill the appropriate charges to end users,
on behalf of third parties who query LIDB and receive
a response verifying the end user's willingness to
accept the charges for the underlying call.
(C) LSP shall provide to third parties, that query LIDB
and receive a response verifying an end user's
willingness to accept charges of services supported
by LIDB, all necessary billing information needed by
the third party to bill for the services provided.
4.3 Compensation for Data Access
(A) Subject to the limitations in (B) below, SWBT shall
compensate LSP for queries against the data LSP
stores in SWBT's LIDB. Queries by SWBT and LSP
against the data LSP stores in SWBT's LIDB shall be
included in the count of queries for which LSP will
be compensated. SWBT shall compensate LSP by paying a
percentage of the amounts SWBT billed, or would have
billed, for each query. LSP acknowledges that the
amount SWBT bills for LIDB queries against LSP's data
may differ by query type, by query originator, and/or
may change over time. The percentage SWBT will use to
calculate such credits is set forth in Exhibit II
(Basis of Compensation).
(B) LSP acknowledges that SWBT's ability to provide such
credit is based upon SWBT's ability to identify
account ownership in LIDB. LSP acknowledges that LIDB
currently identifies account ownership only at the
level of the group record (i.e., NPA-NXX or NPA-RAO).
LSP further agrees that SWBT will not provide such
credit for LSP accounts that reside in group records
that also contain SWBT or other data owner accounts.
SWBT agrees to work with its LIDB and switch vendors
to attempt to develop the capabilities for SWBT to
identify, and record for billing, the service
provider of individual line/billing records. SWBT
shall provide LSP compensation if SWBT implements
such capabilities in its network.
5. Liability
(A) SWBT shall not be liable for any losses or damages
arising out of
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APPENDIX LIDB
Page 14
errors, interruptions, defects, failures, or
malfunction of LVAS, including any and all associated
equipment and data processing systems, except such
losses or damages caused by the sole negligence of
SWBT. Any losses or damages for which SWBT is held
liable under this Appendix shall in no event exceed
the amount of charges made for LVAS during the period
beginning at the time SWBT receives notice of the
error, interruption, defect, failure or malfunction
to the time service is restored.
(B) SWBT shall not be liable for any losses or damages
arising out of SWBT's administration of Sleuth.
(C) SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES RESULTING FROM, OR ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT.
(D) LSP agrees to release, indemnify, defend, and hold
harmless SWBT from any and all claims, demands, or
suits brought by a third party against SWBT, directly
or indirectly, arising out of SWBT's provision of
service under this Appendix. This provision shall not
apply to any losses, damages or other liability for
which SWBT is found liable as a result of its sole
negligence.
6. Disclaimer of Warranties
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO LVAS
SERVICE, LIDB OR THE SLEUTH SYSTEM. ADDITIONALLY, SOUTHWESTERN BELL
ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF THE DATA
SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
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APPENDIX LIDB
PAGE 15
APPENDIX LIDB
EXHIBIT I
EXCHANGES TO BE ADMINISTERED
SWBT shall provide service management system and other interface service
capabilities to LSP as set forth in this Appendix and attached Exhibit or
Exhibits for the following LSP exchanges:
EXCHANGE NAME NPA NXX NPA-RAO
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(Attach additional copies as needed)
<PAGE> 123
APPENDIX LIDB
EXHIBIT II
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all regulatory
jurisdictions.
2. RATES AND CHARGES
Manual Interface Rate Per Initial Load
(a) Initial Load
(1) per initial load $372.00
(2) per 100 line records
loaded $ 55.00
(b) Ongoing Updates Rate Per Month
(1) per month $ 51.00
(2) per 100 line records
stored in LIDB $ 3.75
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APPENDIX LIDB
EXHIBIT III
CALLING CARD AND BILLED NUMBER SCREENING VALIDATION
(A) SWBT shall provide the functionality needed to perform the
following query/response functions, on a call-by-call basis, for
the line/billing records residing in SWBT's LIDB to:
1. Validate a 14-digit billing number where the first 10
digits are a telephone number or a special billing
number assigned and the last four digits (PIN) are a
security code assignment.
2. Determine whether the billed line automatically
rejects, accepts, or requires verification of certain
calls billed as collect or third number.
3. Determine whether the billed line is a public
telephone number using the Class of Service
information in the LIDB.
B. LSP shall bill the appropriate charges to end users, on behalf of
third parties who query LIDB and receive a response validating the
end user's willingness to accept the charges for the underlying
call.
Approved and executed the ______________day of ___________________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By__________________________________
Title_____________________________ Title_______________________________
Date______________________________ Date________________________________
<PAGE> 125
APPENDIX LIDB
EXHIBIT IV
SLEUTH
(A) SWBT shall provide LSP with an alert notification, by fax, or
another mutually agreed upon format, when SWBT's Sleuth system
indicates the probability of a fraud incidence. SWBT will use
the same criteria to determine fraud alerts for LSP as SWBT
uses for its own accounts.
(B) Sleuth alert messages have four levels of priority. These
levels are low, medium, high and urgent. Sleuth delivers alert
messages to a queue in the Sleuth DBAC in priority order.
Urgent alerts are prioritized first, followed by high, medium
and low alerts (in that order).
(C) SWBT's Sleuth investigators can access alerts only in the
order the alerts appear in the queue. Low alerts almost never
see investigator treatment. However, when Sleuth encounters a
number of low priority alerts on the same account, Sleuth may
upgrade the alert's status to a higher priority status.
(D) When a Sleuth investigator determines that an urgent, high, or
medium priority alert is for an LSP account, the Sleuth
investigator will print the alert for the queue and fax the
alert to the LSP. Sleuth alerts only identify potential
occurrences of fraud. The LSP receiving Sleuth alerts will
need to perform its own investigations to determine whether a
fraud situation actually exists. The LSP will also need to
determine what, it any action should it take as a result of a
Sleuth alert.
(E) SWBT's hours of operation for Sleuth are seven days a week,
twenty-four hours per day (7X24). LSP shall provide SWBT with
a contact name and fax number for SWBT to fax alerts from
SWBT's Sleuth DBAC.
(F) SWBT shall provide LSP with a Sleuth contact name and number,
including fax number, for LSP to contact the Sleuth DBAC.
(G) For each alert notification SWBT provides to LSP, LSP may
request a corresponding 30-day historical report of
ABS-related query processing. LSP may request up to three
reports per alert. The charge for each historical report is
set forth in Exhibit II (Basis of Compensation).
<PAGE> 126
Approved and executed the ___________________________day of ____________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_________________________________
Title_____________________________ Title______________________________
Date______________________________ Date_______________________________
<PAGE> 127
APPENDIX LIDB
EXHIBIT V
CNAM SERVICE QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT will provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the name associated with the line record.
Calling Name records are limited to fifteen characters. LSP is responsible for
providing all name truncations and/or abbreviations needed to limit a calling
name to 15 characters. LSP is also responsible for ensuring that its calling
name data does not contain obscenities in English or other languages. Upon
receipt of Calling Name data, in a format acceptable to SWBT, SWBT will provide
the query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to identify the name associated with the line
record.
CNAM Service Query is SWBT's service that allows customers to query SWBT's LIDB
for calling name information. Calling Name information means a
telecommunications company's records of all its subscribers' names associated
with one or more ten-digit telephone numbers assigned to the end user.
Approved and executed the ________________________day of _______________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By__________________________________
Title_____________________________ Title_______________________________
Date______________________________ Date________________________________
<PAGE> 128
APPENDIX LIDB
EXHIBIT VI
SINGLE NUMBER SERVICE (SNS) QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the ZIP code associated with the line record.
Approved and executed the _________________________day of _____________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By__________________________________
Title_____________________________ Title_______________________________
Date______________________________ Date________________________________
<PAGE> 129
APPENDIX LIDB
EXHIBIT VII
ORIGINATING LINE NUMBER SCREENING (OLNS) QUERY
Upon receipt of the line/billing information for LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the originating line screening requirements of the line
record.
LSP shall ensure that its OLNS data complies with the definitions and record
formats set forth in GR-1149-CORE and GR-446-CORE.
Approved and executed the ___________________day of ___________________, 19___.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By________________________________ By_________________________________
Title_____________________________ Title______________________________
Date______________________________ Date_______________________________
<PAGE> 130
APPENDIX LIDB-V
PAGE 2 OF 14
APPENDIX LIDB VALIDATION SERVICE
WHEREAS, the Parties are interested in purchasing each other's LIDB
Validation Service (or equivalent service);
In consideration of the mutual promises contained herein, SWBT and LSP
agree as follows.
I. DEFINITIONS
A. A-links means a diverse pair of facilities connecting local
end office switching centers with Signaling Transfer Points.
B. Alternate Billing Service (ABS) means a service that allows
end users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect, and third number billed calls.
C. Billed Number Screening (BNS) means a validation of toll
billing exception (TBE) data and performance of public
telephone checks i.e., determining if a billed line is a
public (including those classified as semi-public) telephone
number.
D. Calling Card Service (CCS) means a service that enables a
calling customer to bill a telephone call to a calling card
number with or without the help of an operator.
E. Common Channel Signaling (CCS) Network means an out-of-band,
packet-switched, signaling network used to transport
supervision signals, control signals, and data messages.
Validation Queries and Response messages are transported
across the CCS network.
F. Data Base means an integrated collection of related data. In
the case of the LIDB, the data base is the line number and
related line information.
G. Data Owner means telecommunications companies that administer
their own validation data in a party's LIDB or LIDB-like
database.
H. Line Information Data Base (LIDB) means an ANSI SS7
call-related database system. LIDB functions as a centralized
repository for data storage and retrieval. SWBT's LIDB
supports validation of ABS calls as well as certain other
services.
I. Line Record means information in LIDB that is specific to a
single telephone number or special billing number.
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APPENDIX LIDB-V
PAGE 3 OF 14
J. Nonrecurring charges are one-time charges that apply for a
specific work activity (i.e., installation or change to an
existing service). Nonrecurring charges are applicable for the
establishment of LIDB Validation Service, service
rearrangements, and service order activity.
K. Originating Point Code (OPC) means a code assigned to identify
LSP's operator service system location(s).
L. Personal Identification Number (PIN) means a confidential
four-digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in LIDB for those line numbers that have an
associated calling card.
M. Query means a message in American National Standards
Institute's (ANSI) standard SS7 signaling protocol which
represents a request to a LIDB or LIDB-like database for
Validation information.
N. Query Rate applies to each Validation Query that is received
at SWBT's LIDB for the validation of calling card and toll
billing exception data and performance of public telephone
checks; i.e., determining if a billed line is a public
(including those classified as semi public) telephone number.
O. Query Transport Rate applies to each Validation Query
transported from SWBT's STP to the SCP where LIDB resides and
back. SWBT and LSP shall list their STP locations in the
National Exchange Carrier Association, Inc. Tariff FCC No. 4.
P. Response means an SS7 message which, when appropriately
interpreted, represents an answer to a Query.
Q. Service Order Charge is a nonrecurring charge that applies,
per service order form, that specifies the LSP's originating
point codes (OPCs) of the LSP's designated operator service
systems sending the Validation Query or Queries.
R. Service Control Point (SCP) is a CCS network node where
Validation information resides.
S. Service Point (SP) means a CCS network interface element
capable of initiating and/or terminating SS7 messages from an
end office.
T. Service Rearrangements are changes to existing services which
do not result in changes to previously established OPCs.
U. Service Switching Point (SSP) means the software capability
within a switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7
transmission/reception access ability.
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APPENDIX LIDB-V
PAGE 4 OF 14
V. Signaling System 7 (SS7) means the signaling protocol used by
the CCS network.
W. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to
SWBT's SS7 network, LSP or a third party initiating LSP's
Validation Queries must connect with an SWBT STP in order to
connect to SWBT's SCP.
X. Special Billing Number means line records in LIDB that are
based on an NPA-RAO numbering format. NPA-RAO numbering
formats are similar to NPA-NXX formats except that the fourth
digit of an NPA-RAO line record is either a zero (0) or a one
(1).
Y. Toll Billing Exception (TBE) Service means a service that
allows end users to restrict third number billing or collect
calls to their lines.
Z. Validation information means Data Owners' records of all their
Calling Card Service and Toll Billing Exception Service.
II. DESCRIPTION OF SERVICE
A. SWBT shall provide LSP access to Validation information
whenever LSP initiates a query from an SSP for Validation
information available in SWBT's LIDB.
B. All LSP Queries to SWBT's LIDB shall use a translations type
of 253 and a subsystem number in the calling party address
field that is mutually agreed upon by the Parties. LSP
acknowledges that such subsystem number and translation type
values are necessary for SWBT to properly process Validation
Queries to its LIDB.
C. LSP warrants SWBT that LSP shall send Queries conforming to
the ANSI approved standards for SS7 protocol and pursuant to
the specification standards documents identified in Exhibit A
attached hereto and incorporated by reference. Both Parties
acknowledge that transmission in said protocol is necessary
for each party to provision Validation Service (or the
equivalent thereof). Both Parties warrant that they shall send
SS7 Messages that comply with ANSI approved standards for SS7
protocol and pursuant to the specification standards documents
identified in Exhibit A. Each Party reserves the right to
modify its network pursuant to other specifications standards,
which may include Bellcore Specifications defining specific
service applications, message types and formats, that may
become necessary to meet the prevailing demands within the
U.S. telecommunications industry. All such changes shall be
announced a minimum of one hundred eighty (180) days in
advance of implementation through industry
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APPENDIX LIDB-V
PAGE 5 OF 14
standard procedures. Each Party will work cooperatively to
coordinate any necessary changes.
D. LSP acknowledges that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network
messages can and will have a detrimental effect on the
performance of SWBT's CCS/SS7 network. LSP further agrees that
SWBT, in its sole discretion, shall employ certain automatic
and/or manual overload controls within SWBT's CCS/SS7 network
to guard against these detrimental effects. SWBT shall report
to LSP any instances where overload controls are invoked due
to LSP's CCS/SS7 network and LSP agrees in such cases to take
immediate corrective actions as are necessary to cure the
conditions causing the overload situation.
E. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour Query volumes.
If, prior to the establishment of a mutually agreeable service
effective date, in writing, SWBT, at its sole discretion,
determines that it lacks adequate processing capability to
provide Validation Service to LSP, SWBT shall notify LSP of
SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
F. LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the
preceding year. LSP shall provide such updates each year for
the first three (3) years of this Appendix.
G. SWBT will perform testing of the LIDB Validation Service in
conjunction with CCS/SS7 Interconnection Service as outlined
in Bellcore Technical References TR-NWT-000954, TR-TSV-000905,
and TP 76638.
H. SWBT supports the performance standards as defined in Section
7 of TR- TSV-000905. The overall end-to-end CCS/SS7 network
objective is less than ten minutes unavailability per year
from any Signal Point (SP) to any other SP. The performance
objective for any single SP, including a Service Control Point
(SCP), is less than three minutes unavailability per year. The
combined link set from the SCP to the Signal Transfer Point
(STP) has a performance objective of less than two minutes
unavailability per year.
I. SWBT's LIDB Validation Service system downtime will be less
than twelve hours per year. The response time for a Query,
from switch transmission to reception, should not exceed one
second for ninety-nine (99) percent of all Queries.
J. SWBT shall administer its LIDB to provide acceptable service
levels to all customers of SWBT's LIDB Validation Service.
During periods of LIDB system congestion, SWBT will utilize an
automatic code gapping procedure to control
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APPENDIX LIDB-V
PAGE 6 OF 14
such congestion. The automatic code gapping procedure will
tell LSP's switch the gap (how long LSP's switch should wait
before sending another query) and the duration (how long the
switch should continue to perform gapping). For example,
during an overload condition, the automatic code gapping
procedure will tell SWBT's LIDB when to begin to drop one out
of three queries received. This code gapping procedure will be
applied uniformly to all users of SWBT's LIDB Validation
Service. SWBT maintains the right to invoke manual
intervention of the automatic code gapping procedure to
preserve the integrity of its network.
K. LSP agrees that network overload due to extraordinary volumes
of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's network and
its LIDB Validation Service. LSP further agrees to take
immediate, corrective actions as are necessary to cure the
conditions causing the overload situation.
L. All access by LSP to SWBT's LIDB shall occur through SWBT's
regional STP as designated by SWBT.
M. SWBT's LIDB shall contain a record for every SWBT working line
number and Special Billing Number served by SWBT. Other
telecommunications companies, including LSP, may also store
their data in SWBT's LIDB. SWBT shall request such
telecommunications companies to also provide this data as
well.
N. SWBT shall update the LIDB information; e.g., add, delete, and
modify customer accounts as customers move, become delinquent
on their account, or order new service, on a daily basis. SWBT
shall request other Data Owners to provide such updates in
like time.
O. SWBT has procedures in place to deactivate billing validation
data in the event that such data is being used fraudulently or
in the event end users exceed SWBT-defined limits on toll
charges. SWBT shall update SWBT-issued calling cards that
SWBT suspects of being fraudulently used or exceeding
SWBT-defined toll limits seven (7) days a week, 24 hours a
day.
P. SWBT's LIDB shall receive and respond to all Calling Card
Service and Billed Number Screening queries, including SWBT's
and LSP's queries, as defined in Bellcore publications
TR-NWT-000246, FR-NWT-000271, TR-TSV-000905, TR-NWT-000954 and
SWBT's publication TP 6638. These procedures shall be applied
uniformly to all users of SWBT's LIDB Validation Service.
Q. SWBT's LIDB Validation Service shall provide the following
functions on a per query basis:
<PAGE> 135
APPENDIX LIDB-V
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- validation of a telecommunications calling card
account number stored in LIDB;
- determination of whether the billed line has decided
in advance to reject certain calls billed as collect
or to a third number; and
- determination of billed line as a public (including
those classified as semi public) or nonworking
telephone number.
R. SWBT provides LIDB Validation Service as set form in this
Appendix only as such service is used for LSP's activities as
a local service provider in SWBT's traditional serving areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and
Texas. SWBT provides a LIDB Validation Service for
interexchange carriers, operator service providers, and other
telecommunications companies under effective tariffs. LSP
agrees that any other use of SWBT's LIDB for the provision of
LIDB Validation Service by LSP, including, but not limited to,
when LSP acts as an LSP outside of SWBT's traditional serving
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas, and/or acts as an operator service provider to
other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange
carrier, will be pursuant to the terms, conditions, rates, and
charges of SWBT's effective tariffs, as revised, for LIDB
Validation Service.
III. PRICE AND PAYMENT
A. LSP shall pay SWBT a Validation Query rate and a Query
Transport Rate for each Query initiated into SWBT's LIDB.
These rates are set forth in Exhibit I (Basis of
Compensation), which is attached hereto and incorporated by
reference.
B. LSP shall pay a Nonrecurring Charge for each request for
establishment or change of existing LIDB Validation Service.
The LIDB Validation Service Establishment Charge applies per
originating point code per request and is set forth in Exhibit
I (Basis of Compensation).
C. LSP shall pay a Service Order Charge for each request for
service order activity. The Service Order Charge is set forth
in Exhibit I (Basis of Compensation).
D. Payment to SWBT for LIDB Validation Service shall be based
upon the rates set forth in Exhibit I (Basis of Compensation),
attached hereto and made a part thereof. These rates and
charges will apply for one (1) year from the service effective
date for each exchange. After one (1) year, SWBT may change
the rates upon sixty (60) days' notice. SWBT may first give
such notice sixty (60) days before the end of the first year.
<PAGE> 136
APPENDIX LIDB-V
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E. SWBT shall record usage information for LSP's Validation
Queries terminating to SWBT's LIDB. SWBT shall use its SCPs as
the source of usage data. SWBT shall aggregate usage by the
point code of the Query-originating SSP.
F. Based upon the data identified in SubSection 3.E of this
Appendix, SWBT shall bill LSP for its Validation Queries on a
monthly basis. The bill will be issued by the fifteenth day of
each month, and LSP shall pay the bill within thirty (30) days
of the bill issue date. LSP shall pay late payment charges as
applicable and as described in SWBT's Tariff FCC No. 73.
G. SWBT shall provide sufficient information with the bill to
enable LSP to determine how the billed amount was calculated.
H. Depending on LSP's choice of method for transporting its
Queries and Responses, LSP may be required to purchase certain
other services, especially services that may be provided
pursuant to effective tariffs. In this event the prices,
terms, conditions, and billing for such services will be
specified in the applicable tariff(s) and this Appendix shall
not be construed to circumvent the prices, terms, conditions,
or billing as specified in the applicable tariff(s).
I. If there is a dispute associated with a monthly bill, the
disputing Party shall notify the other in writing within
ninety (90) calendar days of the date of said monthly bill or
the dispute shall be waived. Each Party agrees that any amount
of any monthly bill that that Party disputes will be paid by
that Party according to the terms of Subsection III.F. above.
Any adjustments relating to a disputed amount shall be
reflected on the next monthly bill issued after resolution.
Any credit issued upon resolution of any dispute shall bear
interest at the rate specified in Subsection III.F. above,
payable on and as of the date the credit is issued. Parties
shall work cooperatively and use their best efforts to resolve
any disputes as quickly as possible.
J. SWBT shall treat changes in previously established OPCs as a
discontinuance of the existing LIDB Validation Service and
establishment of a new LIDB Validation Service and all
applicable Nonrecurring Charges shall be paid by LSP.
K. If LSP acts as a telecommunications company other than a local
service provider, or if LSP acts as a local service provider
in areas outside of SWBT's traditional service areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas, LSP
shall designate those point codes from which it originates
LIDB Validation Service Queries as an LSP acting as a local
service provider within SWBT's traditional service areas in
the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas
from those point codes which originate LIDB Validation Service
Queries for all other aspects of its business. If LSP uses the
same OPC to originate Queries for its operations as an LSP
within SWBT's traditional service areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does
<PAGE> 137
APPENDIX LIDB-V
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for any other aspect of its business, then LSP shall provide
SWBT with a percentage of use factor that SWBT can use to
apportion LSP's traffic between SWBT's terms, conditions,
rates and charges under this Appendix and the terms,
conditions, rates and charges under SWBT's appropriate and
effective tariff. LSP shall provide this factor in a whole
number between one (1) and one hundred (100) to indicate the
percentage of LIDB Validation Services LSP originates as an
LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas. A percentage of use factor of 1
(one) indicates that one percent of LSP's LIDB Validation
Service Queries originate as an LSP acting as a local service
provider within SWBT's traditional service areas in the states
of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of one hundred (100) indicates that
one hundred percent of LSP's LIDB Validation Service Queries
is from LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas.
L. Such percentage of use factors will be provided by LSP on the
LIDB Access Service Order Form used to establish the service.
All updates to this factor will provided via a letter. If LSP
does not furnish a percentage of usage factor, LSP agrees that
SWBT will apply a percentage of usage factor of one percent
(1%).
M. LSP shall update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and
October of each year, LSP shall forward to SWBT, to be
received no later than fifteen (15) business days after the
first of each such month, a revised report showing the
percentage of use factors for the past three months ending the
last day of December, March, June, and September,
respectively, for each OPC from which LSP originates LIDB
Validation Service Queries. Both Parties agree that the
revised report will serve as the basis for the next three
months billing. Both Parties agree that no prorating or
backbilling will be done based on the report. SWBT shall use
the revised report to apportion usage rates, monthly rates,
and nonrecurring charges until a revised report is received
from LSP as set forth and agreed to herein.
N. SWBT may, upon written request by Certified U.S. mail (return
receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage
of use factor provided by LSP. SWBT may request this detailed
information annually. If the audit results represent what SWBT
considers to be a substantial deviation from LSP's previously
reported percentage of use for the period upon which the audit
was based, and that deviation is not due to seasonal changes
or other identifiable reasons, LSP agrees to allow SWBT to
request such call detail records more than once annually. Both
parties agree that SWBT may make the call detail records
available to an independent auditor or to SWBT audit employees
within thirty (30) days of the request at an agreed upon
location during normal business hours.
<PAGE> 138
APPENDIX LIDB-V
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O. If LSP fails to comply with SWBT's request for auditable call
detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for
service for a period of thirty (30) days. If at the conclusion
of thirty (30) days, LSP still does not comply with this
request, SWBT may apply an assumed percentage of use factor of
one percent (1%).
IV. OWNERSHIP OF VALIDATION INFORMATION
A. Telecommunications companies depositing information in SWBT's
LIDB may retain full and complete ownership and control over
such information. LSP obtains no ownership interest by virtue
of this Appendix.
B. Unless expressly authorized in writing by parties, LIDB
Validation Service is not to be used for purposes other than
those described in this Appendix. LSP may use LIDB Validation
Service for those functions only on a call-by-call basis. Data
accessed on LIDB may not be stored by LSP elsewhere for future
use.
C. Proprietary information residing in SWBT's LIDB is protected
from unauthorized access and LSP may not store such
information in any table or database for any reason. All
information related to alternate billing service is
proprietary. Examples of proprietary information are as
follows:
- Billed (Line/Regional Accounting Office (RAO)) Number
- PIN Number(s)
- Billed Number Screening (BNS) indicators
- Class of Service (also referred to as Service or Equipment)
- Reports on LIDB usage
- Information related to billing forLIDB usage
- LIDB usage statistics.
D. LSP shall not copy, store, maintain, or create any table or
database of any kind after initiating, and based upon a
Response to, a Validation Query to SWBT's LIDB.
E. If LSP acts on behalf of other carriers, LSP shall prohibit
its Query- originating carrier customers from copying,
storing, maintaining, or creating any table or database of any
kind from any Response provided by SWBT after a Validation
Query to SWBT's LIDB.
F. SWBT will share end user information, pertinent to fraud
investigation, with LSP when validation queries for the
specific end user reaches SWBT's established fraud threshold
level. This fraud threshold level will be applied uniformly to
all end user information in SWBT's LIDB.
<PAGE> 139
APPENDIX LIDB-V
PAGE 11 OF 14
V. TERM AND TERMINATION
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Statement and shall continue for one
(1) year from the effective date of implementation of LIDB
Validation Service. Thereafter, this Appendix shall remain in
effect unless terminated by either party upon written notice
given sixty (60) days in advance of the termination date.
B. If a Party materially fails to perform its obligations under
this Appendix, the other Party, after notifying the
non-performing Party of the failure to perform and allowing
that Party thirty (30) days after receipt of the notice to
cure such failure, may cancel this Appendix immediately upon
written notice.
C. Notwithstanding anything to the contrary in this Appendix, if
legal or regulatory decisions or rules compel SWBT or LSP to
terminate the Appendix, SWBT and LSP shall have no liability
to the other in connection with such termination.
VI LIMITATION OF LIABILITY
A. A Party's sole and exclusive remedies against the other Party
for injury, loss or damage caused by or arising from anything
said, omitted or done in connection with this Appendix
regardless of the form of action, whither in contract or in
tort (including negligence or strict liability) shall be the
amount of actual direct damages and in no event shall exceed
the amount paid for LIDB Validation Service.
B. The remedies in Section VI.A. of this Appendix shall be
exclusive of all other remedies against a Party, its
affiliates, subsidiaries or parent corporation, (including
their directors, officers, employees or agents).
C. In no event shall a Party have any liability for system outage
or inaccessibility, or for losses arising from the
unauthorized use of the data by LIDB Validation Service Query
purchasers.
D. SWBT is furnishing access to its LIDB or LIDB-like database in
order to facilitate LSP's provision of Alternate Billing
Service to its end users, but not to insure against the risk
of completion of an ABS-related call. While SWBT agrees to
make every reasonable attempt to provide accurate Validation
information, the Parties acknowledge that Validation
information is the product of routine business service order
activity and fraud investigations. LSP acknowledges that SWBT
can furnish Validation information only as accurate and
current as the information has been provided to SWBT for
inclusion in its LIDB. Therefore, SWBT, in addition to the
limitations of liability set forth, is not liable for
inaccuracies in the Validation information records provided to
LSP except such inaccuracies caused by SWBT's willful or
wanton misconduct or gross negligence.
<PAGE> 140
APPENDIX LIDB-V
PAGE 12 OF 14
E. IN NO EVENT SHALL SWBT, ITS AFFILIATES, SUBSIDIARIES OR PARENT
CORPORATION, (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS) HAVE ANY LIABILITY WHATSOEVER TO OR THROUGH LSP FOR
ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL 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, EVEN IF LSP HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VII. COMMUNICATION AND NOTICES
A. Ordering and billing inquiries for the services described
herein from SWBT shall be directed to the Local Service
Provider Service Center (LSPSC). Ordering shall be done
through the LSPSC using the form attached hereto as Exhibit
III.
VIII. CONFIDENTIALITY
A. Identification. SWBT and LSP recognize and acknowledge that,
in connection with the services to be provided hereunder,
either may disclose to the other party proprietary or
confidential customer, technical or business information in
written graphic, oral or other tangible or intangible forms.
In order for such information to be considered "Proprietary
Information" under this Appendix, such information must be
marked "Confidential" or "Proprietary" or bear a marking of
similar import. Orally disclosed information shall be
considered Proprietary Information only if contemporaneously
identified as such and reduced to writing and delivered to the
other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party
(the_ "Receiving Party") that receives Proprietary Information
from the other Party (the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall
remain the exclusive property of the Disclosing
Party.
(2) To limit access to such Proprietary Information to
authorized employees and other individuals who have a
need to know the Proprietary Information in order to
perform its obligations under this Appendix.
(3) To keep such Proprietary Information confidential and
to use the same level of care to prevent disclosure
or unauthorized use of the received Proprietary
Information as it exercises in protecting its own
Proprietary Information of a similar nature.
<PAGE> 141
APPENDIX LIDB-V
PAGE 13 OF 14
(4) For a period of three (3) years following any
disclosure, not to copy or publish or disclose such
Proprietary Information to others or authorize anyone
else to copy or publish or disclose such Proprietary
Information to others without the prior written
approval of the Disclosing Party.
(5) To use such Proprietary Information only for purposes
of performing its obligations under this Appendix and
for other purposes only upon such terms as may be
agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give
notice to the Disclosing Party of any demand to disclose or
provide Proprietary Information of the Disclosing Party to
another person, under lawful process, prior to disclosing or
furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the
Disclosing Party deems it necessary to seek protective
arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the
requirements of a court, regulatory body or government agency
having jurisdiction over the Party; provided, however, that
the Receiving Party shall notify the Disclosing Party so as to
give the Disclosing Party a reasonable opportunity to object
to such disclosure. The Disclosing Party may not unreasonably
withhold approval of protective arrangements provided by any
such court, regulatory body or government agency. Nothing
herein requires either Party to support the position of any
person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this
Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained
in this Appendix, the Proprietary Information described herein
shall not be deemed confidential or proprietary and the
Receiving Party shall have no obligation to prevent disclosure
of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through
no wrongful act of the Receiving Party;
(3) is received from a third party without similar
restriction and without breach of this Section 8;
(4) is independently developed, produced or generated by
the Receiving Party;
(5) is furnished to a third party by the Disclosing Party
without a similar restriction on the third party's
rights; or
<PAGE> 142
APPENDIX LIDB-V
PAGE 14 OF 14
(6) is approved for release by written authorization of
the Disclosing Party, but only to the extent of such
authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of LSP
Queries for the purposes of: (a) estimation of facilities
usage for jurisdictional separations; (b) engineering and
network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the contrary
contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary
Information is subject all applicable statures, decisions, and
regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate
a different handling of such information.
9. Mutuality
To the extent that LSP stores its own Validation Information in a
database, LSP agrees that Validation Information shall be available to
SWBT on terms and conditions comparable to those contained in this
Appendix. Such terms and conditions shall include, but not be limited
to, making such Validation Information available on a platform
technically similar to that employed by SWBT, and at a rate comparable
to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit I - Basis of Compensation
Exhibit II - Specifications and Standards
Exhibit III - LIDB Access Service Order Form
<PAGE> 143
APPENDIX LIDB-V - EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB-V
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. Rates and Charges
A LIDB Query Rate Per Query
1. Per LIDB Query Transport $.0045
2. Per LIDB Validation Query $.026
- Billed Number Screening
- Calling Card Count
B. LIDB Nonrecurring Charge Nonrecurring Charge
1. Per Originating Point Code (OPC) $15.35
2. Per LIDB Validation Service Form $256.70
<PAGE> 144
APPENDIX LIDB-V - EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB-V
SPECIFICATIONS AND STANDARDS
Issuing Organization Document Number
Bellcore TR-NWT-000246
Bellcore TR-NWT-000271
Bellcore TR-TSV-000905
Bellcore TR-NWT-000954
SWBT TP 76638
<PAGE> 145
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 1
LIDB ACCESS VALIDATION SERVICES ORDER FORM
CUSTOMER NAME___________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION______________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS _______________________________________________________________
CUSTOMER BILLING NAME___________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION_______________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
________________________________________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
________________________________________________________________________________
CITY, STATE, ZIP CODE
________________________________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER______________________________
( )
________________________________________________________________________________
CREDIT INFORMATION: TYPE OF OWNERSHIP _____
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP._____________ DATE INCORP.________________
CHARTER NUMBER_______________________________________________
PRES. NAME_______________________________________________OFC. TEL. NO. ( )
V.P. NAME________________________________________________OFC. TEL. NO. ( )
SECT. NAME_______________________________________________OFC. TEL. NO. ( )
TREA. NAME_______________________________________________OFC. TEL. NO. ( )
IF PARTNERSHIP:
PARTNERS NAME____________________________________________OFC. TEL. NO. ( )
PARTNERS NAME____________________________________________OFC. TEL. NO. ( )
PARTNERS NAME____________________________________________OFC. TEL. NO. ( )
<PAGE> 146
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 2
PARTNERS NAME____________________________________________OFC. TEL. NO. ( )
LETTER OF AGENCY DATED_________________SIGNATURE________________________________
SWBT ORDER NUMBER______________________
DESIRED DUE DATE_______________________FIRM DUE DATE____________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs ____________________________
TYPE OF ACTIVITY_________(N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
BILLING ACCOUNT NUMBER (BAN)____________________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE
NUMBER:
________________________________
________________________________
( )
________________________________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
( )
_______________________________________________________________________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
( )
_______________________________________________________________________________
*SWBT CKR:___________________________________*TWO SIX
CODE:________________________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1. _______________________
2. _______________________
3. _______________________
4. _______________________
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
<PAGE> 147
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 3
LIDB VALIDATION SERVICE__________ CALLING NAME SERVICE_____
ORIGINATING LINE NUMBER SCREENING_____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
REMARKS_________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 148
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 4
- --------------------------------------------------------------------------------
LIDB VALIDATION SERVICE _________ CALLING NAME SERVICE __________
ORIGINATING LINE NUMBER SCREENING ___________
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
___ _________________ ____ __________________
REMARKS_________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 149
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 5
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY. THIS
INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN
COORDINATED WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER
FORM TO THE ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE
TO BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED
WITH THE NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 150
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 6
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE ENTERED
TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM
AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO
THE COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S),
ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP...
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL
ENTER THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR
CCS/SS7 INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR
LINKS FOR ACCESS TO THE LIDB.
<PAGE> 151
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 7
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND
ORIGINATING LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE. THE
LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR THEIR
POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO ESTABLISH
THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER SHOULD
ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN FOR OLNS.
IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR THE LIDB
VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER WILL USE
BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE BILLING
ACCOUNTS.
1. LIDB VALIDATION SERVICE____________CALLING NAME SERVICE_____
ORIGINATING LINE NUMBER SCREENING_____
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES
ARE REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST
BE LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND
THE "N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 152
SOUTHWESTERN BELL TELEPHONE COMPANY EXHIBIT III
CUSTOMER PROVIDED FACTOR REPORTS SEPTEMBER 1996
PAGE 8
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY FROM
PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "IN" TO ESTABLISH A NEW ACCOUNT AND SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT
ICSC IN ST. LOUIS, MISSOURI.
<PAGE> 153
APPENDIX MAP
KANSAS CITY, MISSOURI
ILEC MANDATORY AREAS
- - FERRELVIEW
<PAGE> 154
APPENDIX OSS
PAGE 2
Appendix OSS
ACCESS to OPERATIONS SUPPORT SYSTEMS FUNCTIONS
Appendix OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems (OSS)
"functions" to LSP for pre-ordering, ordering, provisioning, maintenance /
repair, and billing. Such functions will be made available as described herein
for Resold Services, as provided in Appendix Resale, and for Unbundled Network
Elements (UNE), as provided in Appendix UNE.
1.2 The functions, for Resale and UNE, will be accessible via
electronic interface, as described herein, where such functions are available.
Manual access will be available to all pre-ordering, ordering, provisioning, and
billing functions via the Local Service Provider Service Center (LSPSC). Repair
and maintenance functions are available via manual handling by the Local Service
Provider Center (LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT defines
in its requirements, only for the functions described herein for the purposes of
establishing and maintaining Resale services or UNE. LSP agrees that such use
will comply with the summary of SWBT's Operating Practice No. 113, Protection of
Electronic Information, titled Local Service Provider Security Policies and
Guidelines.
1.4 LSP acknowledges and agrees that access to OSS functions will only
be utilized to view an end-user's Customer Proprietary Network Information under
the conditions set forth and agreed to in Exhibit A of this Appendix.
1.5 By utilizing electronic interfaces to access OSS functions, LSP
acknowledges and agrees to perform accurate and correct billing functions that
occur during ordering per the terms of this Agreement. Further, LSP recognizes
that such billing functions for conversion orders require viewing CPNI as
described in 1.4 above. All exception handling must be requested manually from
LSPSC.
1.6 In areas where Resale and UNE service order transactions cannot be
provided via an electronic interface for the pre-order, ordering and
provisioning processes, SWBT and LSP will utilize manual processes until such
time as the transactions can be electronically transmitted.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
1.8 SWBT and LSP will jointly establish interface contingency and
disaster recovery plans for the pre-order, ordering and provisioning of Resale
services and UNE.
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1.9 SWBT reserves the right to modify or discontinue the use of any
system or interface as it deems appropriate.
1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale or UNE, SWBT and LSP agree to work together in the Order
and Billing Forum (OBF) and the Telecommunications Industry Forum (TCIF) to
establish and conform to uniform industry standards for electronic interfaces
for pre-order, ordering, and provisioning. Neither Party waives its rights as
participants in such forums in the implementation of the standards. To achieve
industry standard system functionality as quickly as possible, the Parties
acknowledge that SWBT may deploy these interfaces with requirements developed in
advance of industry standards. Thus, subsequent modifications may be necessary
to comply with emerging standards. LSP and SWBT are individually responsible for
evaluating the risk of developing their respective systems in advance of
standards and agree to support their own system modifications to comply with new
requirements.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support LSP
ordering of Resale services and UNE via several electronic interfaces. The
Parties acknowledge that ordering requirements necessitate the use of current,
real time pre-order information to accurately build service orders. The
following lists represent pre-order information that will be available to LSP so
that LSP order requests may be created to comply with SWBT ordering
requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is provisioned;
2.2.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP and such request complies with
conditions of Exhibit A of this Appendix.)
2.2.3 a telephone number (if the customer does not have one
assigned) with the customer on-line.
2.2.4 service availability dates to the customer;
2.2.5 information regarding the dispatch / installation
schedule, if applicable;
2.2.6 PIC options for intraLATA toll (when available) and
interLATA toll;
2.2.7 address verification.
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2.3 PRE-ORDERING FUNCTIONS FOR UNE WILL INCLUDE:
2.3.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is provisioned;
2.3.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP, and such request complies with
conditions of Exhibit A of this Appendix.)
2.3.3 telephone number (if the customer does not have one
assigned) with the customer on-line;
2.3.4 PIC options for intraLATA toll (when available) and
interLATA toll;
2.3.5 address verification;
2.3.6 channel facility assignment (CFA), network channel (NC),
and network channel interface (NCI) data
2.4. ELECTRONIC ACCESS TO PRE-ORDER FUNCTIONS: Upon request by LSP for
electronic access to pre-ordering functions, SWBT will provide LSP access to one
or more of the following systems:
2.4.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.4.1.1 Residential Easy Access Sales Environment
(R-EASE): R-EASE is an ordering entry system through which SWBT will provide LSP
access for the functions of pre-ordering SWBT's Resale services so long as EASE
is utilized to order SWBT Residential Resale Services.
2.4.1.2 Business Easy Access Sales Environment (EASE):
B-EASE is an ordering entry system through which SWBT will provide LSP access
for the functions of pre-ordering SWBT's Resale services so long as such access
is utilized to order SWBT's Business Resale Services.
2.4.2 RESALE AND UNE PREORDER SYSTEM AVAILABILITY:
2.4.2.1 DataGate: DataGate is transaction-based data
query system through which SWBT will provide LSP access for the functions of
gathering pre-ordering information to support industry standardized ordering
processes for Residential and Business Resale services. When ordering Resale
services or UNE, LSP's representatives will have access to a pre-order
electronic gateway provided by SWBT for both consumer and business customers
that provides real-time access to SWBT's operations systems. This gateway shall
be a Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will
allow the LSP representatives to perform the pre-order functions for Resale
services and UNE, as described
<PAGE> 157
APPENDIX OSS
PAGE 5
above. SWBT and LSP agree to work together to develop and implement an
electronic communication interface that will replace this initial pre-order
electronic interface consistent with industry standards developed by the OBF and
the TCIF.
2.4.2.2 VERIGATE is an Access Service Pre-order system
that will also provide access to the pre-ordering functions for Resale Services
and UNE. VERIGATE may be used in connection with electronic or manual ordering.
VERIGATE provides the UNE pre-order capability of identifying CFA information,
NC, and NCI codes that are associated with order requirements for UNE.
2.5 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.5.1 Where due dates are not available electronically, SWBT
will provide LSP with due date interval for inclusion in the service order
request.
2.5.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to construct
order requests only in exception handling.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services and UNE via one or more electronic interfaces.
Upon request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential
Resale services orders. Ordering Flows will be available via these systems for
the following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.2 B-EASE is available for the generation of Business
Resale services orders. Ordering Flows will be available via these systems for
the following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.3 SWBT will provide LSP with an Electronic Data
Interexchange (EDI) Interface for transmission of industry-standardized Resale
service order requests in formats as defined by the Ordering and Billing Forum
(OBF) and EDI mapping as defined by TCIF. EDI ordering functionality will be
made available as negotiated and implemented in timeframes mutually acceptable
to SWBT and LSP.
3.3 UNE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
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3.3.1 In ordering and provisioning UNE, LSP and SWBT will
utilize mutually agreeable standard industry order formats and data elements
developed by OBF and TCIF EDI. Where industry standards do not currently exist
for the ordering and provisioning of UNE, LSP and SWBT agree to jointly develop
a form for ordering Common-Use UNE. Common-Use UNE, including, without
limitation, tandem switching, signaling and call-related databases, Operator
Services and DA, and Operations Support Systems, shall be ordered in a manner
that is consistent with OBF Access Service Request Process; in addition
customized routing will be ordered in the same manner. Customer Specific UNE,
including, Local Loop (which includes NID), and unbundled Local Switching, and
Interim Number Portability will be ordered consistent with the OBF Local Service
Request (LSR) process.
3.4 SWBT will provision Resale Services and UNE as prescribed in LSP
order requests. Access to status on such orders of Resale services and UNE will
be provided via the following electronic interfaces:
3.4.1 Customer Network Administration (CNA) will allow LSP to
check service order status via CNA.
3.4.2 In cases of industry-standardized EDI ordering, SWBT
will provide to LSP an EDI electronic interface for transferring and receiving
orders, Firm Order Confirmation (FOC), service completion, and, as available,
other provisioning data and information. SWBT will provide LSP with a FOC for
each Resale and UNE order. The FOC includes but is not necessarily limited to:
purchase order number, telephone number, Local Service Request number, due date,
Service Order number, and completion date. Upon work completion, SWBT will
provide LSP with an 855 EDI transaction-based Order Completion that states when
that order was completed. When available, SWBT will provide LSP an 865 EDI
transaction-based Order Completion.
3.4.3 A file transmission may be provided to confirm order
completions for R-EASE or B-EASE order processing. This file will provide
service order information of all distributed and completed orders for LSP,
regardless of order entry mechanism.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for both Resale and UNE. Upon request, LSP may access
these functions via the following methods:
4.1.1 CNA system access provides LSP with SWBT software that
allows LSP to submit trouble reports and subsequently check status on trouble
reports for LSP end-users. CNA will provide ability to review the maintenance
history of a converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an
industry-standardized interface that is available for trouble report submission
and status updates. This EBI will conform to ANSI standards T1:227:1995 and
T1.228:1995, Electronic Communications Implementation Committee (ECIC) Trouble
Report Format Definition (TFRD) Number 1 as defined in ECIC document
ECIC/TRA/95-003, and all standards referenced within those documents, as
mutually
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PAGE 7
agreed upon by LSP and SWBT. Functions currently implemented will include Enter
Trouble, Request Trouble Report Status, Add Trouble Information, Modify Trouble
Report Attributes, Trouble Report Attribute Value Change Notification, and
Cancel Trouble Report, as explained in 6 and 9 of ANSI T1.228:1995. LSP. SWBT
will exchange requests over a mutually agreeable X.25-based network.
5. BILLING
5.1 SWBT shall bill LSP for resold services and UNE. SWBT shall send
associated billing information to LSP as necessary to allow LSP to perform
billing functions. At minimum SWBT will provide LSP billing information in a
paper format or via magnetic tape, as agreed to between LSP and SWBT.
5.2 Upon request, electronic access to billing information for Resale
Services will also be available via the following interfaces:
5.2.1 LSP may receive Bill Plus(TM), an electronic version of
their electronic bill as described in and in accordance with SWBT's Local
Exchange Tariff.
5.2.2 LSP may receive a mechanized bill format via the
industry standards EDI.
5.2.3 LSP may also view billing information through the CNA
system.
5.2.4 SWBT shall provide the Usage Billable Records for Resale
Services via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via
CARE records) electronically that indicate when LSP's customers change their
local service provider.
5.3 Upon request electronic access to billing information for UNE will
also be available via the following interfaces:
5.3.1 SWBT will make available a mechanized bill data tape
(local) format by February 1997.
5.3.2 LSP may also view billing information through the CNA
system.
5.3.3 SWBT shall provide the Usage/Toll Billable Records for
UNE via EMR industry standard format with a daily feed.
5.2.4 LSP may receive Local Disconnect Report records (via
CARE records) electronically that indicate when LSP's customers, utilizing SWBT
ports, change their local service provider.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following SWBT's OSS functions via a LSP Remote
Access
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Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, CNA, DATAGATE and
VERIGATE.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide its
own router, circuit, and two Channel Service Units/Data Service Units (CSU/DSU).
The demarcation point shall be the router interface at the LRAF. Switched Access
connections require LSP to provide its own modems and connection to the SWBT
LRAF. LSP shall pay the cost of the call if Switched Access is used.
6.3 LSP shall use TCP/IP to access SWBT OSS via the LRAF. In addition,
each LSP shall have a valid Internet Protocol (IP) network address. A user-id
/password unique to each individual accessing an OSS shall be maintained to
access SWBT OSS's. LSP shall provide estimates regarding its volume of
transactions, number of concurrent users, desired number of private line or
dial-up (switched) connections, and length of a typical session.
6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on an
ongoing basis in accessing any SWBT OSS over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
7.1 LSP must participate with SWBT in Operational Readiness Testing
(ORT), which will allow for the testing of the systems, interfaces, and
processes for the ordering and provisioning of Resale services. ORT will be
completed in conformance with agreed upon implementation dates.
8. RATES - KANSAS
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $ 3,500.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $ 1,580.00 / month
Dial Up Per Port $ 316.00 / month
8.4 LPS requesting the Bill Plus, as desribed in 5.2.1, agrees to pay
applicable tariffed rate, less Resale discount.
8.3 LSP requesting the billing function for Usage Billable Records, as
described in
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5.2.4, agrees to pay $.003 per message transmitted.
8.4 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.4 Should unforeseen modifications and costs to provision OSS
functions become required by SWBT or industry standards, SWBT reserves the right
to modify its rate structure. In addition, should LSP request custom development
of an exclusive interface to support OSS functions, such development will be
considered by SWBT on an Individual Case Basis (ICB) and priced as such.
9. EFFECTIVE DATE, TERM
9.1 The Appendix OSS will be effective upon approval by the state
commission when it determined that the entire Interconnection Agreement is in
compliance with Sections 251 and 252 of the Act.
9.2 The Term Appendix OSS will be the shorter of the Term of this
Interconnection Agreement or December 31, 1998. Continuation of Appendix OSS
follows the continuation rules of the Agreement. Should the Interconnection
Agreement establish a new term, the Term of Appendix OSS will be the shorter of
one year, or the new Term of the Interconnection Agreement. Should the term of
the Interconnection Agreement Expire without provision for continuance, the Term
of Appendix OSS expires as well.
<PAGE> 162
APPENDIX OSS - RESALE & UNE - EXHIBIT A
PAGE 1 OF 1
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE OF
CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent request or
in the course of ordering SWBT's network elements or services via manual and/or
mechanized interfaces, the undersigned must, at least, certify that "yes" (Y) it
has obtained Authorization for Release of CPNI and provide the name of the
individual authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of CPNI has
been obtained from an end-user and that it includes the expressed content of the
language, "Minimum Scope." SWBT may then provide the CPNI referenced herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects the
following: "This document serves as instruction to all holders
of my local exchange telecommunications Customer Proprietary
Network Information (CPNI) to provide such information to the
undersigned. I understand that this CPNI includes the
following information: billing name, service address, billing
address, service and feature subscription, directory listing
information long distance carrier identity, and all pending
service order acitivity. This Authorization remains in effect
until such time that I revoke it directly or appoint another
individual/company with such capacity or undersigned receives
notice to disconnect my local exchange service or notice that
a service disconnect has been performed. At and from such
time, this Authorization is null and void."
or
2) Authorization for change in local exchange service and release
of CPNI with documentation that adheres to an requirements of
state and federal law, as applicable.
---------------------------
Signed
---------------------------
Name (Typed/Printed)
---------------------------
Title
---------------------------
Company
---------------------------
Date
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APPENDIX OSS - RESALE & UNE
SIGNATURE PAGE
PAGE 1 OF 1
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By:______________________________ By:________________________________
(name printed or typed) (name printed or typed)
Signature:______________________ Signature:_________________________
Title:__________________________ Title:_____________________________
(printed or typed) (printed or typed)
Date:___________________________ Date:______________________________
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APPENDIX OS
OPERATOR SERVICES
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Operator Services for LSP ("LSP").
I. SERVICES
SWBT will provide the following Operator Services:
A. FULLY AUTOMATED CALL PROCESSING - Allows the caller to complete
a call utilizing equipment without the assistance of a SWBT
operator, hereafter called "Operator."
This allows the caller the option of completing calls through
an automated alternate billing system (AABS). Automated
functions can only be activated from a touch-tone telephone.
Use of a rotary telephone and failure or low response by the
caller to the audio prompts will bridge the caller to an
Operator for assistance. The called party must also have
Touch-tone service to automatically accept calls that are
billed collect or to a third number.
B. OPERATOR-ASSISTED CALL PROCESSING - Allows the caller to
complete a call by receiving assistance from an Operator.
II. DEFINITIONS
A. FULLY AUTOMATED CALL PROCESSING
SWBT will support the following fully automated call types for LSP:
1. FULLY AUTOMATED CALLING CARD STATION-TO-STATION - This
service is provided when the caller dials zero (0), plus
the desired telephone number and the telecommunications
calling card number to which the call is to be charged.
The call is completed without the assistance of an
Operator. An authorized telecommunications calling card
for the purpose of this Appendix, is one for which SWBT
can perform billing validation. Fully-Automated Calling
Card Call Service may also include the following
situations:
a. When an individual with a disability dials zero (0)
and identifies himself or herself as disabled, he or
she will provide the Operator the desired telephone
number and the calling card number to which the call
is to be billed.
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b. When due to trouble on the network, or lack of
service components (facilities to the AABS network),
the automated call processing cannot be completed
without assistance from an Operator.
c. When an Operator reestablishes an interrupted call
that meets any of the situations described in this
call type.
2. FULLY AUTOMATED STATION-TO-STATION - This service is
limited to those calls placed collect or billed to a
third number. The caller dials zero (0) plus the
telephone number desired, the service selection codes
and/or billing information as instructed by the automated
equipment. The call is completed without the assistance
of an Operator. Fully Automated Station-to-Station
service may also include the following situations:
a When an individual with a disability identifies
himself or herself as disabled and provides the
Operator the number to which the call is to be
billed (either collect or third number).
b. When due to trouble on the network or lack of
service components, the automated call cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an interrupted call
that meets any of the situations described in this
call type.
B. OPERATOR-ASSISTED CALL PROCESSING
SWBT will support the following operator-assisted call types for LSP:
1. SEMI-AUTOMATED STATION-TO-STATION - A service provided
when the caller dials zero (0) plus the telephone number
desired and the call is completed with the assistance of
an Operator. Semi-Automated Station-to-Station service
may also include the following situations:
a. Where the caller does not dial zero (0) prior to
calling the number desired from a public or
semi-public telephone, or from a telephone where the
call is routed directly to an Operator (excluding
calling card calls).
b. When an Operator re-establishes an interrupted call
that meets any of the situations described in this
call type.
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2. SEMI-AUTOMATED PERSON-TO-PERSON - A service in which
the caller dials zero (0) plus the telephone number
desired and specifies to the Operator the particular
person to be reached or a particular PBX station,
department or office to be reached through a PBX
attendant. This service applies even if the caller
agrees, after the connection is established, to speak
to any party other than the party previously
specified. Semi-Automated Person-to-Person service
may also include:
a. Where the caller does not dial a zero (0)
prior to dialing the number from a public or
semi-public telephone, or where the call is
routed directly to an Operator.
b. When an operator reestablishes an
interrupted call that meets any of the
situations described in this call type.
3. SEMI-AUTOMATED CALLING CARD STATION-TO-STATION - A
service provided when the caller dials zero (0) plus
the desired telephone number and provides the
Operator the calling card number to which the call is
to be charged. Semi-Automated Calling Card
Station-to-Station service may also include the
following situations:
a. When the caller does not dial zero (0) prior
to dialing the number desired from a public
or semi-public telephone, or from a
telephone that is directly routed to an
Operator, and the call is billed to a
calling card.
b. When an Operator reestablishes an
interrupted call that meets any of the
situations described in this call type.
4. STATION-TO-STATION (OPERATOR HANDLED) - A service
provided when the caller dials zero (0) and places a
sent paid, collect, third number or calling card
station-to-station call using an Operator's
assistance. These calls may originate from a private,
public or semi-public telephone. The service may also
include the situation when an Operator reestablishes
an interrupted call that meets any of the situations
described in this call type.
5. PERSON-TO-PERSON (OPERATOR HANDLED) - A service in
which the caller dials zero (0) and specifies to the
Operator the number desired and the person to be
reached, or a particular PBX station, department or
office to be reached through a PBX attendant, or a
particular mobile service point to be reached through
a mobile telephone attendant. The call remains a
person-to-person call even if the caller agrees,
after the connection is established, to speak to any
party other than the party previously specified. The
service may also include situations when an
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Operator reestablishes an interrupted call that meets
any of the situations described in this call type.
6. LINE STATUS VERIFICATION - A service in which the
caller asks the Operator to determine the condition
of a telephone line.
7. BUSY LINE INTERRUPT - A service in which the caller
asks the Operator to interrupt a conversation in
progress, to determine if one of the parties is
willing to speak to the caller requesting the
interrupt. A Busy Line Interrupt charge will apply
even if no conversation is in progress at the time of
the interrupt attempt, or when the parties
interrupted refuse to terminate the conversation in
progress.
8. OPERATOR TRANSFER SERVICE - A service offered by SWBT
in which the local caller requires Operator
Assistance for completion of a call outside the
originating LATA. The SWBT Operator transfers the
call to an interexchange carrier selected by the
caller from a list of IXCs provided to SWBT by the
LSP. This transfer service is similar to SWBT's
"0perator Transfer" service offering. LSP agrees to
obtain all necessary compensation arrangements
between LSP and participating carriers.
9. MISCELLANEOUS - Includes the following call types:
General Assistance and Rate Quotes, 800, 888 and
connections to all other Toll Free services, Repair
Bureau and Business Office requests, credit requests,
NPA-NXX location requests, and all other 0- No
Attempt services.
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Pursuant to s. 226 (b) of The
Telecommunications Act of 1996, each provider of Operator
Services is required to:
1. provide its brand at the beginning of each telephone
call and before the consumer incurs any charge for
the call; and
2. disclose immediately to the consumer, upon request a
quote of its rates or charges for the call.
B. CALL BRANDING - In compliance with A. 1. above, SWBT will
brand Operator Services in LSP's name based upon the criteria
outlined below:
1. LSP will provide SWBT with written specification of
its company name to be used in creating LSP specific
branding messages for its OS calls.
<PAGE> 168
APPENDIX OS
PAGE 6 OF 8
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call
Branding as well as a charge per TOPS switch, per
subsequent load to change the brand. In addition, a
per call charge applies for every Operator Services
call handled by SWBT on behalf of LSP when such
services are provided in conjunction with: i) the
purchase of SWBT's unbundled local switching; or ii)
when multiple brands are required on a single
Operator Services trunk. Prices for Call Branding are
as outlined in Exhibit II, attached hereto and
incorporated herein.
C. OPERATOR SERVICES (OS) RATE/REFERENCE INFORMATION - In
compliance with A.2. above, SWBT will provide LSP Operator
Services Rate/Reference Information based upon the criteria
outlined below:
1. LSP will furnish OS Rate and Reference Information in
a mutually agreed to format or media thirty (30) days
in advance of the date when the Operator Services are
to be undertaken.
2. LSP will inform SWBT, in writing, of any changes to
be made to such Rate/Reference Information ten (10)
working days prior to the effective Rate/Reference
change date. LSP acknowledges that it is responsible
to provide SWBT updated Rate/Reference Information in
advance of when the Rates/Reference Information are
to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the
applicable OS rates as provided by LSP.
4. An initial non-recurring charge will apply per TOPS
switch for loading of LSP's Operator Services
Rate/Reference Information as well as a charge per
TOPS switch, for each subsequent change to either
LSP's Operator Services Rate or Reference
Information.
IV. HANDLING OF EMERGENCY CALLS TO OPERATOR
To the extent LSP's NXX encompasses multiple emergency agencies, SWBT
will agree to query the caller on his/her community and to transfer the
caller to the appropriate emergency agency for the caller's area. LSP
must provide SWBT with the correct information to enable the transfer.
When the assistance of another Carrier's operator is required, SWBT
will attempt to reach the appropriate operator if the network
facilities for inward assistance exist. LSP agrees to indemnify SWBT
for any misdirected calls.
V. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of Operator Services for LSP's
local service area(s) listed in Exhibit I, which is attached
to this Appendix, beginning on the service effective date also
shown in Exhibit I. SWBT will provide Operator
<PAGE> 169
APPENDIX OS
PAGE 7 OF 8
Services only where the necessary physical facilities are
available and in place and under conditions previously stated
in this Appendix.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with
Automatic Number Identification (ANI) to each SWBT operator
switch. Should LSP seek to provide interexchange Operator
Services under this agreement, it is responsible for ordering
the necessary facilities through SWBT's interstate or
intrastate Access Service tariffs. Nothing in this agreement
in any way changes the manner in which an interexchange
Carrier obtains access service for the purpose of originating
or terminating interexchange traffic.
C. Facilities necessary for the provision of Operator Services
shall be provided by the parties hereto, using standard trunk
traffic engineering procedures to insure that the objective
grade of service is met. Each party shall bear the costs for
its own facilities. LSP shall bear the costs of facilities
necessary for signaling and routing calls with Automatic
Number Identification (ANI) to each SWBT operator switch. SWBT
shall bear the cost of facilities and equipment necessary to
provide Operator Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the Operator Services are to be
undertaken, unless otherwise agreed to by the SWBT, all
records required by SWBT to provide the Operator Services.
E. LSP will keep all records finished to SWBT current by using
reporting forms and procedures that are mutually acceptable to
both parties, and will inform SWBT in advance of any changes
to be made in such records. SWBT will specify the required
interval for such advance notice. LSP will provide all records
and changes to records to SWBT in writing or in any other
mutually agreeable format.
F. SWBT will accumulate and provide the LSP such data as
necessary for the LSP to verify traffic volumes and bill its
end users.
VI. METHODS AND PRACTICES
SWBT will provide the Operator Services to LSP's end users in
accordance with SWBT's OS methods and practices in effect for SWBT at
the time the OS call is made, unless otherwise agreed in writing by
both parties.
VII. PRICING
Pricing for Operator Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached and made part of this Appendix.
The rates will apply from the service effective date through the term
of this agreement as specified in paragraph X.,
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APPENDIX OS
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A. below. At any time beyond the specified or the term of this
Appendix, SWBt may change the prices for the provision of OS upon one
hundred-twenty (120) days' notice to LSP.
VIII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
IX. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless
SWBT from any and all losses, damages, or other liability
including attorneys fees that LSP may incur as a result of
claims, demands, wrongful death actions, or other suits
brought by any party that arise out of LSP's end users use of
Operator Services. LSP shall defend against all end user
claims just as if LSP had provided such service to its end
user with the LSP's own operators and shall assert its tariff
limitation of liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SWBT employees and equipment associated with
provision of the Operator Services. This provision includes
but is not limited to suits arising from disclosure of the
telephone number, address, or name associated with the
telephone called or the telephone used to call the Operator
Services.
X. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force
for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one
hundred-twenty (120) days notice in writing from either Party
to the other.
B. If LSP terminates this agreement prior to the agreed-upon term
of this Appendix, LSP shall pay, within thirty (30) days of
the issuance of a final bill by SWBT, all amounts due for
actual services provided under this Appendix, plus estimated
monthly charges for the remainder of the term. Estimated
charges will be based on an average of the actual monthly
amounts billed by SWBT pursuant to this Appendix prior to its
termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit
II.
<PAGE> 171
APPENDIX OS - EXHIBIT I
PAGE 1 OF 1
APPENDIX OS
LOCAL SERVICE AREA(S)
EFFECTIVE:____________
(mm/dd/yr)
The following table depicts the service area(s) covered by this Appendix:
- --------------------------------------------------------------------------------
LSP'S LOCAL SERVICE AREA(S) EFFECTIVE DATE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 172
APPENDIX OS - EXHIBIT II
PAGE 1 OF 1
APPENDIX OS
KANSAS
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE:_______________
(mm/dd/yr)
The following rates will apply for each service element:
---------------------------------------------------------------------
A. FULLY AUTOMATED CALL PROCESSING
This usage rate applies to each call that has been completed on a
fully automated basis.
Rate per completed automated call $0.179
---------------------------------------------------------------------
B. OPERATOR-ASSISTED CALL PROCESSING
This usage rate applies to each call that has been answered by or
forwarded to an operator.
Rate per actual work second $0.019
---------------------------------------------------------------------
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand
for the establishment of LSP specific Call Branding. An additional
non-recurring charge applies for each subsequent change to the
branding.
Rate per initial load group
Rate per load for Brand change $2,100.00
Per Call(1) $2,100.00
$0.02
---------------------------------------------------------------------
D. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch, per rate
schedule, for the initial load of LSP's Operator Services Rate/
Reference Information. An additional non-recurring charge applies for
each subsequent change to Rate/Reference Information.
Rate per initial load
Rate per subsequent rate change $3,250.00
Rate per subsequent reference change $2,250.00
$2,250.00
---------------------------------------------------------------------
- --------------------
(1) A per call charge will apply when OS are provided in conjunction with i)
unbundled local switching or ii) when multiple brands are required on a single
operator services trunk.
<PAGE> 173
APPENDIX NIM
PAGE 2 OF 5
APPENDIX NETWORK INTERCONNECTION METHODS (NIM)
This Appendix NIM designates Network Interconnection Methods (NIMs) to
be used by the Parties. These include, but are not limited to: MidSpan
Fiber Interconnection (MSFI); Virtual Collocation Interconnection;
SONET Based Interconnection; Physical Collocation Interconnection;
leasing of SWBT facilities; and other methods as mutually agreed to by
the Parties.
1. MID-SPAN FIBER INTERCONNECTION (MSFI)
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.
MSFI may be used to provide interconnection trunking as defined in
Appendix ITR to Attachment 11: Network Interconnection Architecture.
A. There are two basic mid-span interconnection designs:
1. 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
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.
<PAGE> 174
APPENDIX NIM
PAGE 3 OF 5
2. 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.
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.
B. 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.
C. 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.
D. The fiber connection point may occur at several locations:
1. 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;
2. 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;
3. 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;
4. 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.
E. 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
<PAGE> 175
APPENDIX NIM
PAGE 4 OF 5
trunking as outlined in Appendix ITR. This location is SWBT's
responsibility to provision and maintain.
F. 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
DSls 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.
2. AVOIDANCE OF OVER PROVISIONING
Underutilization is the 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.
3. JOINT FACILITY GROWTH PLANNING
The initial fiber optic 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:
1. Investment is to be minimized;
2. Facilities are to be deployed in a "just in time" fashion.
B. Processes
1. discussions to provide relief to existing facilities will be
triggered when either Party recognizes that the overall system
facility (DS1s) is at 90% capacity;
2. 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;
<PAGE> 176
APPENDIX NIM
PAGE 5 OF 5
3. 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;
4. 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;
5. 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;
6. the joint planning process/negotiations should be completed
within two months of identification of 90% fill.
4. VIRTUAL COLLOCATION INTERCONNECTION
The description of Virtual Collocation Interconnection is contained in
SWBT's Virtual Collocation tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
5. SONET-BASED INTERCONNECTION
The description of SONET-Based Interconnection is contained in SWBT's
Sonet-Based Interconnection tariffs (i.e., SWBT's Tariff F.C.C. No.
73).
6. PHYSICAL COLLOCATION INTERCONNECTION
SWBT will provide Physical Collocation Interconnection on
nondiscriminatory terms and conditions at the time LSP requests such
interconnection.
7. LEASING OF SWBT'S FACILITIES
LSP's leasing of SWBT's facilities for purposes of Attachment 11:
Network Interconnection Architecture will be subject to the mutual
agreement of the Parties.
<PAGE> 177
PHYSICAL COLLOCATION AGREEMENT
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
<PAGE> 178
TABLE OF ARTICLES
ARTICLE I - PREMISES........................................................1
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL..........................2
ARTICLE III - TERM..........................................................3
ARTICLE IV- PREMISES CHARGES................................................4
ARTICLE V - INTERCONNECTION CHARGES.........................................7
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT........................7
ARTICLE VII - USE OF PREMISES...............................................8
ARTICLE VIII - STANDARDS...................................................10
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR........................11
ARTICLE X - QUIET ENJOYMENT................................................13
ARTICLE XI - ASSIGNMENT....................................................13
ARTICLE XII - CASUALTY LOSS................................................13
ARTICLE XIII - RE-ENTRY....................................................14
ARTICLE XIV - LIMITATION OF LIABILITY......................................15
ARTICLE XV - INDEMNIFICATION OF SWBT.......................................16
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES..............17
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION...................17
ARTICLE XVIII - SUCCESSORS BOUND...........................................19
ARTICLE XIX - CONFLICT OF INTEREST.........................................19
ARTICLE XX - NON-EXCLUSIVE REMEDIES........................................20
ARTICLE XXI - NOTICES......................................................20
ARTICLE XXII - COMPLIANCE WITH LAWS........................................20
ARTICLE XXIII - OSHA STATEMENT.............................................21
ARTICLE XXIV- INSURANCE....................................................21
ARTICLE XXV - SWBT'S RIGHT OF ACCESS.......................................24
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT..............................24
ARTICLE XXVII - MISCELLANEOUS..............................................25
<PAGE> 179
PHYSICAL COLLOCATION AGREEMENT
THIS PHYSICAL COLLOCATION AGREEMENT ("Agreement") is made
this________day of _____________, 19___ by and between SOUTHWESTERN BELL
TELEPHONE COMPANY, a Missouri corporation ("SWBT"), and Digital Teleport, Inc.,
a [STATE OF INCORPORATION] corporation ("Interconnector").
WITNESSETH
WHEREAS, SWBT is an incumbent local exchange carrier having a statutory
duty to provide for "physical collocation" of "equipment necessary for
interconnection or access to unbundled network elements" at its premises, 47
U.S.C. 251(c)(6);
WHEREAS, the Interconnector wishes to physically locate certain of its
equipment within the Premises (as defined herein) and connect with SWBT;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SWBT and the Interconnector (the
"parties") agree as follows:
ARTICLE I - PREMISES
1.1 Right to Use. Subject to this Agreement, SWBT grants to
Interconnector the right to use the premises described on Exhibit____
("Premises"), attached and incorporated herein, within real property
at__________________ in the City of_________________ , County of_________
____________, State of______________________.
1.2 Relocation. Notwithstanding Section 1.1, in the event that SWBT
determines it necessary for the Premises to be moved within the building in
which the Premises is located ("Building") or to another SWBT wire center, the
Interconnector is required to do so. In such an event, the Interconnector shall
be responsible for the preparation of the new premises at the new location if
such relocation arises from circumstances beyond the reasonable control of SWBT,
including condemnation
<PAGE> 180
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or government order or regulation that makes the continued occupancy of the
Premises or Building uneconomical in SWBT's sole judgment. Otherwise SWBT shall
be responsible for any such preparation.
In the event that the Interconnector requests that the Premises be
moved within the Building or to another SWBT wire center, SWBT shall permit the
Interconnector to relocate the Premises, subject to the availability of space
and associated requirements. The Interconnector shall be responsible for all
applicable charges associated with the move, including the reinstallation of its
equipment and facilities and the preparation of the new Premises and the new
wire center as applicable.
In either such event, the new premises shall be deemed the "Premises"
hereunder and the new wire center the "Building."
1.3 The Premises. SWBT agrees, at the Interconnector's sole cost and
expense as set forth herein, to prepare the Premises in accordance with working
drawings and specifications entitled___________________________and
dated______________, which documents, marked Exhibit _________, are attached and
incorporated herein. The preparation shall be arranged by SWBT in compliance
with all applicable codes, ordinances, resolutions, regulations and laws. After
the Interconnector has made the initial payments required by Section 4.4 and the
state regulatory approval is obtained in accordance with Section 2.1 hereof,
SWBT agrees to pursue diligently the preparation of the Premises for use by the
Interconnector.
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL
2.1 Submission to State Commission. The effectiveness of this Agreement
is conditioned upon the unqualified approval of this Agreement, whether as a
result of an approval process or by operation of law, under 47 U.S.C. 252(a)(1).
After execution of this Agreement, the parties shall submit it to the State
commission for the State in which the Premises is located as thereby required
for approval, and shall defend the Agreement and support any reasonable effort
to have this Agreement so approved,
<PAGE> 181
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including the supplying of witnesses and testimony if a hearing is to be held.
2.2 Failure to Receive Approval. In the event that this Agreement does
not receive such unqualified approval, this Agreement shall be void upon written
notice of either party to the other after such regulatory action becomes final
and unappealable. Thereafter Interconnector may request to begin negotiations
again under 47 U.S.C. 251. Alternatively, the parties may both agree to modify
this Agreement to receive such approval, but neither shall be required to agree
to any modification. Any agreement to modify shall not waive the right of either
party to pursue any appeal of the ruling made by any reviewing regulatory
commission.
2.3 Preparation Prior to Regulatory Approval. At the written election
of the Interconnector, SWBT shall begin preparing the Premises for the
Interconnector prior to receiving the approval required by Section 2.1 hereof.
The sole evidence of such election shall be the payment to SWBT of the initial
payments specified in Sections 4.4. Payment to SWBT of the remaining charges
under these Sections shall be due upon completion. Upon such an election, this
Agreement shall become effective but only insofar as to be applicable to the
Premises preparation. In the event that the Agreement does not become fully
effective as contemplated by this Article, the Interconnector shall not be
entitled to any refund or return of any such payments beyond any portion of the
charges paid but not attributable to costs incurred by SWBT. To the extent that
SWBT has incurred preparation costs not included within any payment made by the
Interconnector, the Interconnector shall pay those costs within thirty (30) days
of notice by SWBT.
ARTICLE III - TERM
3.1 Commencement Date. This Agreement shall be month-to-month,
beginning on the "Commencement Date." The "Commencement Date" shall be the first
day after this Agreement becomes effective in accordance with Article II hereof.
3.2 Occupancy. Unless there are unusual circumstances, SWBT will notify
the Interconnector
<PAGE> 182
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that the Premises is ready for occupancy within _____ days after receipt of the
payments due under Sections 4.4. The Interconnector must place operational
telecommunications equipment in the Premises and connect with SWBT's network
within sixty (60) days after receipt of such notice; provided, however, that
such 60-day period shall not begin until regulatory approval is obtained under
Article II. If the Interconnector fails to do so, this Agreement is terminated
except that the Interconnector shall be liable in an amount equal to the unpaid
balance of the charges due under and, further, shall continue to be bound by
Articles II, IV, XI, XIV, XV, XVII, XVIII, XX, XXI, XXVI and XXVII hereof. For
purposes of this Section, the Interconnector's telecommunications equipment is
considered to be operational and interconnected when connected to SWBT's network
for the purpose of providing service.
ARTICLE IV - PREMISES CHARGES
4.1 Monthly Charges. Beginning on the Commencement Date, Interconnector
shall pay to SWBT a charge of __________Dollars ($_______ ) per month for use of
the Premises. The monthly charge may be increased upon thirty (30) days' notice
by SWBT.
4.2 Billing. Billing shall occur on or about the 25th day of each
month, with payment due thirty (30) days from the bill date. SWBT may change its
billing date practices upon thirty (30) days notice to the Interconnector.
4.3 Preparation Charge. (a) The one-time charge for preparing the
Premises for use by the Interconnector is estimated to be
_________________Dollars ($XXX.XX) ("Preparation Charge"), which consists of two
components: (i) the charge to the Interconnector associated with modifying the
Building to provide physical collocation ("Common Charge"), and (ii) the charge
associated with preparing the Premises ("Premises Charge"). Of the Preparation
Charge ________ Dollars ($XXX.XX) is the estimate for subcontractor charges
("Subcontractor Charges").
(b) SWBT will contract for and perform the construction and preparation
activities underlying the
<PAGE> 183
-5-
Preparation Charge, including the Common Charge, the Premises Charge, and the
Subcontractor Charges, and any Custom Work charges, using same or consistent
practices that are used by SWBT for other construction and preparation work
performed in the Building. Subject to an appropriate non-disclosure agreement,
SWBT will permit the Interconnector to inspect supporting documents for the
Preparation Charge, including the Common Charge (if the Interconnector is the
initial physical collocator as used in Section 4.5(b)) and the Premises Charge,
and any Custom Work charge. Any dispute regarding such SWBT charges will be
subject to the dispute resolution provisions hereof.
4.4 Payment of Premises Charge. Prior to any obligation on SWBT to
start any preparation of the Premises, the Interconnector shall pay SWBT fifty
percent (50%) of the Premises Charge and eighty-five percent (85%) of any custom
work charge required to create or vacate any entrance facility for the
Interconnector ("Custom Work"), and shall be due no later than ten (10) business
days after the Agreement has become effective in accordance with Article II
hereof. The remainder of the Premises Charge and any Custom Work charge are due
upon completion and prior to occupancy by the Interconnector.
4.5 Payment of Common Charge. (a) In addition and prior to any
obligation on SWBT to start any preparation of the Building for physical
collocation, the Interconnector shall pay SWBT fifty percent (50%) of the Common
Charge. The other fifty percent (50%) of the Common Charge is due upon
completion and prior to occupancy by the Interconnector.
(b) The first entity to which SWBT provides physical collocation in the
Building shall be responsible for all costs incurred by SWBT associated with the
preparation of the Building to provide physical collocation in the initial space
where physical collocation is to be located ("Initial Common Charge").
Thereafter the Initial Common Charge will be prorated and the prorated share
refunded to the previous physical collocator(s) as additional entities use
physical collocation in the Building within twelve (12) months of the first
billing date of the initial monthly charge for the first physical collocator in
the Building, using the following schedule:
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Collocator Initial Common Charge Refund
---------- --------------------- ------
1st 100% NA
2nd 50% 50%
3rd 33 1/3% 16 2/3%
4th 25% 8 1/3%
5th and beyond 0% 0%
To the extent that a physical collocator uses a space other than such initial
space, SWBT shall refund to the Interconnector the portion of the Initial Common
Charge applicable to such collocator based on the relative use of such initial
space in a manner consistent with the above methodology and other terms of this
Agreement.
(c) No interest will be paid on refunds. Refunds shall be based on the
Initial Common Charge actually paid by the first physical collocator.
(d) Notwithstanding the above, SWBT shall have no obligation to remit
any amount that would result in SWBT being unable to retain the full amount of
the Initial Common Charge or to remit any amount based upon charges not actually
collected.
4.6 Payment of Preparation Charge. SWBT is not obligated to start any
preparation of the Premises until the Interconnector pays SWBT fifty percent
(50%) of the Preparation Charge and eighty-five percent (85%) of the charges for
any Custom Work charge. Such charges shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Preparation Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.7 Occupancy Conditioned on Payment. SWBT shall not permit the
Interconnector to have access to the Premises for any purpose other than
inspection until SWBT is in receipt of complete payment of the Preparation
Charge and any Custom Work charges.
4.8 Subcontractor Charges. Within one hundred twenty (120) days of the
completion date of the Premises, SWBT shall perform a true-up of all
Subcontractor Charges using the actual amounts billed by subcontractors. Any
amounts incurred above the Subcontractor Charges will be billed to the
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Interconnector or, alternatively, any amount below such Charges will be remitted
to the Interconnector.
4.9 Breach Prior to Commencement Date. In the event that the
Interconnector materially breaches this Agreement by purporting to terminate
this Agreement after SWBT has begun preparation of the Premises but before SWBT
has been paid the entire amounts due under this Article, then in addition to any
other remedies that SWBT might have, the Interconnector shall be liable in the
amount equal to the non-recoverable costs less estimated net salvage.
Non-recoverable costs include the non-recoverable cost of equipment and material
ordered, provided or used; trued-up Subcontractor Charges, the non-recoverable
cost of installation and removal, including the costs of equipment and material
ordered, provided or used; labor; transportation and any other associated costs.
4.10 Late Payment Charge. In the event that any charge is not paid when
due, the unpaid amounts shall bear interest in accordance with the terms and
conditions set forth in SWBT's intrastate tariff late payment provision(s)
applicable to access services for the State in which the Premises is located, or
the highest rate permitted by law, whichever is lower, from the due date until
paid.
ARTICLE V - INTERCONNECTION CHARGES
5.1 Charges for interconnection shall be as set forth in any
interconnection agreement between SWBT and the interconnector and any applicable
tariffs.
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT
6.1 Fiber Entrances. The Interconnector shall use a single mode
dielectric fiber optic cable as a transmission medium to the Premises. The
Interconnector shall be permitted no more than two (2) entrance routes into the
Building, if available.
6.2 Demarcation Point. SWBT shall designate the point(s) of termination
within the Building as the point(s) of physical demarcation between the
Interconnector's network and SWBT's network, with
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each being responsible for maintenance and other ownership obligations and
responsibilities on its side of that demarcation point. SWBT anticipates that
the demarcation point will be within the point-of-termination frame.
ARTICLE VII - USE OF PREMISES
7.1 Nature of Use. The Premises are to be used by the Interconnector
for purposes of locating equipment and facilities within SWBT's central offices
to connect with SWBT services only. Consistent with the nature of the Building
and the environment of the Premises, the Interconnector shall not use the
Premises for office, retail, or sales purposes. No signage or markings of any
kind by the Interconnector shall be permitted on the Building or on the grounds
surrounding the Building.
7.2 Equipment List. A list of all of the Interconnector's equipment and
facilities that will be placed within the Premises is set forth on Exhibit ____,
attached and incorporated herein, with the associated power requirements, floor
loading, and heat release of each piece. The Interconnector warrants and
represents that Exhibit _____ is a complete and accurate list, and
acknowledges that any incompleteness or inaccuracy would be a material breach
of this Agreement. The Interconnector shall not place or leave any equipment
or facilities within the Premises beyond those listed on Exhibit ______
without the express written consent of SWBT.
7.2.1 Subsequent Requests to Place Equipment. In the event that
subsequent to the execution of this Agreement the Interconnector desires to
place in the Premises any equipment or facilities not set forth on Exhibit
_____, the Interconnector shall furnish to SWBT a written list and description
thereof substantially in the form of Attachment A, which is attached and
incorporated. Thereafter, in its sole discretion, SWBT may provide such
written consent or may condition any such consent on additional charges
arising from the request, including any engineering design charges and any
additional requirements such as power and environmental requirements for such
listed and described equipment and/or facilities. Upon the execution by both
parties of a final list and description, including any
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applicable charges, this Agreement shall be deemed to have been amended to
include the terms and conditions of the final list and description.
7.2.2 Limitations. The foregoing imposes no obligation upon SWBT to
purchase additional plant or equipment, relinquish used or forecasted space or
facilities, or to undertake the construction of new quarters or to construct
additions to existing quarters in order to satisfy a subsequent request for
additional space or the placement of additional equipment or facilities.
7.3 Administrative Uses. The Interconnector may use the Premises for
placement of equipment and facilities only. The Interconnector's employees,
agents and contractors shall be permitted access to the Premises at all
reasonable times, provided that the Interconnector's employees, agents and
contractors comply with SWBT's policies and practices pertaining to fire, safety
and security. The Interconnector agrees to comply promptly with all laws,
ordinances and regulations affecting the use of the Premises. Upon the
expiration of the Agreement, the Interconnector shall surrender the Premises to
SWBT, in the same condition as when first occupied by the Interconnector,
ordinary wear and tear excepted.
7.4 Threat to Network or Facilities. Interconnector equipment or
operating practices representing a significant demonstrable technical threat to
SWBT's network or facilities, including the Building, are strictly prohibited.
7.5 Interference or Impairment. Notwithstanding any other provision
hereof, the characteristics and methods of operation of any equipment or
facilities placed in the Premises shall not interfere with or impair service
over any facilities of SWBT or the facilities of any other person or entity
located in the Building; create hazards for or cause damage to those facilities,
the Premises, or the Building; impair the privacy of any communications carried
in, from, or through the Building; or create hazards or cause physical harm to
any individual or the public. Any of the foregoing events would be a material
breach of this Agreement.
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7.6 Interconnection to Other Collocated Interconnectors Within the
Building. To the extent that SWBT is required by law to permit such
interconnection, SWBT will provide the connection between physical collocation
arrangements on a time and materials basis whenever the collocated
interconnectors cannot for technical reasons provide the connection for
themselves by passing the facility through the cage wall(s). SWBT will provide
nothing more than the labor and physical structure(s) necessary for the
collocator(s) to pull facilities provided by one collocator from its cage to the
cage of another collocator. If the collocators are not located on the same floor
and cannot physically pull the cable themselves through the SWBT provided
structure(s), SWBT will perform the cable pull on a time and materials basis. At
no time will the collocators be allowed access to any portion of the central
office other than the collocation area. SWBT will not make the physical
connection within the collocator's cage, SWBT will not accept any liability for
the cable or the connections and SWBT will not maintain any records concerning
these connections.
7.7 Personality and its Removal. Subject to this Article, the
Interconnector may place or install in or on the Premises such fixtures and
equipment as it shall deem desirable for the conduct of business. Personal
property, fixtures and equipment placed by the Interconnector in the Premises
shall not become a part of the Premises, even if nailed, screwed or otherwise
fastened to the Premises, but shall retain their status as personality and may
be removed by Interconnector at any time. Any damage caused to the Premises by
the removal of such property shall be promptly repaired by Interconnector at its
expense.
7.8 Alterations. In no case shall the Interconnector or any person
purporting to be acting through or on behalf of the Interconnector make any
rearrangement, modification, improvement, addition, repair, or other alteration
to the Premises or the Building without the advance written permission and
direction of SWBT. SWBT shall consider a modification, improvement, addition,
repair, or other alteration requested by the Interconnector, provided that SWBT
shall have the right to reject or modify
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any such request. The cost of any such construction shall be paid by
Interconnector in accordance with SWBT's then-standard custom work order
process.
ARTICLE VIII - STANDARDS
8.1 Minimum Standards. This Agreement and the physical collocation
provided hereunder is made available subject to and in accordance with the (i)
Bellcore Network Equipment Building System (NEBS) Generic Requirements
(GR-63-CORE and GR-1089-CORE), as may be amended at any time and from time to
time, and any successor documents; (ii) SWBT's Technical Publication for
Physical Collocation dated ___________ ___ , 1996, as may be amended from time
to time; (iii) SWBT's Technical Publication 76300, Installation Guide, followed
in installing network equipment and facilities within SWBT central offices, as
may be amended from time to time; (iv) SWBT's Emergency Operating Procedures, as
may be amended from time to time; and (v) any statutory and/or regulatory
requirements in effect at the execution of this Agreement or that subsequently
become effective and then when effective. The Interconnector shall strictly
observe and abide by each.
8.2 Revisions. Any revision to SWBT's Technical Publication for
Physical Collocation, its Technical Publication 76300, or its Emergency
Operating Procedures shall become effective and thereafter applicable under this
Agreement thirty (30) days after such revision is released by SWBT; provided,
however, that any revision made to address situations potentially harmful to
SWBT's network or the Premises, or to comply with statutory and/or regulatory
requirements shall become effective immediately.
8.3 Compliance Certification. The Interconnector warrants and
represents compliance with the Bellcore Network Equipment Building System (NEBS)
Generic Requirements (GR-63-CORE and GR-1089-CORE) for each item set forth on
Exhibit____. The Interconnector also warrants and represents that any equipment
or facilities that may be placed in the Premises pursuant to Section 7.2.1 or
otherwise shall be so compliant. DISCLOSURE OF ANY NON-COMPLIANT ITEM ON
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EXHIBIT _______, PURSUANT TO SECTION 7.2.1, OR OTHERWISE SHALL NOT QUALIFY THIS
ABSOLUTE CERTIFICATION IN ANY MANNER.
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR
9.1 Contact Number. The Interconnector is responsible for providing to
SWBT personnel a contact number for Interconnector technical personnel who are
readily accessible 24 hours a day, 7 days a week.
9.2 Trouble Status Reports. The Interconnector is responsible for
providing trouble report status when requested by SWBT.
9.3 Optical Fiber Extension. The Interconnector is responsible for
bringing its fiber optic cable to the wire center entrance manhole(s) designated
by SWBT, and for leaving sufficient cable length in order for SWBT to fully
extend the Interconnector-provided cable through the cable vault to the
Premises.
9.4 Regeneration. Regeneration of either DS1 or DS3 signal levels may
be provided by the Interconnector, or SWBT under its then-standard custom work
order process, including payment requirements prior to the installation of the
regeneration equipment.
9.5 Removal. The Interconnector is responsible for removing any
equipment, property or other items that it brings into the Premises or any other
part of the Building. If the Interconnector fails to remove any equipment,
property, or other items from the Premises within thirty (30) days after
discontinuance of use, SWBT may perform the removal and shall charge the
Interconnector for any materials used in any such removal, and the time spent on
such removal at the then-applicable hourly rate for custom work. Further, in
addition to the other provisions herein, the Interconnector shall indemnify and
hold SWBT harmless from any and all claims, expenses, fees, or other costs
associated with any such removal by SWBT.
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9.6 Interconnector's Equipment and Facilities. The Interconnector is
solely responsible for the design, engineering, testing, performance, and
maintenance of the equipment and facilities used by the Interconnector in the
Premises. The Interconnector will be responsible for servicing, supplying,
repairing, installing and maintaining the following facilities within the
Premises:
(a) its fiber optic cable(s);
(b) its equipment;
(c) required point of termination cross connects;
(d) point of termination maintenance, including replacement of fuses
and circuit breaker restoration, if and as required; and
(e) the connection cable and associated equipment which may be required
within the Premises to the point(s) of termination.
SWBT NEITHER ACCEPTS NOR ASSUMES ANY RESPONSIBILITY WHATSOEVER IN ANY OF THESE
AREAS.
9.7 Verbal Notifications Required. The Interconnector is responsible
for immediate verbal notification to SWBT of significant outages or operations
problems which could impact or degrade SWBT's network, switches, or services,
and for providing an estimated clearing time for restoral. In addition, written
notification must be provided within twenty-four (24) hours.
9.8 Service Coordination. The Interconnector is responsible for
coordinating with SWBT to ensure that services are installed in accordance with
the service request.
9.9 Testing. The Interconnector is responsible for testing, to identify
and clear a trouble when the trouble has been isolated to an
Interconnector-provided facility or piece of equipment. If SWBT testing is also
required, it will be provided at charges specified in SWBT's F.C.C. No. 73,
Section 13.
ARTICLE X - QUIET ENJOYMENT
Subject to the other provisions hereof, SWBT covenants that it has full
right and authority to
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permit the use of the Premises by the Interconnector and that, so long as the
Interconnector performs all of its obligations herein, the Interconnector may
peaceably and quietly enjoy the Premises during the term hereof.
ARTICLE XI - ASSIGNMENT
The Interconnector shall not assign or otherwise transfer this
Agreement, neither in whole nor in part, or permit the use of any part of the
Premises by any other person or entity, without the prior written consent of
SWBT. Any purported assignment or transfer made without such consent shall be
voidable at the option of SWBT. The Interconnector shall not permit any third
party to jointly occupy the Premises.
ARTICLE XII - CASUALTY LOSS
12.1 Damage to Premises. If the Premises are damaged by fire or
other casualty, and
(i) The Premises are not rendered untenantable in whole or in
part, SWBT shall repair the same at its expense (as hereafter
limited) and the rent shall not be abated, or
(ii) The Premises are rendered untenantable in whole or in part and
such damage or destruction can be repaired within ninety (90)
days, SWBT has the option to repair the Premises at its
expense (as hereafter limited) and rent shall be
proportionately abated while Interconnector was deprived of
the use. If the Premises cannot be repaired within ninety (90)
days, or SWBT opts not to rebuild, then this Agreement shall
(upon notice to the Interconnector within thirty (30) days
following such occurrence) terminate as of the date of such
damage.
Any obligation on the part of SWBT to repair the Premises shall be limited to
repairing, restoring and rebuilding the Premises as originally prepared for the
Interconnector and shall not include any obligation to repair, restore, rebuild
or replace any alterations or improvements made by the
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Interconnector or by SWBT on request of the Interconnector; or any fixture or
other equipment installed in the Premises by the Interconnector or by SWBT on
request of the Interconnector.
12.2 Damage to Building. In the event that the Building shall be so
damaged by fire or other casualty that closing, demolition or substantial
alteration or reconstruction thereof shall, in SWBT's opinion, be advisable,
then, notwithstanding that the Premises may be unaffected thereby, SWBT, at its
option, may terminate this Agreement by giving the Interconnector ten (10) days
prior written notice within thirty (30) days following the date of such
occurrence, if at all possible.
ARTICLE XIII - RE-ENTRY
If the Interconnector shall default in performance of any agreement
herein, and the default shall continue for thirty (30) days after receipt of
written notice, or if the Interconnector is declared bankrupt or insolvent or
makes an assignment for the benefit of creditors, SWBT may, immediately or at
any time thereafter, without notice or demand, enter and repossess the Premises,
expel the Interconnector and any claiming under the Interconnector, remove the
Interconnector's property, forcibly if necessary, and thereupon this Agreement
shall terminate, without prejudice to any other remedies SWBT might have.
SWBT may also refuse additional applications for service and/or refuse
to complete any pending orders for additional space or service by the
Interconnector at any time thereafter.
ARTICLE XIV - LIMITATION OF LIABILITY
14.1 Limitation. With respect to any claim or suit for damages arising
in connection with the mistakes, omissions, interruptions, delays or errors, or
defects in transmission occurring in the course of furnishing service hereunder,
the liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly charge to the Interconnector for the period during which
such mistake, omission, interruption, delay, error, or defect in transmission or
service occurs and continues.
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However, any such mistakes, omissions, interruptions, delays, errors, or defects
in transmission or service which are caused or contributed to by the negligence
or willful act of the Interconnector or which arise in connection with the use
of the Interconnector-provided facilities or equipment shall not result in the
imposition of any liability whatsoever upon SWBT.
Neither party shall be responsible to the other for any indirect,
special, consequential, lost profit, or punitive damages, whether in contract or
tort.
Each party shall be indemnified and held harmless by the other against
claims and damages by any third party arising from provision of the other
party's services or equipment except those claims and damages directly
associated with the provision of services to the other party which are governed
by the provisioning party's applicable tariffs.
Neither party shall have any liability whatsoever to the customers of
the other party for claims arising from the provision of the other party's
service to its customers, including claims for interruption of service, quality
of service or billing disputes.
The liability of either party for its willful misconduct, if any, is
not limited by this Agreement. With respect to any other claim or suit, by a
customer or by any others, for damages associated with the installation,
provision, preemption, termination, maintenance, repair or restoration of
service, SWBT's liability, if any, shall not exceed an amount equal to the
proportionate monthly charge for the affected period.
SWBT shall not be liable for any act or omission of any other carrier
or customer providing a portion of a service, nor shall SWBT for its own act or
omission hold liable any other carrier or customer providing a portion of a
service.
When the Interconnector is provided service under this Agreement, SWBT
shall be indemnified, defended and held harmless by the Interconnector against
any claim, loss or damage arising from the customer's use of services offered
under this Agreement, involving:
(1) Claims for libel, slander, invasion of privacy, or
infringement of copyright arising from
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the customer's own communications;
(2) Claims for patent infringement arising from the customer's
acts combining or using the service furnished by SWBT in
connection with facilities or equipment furnished by the
customer; or
(3) All other claims arising in connection with any act or
omission of the Interconnector in the course of using services
provided pursuant to this Agreement.
14.2 Third Parties. The Interconnector acknowledges and understands
that SWBT may provide space in or access to the Building to other persons or
entities ("Others"), which may include competitors of Interconnectors; that such
space may be close to the Premises, possibly including space adjacent to the
Premises and/or with access to the outside of the Premises; and that the cage
around the Premises is a permeable boundary that will not prevent the Others
from observing or even damaging the Interconnector's equipment and facilities.
In addition to any other applicable limitation, SWBT shall have absolutely no
liability with respect to any action or omission by any Other, regardless of the
degree of culpability of any such Other or SWBT, and regardless of whether any
claimed SWBT liability arises in tort or in contract. The Interconnector shall
save and hold SWBT harmless from any and all costs, expenses, and claims
associated with any such acts or omission by any Other acting for, through, or
as a result of the Interconnector.
ARTICLE XV- INDEMNIFICATION OF SWBT
In addition to any other provision hereof, the Interconnector agrees to
indemnify, defend and save harmless SWBT (including its officers, directors,
employees, and other agents) from any and all claims, liabilities, losses,
damages, fines, penalties, costs, attorney's fees or other expenses of any kind,
arising in connection with Interconnector's use of the Premises, conduct of its
business or any activity, in or about the Premises, performance of any terms of
this Agreement, or any act or omission of the Interconnector (including its
officers, directors, employees, agents, contractors, servants,
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invitees, or licensees). Defense of any claim shall be reasonably satisfactory
to SWBT.
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES
16.1 Operating Services. SWBT, at its sole cost and expense, shall
maintain for the Building customary building services, utilities (excluding
telephone facilities), including janitor and elevator services, 24 hours a day.
The Interconnector shall be permitted to have a single-line business telephone
service for the Premises subject to applicable SWBT tariffs.
16.2 Utilities. SWBT will provide negative DC and AC power, back-up
power, heat, air conditioning and other environmental support necessary for the
Interconnector's equipment, in the same manner that it provides such support
items for its own equipment within that wire center.
16.3 Maintenance. SWBT shall maintain the exterior of the Building and
grounds, and all entrances, stairways, passageways, and exits used by the
Interconnector to access the Premises.
16.4 Legal Requirements. SWBT agrees to make, at its expense, all
changes and additions to the Premises required by laws, ordinances, orders or
regulations of any municipality, county, state or other public authority
including the furnishing of required sanitary facilities and fire protection
facilities, except fire protection facilities specially required because of the
installation of telephone or electronic equipment and fixtures in the Premises.
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION
17.1 Finality of Disputes. No claim arising from this Agreement shall
be brought more than twenty-four (24) months from the date of occurrence which
gives rise to the claim.
17.2 Alternative to Litigation. The parties desire to resolve disputes
arising in connection with this Agreement without litigation. Accordingly,
except for action seeking a temporary restraining order or an injunction related
to the purposes of this Agreement, or suit to compel compliance with this
dispute resolution process, the parties agree to use the following alternative
dispute resolution
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procedure as their sole remedy with respect to any controversy or claim arising
from or relating to this Agreement.
17.3 Resolution of Disputes Between Parties. At the written request of
a party, each party will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute arising under this
Agreement. The location, form, frequency, duration and conclusion of these
discussions shall be left to the discretion of the representatives. Upon
agreement, the representatives may use other alternative dispute resolution
procedures, such as mediation, to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of settlement, exempt from
discovery and production, shall not be admissible in the arbitration described
below or in any lawsuit without the concurrence of all parties. Documents
identified in or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and, if otherwise admissible,
may be admitted in evidence in the arbitration or lawsuit.
17.4 Arbitration. If the negotiations do not resolve the dispute within
sixty (60) days of the initial written request, the dispute shall be submitted
to binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A Party may demand
such arbitration in accordance with the procedures set forth in those rules.
Discovery shall be controlled by the arbitrator and shall be permitted only to
the extent set forth in this Section. Each party may submit in writing to the
other party, and the receiving party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have subparts) of the
following:
(a) Interrogatories
(b) Demands to produce documents
(c) Requests for admission
Additional discovery may be permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60) days of the demand for
arbitration. The arbitration shall be held in____________________. The
arbitrator shall control the scheduling so as to process the matter
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expeditiously. The parties shall submit written briefs five days before the
hearing. The arbitrator shall rule on the dispute by issuing a written opinion
within thirty (30) days after the close of hearings. The arbitrator has no
authority to order consequential damages. The times specified in this section
may be extended upon mutual agreement of the parties or by the arbitrator upon a
showing of good cause. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
17.5 Costs. Each party shall bear its own costs of these procedures. A
party seeking discovery shall reimburse the responding party the costs of
production of documents (including search time and reproduction costs). The
parties shall equally split the fees of the arbitration and the arbitrator.
ARTICLE XVIII - SUCCESSORS BOUND
Without limiting Article XI hereof, the conditions and agreements
contained herein shall bind and inure to the benefit of SWBT, the Interconnector
and their respective successors and, except as otherwise provided herein,
assigns.
ARTICLE XIX - CONFLICT OF INTEREST
The Interconnector represents that no employee or agent of SWBT has
been or will be employed, retained, paid a fee, or otherwise has received or
will receive any personal compensation or consideration from the Interconnector,
or any of the Interconnector's employees or agents in connection with the
arranging or negotiation of this Agreement or associated documents.
ARTICLE XX - NON-EXCLUS1VE REMEDIES
No remedy herein conferred upon is intended to be exclusive of any
other remedy in equity, provided by law, or otherwise, but each shall be in
addition to every other such remedy.
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ARTICLE XXI - NOTICES
Except as may be specifically permitted in this Agreement, any notice,
demand, or payment required or desired to be given by one party to the other
shall be in writing and shall be valid and sufficient if dispatched by
registered or certified mail, return receipt requested, postage prepaid, in the
United States mails, or by facsimile transmission; provided, however, that
notices sent by such registered or certified mail shall be effective on the
third business day after mailing and those sent by facsimile transmission shall
only be effective on the date transmitted if such notice is also sent by such
registered or certified mail no later than the next business day after
transmission, all addressed as follows:
If to SWBT:
Jeffrey Fields
One Bell Plaza, 525.07
Dallas, Texas 75202
If to the Interconnector:
Richard Weinstein
11111 Dorsett Road
St. Louis, Missouri 63043
Either party hereto may change its address by written notice given to the other
party hereto in the manner set forth above.
ARTICLE XXII - COMPLIANCE WITH LAWS
The Interconnector and all persons acting through or on behalf of the
Interconnector shall comply with the provisions of the Fair Labor Standards Act,
the Occupational Safety and Health Act, and all other applicable federal, state,
county, and local laws, ordinances, regulations and codes (including
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identification and procurement of required permits, certificates, approvals and
inspections) in its performance hereunder. The Interconnector further agrees
during the term of this Agreement to comply with all applicable Executive and
Federal regulations as set forth in SW9368, attached as Exhibit____ and
incorporated herein, as may be modified from time to time.
ARTICLE XXIII - OSHA STATEMENT
The Interconnector, in recognition of SWBT's status as an employer,
agrees to abide by and to undertake the duty of compliance on behalf of SWBT
with all federal, state and local laws, safety and health regulations relating
to the Premises which the Interconnector has assumed the duty to maintain
pursuant to this Agreement, and to indemnify and hold SWBT harmless for any
judgments, citations, fines, or other penalties which are assessed against SWBT
as the result of the Interconnector's failure to comply with any of the
foregoing. SWBT, in its status as an employer, shall comply with all federal,
state and local laws, safety and health standards and regulations with respect
to the structural and those other portions of the Premises which SWBT has agreed
to maintain pursuant hereto.
ARTICLE XXIV - INSURANCE
24.1 Coverage Requirements. The Interconnector shall, at its sole cost
and expense procure, maintain, pay for and keep in force the following insurance
coverage and any additional insurance and/or bonds required by law and
underwritten by insurance companies having a BEST Insurance rating of A+VII or
better, and which is authorized to do business in the jurisdiction in which the
Premises are located. SWBT shall be named as an ADDITIONAL INSURED on general
liability policy.
(1) Comprehensive General Liability insurance including
Products/Completed Operations Liability insurance including
the Broad Form Comprehensive General Liability endorsement (or
its equivalent(s)) with a Combined Single limit for Bodily
Injury and
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Property Damage of $1,000,000. Said coverage shall include the
contractual, independent contractors products/completed
operations, broad form property, personal injury and fire
legal liability.
(2) If use of an automobile is required or if the Interconnector
is provided or otherwise allowed parking space by SWBT in
connection with this Agreement, automobile liability insurance
with minimum limits of $1 million each accident for Bodily
Injury, Death and Property Damage combine. Coverage shall
extend to all owned, hired and non-owned automobiles. The
Interconnector hereby waives any rights of recovery against
SWBT for damage to the Interconnector's vehicles while on the
grounds of the Building and the Interconnector will hold SWBT
harmless and indemnify it with respect to any such damage or
damage to vehicles of the Interconnector's employees,
contractors, invitees, licensees or agents.
(3) Workers' Compensation insurance with benefits afforded in
accordance with the laws of the state in which the space is to
be provided.
(4) Employer's Liability insurance with minimum limits of $100,000
for bodily injury by accident, $100,000 for bodily injury by
disease per employee and $500,000 for bodily injury by disease
policy aggregate.
(5) Umbrella/Excess liability coverage in an amount of $5 million
excess of coverage specified above.
(6) All Risk Property coverage on a full replacement cost basis
insuring all of the Interconnector's personal property
situated on or within the Building or the Premises. The
Interconnector releases SWBT from and waives any and all right
of recovery, claim, action or cause of action against SWBT,
its agents, directors, officers, employees, independent
contractors, and other representatives for any loss or damage
that may occur to equipment or any other personal property
belonging to Interconnector or located on or in the space at
<PAGE> 202
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the instance of the Interconnector by reason of fire or water
or the elements or any other risks would customarily be
included in a standard all risk casualty insurance policy
covering such property, regardless of cause or origin,
including negligence of SWBT, its agents, directors, officers,
employees, independent contractors, and other representatives.
Property insurance on the Interconnector's fixtures and other
personal property shall contain a waiver of subrogation
against SWBT, and any rights of the Interconnector against
SWBT for damage to the Interconnector's fixtures or personal
property are hereby waived.
The Interconnector may also elect to purchase business interruption and
contingent business interruption insurance, knowing that SWBT has no liability
for loss of profit or revenues should an interruption of service occur.
24.2 Coverage Increases. The limits set forth in Section 24.1 may be
increased by SWBT from time to time during the term of occupancy to at least
such minimum limits as shall then be customary in respect of comparable
situations within the existing SWBT buildings.
24.3 Primary Coverage. All policies purchased by the Interconnector
shall be deemed to be primary and not contributing to or in excess of any
similar coverage purchased by SWBT.
24.4 Effective Date. All insurance must be in effect on or before
occupancy date and shall remain in force as long as any of the Interconnector's
facilities or equipment remain within the Premises or the Building. If the
Interconnector fails to maintain the coverage, SWBT may pay the premiums thereon
and, if so, shall be reimbursed by the Interconnector.
24.5 Supporting Documentation. The Interconnector shall submit
certificates of insurance and copies of policies reflecting the coverages
specified above prior to the commencement of the work called for in this
Agreement. The Interconnector shall arrange for SWBT to receive thirty (30) days
advance written notice from the Interconnector's insurance company(ies) of
cancellation, non-renewal or substantial alteration of its terms.
<PAGE> 203
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24.6 Carrier Recommendations. The Interconnector must also conform to
the recommendation(s) made by SWBT's Property Insurance Company which
Interconnector has already agreed to or to such recommendations as it shall
hereafter agree to.
24.7 Material Breach. Failure to comply with the provisions of this
section will be deemed a material violation of this Agreement.
ARTICLE XXV - SWBT'S RIGHT OF ACCESS
SWBT, its agents, employees, and other SWBT-authorized persons shall
have the right to enter the Premises at any reasonable time to examine its
condition, make repairs required to be made by SWBT hereunder, and for any other
purpose deemed reasonable by SWBT. SWBT may access the Premises for purpose of
averting any threat of harm imposed by the Interconnector or its equipment or
facilities upon the operation of SWBT equipment, facilities and/or personnel
located outside of the Premises. If routine inspections are required, they shall
be conducted at a mutually agreeable time.
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT
Through this Agreement, the Interconnector is placing
telecommunications equipment and facilities on SWBT property for the purpose of
connecting with SWBT's network only. The parties agree that this Agreement does
not constitute, and shall not be asserted to constitute, an admission or waiver
or precedent with any State commission, the Federal Communications Commission,
any other regulatory body, any State or Federal Court, or in any other form that
SWBT has agreed or acquiesced that any piece of Interconnector equipment or
facility is "equipment necessary for interconnection or access to unbundled
network elements" under 47 U.S.C. 251(c)(6).
ARTICLE XXVII - MISCELLANEOUS
27.1 Exhibits The following Exhibits are attached hereto and made
part hereof:
Exhibit__________
<PAGE> 204
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Exhibit__________
Exhibit__________
Exhibit__________
27.2 Variations. In the event of variation or discrepancy between any
duplicate originals hereof, including exhibits, the original Agreement held by
SWBT shall control.
27.3 Governing Law. This Agreement shall be governed by the laws of the
State in which the Premises are located, without regard to the choice of law
principles thereof.
27.4 Joint and Several. If Interconnector constitutes more than one
person, partnership, corporation, or other legal entities, the obligation of all
such entities under this Agreement is joint and several.
27.5 Future Negotiations. SWBT may refuse requests for additional space
in the Building or in any other SWBT premises if the Interconnector is in
material breach of this Agreement, including having any past due charges
hereunder. In any and each such event, the Interconnector hereby releases and
shall hold SWBT harmless under Article XV from any duty to negotiate with the
Interconnector or any of its affiliates for any additional space or physical
collocation.
27.6 Severability. With the exception of the requirements, obligations,
and rights set forth in Article II hereof, if any of the provisions hereof are
otherwise deemed invalid, such invalidity shall not invalidate the entire
Agreement, but rather the entire Agreement shall be construed as if not
containing the particular invalid provision(s), and the rights and obligations
of SWBT and the Interconnector shall be construed accordingly.
27.7 Paragraph Headings and Article Numbers. The headings of the
articles and paragraphs herein are inserted for convenience only and are not
intended to affect the meaning or interpretation of this Agreement.
27.8 Entire Agreement. This Agreement with the attached schedules and
exhibits, and referenced documentation and materials attached hereto set forth
the entire understanding of the parties and
<PAGE> 205
-27-
supersedes all prior agreements, arrangements and understandings relating to
this subject matter and may not be changed except in writing by the parties;
provided, however, that this provision shall not affect current or pending
tariffs, under investigation or otherwise, including any charges due thereunder.
No representation, promise, inducement or statement of intention has been made
by either party which is not embodied herein, and there are no other oral or
written understandings or agreements between the parties relating to the subject
matter hereof except as may be referenced herein.
27.9 No Third Party Beneficiaries. Nothing in this Agreement is
intended, nor shall be deemed, to confer any rights or remedies upon any person
or legal entity not a party hereto.
27.10 Construction. This Agreement shall be interpreted and governed
without regard to which party drafted this Agreement.
27.11 Multiple Originals. This Agreement may be executed in multiple
copies, each of which shall be deemed an original.
27.12 Wavier of Obligations. (a) Whenever this Agreement requires the
consent of a party, any request for such consent shall be in writing.
(b) Neither party shall be deemed to have waived or impaired any right,
authority, or option reserved by this Agreement (including the right to demand
exact compliance with every term, condition and covenant herein, or to declare
any breach hereof to be a default and to terminate this Agreement prior to the
expiration of its term), by virtue of any custom or practice of the parties at
variance with the terms hereof or any failure, refusal or neglect to exercise
any right under this Agreement or to insist upon exact compliance by the other
with its obligations hereunder, including any rule or procedure, or any waiver,
forbearance, delay, failure or omission by SWBT to exercise any right, power or
option, whether of the same, similar or different nature, with respect to one or
more other interconnectors.
27.13 Rights Cumulative. The rights of a party hereunder are cumulative
and no exercise or
<PAGE> 206
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enforcement by such party of any right or remedy hereunder
shall preclude the exercise or enforcement of any other right or remedy
hereunder or to which such party is entitled to enforce.
27.14 Binding Effect. (a) This Agreement is binding upon the parties
hereto, their respective executors, administrators, heirs, assigns and
successors in interest.
<PAGE> 207
-29-
(b) All obligations by either party which expressly or by their nature
survive the expiration or termination of this Agreement shall continue in full
force and effect subsequent to and notwithstanding its expiration or termination
and until they are satisfied in full or by their nature.
27.15 Impossibility of Performance. Neither party shall be liable for
loss or damage or deemed to be in breach of this Agreement if its failure to
perform its obligations results from: (a) compliance with any law, ruling,
order, regulation, requirement or instruction of any federal, state or municipal
government or any department or agency thereof or court of competent
jurisdiction; (b) acts of God; (c) acts of omissions of the other party; (d)
fires, strikes, labor difficulties, embargoes, war, insurrection or riot; or any
other intervening act beyond the reasonable control of the party claiming such a
delay. Any delay resulting from any of said causes shall extend performance
accordingly or excuse performance, in whole or in part, as may be reasonable. In
any such event, the Interconnector's employees, authorized agents and
contractors will comply with the Emergency Operating Procedures established by
SWBT.
27.16 Survival. The terms, provisions, representations, and warranties
contained in this Agreement that by their nature and/or context are intended to
survive the performance thereof by either or both parties hereunder shall so
survive the completion of performances and termination of this Agreement,
including the making of any and all payments due hereunder.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed and delivered this Agreement as of the day and year first above
written.
<PAGE> 208
-30-
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
SOUTHWESTERN BELL TELEPHONE COMPANY
By:______________________
Title:___________________
DIGITAL TELEPORT, INC.
By:______________________
Title:___________________
<PAGE> 209
-31-
ATTACHMENT A
Southwestern Bell Telephone Company
[ADDRESS AND TO THE ATTENTION OF PER NOTICE PROVISION]
RE: [REFERENCE IDENTIFIER ON COVER SHEET]
Pursuant to the referenced Physical Collocation Agreement
("Agreement"), this letter constitutes a request to place the following
additional equipment and/or facilities in the Premises:
Generic Name # of Bays Floor Loading Power Req. Heat Release
------------ --------- ------------- ---------- ------------
If this request is acceptable to Southwestern Bell Telephone Company
("SWBT"), please indicate that acceptance by executing both originals and
returning one to the undersigned. With the return of an executed original, the
Agreement shall be deemed amended to reflect that the listed equipment and
facilities may be located in the Premises. In all other respects, the Agreement
shall be unaffected.
If not acceptable, please let me know of SWBT's objections or
conditions to its acceptance.
All capitalized terms not defined in this letter but defined in the
Agreement shall have the meaning ascribed to such term in the Agreement.
DIGITAL TELEPORT, INC.
By:_________________________
Title:______________________
Name:_______________________
AGREED AND ACCEPTED:
SOUTHWESTERN BELL TELEPHONE
COMPANY
By:______________________
Title:___________________
Name:____________________
Date:____________________
<PAGE> 210
APPENDIX SS7
PAGE 2 OF 12
APPENDIX SS7
APPENDIX FOR THE PROVISION OF
SS7 SERVICE
This Appendix sets forth the terms and conditions under which SWBT shall provide
to LSP certain Common Channel Signaling/Signaling System 7(CCS/SS7) services,
herein referred to as "SS7 Service".
This Appendix provides for the use of the SWBT Common Channel Signaling network,
which uses the Signaling System 7 (SS7) protocol, and for a Dedicated Signaling
Link, which provides network interconnection to SWBT's Signal Transfer Point
(STPs), including facilities. SS7 Service provides CCS/SS7 functionality and
translations to support SS7 based services and applications as they become
available and as facilities permit.
SS7 Service includes the screening of messages based on origination signaling
point code and the routing of messages by a SWBT mated pair of STPs. Any
services beyond SS7 Transport, Use of the STP or a Dedicated Signaling Link
interconnection (e.g. Local and IntraLATA Call Set-Up Signaling, Interexchange
Carrier (IXC) Call Set-Up Signaling, Easy Options(SM), 800 Data Base Access, and
Line Information Data Base (LIDB) Validation Service Access) will be provided by
an amendment to this appendix, by a separate agreement, or by tariff, whichever
is applicable. Arrangements for services should be made through the LSP Service
Center of SWBT.
I. SERVICE DESCRIPTION
A. SS7 TRANSPORT
SS7 Transport provides for the routing and screening of SS7
messages from a SWBT pair of STPs (i.e. a mated pair) to
another SWBT pair of STPs. The screening of messages provides
for LSP designation of signaling points associated with the
LSP and controls which messages may be allowed or not allowed
by the SWBT STP pairs. The routing of messages provides for
the transfer of a complete message between signaling links,
and for a Global Title Translation of the message address, if
needed.
SS7 Transport provides routing of messages for all parts of
the SS7 protocol including, for example, Message Transfer Part
(MTP) messages, Integrated Services Digital Network User Part
(ISDNUP or ISUP) messages, Signaling Connection and Control
Part (SCCP) messages, Transaction Capability
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APPENDIX SS7
PAGE 3 OF 12
Application Part (TCAP) messages and Operations and
Maintenance Application Part (OMAP) messages.
SS7 Transport provides for screening and routing of signaling
messages based on the SS7 protocol. These messages may support
other applications and services such as, for example, Easy
Option[graphic] (referred to as Call Control Option[graph] or
Bellcore CLASS[graphic]) services, Message Waiting services,
Toll Free Database services, Line Information Data Base (LIDB)
Services, Calling Name (CNAM) Datsun services, Advanced
Intelligent Network (AIN) services and Telecommunications
Industry Association Interim Standard-41 (IS-41) services. SS7
Transport will route messages to the global title address or
to the signaling point code address of the message based on
the translation information of SWBT's STP.
SS7 Transport provides screening and routing of messages that
are generated by the action of the LSP signaling point, or
messages that are generated by a signaling point connected via
the LSP signaling point.
B. DEDICATED SIGNALING LINKS
Dedicated Signaling Links provide physical access to SWBT's
signaling network. The links are fully dedicated to the use of
LSP and provide the screening and routing usage for the SWBT
STP to which the link is connected. Dedicated signaling links
are provided as a set of links connecting to a SWBT mated pair
of STPs. Dedicated Signaling Links are dedicated two-way
digital data circuits that interconnect SWBT's STP locations
and the LSP's Signaling Points at Signaling Point of Interface
(SPOI) locations. Dedicated Signaling Links are available to
LSPs for their use in furnishing SS7-based services or
applications to their end users or other users of SS7
signaling information.
Dedicated Signaling Links include the following elements:
1. SS7 Link Cross Connect: The SS7 Link Cross Connect provides a
DS-0A or DS1 connection and access point for testing in the
SWBT STP building. The cross connect connects the STP Port
Termination to an LSP unbundled dedicated transport or to a
collocation cage.
2. STP Port Termination: The STP Port Termination is the physical
termination of the signaling link (i.e. 56 kbps circuit) at a
SWBT STP. An STP Port Termination is used for each 56 kbps SS7
Link Cross Connect terminated at a SWBT STP.
The STP Port Termination shall provide for the use of the SWBT
STP to which the port is connected.
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APPENDIX SS7
Page 4 of 12
The LSP shall provide the portion of the signaling link from
the LSP premises within the LATA to the SWBT STP location
using unbundled dedicated transport. LSP shall notify SWBT
that the facility contains a signaling link service. Multiple
facilities provided by SWBT will be identified so that SWBT
may maintain facility diversity between links and linksets
that require diversity. LSP shall identify the DSI or channel
of a DS1 that will be used for the signaling link.
If LSP does not use an unbundled dedicated transport facility
to LSP premises, LSP shall identify that the SS7 Link Cross
Connect shall connect to a LSP collocation cage in the SWBT
STP building.
When LSP uses an alternative DS1 facility or arranges, or
agrees to allow, a physical degree of diversity or performance
that is not in accordance with the specifications of Bellcore,
GR-905-CORE, LSP acknowledges that the performance and
reliability of the SS7 protocol may be affected and the
performance and reliability standards described in GR-905-CORE
may be disqualified.
Dedicated Signaling Links are subject to SWBT compatibility
testing and certification requirements per the Network
Operations Forum Reference Document, per Bellcore, GR-905-CORE
and per SWBT Technical Publication, TP76638. First
interconnections to the SWBT signaling network per LSP and per
signaling point type of equipment will require pre-ordering
meetings to exchange information and schedule testing for
certification by SWBT.
C. USE OF THE STP
The Use of the STP provides for the use of the SWBT SS7
signaling network when LSP uses the SWBT Local Switching
Unbundled Network Element. The Use of the STP provides for the
use of the signaling link between the SWBT local switch and
the STP, the use of the signaling link and ports between the
SWBT tandem switch and the STP when applicable, the use of the
SWBT STP port and use of STP Transport. The Use of the STP is
a signaling network element incurred by use of the SWBT local
switching (i.e. Unbundled Local Switching). The Use of the STP
provides the SWBT signaling when LSP subscribers originate and
terminate calls from a SWBT SS7 equipped end office.
II. DEFINITIONS
Attachment 1, which is attached hereto and made a part hereof, contains
DEFINITIONS OF TERMS in this Appendix.
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APPENDIX SS7
Page 5 of 12
III. MANNER OF PROVISIONING
A. SS7 TRANSPORT
LSP shall use SS7 Transport subject to the screening and
routing information of the SWBT STPs. SWBT shall provide
information to LSP on the routes and signaling point codes
served by the SWBT STPs.
SS7 Transport shall route ISUP messages for the purpose of
establishing trunk voice paths between switching machines.
Routes requiring ISUP routes longer than two SWBT STP pairs
may be provisioned pursuant to Attachment Network Element Bona
Fide Request per specific LSP request, if such route is
technically feasible. However, routes involving signaling
point codes not associated with LSP are subject to the route
designated by the owner of the SPC.
SS7 Transport shall route TCAP queries when feasible per the
SS7 Protocol to the SWBT "regional" STP pair that directly
serves the database of TCAP message. SS7 Transport shall route
TCAP responses from a SWBT "regional" STP pair to another SWBT
STP pair.
When LSP requires modification of SWBT's SS7 Service
components not otherwise provided in this contract, the
modifications may be furnished pursuant to Attachment Network
Element Bona Fide Request.
SS7 Transport provides a signaling route for messages only to
signaling points to which SWBT has a route. SS7 Transport does
not include the provision of a signaling route to every
possible signaling point. When SWBT does establish a route to
a signaling point in a mated pair of STPs, the route may not
be available to other SWBT pairs of STPs, until ordered. When
SWBT or LSP, pursuant to a service order, arranges to
establish a route to a signaling point, such route to the
other signaling point or other signaling network will be used
by all signaling points within and connected to the SWBT
signaling network per the standard requirements of the SS7
protocol.
Disputes concerning the association of a signaling point among
specific link sets associated with a SWBT mated STP will be
resolved by consultation with the signaling point owner, as
defined in the Local Exchange Routing Guide (LERG), Section 1,
assignment of Signaling Point Codes.
B. DEDICATED SIGNALING LINKS
LSP shall designate the signaling points and signaling point
codes associated with LSP. LSP shall provide information to
SWBT to allow SWBT to translate
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APPENDIX SS7
Page 6 of 12
SWBT STPs. The information shall define the screening and
routing information for the signaling point codes of LSP. This
information may include global title address, translation type
and subsystem designations as needed.
Signaling links from SWBT mated pairs of STPs shall connect to LSP
premises (including collocation locations) within the same LATA. A set
of links can be either:
1. "A" Link Sets from LSP's Signaling Point (SP)/Service
Switching Point (SSP). A minimum of two links will be
required, one from the SP/SSP to each STP; or,
2. "B" Link Sets from LSP's STPs that are connected to SWBT's
mated pair of STPs. A minimum of four links will be required
(i.e., a "quad") between the two pairs of STPs. (This same
arrangement is sometimes referred to as a set of "D" links.)
An STP Port Termination and SS7 Link Cross Connect is required for each
56 kbps access link utilized for the Service. STP locations are set
forth in the National Exchange Carrier Association, Inc. (NECA) Tariff
F.C.C. No. 4.
A pre-order meeting will define the SWBT facility availability and the
degree of diversity in both the SWBT physical network and the LSP
physical network from signaling point to signaling point for the link.
All applicable signaling point codes for each signaling link must be
installed at each of SWBT's interconnecting STPs.
Call set-up times may be adversely affected when LSP, using SS7
signaling, employs Intermediate Access Tandems (IATs) in its network.
SWBT makes no warranties with respect to call set-up times when
multiple STP pairs are involved or when the signaling traffic is
exchanged between two non-SWBT signaling points.
Provisioning of the SS7 Service is in accordance with SWBT CCS/SS7
Network Interface Specifications (TP76638) and Bellcore Common Channel
Network Interface Specification (GR-905-CORE), as amended.
When LSP uses the Dedicated Signaling Links of another party and LSP
submits an order for SWBT to change the routing or screening
information associated with the other party's signaling links, LSP
shall include with the order a Letter of Authorization (LOA). The LOA
shall be from the other party (i.e. the owner of the set of links) and
shall indicate that the other party shall agree to pay SWBT charges to
change the translations associated with the link set and shall agree to
pay SWBT charges associated with SS7 Transport.
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APPENDIX SS7
Page 7 of 12
C. USE OF THE STP
When LSP orders SWBT Unbundled Local Switching the Use of the
STP shall apply. No order nor provisioning by LSP is needed.
The SWBT Local Switch will use the SWBT SS7 signaling network.
Any changes, additions or deletions to the SWBT SS7 signaling
network required per LSP shall be submitted pursuant to
Attachment Network Element Bona Fide Request.
IV. DESCRIPTION OF RATE ELEMENTS
The following rate elements apply to SS7 Service:
A. SS7 TRANSPORT
SS7 Transport shall be measured per octet of information
screened and routed.
LSP shall pay SS7 Transport Per Octet rate element for the
screening and routing of messages by each additional SWBT STP
pair. A usage rate applies per octet generated by action of
LSP.
B. DEDICATED SIGNALING LINKS
1. SS7 Link Cross Connect
LSP shall pay the DS-0 or DS-1 rate for the SS7 Link
Cross Connect at the STP location for each Dedicated
Signaling Link. Rates are per DS-0 and DS-1 bandwidth
and per connection to unbundled dedicated facility or
connection to a collocation cage. Rates are per month
and nonrecurring installation per first or additional
cross connects ordered per order.
2. STP Port Termination
LSP shall pay the STP Port Termination rate element
for each termination of the SS7 Link Cross Connect at
the SWBT STP. One STP Port Termination must be
installed at SWBT's interconnecting STP for each
Dedicated Signaling Link.
There are two charges that apply to the STP Port
Termination, i.e., a fixed recurring monthly rate per
port termination and a nonrecurring installation
charge per port.
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APPENDIX SS7
Page 8 of 12
C. SIGNALING POINT CODE ADDITION
LSP shall pay the Signaling Point Code Addition rate element
for the establishment and translation of each applicable CCS
network signaling point code at a SWBT STP. LSP shall pay a
nonrecurring charge per Signaling Point Code established at
each STP.
D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall pay the GTT Addition rate element for the
establishment of LSP's global title address, translation type
or subsystem information in the SWBT STP translations. LSP
shall pay a nonrecurring charge per GTT established at each
STP.
E. SERVICE REARRANGEMENT
LSP shall pay charges for rearrangement of the SS7 Service
which are not specifically addressed pursuant to the Network
Element Bona Fide Request process.
F. USE OF THE STP PER CALL
LSP shall pay the Use of the STP Per Call rate element for Use
of the SWBT STP. The rate shall apply for each call originated
by LSP subscribers using the SWBT Local Switch Unbundled
Network Element. The rate is based on an assumed mean quantity
of 200 octets of signaling used for each originated call times
the STP Transport rate element.
The Use of the STP Per Call is a surrogate for STP Transport
and Dedicated Signaling Links when LSP uses the SWBT Unbundled
Local Switching Network Element.
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APPENDIX SS7
Page 9 of 12
V. RATES AND CHARGES
Rates and Charges for the elements described above are as follows:
<TABLE>
<CAPTION>
Monthly Nonrecurring
SS7 Links - Cross Connects Zone A Zone B Zone C Initial Additional
-------------------------- ------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C> <C>
STP to Collocators Cage - DS0 $74.60 $74.60 $74.60 $260.15 $206.00
STP to Collocators Cage - DS1 $53.80 $53.80 $53.80 $231.60 $177.50
STP to SWBT MDF - DS0 $74.60 $74.60 $74.60 $260.15 $206.00
STP to SWBT DSX Frame - DS1 $53.80 $53.80 $53.80 $231.60 $177.50
SS7
---
Links
-----
STP Access Connection - 1.544 Mbps See Dedicated
Transport
STP Access Link - 56 Kbps $100.16 fixed +
$0.91 per mile
SS7 Signalling
--------------
SS7 Signalling $0.000460 per call
STP Port $1,780.65 per port $291.50 -
STP Trunk Signalling $0.0000023 per octet
Point Code Addition N/A per point code $15.35 -
Global Title Translation Addition ICB ICB ICB
</TABLE>
VI. ORDERING THE SERVICE
LSP shall abide by the following ordering guidelines:
A. SS7 TRANSPORT
LSP shall submit SWBT's CCS/SS7 Activity Notification Form,
identify the set of links the LSP will use and identify the
service(s) associated with each SPC. LSP shall identify
Signaling Point Code and Global Title Translation information
that must be translated into the SWBT STPs.
B. DEDICATED SIGNALING LINKS
LSP shall submit an Access Service Request form and SWBT's CCS
Activity Notification form. LSP shall identify the SWBT STPs,
the LSP premises, the circuit interconnection arrangement at
the LSP Dedicated Transport location and the LSP signaling
point. LSP shall identify Signaling Point Code and Global
Title Translation information that must be translated in the
SWBT STPs.
C. SIGNALING POINT CODE ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT STPs and the LSP signaling point code
information that must be added or changed in the SWBT STP
translations. If more than one pair of SWBT STPs are affected,
LSP shall indicate translation route information.
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APPENDIX SS7
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D. GLOBAL TITLE TRANSLATION (GTT) ADDITION
LSP shall submit a SWBT CCS Activity Notification form. LSP
shall identify the SWBT Global Title Translation information
that must be added, deleted or changed in the SWBT STP
translations. If more than one pair of SWBT STPs are affected,
LSP shall indicate translation route information.
E. SERVICE REARRANGEMENT
LSP shall order a SS7 Signaling Service Rearrangement per
Attachment Network Element Bona Fide Request.
F. USE OF THE STP
Ordering requirements for the Use of the STP are included in
the requirements set forth in the ordering clause of the Local
Switching UNE (Attachment Switching), and are incorporated
here by reference.
VII. RESPONSIBILITIES OF SWBT
A. SWBT shall manage the network and, at its sole discretion,
apply protective controls. Protective controls include actions
taken to control or minimize the effect of network failures or
occurrences, which include, but are not limited to, failure or
overload of SWBT or LSP facilities, natural disasters, mass
calling or national security demands.
B. SWBT shall determine the GTT and Translation Type (TT) route
for messages routed to GTT which are associated with SWBT
signaling points.
C. SWBT shall define regional functions and local functions of
its STPs. SWBT will route ISUP messages within the SWBT
signaling network subject to technical feasibility. Capacity
limitations shall define a temporary technical infeasibility
until the capacity limit can be resolved.
D. SWBT shall meet service performance standards as outlined in
GR-905-CORE and TP76638 except as otherwise provided herein.
E. In the event that SWBT provides under this contract special
service arrangements associated with diversity or other
arrangements that do not strictly adhere to GR-905-CORE and
TP76638 and are of non-compliance to the technical
publications or not certified by SWBT, LSP acknowledges that
the service performance standards need not be met in the
provision of the total service.
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APPENDIX SS7
Page 11 of 12
F. SWBT shall route messages generated by the action of LSP
throughout the SWBT signaling network. The content of the
messages is for the use of signaling points of origination and
destination. SWBT will not use any information within messages
for any purpose not required by or related to the use of the
SWBT signaling network. SWBT will not divulge any message or
any part of messages generated by LSP to any other party,
except as required to manage the SWBT signaling network or as
may be required by law.
G. SWBT shall determine the monthly charges and issue an invoice
to the billing address of LSP for the respective service(s)
requested by LSP and provided by SWBT. The invoice will
identify nonrecurring charges, recurring charges, and other
charges and credits, as they apply.
H. SWBT shall work cooperatively and provide knowledgeable
personnel to meet with LSP in order to provision, test and
install the SS7 Service in a timely fashion.
VIII. RESPONSIBILITIES OF LSP
A. LSP shall provision the signaling links at the LSP premises
and from the LSP premises to the SWBT STP location in a
diverse, reliable and technically acceptable manner to comply
with the standard SS7 protocol, Bellcore GR-905-CORE and the
SWBT network.
B. If LSP requires a greater degree of diversity than SWBT
provides in the existing network, a special facility or a
special routing of services, LSP agrees to initiate a
Wholesale Construction request and pay additional charges as
SWBT may reasonably determine.
C. LSP shall identify to SWBT the SPC(s) associated with the LSP
set of links.
D. When LSP orders the use of the SWBT STP, LSP shall specify the
set of signaling links to be used. If the links are provided
to another party LSP shall warrant to SWBT that the other
party is aware of the charges associated with the use of the
STP and that the other party will pay the monthly charges for
the use of the SWBT STP.
E. LSP shall identify to SWBT the Global Title and Translation
Type information for messages that route to LSP.
F. When routing messages addressed to a SWBT Subsystem Number
(SSN), LSP shall use the SWBT defined SSN designation of the
SWBT mated STP pair to which the message is routed.
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APPENDIX SS7
Page 12 of 12
G. LSP shall transfer Calling Party Number Parameter information
unchanged, including the "privacy indicator" information, when
ISUP Initial Address Messages are interchanged with the SWBT
signaling network.
H. LSP shall verify the accuracy of information concerning the
services ordered by LSP.
I. LSP shall designate the level of diversity associated with the
LSP premises. SWBT shall provide the same degree of diversity
as LSP provides.
J. LSP shall work cooperatively and provide knowledgeable
personnel to meet with SWBT in order to provision, test and
install the SS7 Service in a timely fashion.
K. LSP shall furnish to SWBT, at the time the SS7 Service is
ordered and annually thereafter, an updated three year
forecast of usage of the SS7 Signaling network. The forecast
shall include total annual volume and busy hour busy month
volume. SWBT shall utilize the forecast in its own efforts to
project further facility requirements.
L. LSP shall inform SWBT in writing thirty (30) days in advance
of any change in LSP's use of such SS7 Service which alters by
ten percent for any thirty (30) day period the volume of
signaling transactions by individual SS7 service that are
planned by LSP to be forwarded to SWBTs network. LSP shall
provide in said notice the reason, by individual SS7 service,
for the volume change.
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Attachment 1
APPENDIX SS7
Page 1 of 2
ATTACHMENT I
DEFINITIONS OF TERMS
Common Channel Signaling (CCS)
A high-speed specialized packet switched communications network that is separate
(out-of-band) from the public packet switched and message networks. CCS carries
addressed signaling messages for individual trunk circuits and/or database
related services between Signaling Points (SS7 nodes) in the CCS network.
Compatibility Testing
Testing performed by representatives from SWBT and LSP to determine proper
interconnection of CCS network facilities for accurate transmission of system
signals and messages. This is often referred to as TR-905 Compatibility Testing.
Octet
8-bits of binary information.
Service Control Point (SCP)
A node in the CCS network that provides a database functionality.
Service Switching Point (SSP)
A signaling point that can launch queries to databases and receive/interpret
responses used to provide specific end user services.
Signal Transfer Point (STP)
A packet switch in the CCS network that is used to route SS7 protocol signaling
messages between signaling nodes. An STP provides screening and routing of SS7
messages. STPs transfer signaling messages to other networks. SWBT's signaling
network includes mated pairs of local and regional STPs.
Signaling Link
An end-to-end high-capacity digital, data quality, link operating at 56 kilobits
per second that transmits signaling information in the form of signaling
messages from one network SS7 node to another node in a CCS network. The Link
Type identifies the functionality of the signaling link sets. Signaling links
provide physical interconnection between signaling points of another party and
SWBT STPs.
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Attachment 1
APPENDIX SS7
Page 2 of 2
Signaling Point (SP)
A node in the CCS network that originates and/or receives signaling messages, or
transfers signaling messages from one signaling link to another, or both.
Signaling Point Code (SPC)
An identifier code that identifies a signaling point in the CCS network. The
signaling point code provides an address within the CCS network which enables
messages to be routed to signaling points. Signaling Point Codes are 24 bit
binary numbers comprised of three segments: the Network Identification, the
Network Cluster, and the Member number within the cluster. Signaling Point Codes
are represented digitally as AAA-AAA-AAA, where "AAA" represents a decimal
number from 000 to 255.
Signaling Point of Interface (SPOI)
Mutually agreed point at which SWBT hands off signaling information to LSP.
Signaling System 7 (SS7)
See SS7-Protocol
Signaling System 7 (SS7) Protocol
The signaling protocol, Version 7, used by the nodes of the CCS network. The SS7
protocol used by SWBT is the American National Standards Institute (ANSI)
standard protocol defined by Bellcore Generic Requirement, GR-246-CORE, defined
by Bellcore requirements (GR-317-CORE, GR-394-CORE, GR-444-Core, GR-606-CORE,
GR-82-CORE, GR-905-CORE and various other documents) and defined by the SWBT
Technical Publication TP76638.
<PAGE> 223
APPENDIX RECORDING
APPENDIX RECORDING
RECORDING, MESSAGE PROCESSING AND
PROVISION OF INTEREXCHANGE CARRIER TRANSPORTED
MESSAGE DETAIL APPENDIX
This Appendix sets forth the terms and conditions under which SWBT will provide
recording, message processing and message detail services as described in total
in Exhibit I, SERVICES AND ASSOCIATED CHARGES, and those services specifically
selected by LSP as described in Exhibit II, SELECTED SERVICE OPTIONS AND METHOD
OF PROVISION and at the rates set forth in Exhibit III, BASIS OF COMPENSATION.
Exhibits I, II and III are attached hereto and made a part of this Appendix by
reference.
I. DEFINITIONS
As used herein and for the purposes of this Appendix, the
following terms shall have the meanings set forth below:
A. Access Usage Record (AUR) - a message record which
contains the usage measurement reflecting the service
feature group, duration and time of day for a message
and is subsequently used to bill access to
Interexchange Carriers (IXCs).
B. Assembly and Editing - the aggregation of recorded
customer message details to create individual message
records and the verification that all necessary
information required to ensure all individual message
records meet industry specifications is present.
C. Billing Company - the company that bills end users
for the charges incurred in originating and
terminating IXC transported calls.
D. Centralized Message Distribution System (CMDS) - the
national network of private line facilities used to
exchange Exchange Message Records (EMR) formatted
billing data between SWBT and the Billing Company.
E. Data Transmission - the forwarding by SWBT of IXC
transported toll message detail and/or access usage
record detail in EMR format over data lines or on
magnetic tapes to the appropriate Billing Company.
F. Exchange Message Record (EMR) - Industry standard
message format as described in accordance with the
Bellcore Practice BR010-200-010 developed for the
interexchange of telecommunications message
information.
G. Interexchange Carrier (IXC) - A third party
transmission provider that carries long distance
voice and non-voice traffic between user locations
for a related
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APPENDIX RECORDING
recurring fee. IXCs provide service interstate and
intrastate. In some states IXCs are permitted to
operate within a LATA.
H. Interexchange Carrier Transported -
telecommunications services provided by an IXC or
traffic transported by facilities belonging to an
IXC.
I. Message Processing - the creation of individual EMR
formatted billable message detail records from
individual recordings that reflect specific billing
detail for use in billing the end user and/or access
usage records from individual recordings that reflect
the service feature group, duration and time of day
for a message, Carrier Identification Code, among
other fields, for use in billing access to the
Interexchange Carriers. Message Processing includes
performing CMDS online edits required to ensure
message detail and access usage records are
consistent with CMDS specifications.
J. Originating Local Exchange Carrier Company - the
company whose local exchange telephone network is
used to originate calls thereby providing originating
exchange access to IXCs.
K. Provision of Message Detail - the sorting of all
billable message detail and access usage record
detail by Revenue Accounting Office, Operating
Company Number or Service Bureau, splitting of data
into packs for invoicing, and loading of data into
files for data transmission to LSP for those records
created internally or received from other Local
Exchange Carrier Companies or Interexchange Carriers
through SWBT's internal network or national CMDS.
L. Record - a logical grouping of information as
described in the programs that process information
and create the magnetic tapes or data files.
M. Recording - the creation and storage on magnetic tape
or other medium of the basic billing details of a
message in Automatic Message Accounting (AMA) format.
N. Service Switching Point (SSP) - a signaling point
that can launch queries to databases and
receive/interpret responses used to provide specific
customer services.
O. Switching Control Point (SCP) - the real time
database system that contains routing instructions
for 800 calls. In addition to basic routing
instructions, the SCP may also provide vertical
feature translations, i.e., time of day, day of week
routing, out of area screening and/or translation of
the dialed 800 number to its assigned working
telephone number.
P. 800 SCP Carrier Access Usage Summary Record (SCP
Record) - a summary record which contains information
concerning the quantity and types of queries launched
to a SWBT SCP. In those situations where charges are
applicable for
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APPENDIX RECORDING
the production and delivery of SCP records, such
charges will be those specified in Exhibit III-A
pertaining to the production and forwarding of AUR
data.
Q. Terminating Local Exchange Carrier Company - the
company whose local exchange telephone network is
used to terminate calls thereby providing terminating
exchange access to IXCs.
II. RESPONSIBILITIES OF THE PARTIES
A. SWBT will record all IXC transported messages for LSP
carried over all Feature Group Switched Access
Services that are available to SWBT-provided
recording equipment or operators. Unavailable
messages (i.e., certain operator messages which are
not accessible by SWBT-provided equipment or
operators) will not be recorded. The recording
equipment will be provided at locations selected by
SWBT.
B. SWBT will perform assembly and editing, message
processing and provision of applicable access usage
record detail for IXC transported messages if the
messages are recorded by SWBT.
C. SWBT will provide access usage records that are
generated by SWBT.
D. Assembly and editing will be performed on all IXC
transported messages recorded by SWBT, during the
billing period established by SWBT and selected by
LSP from Exhibit III-B.
E. Standard EMR record formats for the provision of
billable message detail and access usage record
detail will be established by SWBT and provided to
LSP.
F. Recorded access usage record detail will not be
sorted to furnish detail by specific end users, by
specific groups of end users, by office, by feature
group or by location.
G. SWBT will provide message detail to LSP either on
magnetic tapes or in data files, depending on the
option contracted for by LSP in Exhibit III. Only ONE
method may be selected by the LSP.
1. Magnetic Tapes
a. SWBT will supply the magnetic tapes,
which will be provided without the
return of previously supplied tapes.
b. LSP will specify one of the
following options for provision of
tapes:
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APPENDIX RECORDING
1) SWBT may send the tapes to LSP via
first class U.S. Mail Service or an
equivalent service of SWBT's choice,
or
2) LSP may pick up the magnetic tapes
at a location designated by SWBT.
3) If, at the request of LSP, overnight
delivery other than those provided
in 1 & 2 above is requested, the
cost of this delivery will be at the
expense of LSP.
2. Data Files
The message detail may be transmitted to LSP
in data files via data lines using software
and hardware acceptable to both parties.
H. In Exhibit III LSP will identify separately the
location where the tapes and any data transmissions
should be sent (as applicable) and the number of
times each month the information should be provided.
SWBT reserves the right to limit the frequency of
transmission to existing SWBT processing and work
schedules, holidays, etc.
I. SWBT will determine the number of magnetic tapes or
data files required to provide the access usage
record detail to LSP.
J. Access usage record detail previously provided LSP
and lost or destroyed through no fault of SWBT will
not be recovered and made available to LSP except on
an individual case basis at a cost determined by
SWBT.
K. When SWBT receives rated billable messages from an
IXC or another Local Exchange Carrier (LEC) that are
to be billed by LSP, SWBT will forward those messages
to LSP.
L. When SWBT has rated billable message detail
originating from LSP's end users requiring billing by
another LEC or LSP, SWBT will forward such messages
to the appropriate Billing Company.
M. SWBT will record the applicable detail necessary to
generate access usage records and forward them to LSP
for its use in billing access to the IXC.
III. BASIS OF COMPENSATION
A. Compensation for recording, assembly and editing,
rating, message processing and provision of messages
provided hereunder by SWBT for the LSP shall be based
upon the rates and charges set forth in Exhibit III,
BASIS OF COMPENSATION.
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APPENDIX RECORDING
B. When message detail is entered on a magnetic tape or
data file for provision of message detail to LSP, a
per record charge will apply for each record
processed. SWBT will determine the charges based on
its count of the records processed.
IV. LIABILITY
A. Except as otherwise provided herein, neither party
shall be liable to the other for any special,
indirect, or consequential damage of any kind
whatsoever. A party shall not be liable for its
inability to meet the terms of this Agreement where
such inability is caused by failure of the first
party to comply with the obligations stated herein.
Each party is obliged to use its best efforts to
mitigate damages.
B. When SWBT is notified that, due to error or omission,
incomplete data has been provided to the LSP, SWBT
will make reasonable efforts to locate and/or recover
the data and provide it to the LSP at no additional
charge. Such requests to recover the data must be
made within 30 days from the date the details
initially were made available to the LSP. If written
notification is not received within 30 days, SWBT
shall have no further obligation to recover the data
and shall have no further liability to the LSP.
C. If, despite timely notification by the LSP, message
detail is lost and unrecoverable as a direct result
of SWBT having lost or damaged tapes or incurred
system outages while performing recording, assembly
and editing, rating, message processing, and/or
transmission of message detail, SWBT will estimate
the volume of lost messages and associated revenue
based on information available to it concerning the
average revenue per minute for the average interstate
and/or intrastate call. In such events, SWBT's
liability to the LSP shall be limited to the granting
of a credit adjusting amounts otherwise due from it
equal to the estimated net lost revenue associated
with the lost message detail.
D. SWBT will not be liable for any costs incurred by the
LSP when the LSP is transmitting data files via data
lines and a transmission failure results in the
non-receipt of data by SWBT.
E. The LSP agrees to defend, indemnify, and hold
harmless SWBT from any and all losses, damages, or
other liability, including attorney fees, that it may
incur as a result of claims, demands, or other suits
brought by any party that arise out of the use of
this service by the LSP, its customers or end users.
The LSP shall defend against all end users' claims
just as if the LSP had provided such service to its
end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and
hold harmless SWBT from any claim, demand or suit
that asserts any infringement or invasion of privacy
or confidentiality of any person(s), caused or
claimed to be caused, directly or indirectly, by SWBT
employees and equipment associated with provision of
this
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APPENDIX RECORDING
service. This includes, but is not limited to suits
arising from disclosure of any customer specific
information associated with either the originating or
terminating numbers used to provision this service.
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR INTENDED OR
PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER. ADDITIONALLY,
SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF THE DATA
SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
7
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EXHIBIT 1
EXPLANATION OF SERVICE OPTIONS
The attached pages of this Exhibit I show the service options that are offered
under this Appendix and the charges that are associated with each option.
Alphabetical and numerical references in the CHARGES columns are to rates and
charges set forth in Exhibit III, BASIS OF COMPENSATION.
ORIGINATING 1+ DDD RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS USAGE
RECORDS
OPTION #1: SWBT performs recording, assembly and editing, rating of
billable message detail and creates an Access Usage Record
(AUR) for all 1+ Interexchange Carrier (IXC) transported
messages originating from LSP end office telephone network and
forwards both billable message detail records and AUR records
to LSP.
OPTION #2: SWBT performs recording, assembly and editing of the
billable message detail and extracts that detail to the IXC
for all 1+ IXC transported messages originating from LSP end
office. SWBT creates Access Usage Records for this traffic and
forwards those AUR records to LSP.
OPTION #3: The IXCs do their own billable message recording for their
1+ IXC transported messages originating from LSP end office.
SWBT performs recording for Access purposes only, assembles
and edits this data, creates AURs and forwards the AUR records
to LSP.
ORIGINATING OPERATOR RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL AND ACCESS
USAGE RECORDS
OPTION #4: LSP Non-Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for all 0+, 0-, Coin Sent Paid, CAMA and
International IXC transported messages. SWBT assembles and
edits this data, creates AURs and forwards the AUR records to
LSP.
OPTION #5: LSP Equal Access End Office - The IXCs do their own
billable message recording. SWBT performs local and intraLATA
operator services for LSP. SWBT performs recording at the
operator switch for 0- only IXC transported messages. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
OPTION #6: LSP Equal or Non-Equal Access End Office - The IXCs do
their own billable message recording. LSP chooses to have SWBT
purchase source information from IXC in order to have
information required to create Access Usage Records. SWBT
assembles and edits this data, creates AURs and forwards the
AUR records to LSP.
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<PAGE> 230
OPTION #7: The IXCs do their own billable message recording and
forward to SWBT the billable message detail for assembly and
editing and rating of these operator service IXC transported
messages. SWBT forwards the rated billable message detail to
the appropriate billing company, creates an AUR and forwards
the AUR records to LSP. This situation occurs when the LSP has
not signed a rating takeback waiver with the IXC.
800 RECORDINGS - IXC TRANSPORTED MESSAGE DETAIL
OPTION #8: SWBT performs SSP function for LSP end office and bills
query charge to the appropriate IXC. SWBT performs recording
for Access purposes only, assembles and edits this data,
creates AURs and forwards AUR records to LSP.
OPTION #9: SWBT performs SSP function for LSP end office. LSP
performs billing of query charge to the appropriate IXC. SWBT
performs recording at the SSP for Access purposes only,
assembles and edits this data, creates AURs and forwards AUR
records to LSP. SWBT performs recording at the SCP for query
billing purposes only, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
OPTION 10: SWBT performs SCP function for LSP. SWBT performs
recording at the SCP, assembles and edits this data, creates
SCP records and forwards SCP records to LSP.
TERMINATING RECORDINGS - IXC TRANSPORTED ACCESS USAGE RECORDS
OPTION 11: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B, Feature Group C and Feature
Group D terminating usage recordings including Feature Group B
over D and Feature Group C over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 12: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group B terminating usage
recordings excluding B over D. SWBT creates terminating AURs
for this data and forwards AUR records to LSP.
OPTION 13: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group B terminating usage recordings
including Feature Group B over D. SWBT creates terminating
AURs for this data and forwards AUR records to the LSP.
OPTION 14: SWBT provides tandem function for LSP. LSP requests SWBT
to provide all Feature Group D terminating usage recordings
including B over D and C over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
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<PAGE> 231
OPTION 15: SWBT provides tandem function for LSP. The LSP requests
SWBT to provide all Feature Group D terminating usage
recordings including B over D. SWBT creates terminating AURs
for this data and forwards AUR records to the LSP.
MESSAGE PROVISIONING:
OPTION 16: SWBT will forward all IXC transpose message detail records
or access usage records to LSP generated internally within
SWBT system or received via CMDS from an IXC or another Local
Exchange Carrier or LSP. LSP forwards rated IXC transported
message detail or access usage detail to SWBT for distribution
to the appropriate billing company through SWBT's internal
network or using the CMDS network.
There is no charge for this option under this
Appendix if LSP has also executed, as part of an
agreement executed pursuant to this Statement, an
Appendix for SWBT to provide "Hosting" services to
LSP, of if LSP has executed a separate agreement with
SWBT for "Hosting" services to be provided from SWBT
to LSP.
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DRAFT APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page two, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
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APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND
METHOD OF PROVISION
Attached to and made a part of the RECORDING, MESSAGE PROCESSING AND PROVISION
OF INTEREXCHANGE CARRIER TRANSPORTED MESSAGE DETAIL AGREEMENT
effective__________________ , 19___ , between Southwestern Bell Telephone
Company and__________________________________.
The service options and method of provision selected by the LSP under this
Appendix are as indicated on page 2, attached, of this Exhibit II. Numerical
references are to service options shown in Exhibit I.
Approved and executed the_________day of_____________, 19_____.
_______________________________ SOUTHWESTERN BELL
TELEPHONE COMPANY
By:____________________________ By:________________________
(Title) (Title)
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<PAGE> 234
APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:
---------------
<TABLE>
<CAPTION>
Message
1+DDD Operator Handled 800 Service Terminating AUR Provisioning
Options Options Options Options Options
- -------------------------------------------------------------------------------------------------------
<S><C>
NPA/NXX 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
Numerical references are to specific service options listed in Exhibit I.
6
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APPENDIX RECORDING
EXHIBIT II
SELECTED SERVICE OPTIONS
AND METHOD OF PROVISION
EFFECTIVE DATE:__________
METHOD OF PROVISION:
Circle One: DATA FILE 9 TRACK MAGNETIC TAPE 18 TRACK MAGNETIC TAPE
<PAGE> 236
DRAFT APPENDIX RECORDING
EXHIBIT III-A
BASIS OF COMPENSATION [Rates to be consistent with order.]
EFFECTIVE:________________________
LSP shall pay SWBT the following amounts for services provided under the
Recording, Message Processing and Provision of Message Detail Appendix.
TYPE OF ACTIVITY RATE
A. Recording
Per AUR $.0100
B. Assembly and Editing
Per Message and/or AUR $.0050
C. Rating
Per Message $.0050
D. Message Processing
Per Message and/or AUR $.0050
E. Provision of Message Detail
Per Record $.0030
F. Source Information Provided
1. Per Record Purchased - Meet Point Bill Applicable $.0115
2. Per Record Purchased - Meet Point Bill Not Applicable $.0230
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<PAGE> 237
DRAFT APPENDIX RECORDING
EXHIBIT III-B
INVOICE DESIGNATION
COMPANY NAME:_________________________________________________
EXCHANGE COMPANY I.D. NUMBER (OCN): __ __ __ __
BILLABLE INVOICE INTERVAL:
Check One:
[ ] Daily (Full Status RAO Companies will receive
billable messages daily.)
[ ] Bill period (A maximum of five dates may be chosen.)
A file is created five workdays from each bill period
date, and three additional days should be allowed for
distribution. Circle a maximum of five bill period
dates:
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
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DRAFT APPENDIX RECORDING
EXHIBIT III-B
AUR INVOICE INTERVAL:
Check One:
[ ] Daily (Full Status RAO Companies will receive AURs
daily.)
[ ] Bill period (A maximum of five dates may be chosen.)
A file is created five workdays from each bill period
date, and three additional days should be allowed for
distribution. Circle a maximum of five bill period
dates:
1 3 5 7 9 11 13 15 17 19 21 23 25 27 29
TAPE MAILING ADDRESS:
(Full RAO Companies will receive AURs at the same address as billable message
toll.)
10
<PAGE> 239
APPENDIX-RESALE (MO, AR & KS)
PAGE 2 OF 12
APPENDIX RESALE
This Appendix sets forth the rates, terms and conditions for those services
available for sale at retail to end users which are made available to LSPs by
SWBT for resale.
1.0 TERMS AND CONDITIONS OF SERVICE
1.1 For services included in this Appendix, the rules and
regulations associated with the corresponding tariffs apply
except for applicable resale restrictions, which are offered
through tariffs by SWBT to its end users and except as
otherwise provided herein.
1.2 LSP shall only sell Plexar services to a single end user.
1.3 Except where otherwise explicitly provided in the
corresponding tariffs, LSP shall not permit the sharing of a
service by multiple end users or the aggregation of traffic
from multiple end users onto a single service or except where
SWBT permits such sharing by its own end users.
1.4 The LSP shall resell these telecommunications services only to
the same class of customers to which SWBT sells the services,
e.g. residence service may not be resold to business
customers. LSP may only resell Lifeline Assistance, Link-Up,
and other like services to similarly situated customers who
are eligible for such services. Further, to the extent LSP
resells services that require certification on the part of the
buyer, LSP will ensure that the buyer has received proper
certification and complies with all rules and regulations as
established by the Commission.
1.5 SWBT promotions of ninety (90) days or less shall not be
available to the LSP for resale.
1.6 The LSP shall not use a resold service to avoid the rates,
terms and conditions of SWBT's corresponding retail tariff.
1.7 The LSP shall not use resold local exchange telephone service
to provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers, competitive
access providers (CAPs), or other telecommunications
providers. Provided however, that LSP may permit its end users
to use resold local exchange telephone service to access IXCs,
wireless carriers, CAPs, or other retail telecommunications
providers.
1.8 An End User Common Line (EUCL) charge will continue to apply
for each local exchange line resold under this agreement. All
federal rules and regulations associated with EUCL charges, as
found in Tariff FCC 73, also apply.
<PAGE> 240
APPENDIX-RESALE (MO, AR & KS)
PAGE 3 OF 12
1.9 To the extent allowable by law, LSP shall be responsible for
Primary Interexchange Carrier (PIC) change charges associated
with such local exchange line. LSP shall pay for PIC changes
at the tariffed rate.
1.10 SWBT shall provide the services covered by this Appendix
subject to availability of existing facilities and on a
nondiscriminatory basis with its other customers. LSP shall
resell the services provided herein only in those service
areas in which such resale services or any feature or
capability thereof are offered at retail by SWBT as the
incumbent local exchange carrier to its end users.
1.11 When LSP converts an end user currently receiving non-complex
service from the SWBT network, without any changes to SWBT's
network, LSP will be charged a per-order conversion charge of
twenty-five dollars ($25.00) in Arkansas, Kansas and Missouri.
When LSP converts an end user with non-complex service and
adds or changes are made to the network, the respective
twenty-five dollars ($25.00) conversion charge will apply, as
well as any normal service order charges associated with said
changes. All nonrecurring service connection charges,
excluding the conversion charge mentioned above, will be
charged at a discount for those services listed in Exhibits A
& B to this Appendix. Complex conversion orders will be
charged at a rate of one hundred twenty-five dollars
($125.00). Custom Services conversions (e.g., Plexar Custom)
will be handled on a Customer Specific Proposal basis.
1.12 For the purposes of ordering service under this Appendix, all
requests for service shall be handled as an initial request
for service. The additional line rate for Service Order
Charges shall apply only to those requests for additional
residential service at the end user's same location where a
residential line is currently provided on SWBT's network,
regardless of the non-facilities based local service provider
of record.
1.13 If the LSP is in violation of a provision of this Appendix,
SWBT will notify the LSP of the violation in writing. Such
notice must refer to the specific provision being violated. At
such time, the LSP will have thirty (30) days to correct the
violation and notify SWBT in writing that the violation has
been corrected. SWBT will then bill the LSP for the charges
which should have been collected by SWBT or the actual
revenues collected by the LSP from its end users for the
stated violation, whichever is greater. Should the LSP dispute
the violations, it must notify SWBT in writing within fourteen
(14) days of receipt of notice from SWBT. Disputes will be
resolved as outlined in the Disputed Amounts Section of the
Agreement.
1.14 SWBT is not required to make services available for resale at
wholesale rates to LSP for its own use. SWBT, however, shall
at its option agree to allow LSP to purchase SWBT's
Telecommunications Services and other services available for
<PAGE> 241
APPENDIX-RESALE (MO, AR & KS)
PAGE 4 OF 12
resale as outlined in the exhibits to this Appendix, as long
as said services are not resold exclusively or predominately
to LSP, its subsidiaries, or affiliates.
1.15 The effective date of this Appendix shall be ten (10) days
after the date the Commission approves the Interconnection
Agreement.
2.0 ANCILLARY SERVICES
2.1 Where available, SWBT will afford LSP end users with the
ability to make 911 calls. LSP shall be responsible for
collecting and remitting all applicable 911 surcharges on a
per line basis to the Public Safety Answering Point (PSAP).
2.2 Where requested by SWBT, the LSP shall provide SWBT with
accurate and complete information regarding end users in a
format and time frame prescribed by SWBT, for purposes of 911
administration.
2.3 SWBT shall provide LSP's end users access to SWBT Directory
Assistance Service. LSP shall pay SWBT amounts attributable to
Directory Assistance services used by LSP's end users.
Discounts associated with the utilization of Directory
Assistance Service are outlined in the exhibits to this
Appendix.
2.4 SWBT shall provide, at no additional charge, a straight line
listing of the LSP end user in the appropriate SWBT local
White Pages. Subscriber listing information on resold lines
shall remain the property of SWBT.
2.5 Additional Listing services (e.g., foreign or signature
listings) can be purchased by LSP for its end users on a per
listing basis. LSP shall pay SWBT amounts attributable to
Additional Listing services used by LSP's end users. The
exhibits outline the discounts associated with such additional
listing services.
2.6 SWBT or its agents will deliver local White Pages directories
to LSP end user's premises at the same time and under the same
conditions that such directories are delivered to SWBT end
users.
2.6.1 LSP end users shall be entitled to one directory per
basic residential or business line provided by SWBT
pursuant to this Appendix.
2.6.2. SWBT, or its agents, shall deliver a White Pages
Directory to LSP end users' premises at the same time
that such directories are delivered to SWBT end
users. If an LSP's end user already has a current
SWBT directory, SWBT shall not be required to deliver
a directory to that end user until new directories
are published for that end user's location.
2.7 SWBT shall provide LSP's end users access to SWBT's Operator
Services. LSP shall pay SWBT amounts attributable to Operator
Services used by LSP's end
<PAGE> 242
APPENDIX-RESALE (MO, AR & KS)
PAGE 5 OF 12
users. Discounts associated with the utilization of Operator
Services features are outlined in the exhibits to this
Appendix.
3.0 BRANDING
3.1 Except where otherwise required by law, LSP shall not, without
SWBT's written authorization, offer the resale services
covered by this Appendix using the trademarks, service marks,
trade names, brand names, logos, insignia, symbols or
decorative designs of SWBT or its affiliates, nor shall the
LSP state or imply that there is any joint business
association or similar arrangement with SWBT in the provision
of telecommunications services to its own customers. The LSP
may brand services included in this Appendix with its own
brand name, but SWBT will not provide for LSP branding of
those services.
3.2 Development of Branding Directory Assistance and Operator
Services
A. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of
Operator Services is required to:
1. provide its brand at the beginning of each
telephone call and before the consumer incurs any
charge for the call; and
2. disclose immediately to the consumer, upon request
a quote of its rates or charges for the call.
3. Where SWBT provides LSPs OS and DA services via
the same trunk, both the OS and DA calls will be
branded with the same brand. Since SWBT's DA and
OS utilize the same trunk group, LSP will receive
the same brand for both DA/OS. Such branding will
be provided pursuant Section B. below.
B. CALL BRANDING - In compliance with A. 1. above, SWBT
will brand DA/OS in LSP's name based upon the
criteria outlined below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP
specific branding messages for its DA/OS calls.
2. An initial non-recurring charge applies per TOPS
switch, per load, for the establishment of Call
Branding as well as a charge per TOPS switch, per
subsequent load to change the brand. In addition,
a per call charge applies for every DA/OS call
handled by SWBT on behalf of LSP when such
services are provided in
<PAGE> 243
APPENDIX-RESALE (MO, AR & KS)
PAGE 6 OF 12
conjunction with resale services. Prices for Call
Branding are as outlined in Exhibit C, attached
hereto and incorporated herein.
C. RATE/REFERENCE INFORMATION - SWBT will provide LSP
DA/OS Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA/OS Rate and Reference
Information in a mutually agreed to format or
media thirty (30) days in advance of the date when
the DA/OS Services are to be undertaken.
2. LSP will inform SWBT, in writing, of any changes
to be made to such Rate/Reference Information ten
(10) working days prior to the effective
Rate/Reference change date. LSP acknowledges that
it is responsible to provide SWBT updated
Rate/Reference Information in advance of when the
Rates/Reference Information are to become
effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the
applicable DA/OS rates as provided by LSP.
4. An initial non-recurring charge will apply per
TOPS switch for loading of LSP's DA/OS
Rate/Reference Information as well as a charge for
each subsequent change, per TOPS switch to either
the LSP's DA/OS Services Rate or Reference
Information as outlined in Exhibit C, attached
hereto and incorporated herein.
3.4 SWBT shall also offer LSP the opportunity to customize route
DA/OS beginning March 1, 1997, where technically feasible. LSP
agrees to pay SWBT appropriate charges associated with
customized routing on an ICB basis.
4.0 RESPONSIBILITIES OF SWBT
4.1 SWBT shall allow LSP to place service orders and receive phone
number assignments (for new lines). These activities shall be
accomplished by telephone call or facsimile until electronic
interface capability has been established. SWBT, with input
from LSP, shall provide interface specifications for
electronic access for these functions to LSP once such
electronic interfaces become technically feasible and are in
place. However, LSP shall be responsible for modifying and
connecting any of its systems with SWBT provided interfaces
when such interfaces become available, as outlined in Appendix
OSS.
4.2 SWBT shall implement LSP service orders within the same time
intervals SWBT uses to implement service orders for similar
services for its own end users.
<PAGE> 244
APPENDIX-RESALE (MO, AR & KS)
PAGE 7 OF 12
4.3 LSP will have the ability to report trouble for its end users
to appropriate SWBT trouble reporting centers twenty-four (24)
hours a day, seven (7) days a week. LSP will be assigned a
customer contact center when initial service agreements are
made. LSP end users calling SWBT will be referred to LSP at
the number provided by LSP.
4.3.1. Methods and procedures for ordering and trouble
reporting are outlined in the Handbook for
Non-Switched Based Providers dated 11/15/95, as
amended by SWBT from time to time. Both parties agree
to abide by the procedures contained therein.
4.4 SWBT will provide LSP with the detailed billing information in
a standard electronic format as outlined in Appendix OSS
necessary for LSP to issue a bill to its end users. On no less
than sixty (60) days advance written notice, LSP will have the
option of receiving daily usage to monitor the patterns of its
end users' usage sensitive services. LSP agrees to pay SWBT
three tenths of a cent ($.003) per message.
4.5 SWBT shall make telecommunications services that SWBT provides
at retail to subscribers who are not telecommunications
carriers available for resale consistent with its obligation
under Section 251(c)(4)(A) of the Telecommunications Act. SWBT
currently uses the Accessible Letter process to notify LSP of
new services available for resale during the term of this
Agreement. The notification shall advise LSP of the category
in which such new service shall be placed and the same
discount already applicable to LSP in that category shall
apply to the new service. Should SWBT change its notification
procedures to the LSP, the notice will be no less prompt than
the Accessible Letter.
4.5.1 Furthermore, to the extent that a federal or state
regulatory agency adopts a final order establishing
wholesale discounts under Section 252(d)(3) of the
Telecommunications Act, which is not stayed and which
directs SWBT to apply state-specific wholesale
discount percentages which are different from those
incorporated within this Agreement, either Party
shall have the option of converting to that discount
level upon ten (10) days written notice to the other
Party.
4.6 LSP end user's activation of Call Trace shall be handled by
the SWBT Call Trace Center (CTC) or its Annoying and Anonymous
Call Bureau. SWBT shall notify LSP of requests by its end
users to provide the call records to the proper authorities.
Subsequent communication and resolution of the case with LSP's
end user (whether that end user is the victim or the suspect)
will be coordinated through the LSP.
<PAGE> 245
APPENDIX-RESALE (MO, AR & KS)
PAGE 8 OF 12
4.6.1. LSP understands that for services where reports are
provided to law enforcement agencies (e.g., Call
Trace) only billing number and address information
shall be provided. It shall be the LSP's
responsibility to provide additional information
necessary for any police investigation. LSP shall
indemnify SWBT against any claims that insufficient
information led to inadequate prosecution. SWBT shall
handle law enforcement requests consistent with the
Miscellaneous-Law Enforcement Section of the
Interconnection Agreement.
4.7 LSP may offer to resell Customer Initiated Suspension and
Restoral Service to their end users. SWBT will offer to LSP
Company Initiated Suspension service for their own purposes at
the SWBT retail tariffed rate. Should LSP choose to suspend
their end user through Company Initiated Suspension Service,
this suspension period shall not exceed fifteen (15) calendar
days. If LSP issues a disconnect on their end user account
within the fifteen (15) day period, appropriate services will
not be billed for the suspension period. However, should LSP
issue a disconnect after the fifteen (15) day suspension
period, LSP will be responsible for all appropriate charges on
the account back to the suspension date. Should LSP restore
their end user, restoral charges at the SWBT retail tariffed
rate will apply and LSP will be billed for the appropriate
service from the time of suspension.
5.0 RESPONSIBILITIES OF LSP
5.1 Prior to submitting an order under this Agreement, LSP shall
obtain end user authorization as required by applicable state
or federal laws and regulations, and assumes responsibility
for applicable charges as specified in Section 258(b) of the
Telecommunications Act of 1996.
SWBT shall abide by the same applicable laws and regulations.
5.2 Only an end user can initiate a challenge to a change in its
local exchange service provider. If an end user notifies SWBT
or LSP that the end user requests local exchange service, the
Party receiving such request shall be free to immediately
provide service to such end user. SWBT shall be free to
connect the end user to any local service provider based upon
the local service provider's request and local service
provider's assurance that proper end user authorization has
been obtained. LSP shall make authorization available to SWBT
upon request and at no charge.
5.3 When an end user changes or withdraws authorization, each
Party shall release customer-specific facilities in accordance
with the end user customer's direction or the direction of the
end user's authorized agent. Further, when an end user
abandons the premise, SWBT is free to reclaim the facilities
for use by another customer and is free to issue service
orders required to reclaim such facilities.
<PAGE> 246
APPENDIX-RESALE (MO, AR & KS)
PAGE 9 OF 12
5.4 Neither Party shall be obligated by this Agreement to
investigate any allegations of unauthorized changes in local
exchange service (slamming) on behalf of the other Party or a
third party. If SWBT, on behalf of LSP, agrees to investigate
an alleged incidence of slamming, SWBT shall charge LSP a
fifty dollar ($50) investigation fee.
5.5 When SWBT receives an order from LSP for services under this
Agreement and SWBT is currently providing the same services to
another local service provider for the same end user, SWBT
shall notify the end user's local service provider of record
of such order coincident with processing the order, should LSP
subscribe to the Local Disconnect Report (LDR) as outlined
below. It shall then be the responsibility of the local
service provider of record and LSP to resolve any issues
related to the end user. This paragraph shall not apply to new
additional lines and services purchased by an end user from
multiple LSPs or from SWBT.
5.5.1 On no less than sixty (60) days notice, LSP may
request the LDR., SWBT agrees to furnish to LSP the
Billing Telephone Number (BTN), Working Telephone
Number (WTN), and terminal number of all end users
who have disconnected LSP's service. LSP understands
and agrees that the CARE interface will be used to
provide such information and such information will
only be available via the CARE electronic data
transmission as outlined in Appendix OSS. Information
will be provided on a per WTN basis to be priced on a
per WTN basis. SWBT will provide LSP no less than
thirty (30) days notice prior to any change of the
per-WTN charge. SWBT grants to LSP a non-exclusive
right to use the information provided by SWBT. LSP
will not permit anyone but its duly authorized
employees or agents to inspect or use this
information. LSP agrees to pay SWBT ten cents ($0.10)
per WTN and any applicable transmission charges for
the LDR.
5.6 The LSP agrees to hold harmless and indemnify SWBT against any
and all liability and claims, including reasonable attorney's
fees, that may result from SWBT acting under this Article.
5.7 LSP is solely responsible for the payment of charges for all
services furnished under this Appendix including, but not
limited to, calls originated or accepted at LSP's location and
its end users' service locations, with the exception of any
retail services provided directly by SWBT to the end user
which SWBT shall be responsible for billing.
5.7.1. Interexchange carried traffic (e.g., sent-paid,
information services and alternate operator services
messages) received by SWBT for billing to resold
end-user accounts will be returned as unbillable and
will not be passed on to LSP for billing. An
unbillable code returned with those
<PAGE> 247
APPENDIX-RESALE (MO, AR & KS)
PAGE 10 OF 12
messages to the carrier will indicate that the
messages originated from a resold account and will
not be billed by SWBT.
5.8 SWBT shall not be responsible for the manner in which the use
of resold service, or the associated charges are allocated to
others by LSP. All applicable rates and charges for such
services will be billed to and shall be the responsibility of
LSP, with the exception of other retail services provided
directly to the end user by SWBT as described in paragraph 7
above.
5.8.1. Compensation for all services shall be paid
regardless of a Party's ability or inability to
collect charges from its end user for such service.
5.9 If LSP does not wish to be responsible for collect, third
number billed, toll and information services (e.g., 900)
calls, it must order the appropriate blocking for resold lines
under this Appendix and pay any applicable charges. LSP
acknowledges that blocking is not available for certain types
of calls, including 800 numbers.
5.10 LSP shall be responsible for modifying and connecting any of
its systems with SWBT-provided interfaces as described in this
Appendix.
5.11 LSP shall be responsible for providing to its end users and to
SWBT a telephone number or numbers that LSP's end users can
use to contact LSP in the event of service or repair requests.
In the event that LSP's end users contact SWBT with regard to
such requests, SWBT shall inform the end user that they should
call LSP and may provide LSP contact number. The requirements
herein are subject to additional terms and conditions in the
Coordinated Repair Calls Section of the Agreement.
6.0 PROCEDURES FOR NONPAYMENT AND DISCONNECTION
6.1 If LSP fails to pay when due, any and all charges billed to
them under this Agreement, including any late payment charges
(Unpaid Charges), and any portion of such charges remain
unpaid more than fifteen (15) days after the due date of such
Unpaid Charges, SWBT shall notify LSP in writing that in order
to avoid having service disconnected, LSP must remit all
Unpaid Charges to SWBT within fourteen (14) business days.
6.2 If LSP disputes the billed charges, it shall, within the
fourteen (14) day period provided for above, inform SWBT in
writing which portion of the charges it disputes, including
the specific details and reasons for its dispute; immediately
pay to SWBT all undisputed charges; and pay all disputed
charges into an interest bearing escrow account.
<PAGE> 248
APPENDIX-RESALE (MO, AR & KS)
PAGE 11 OF 12
6.3 Disputes hereunder shall be resolved in accordance with the
procedures identified in the Dispute Resolution Section of the
Interconnection. Failure of LSP to pay charges deemed owed to
SWBT after conclusion of the Arbitration shall be grounds for
termination under this section.
6.4 If any LSP charges remain unpaid or undisputed twenty-nine
(29) days past the due date, SWBT shall notify LSP, the
Commission and the end user's IXC(s) of Record in writing,
that unless all charges are paid within sixteen (16) days,
LSP's service shall be disconnected and its end users shall be
defaulted to SWBT local service. SWBT will also suspend order
acceptance at this time.
6.5 If any LSP charges remain unpaid or undisputed forty (40) days
past the due date, LSP shall, at its sole expense, notify its
end users, the Commission and the end user's of Record that
their service may be disconnected for LSP failure to pay
Unpaid Charges, and that its end users must affirmatively
select a new local service provider within five (5) days. The
notice shall also advise the end user that SWBT will assume
the end user's account at the end of the five (5) day period
should the end user fail to select a new local service
provider.
6.6 If any LSP charges remain unpaid or undisputed forty-five (45)
days past the due date, SWBT shall disconnect LSP and transfer
all LSP's end users who have not selected another local
service provider directly to SWBT's service. These end users
shall receive the same services provided through LSP at the
time of transfer. SWBT shall inform the Commission and the and
user's IXC(s) of Record of the names of all end users
transferred through this process. Applicable service
establishment charges for switching end users from LSP to SWBT
shall be assessed to LSP.
6.7 Within five (5) days of the transfer (fifty (50) days past
LSP's due date), SWBT shall notify all affected end users that
because of an LSP's failure to pay, their service is now being
provided by SWBT. SWBT shall also notify the end user that
they have thirty (30) days to select a local service provider.
6.8 SWBT may discontinue service to LSP upon failure to pay
undisputed charges as provided in this section, and shall have
no liability to LSP or LSP end users in the event of such
disconnection.
6.9 If any end user fails to select a local service provider
within thirty (30) days of the change of providers (eighty
(80) days past LSP's due date), SWBT shall terminate the end
user's service. SWBT shall notify the Commission and the end
user's IXC of Record of the names of all end users whose
service has been terminated. The end user shall be responsible
for any and all charges incurred during the selection period.
<PAGE> 249
APPENDIX-RESALE (MO, AR & KS)
PAGE 12 OF 12
6.10 Nothing herein shall be interpreted to obligate SWBT to
continue to provide service to any such end users. Nothing
herein shall be interpreted to limit any and all disconnection
rights SWBT may have with regard to such end users.
6.11 After disconnect procedures have begun, SWBT shall not accept
service orders from LSP until all unpaid charges are paid.
SWBT shall have the right to require a deposit equal to one
month's charges (based on the highest previous month of
service from SWBT) prior to resuming service to LSP after
disconnect for nonpayment.
<PAGE> 250
EXHIBIT A SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
KANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
LOCAL EXCHANGE SERVICE RECURRING NON-RECURRING
<S> <C> <C>
Link Up America Service 14.9% 14.9%
Residence 1 Party 14.9% 14.9%
Res Flat Rate Trunks 14.9% 14.9%
EXPANDED LOCAL CALLING
Expanded Local Calling (Mandatory) 14.9% 14.9%
MetroPlus 14.9% 14.9%
CALL MANAGEMENT SERVICES
Auto Redial 14.9% 14.9%
Auto Redial - Usage Sensitive 14.9% 14.9%
Call Blocker 14.9% 14.9%
Call Forwarding 14.9% 14.9%
Call Forwarding - Busy Line 14.9% 14.9%
Call Forwarding - Busy Line/Don't Answer 14.9% 14.9%
Call Forwarding - Don't Answer 14.9% 14.9%
Call Return 14.9% 14.9%
Call Return - Usage Sensitive 14.9% 14.9%
Call Trace 14.9% 14.9%
Call Waiting 14.9% 14.9%
Calling Name 14.9% 14.9%
Calling Number 14.9% 14.9%
Personalized Ring (1 dependent number) 14.9% 14.9%
Personalized Ring (2 dependent numbers-1st number) 14.9% 14.9%
Personalized Ring (2 dependent numbers-2nd number) 14.9% 14.9%
Preferred Number Service 14.9% 14.9%
Priority Call 14.9% 14.9%
Remote Access to Call Forwarding 14.9% 14.9%
Selective Call Forwarding 14.9% 14.9%
Simultaneous Call Forwarding 14.9% 14.9%
Speed Calling 8 14.9% 14.9%
Three Way Calling 14.9% 14.9%
AIN
Selective Call Acceptance 14.9% 14.9%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations, and
tariffs.
<PAGE> 251
EXHIBIT A SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - RESIDENCE
KANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
<S> <C> <C>
DIRECTORY ASSISTANCE SERVICES 14.9% 14.9%
ISDN
Digiline(sm) 14.9% 14.9%
OTHER
Customer Alerting Enablement 14.9% 14.9%
Grandfathered Services 14.9% 14.9%
Hot Line 14.9% 14.9%
Hunting 14.9% 14.9%
Improved Data Transmission Service 14.9% 14.9%
Local Operator Assistance Service 14.9% 14.9%
Packages 14.9% 14.9%
Promotions (greater than 90 days) 14.9% 14.9%
Preferred Number Service 14.9% 14.9%
Second Line Control 14.9% 14.9%
Toll Restriction 14.9% 14.9%
Touch Tone 14.9% 14.9%
Voice Dial 14.9% 14.9%
Warm Line 14.9% 14.9%
TOLL
900 Call Restriction 14.9% 14.9%
Home 800(sm) 14.9% 14.9%
IntraLATA MTS 14.9% 14.9%
Toll Billing Exception 14.9% 14.9%
NON-TELECOMMUNICATION SERVICES
Bill Plus(sm) 14.9% 14.9%
Consolidated Billing 14.9% 14.9%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.9% 14.9%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations, and
tariffs.
<PAGE> 252
EXHIBIT B SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
KANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
LOCAL EXCHANGE SERVICE
<S> <C> <C>
Business 1 Party 14.9% 14.9%
Business - Multi-Line 14.9% 14.9%
Business - Message Rate 1 Party 14.9% 14.9%
Semi Public Coin Telephone Service 14.9% 14.9%
Semi Public Coinless Telephone Service 14.9% 14.9%
Semi Public Coinless - Outward only 14.9% 14.9%
Semi Public Outgoing Only/1 Way Originating only 14.9% 14.9%
TRUNKS
Analog Trunk 14.9% 14.9%
DID 14.9% 14.9%
Digital Trunk 14.9% 14.9%
Hotel/Motel Message Trunks 14.9% 14.9%
EXPANDED LOCAL CALLING
Expanding Local Calling (Mandatory) 14.9% 14.9%
MetroPlus 14.9% 14.9%
CALL MANAGEMENT SERVICES
Auto Redial 14.9% 14.9%
Auto Redial - Usage Sensitive 14.9% 14.9%
Call Blocker 14.9% 14.9%
Call Forwarding 14.9% 14.9%
Call Forwarding - Busy Line 14.9% 14.9%
Call Forwarding - Busy Line/Don't Answer 14.9% 14.9%
Call Forwarding - Don't Answer 14.9% 14.9%
Call Return 14.9% 14.9%
Call Return - Usage Sensitive 14.9% 14.9%
Call Trace 14.9% 14.9%
Call Waiting 14.9% 14.9%
Calling Name 14.9% 14.9%
Calling Number 14.9% 14.9%
Personalized Ring (1 dependent number) 14.9% 14.9%
Personalized Ring (2 dependent numbers-1st number) 14.9% 14.9%
Personalized Ring (2 dependent numbers-2nd number) 14.9% 14.9%
Priority Call 14.9% 14.9%
Remote Access to Call Forwarding 14.9% 14.9%
Selective Call Forwarding 14.9% 14.9%
Simultaneous Call Forwarding 14.9% 14.9%
Speed Calling 30 14.9% 14.9%
Three Way Calling 14.9% 14.9%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations,
and tariffs
<PAGE> 253
EXHIBIT B SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
KANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
DID
<S> <C> <C>
DID (First Block of 100) 14.9% 14.9%
DID (First Block of 10) 14.9% 14.9%
DID (Ea. adl. block of 10 after first 10) 14.9% 14.9%
DID (Ea. adl. block of 100 after first 100) 14.9% 14.9%
DID (with dial pulse) 14.9% 14.9%
DID (with Multifrequency) 14.9% 14.9%
DID (with Dual-Tone Multifrequency) 14.9% 14.9%
AIN
Area Wide Networking 14.9% 14.9%
Caller Intellidata(R) 14.9% 14.9%
Disaster Routing Service 14.9% 14.9%
Intelligent Redirect(sm) 14.9% 14.9%
IntelliNumber(SM) 14.9% 14.9%
Positive ID 14.9% 14.9%
Selective Call Acceptance 14.9% 14.9%
OTHER
Busy Out Arrangement 14.9% 14.9%
Customer Alerting Enablement 14.9% 14.9%
Grandfathered Services 14.9% 14.9%
Foreign Exchange 14.9% 14.9%
Foreign Serving Office 14.9% 14.9%
Frame Relay 14.9% 14.9%
Hot Line 14.9% 14.9%
Hunting 14.9% 14.9%
Improved Data Transmission Service 14.9% 14.9%
Local Operator Assistance Service 14.9% 14.9%
MicroLink I(R) 14.9% 14.9%
Multi Pt. Video 14.9% 14.9%
Network Reconfiguration Service 14.9% 14.9%
Night Number associated with a Terminal 14.9% 14.9%
Night Number associated with Telephone Number 14.9% 14.9%
Packages 14.9% 14.9%
Promotions (greater than 90 days) 14.9% 14.9%
Telebranch(R) 14.9% 14.9%
Telephone Answering Secretarial 14.9% 14.9%
Toll Restriction 14.9% 14.9%
Touch Tone (Business) 14.9% 14.9%
Touch Tone (Trunk) 14.9% 14.9%
Voice Dial 14.9% 14.9%
Warm Line 14.9% 14.9%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations,
and tariffs
<PAGE> 254
EXHIBIT B SOUTHWESTERN BELL'S RESALE PRODUCT* LIST - BUSINESS
KANSAS
<TABLE>
<CAPTION>
AVOIDED COST DISCOUNTS
RECURRING NON-RECURRING
ISDN
<S> <C> <C>
Digiline(sm) 14.9% 14.9%
Select Video Plus(R) 14.9% 14.9%
Smart Trunk(sm) 14.9% 14.9%
DIRECTORY ASSISTANCE SERVICES
TOLL
900 Call Restriction 14.9% 14.9%
IntraLATA MTS 14.9% 14.9%
MaxiMizer 800(R) 14.9% 14.9%
OutWATS 14.9% 14.9%
Toll Billing Exception 14.9% 14.9%
PLEXAR(R)
Plexar I(R) 14.9% 14.9%
Plexar II(R) 14.9% 14.9%
NON-TELECOMMUNICATION SERVICES
Bill Plus(sm) 14.9% 14.9%
Consolidated Billing 14.9% 14.9%
Company Initiated Suspension and Restoral Service 0.0% 0.0%
Customer Initiated Suspension and Restoral Service 0.0% 0.0%
Enhanced Directory Listings 14.9% 14.9%
</TABLE>
*Some products not available in all areas.
Resale products available subject to state and federal rules, regulations,
and tariffs
<PAGE> 255
APPENDIX RESALE - EXHIBIT C
PAGE 1 OF 1
APPENDIX RESALE - EXHIBIT C
KANSAS
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
- --------------------------------------------------------------------------------
A. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per brand for the
establishment of LSP specific Call Branding. A Per Call charge also applies.
When there are subsequent changes to the branding announcement, an additional
non-recurring charge will also apply per change.
Rate per initial load group $2,100.00
Rate per load for Brand change $2,100.00
Per Call $0.02
- --------------------------------------------------------------------------------
B. DIRECTORY ASSISTANCE RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial load of
LSP's DA Services Rate/Reference Information. An additional non-recurring charge
applies for each subsequent change to Rate/Reference Information.
Rate per initial load $3,375.00
Rate per subsequent rate change $2,375.00
Rate per subsequent reference change $2,375.00
- --------------------------------------------------------------------------------
C. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch for the initial load of
LSP's Operator Services Rate/Reference Information. An additional non-recurring
charge applies for each subsequent change to Rate/Reference Information.
Rate per initial load $3,375.00
Rate per subsequent rate change $2,375.00
Rate per subsequent reference change $2,375.00
- --------------------------------------------------------------------------------
<PAGE> 256
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APPENDIX: UNBUNDLED NETWORK ELEMENTS (UNE)
I. Introduction
A. This Appendix Unbundled Network Elements to the Agreement sets
forth the unbundled Network Elements that SWBT agrees to offer
to LSP. The specific terms and conditions that apply to the
unbundled Network Elements are described below. The prices for
Network Elements are set forth in Appendix Pricing Schedule.
II. General Terms and Conditions
A. SWBT and LSP may agree to connect LSP's facilities with SWBT's
network at any technically feasible point for access to
unbundled Network Elements for the provision by LSP of a
Telecommunications Service. Unbundled Network Elements may not
be connected to or combined with SWBT access services or other
SWBT tariffed service offerings with the exception of tariffed
collocation services.
B. SWBT will provide LSP access to the unbundled Network Elements
to permit LSP to combine such Network Elements with other
Network Elements obtained from SWBT or with network components
provided by itself to provide Telecommunications Services to
its customers, provided that such combination is technically
feasible and would not impair the ability of other carriers to
obtain access to other unbundled network elements or to
interconnect with SWBT's network. Any request by LSP for SWBT
to provide a type of connection between Network Elements that
is not currently being utilized in the SWBT network and is not
otherwise provided for under this Agreement will be made in
accordance with the Bona Fide Request process described in
Section III.
C. When LSP orders unbundled network elements, SWBT will perform
the functions necessary to combine unbundled network elements
in any manner required by law, even if those elements are not
ordinarily combined in SWBT's network, provided that such
combination is a) technically feasible; and b) would not
impair the ability of other carriers to obtain access to
unbundled network elements or to interconnect with SWBT's
network as provided in F.C.C. Rule 51.315 (c).
D. LSP is responsible to designate each network element being
ordered from SWBT and how those network elements are to be
combined. Where multiple SWBT network elements are to be
combined, LSP must designate the order in which the elements
are to be connected. Where SWBT network elements are to be
connected to another carrier's network element(s), LSP will
designate how SWBT network element(s) are to be
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APPENDIX UNE
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connected (i.e., cross connected) to the network element(s) of
the other telecommunications carrier.
E. Various subsections below list the Network Elements that LSP
and SWBT have identified as of the Effective Date of this
Agreement. SWBT will upon request of LSP and to the extent
technically feasible provide LSP additional Network Elements
or modifications to previously identified Network Elements for
the provision by LSP of a Telecommunications Service. Such
requests will be processed in accordance with the Bona Fide
Request process.
F. Unbundled Network Elements are provided under this agreement
over such routes, technologies, and facilities as SWBT may
elect at its own discretion. If LSP requests special
facilities, equipment or routing of unbundled network elements
such requests will be handled under the Bona Fide Request
process.
G. Subject to the terms herein, SWBT is responsible only for the
installation, operation and maintenance of the Network
Elements it provides. SWBT is not otherwise responsible for
the Telecommunications Services provided by LSP through the
use of those elements.
H. Where unbundled elements provided to LSP are dedicated to a
single end user, if such elements are for any reason
disconnected they will be made available to SWBT for future
provisioning needs. The LSP agrees to relinquish control of
any such unbundled element concurrent with the disconnection
of a LSPs end user's service.
I. The Parties acknowledge that the Commission may decline to
require unbundling of Network Elements beyond those identified
in 47 CFR Section 51.319 if the Commission concludes that: (1)
such Network Element is proprietary or contains proprietary
information that will be revealed if such Network Element is
provided to LSP on an unbundled basis, and LSP could offer the
same proposed Telecommunications Service through the use of
other, nonproprietary Network Elements within SWBT's network;
or (2) the Commission concludes that the failure of SWBT to
provide access to such Network Element would not decrease the
quality of, and would not increase the financial or
administrative cost of, the Telecommunications Service LSP
seeks to offer, compared with providing that service over
other unbundled Network Elements in SWBT's network.
J. LSP will, upon request of SWBT, and to the extent technically
feasible, provide SWBT access to Network Elements for the
provision of SWBT's telecommunications services in accordance
with the Act. Such request by SWBT will be processed in
accordance with the Bona Fide Request process.
<PAGE> 258
APPENDIX UNE
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K. Each Party is solely responsible for the services it provides
to its end users and to other Telecommunications Carriers.
L. Network elements provided to LSP under the provisions of this
Appendix will remain the property of SWBT.
M. SWBT will provide network elements where technically feasible.
Where facilities and equipment are not available, LSP may
request and, to the extent required by law and as SWBT may
otherwise agree, SWBT may provide Network Elements through the
Bona Fide Request process.
N. The elements provided pursuant to this Agreement will be
available to SWBT at times mutually agreed upon in order to
permit SWBT to make tests and adjustments appropriate for
maintaining the services in satisfactory operating condition.
No credit will be allowed for any interruptions involved
during such tests and adjustments.
O. LSP's use of any SWBT network element, or of its own equipment
or facilities in conjunction with any SWBT network element,
will not materially interfere with or impair service over any
facilities of SWBT, its affiliated companies or its connecting
and concurring carriers involved in its services, cause damage
to their plant, impair the privacy of any communications
carried over their facilities or create hazards to the
employees of any of them or the public. Upon reasonable
written notice and opportunity to cure, SWBT may discontinue
or refuse service if LSP violates this provision.
P. When converting a SWBT account to an LSP account or between
LSP and another provider, the conversion will be handled as a
disconnect of the current account and a new connect of the
unbundled network elements account.
Q. Performance of Network Elements
1. Each Network Element provided by SWBT to LSP will
meet applicable regulatory performance standards and
be at least equal in quality and performance as that
which SWBT provides to itself. Each Network Element
will be provided in accordance with SWBT Technical
Publications or other written descriptions, if any,
as changed from time to time by SWBT at its sole
discretion. LSP may request, and SWBT will provide,
to the extent technically feasible, Network Elements
that are superior or lesser in quality than SWBT
provides to itself and such service will be requested
pursuant to the Bona Fide Request process.
2. Nothing in this Agreement will limit either Party's
ability to modify its network through the
incorporation of new equipment, new software or
otherwise. Each Party will provide the other
<PAGE> 259
APPENDIX UNE
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Party written notice of any such upgrades in its
network which will materially impact the other
Party's service consistent with the timelines
established by the FCC in the Second Report and
Order, CC Docket 96-98. LSP will be solely
responsible, at its own expense, for the overall
design of its telecommunications services and for any
redesigning or rearrangement of its
telecommunications services which may be required
because of changes in facilities, operations or
procedure of SWBT, minimum network protection
criteria, or operating or maintenance characteristics
of the facilities.
R. LSP will connect equipment and facilities that are compatible
with the SWBT Network Elements and will use Network Elements
in accordance with the applicable regulatory standards and
requirements referenced in paragraph II, Q.
III. Bona Fide Request
A. Sections IV - XI below identify specific unbundled Network
Elements and provide the terms and conditions on which SWBT
will offer them to LSP. Any request by LSP for an additional
unbundled Network Element, or modifications to previously
identified Network Elements, both to the extent technically
feasible, will be considered under this Bona Fide Request
process. Where facilities and equipment are not available, LSP
may request and SWBT may agree to provide, Network Elements
through the Bona Fide Request process.
B. Each Party will promptly consider and analyze access to new
unbundled Network Element with the submission of a Network
Element Bona Fide Request hereunder. The Network Element Bona
Fide Request process set forth herein does not apply to those
services requested pursuant to Report & Order and Notice of
Proposed Rulemaking 91-141 (rel. Oct. 19, 1992) paragraph 259
and n. 603 and subsequent rulings.
C. A Network Element Bona Fide Request will be submitted in
writing and will include a technical description of each
requested Network Element, the date when interconnection is
requested and the projected quantity of interconnection points
ordered with a demand forecast.
D. The requesting Party may cancel a Network Element Bona Fide
Request at any time, but will pay the other Party's reasonable
and demonstrable costs of processing and/or implementing the
Network Element Bona Fide Request up to the date of
cancellation.
E. Within ten (10) business days of its receipt, the receiving
Party will acknowledge receipt of the Network Element Bona
Fide Request.
<PAGE> 260
APPENDIX UNE
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F. Except under extraordinary circumstances, within thirty (30)
days of its receipt of a Network Element Bona Fide Request,
the receiving Party will provide to the requesting Party a
preliminary analysis of such Network Element Bona Fide
Request. The preliminary analysis will confirm that the
receiving Party will offer access to the Network Element or
will provide a detailed explanation that access to the Network
Element is not technically feasible and/or that the request
does not qualify as a Network Element that is required to be
provided under the Act.
G. If the receiving Party determines that the Network Element
Bona Fide Request is technically feasible and otherwise
qualifies under the Act, it will promptly proceed with
developing the Network Element Bona Fide Request upon receipt
of written authorization from the requesting Party. When it
receives such authorization, the receiving Party shall
promptly develop the requested services, determine their
availability, calculate the applicable prices and establish
installation intervals.
H. Unless the Parties otherwise agree, the Network Element Bona
Fide Request must be priced in accordance with Section
252(d)(1) of the Act.
I. As soon as feasible, but not more than ninety (90) days after
its receipt of authorization to proceed with developing the
Network Element Bona Fide Request, the receiving Party shall
provide to the requesting Party a Network Element Bona Fide
Request quote which will include, at a minimum, a description
of each Network Element, the availability, the applicable
rates and the installation intervals.
J. Within thirty (30) days of its receipt of the Network Element
Bona Fide Request quote, the requesting Party must either
confirm its order for the Network Element Bona Fide Request
pursuant to the Network Element Bona Fide Request quote or
seek arbitration by the Commission pursuant to Section 252 of
the Act.
K. If a Party to a Network Element Bona Fide Request believes
that the other Party is not requesting, negotiating or
processing the Network Element Bona Fide Request in good
faith, or disputes a determination, or price or cost quote,
such Party may seek mediation or arbitration by the Commission
pursuant to Section 252 of the Act.
IV. Network Interface Device
A. The Network Interface Device (NID) is a cross-connect used to
connect loop facilities to inside wiring. The fundamental
function of the NID is to establish the official network
demarcation point between a carrier and its end-user customer.
The NID contains the appropriate and accessible connection
points or posts to which the service provider and the end-user
customer each make its connections.
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APPENDIX UNE
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B. LSP may connect to the customer's inside wire at the SWBT NID,
as is, at no charge. Any repairs, upgrade and rearrangements
required by LSP will be performed by SWBT based on time and
material charges.
C. LSP will provide its own NID and will interface to the
customer's premises wiring through connections in the customer
chamber of the SWBT NID.
D. With respect to multiple dwelling units or multiple-unit
business premises, LSP will provide its own NID, will connect
directly with the customer's inside wire and will not require
any connection to the SWBT NID, unless such premises are
served by "single subscriber" type NIDs.
E. The SWBT NIDs that LSP uses under this Appendix will be those
installed by SWBT to serve its customers.
F. LSP will not attach to or disconnect SWBTs ground. LSP will
not cut or disconnect SWBT's loop from its protector. LSP will
not cut any other leads in the NID. LSP will protect all
disconnected leads with plastic sleeves and will store them
within the NID enclosure. LSP will tighten all screws or lugs
loosened by LSP in the NID's enclosure and replace all
protective covers.
V. Local Loop
A. A "loop" is a dedicated transmission facility between a
distribution frame (or its equivalent) in a SWBT central
office and an end user customer premises.
B. SWBT will provide at the rates, terms, and conditions set out
in Appendix Pricing Schedule the following:
1. The 2-Wire analog loop supports analog voice
frequency, voice band services with loop start
signaling within the frequency spectrum of
approximately 300 Hz and 3000 Hz.
2. SWBT will offer 5 dB conditioning on a 2-wire analog
loop as the standard conditioning option available.
3. The 4-Wire analog loop provides a non-signaling voice
band frequency spectrum of approximately 300 Hz to
3000 Hz. The 4-Wire analog loop provides separate
transmit and receive paths.
4. The 2-Wire digital loop 160 Kbps supports Basic Rate
ISDN (BRI) digital exchange services. The 2-Wire
digital loop 160 Kbps supports usable bandwidth up to
160 Kbps.
5. The 4-Wire digital loop 1.544 Mbps will support DS1
service including Primary Rate ISDN (PRI). The 4-wire
digital loop 1.544 Mbps supports usable bandwidth up
to 1.544 Mbps.
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APPENDIX UNE
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C. If LSP requests one or more unbundled Loops serviced by
Integrated Digital Loop Carrier (IDLC) or Remote Switching
technology, SWBT will, where available, move the requested
unbundled Loop(s) to a spare, existing physical or a universal
digital loop carrier unbundled Loop at no additional charge to
LSP. If, however, no spare unbundled Loop is available, SWBT
will within two business days, excluding weekends and
holidays, of LSP's request notify LSP of the lack of available
facilities. LSP may request alternative arrangements through
the Bona Fide Request process.
D. In addition to any liability provisions in this agreement,
SWBT does not guarantee or make any warranty with respect to
unbundled loops when used in an explosive atmosphere. LSP will
indemnify, defend and hold SWBT harmless from any and all
claims by any person relating to LSP's or LSP end user's use
of unbundled loops in an explosive atmosphere.
VI. Local Switching
A. The local switching element encompasses line-side and trunk
side facilities plus the features, functions and capabilities
of the switch. The line side facilities include the connection
between a loop termination at, for example, a main
distribution frame (MDF), and a switch line card. Trunk-side
facilities include the connection between, for example, trunk
termination at a trunk-side cross-connect panel and a trunk
card. The local switching element includes all features,
functions, and capabilities of the local switch, including but
not limited to the basic switching function of connecting
lines to lines, lines to trunks, trunks to lines and trunks to
trunks. It also includes the same basic capabilities that are
available to SWBT customers, such as a telephone number, dial
tone, signaling and access to 911, operator services,
directory assistance, and features and functions necessary to
provide services required by law. In addition, the local
switching element includes all vertical features that the
switch is capable of providing, including custom calling,
CLASS features, and centrex-like capabilities.
B. SWBT will route InterLATA calls as defined by the exchange
dialing plan via the existing PIC process when LSP uses Local
Switching elements. Until such time that the commission
mandates intraLATA presubscription, SWBT will route IntraLATA
Toll calls as defined by the exchange dialing plan when LSP
uses Local Switching elements and will provide intraLATA toll
to LSP without other usage sensitive charges. When the
commission mandates intraLATA presubscription, SWBT will route
IntraLATA Toll calls to the presubscribed carrier.
<PAGE> 263
APPENDIX UNE
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C. When LSP requests Unbundled Common Transport, SWBT's Local
Switching element will route local calls on SWBT's common
network to the appropriate trunk or lines for call origination
or termination.
D. SWBT will provide the Local Switching element only with
standard central office treatments (e.g., busy tones, vacant
codes, fast busy, etc.), supervision and announcements.
E. SWBT will control congestion points such as those caused by
radio station call-ins, and network routing abnormalities,
using capabilities such as Automatic Call Gapping, Automatic
Code Gapping, Automatic Congestion Control, and Network
Routing Overflow. LSP agrees to respond to SWBT's
notifications regarding network congestion.
F. SWBT will provide switch interfaces to adjuncts in the same
manner it provides them to itself. LSP requests for use of
SWBT adjuncts will be handled through the Bona Fide Request
process.
G. SWBT will allow LSP to designate the features and functions
that are activated on a particular unbundled switch port to
the extent such features and functions are available or as may
be requested by the Bona Fide Request process.
H. Switch Ports
1. Analog Line Port: A line side switch connection
available in either a loop or ground start signaling
configuration used primarily for Switched voice
communications.
2. Analog (DID) Trunk Port: A trunk side switch
connection used for voice communications via customer
premises equipment primarily provided by a Private
Branch Exchange (PBX) switch.
3. ISDN Basic Rate Interface (BRI) Port: A line side
switch connection which provides ISDN Basic Rate
Interface (BRI) based capabilities.
4. ISDN Primary Rate Interface (PRI) Trunk Side Port:
trunk side switch connection which provides Primary
Rate Interface (PRI) ISDN Exchange Service
capabilities.
VII. Tandem Switching
A. Tandem Switching is defined as: (1) trunk-connect facilities,
including but not limited to the connection between trunk
termination at a cross-connect panel and a switch trunk card,
(2) the basic switching function of connecting trunks to
trunks; and (3) all technically feasible functions that are
centralized in tandem switches (as distinguished from separate
end-office switches), including but not limited to call
recording, the routing of calls to operator services, and
signaling conversion features.
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B. Tandem Switching will provide trunk to trunk connections for
local calls between two end offices.
C. To the extent all signaling is SS7, Tandem Switching will
preserve CLASS/LASS features and Caller ID as traffic is
processed. Additional signaling information and requirements
are provided in Section IX.
VIII. Interoffice Transport
A. The Interoffice Transport network element is defined as SWBT
interoffice transmission facilities dedicated to a particular
customer or carrier, or shared by more than one customer or
carrier, that provide telecommunications between wire centers
owned by SWBT or LSP, or between switches owned by SWBT or
LSP. Interoffice Transport includes Common Transport and
Dedicated Transport.
B. SWBT will be responsible for the engineering, provisioning,
and maintenance of the underlying equipment and facilities
that are used to provide Interoffice Transport.
C. Common Transport - Common Transport is a shared interoffice
transmission path between SWBT switches. Common Transport will
permit LSP to connect its Unbundled Local Switching element
purchased from SWBT with Common Transport to transport the
local call dialed by the Unbundled Local Switching element to
its destination through the use of SWBT's common transport
network. Common Transport will also permit LSP to utilize
SWBT's common network between a SWBT tandem and a SWBT end
office.
D. Dedicated Transport
1. Dedicated Transport is an interoffice transmission
path dedicated to a particular customer or carrier
that provides telecommunications between wire centers
owned by SWBT or LSP, or between switches owned by
SWBT or LSP.
2. SWBT will offer Dedicated Transport as a circuit
(e.g., DS1, DS3) dedicated to LSP.
3. SWBT will provide Dedicated Transport at the
following speeds: DS1 (1.544 Mbps), DS3 (45 Mbps),
OC3 (155.520 Mbps) and OC12 (622.080 Mbps). In
addition, SWBT offers OC48 (2488.320 Mbps) bandwidth
as an option for interoffice capacity.
4. In addition to any liability provisions in this
agreement, SWBT does not guarantee or make any
warranty with respect to entrance facilities when
used in an explosive atmosphere. LSP will indemnify,
defend and hold SWBT harmless from any and all
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APPENDIX UNE
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claims by any person relating to LSP's or LSP end
user's use of unbundled loops in an explosive
atmosphere.
E. Digital Cross-Connect System (DCS) - SWBT will offer Digital
Cross-Connect System (DCS) in conjunction with the unbundled
dedicated transport element with the same functionality that
is offered to interexchange carriers.
IX. Signaling Networks and Call-Related Databases - Signaling Networks and
Call-Related Databases are Network Elements that includes Signaling
Link Transport, Signaling Transfer Points, and Service Control Points
and Call-Related Databases. Access to SWBT's signaling network and call
related databases will be provided as described in the following
Appendices: SS7, LIDB Validation, LIDB, CNAM, 800, and AIN.
X. Operations Support Systems Functions
A. Operations Support Systems Functions consist of pre-ordering,
ordering, provisioning, maintenance and repair, and billing
functions supported by SWBT's databases and information.
B. SWBT will provide LSP access to its Operations Support Systems
Functions as outlined in Appendix OSS.
XI. Cross Connects
A. The cross connect is the media between the SWBT distribution
frame and an LSP designated collocation or to other SWBT
unbundled network elements purchased by LSP.
B. SWBT offers a choice of four types of cross connects with each
unbundled loop type. The applicable cross connects are as
follows:
1. Cross connect to DCS
2. Cross connect to MUX
3. Cross connect to Collocation
4. Cross connect to Switch Port
C. Cross connects must also be ordered with Unbundled Dedicated
Transport (UDT).
1. The LSP must specify when placing an UDT order, in
what order the unbundled network components are to be
connected.
2. The Cross Connect being requested must have a
compatible interface to each of the elements which
the Cross Connect is joining together.
3. The following cross connects are available with UDT:
a) Voice Grade 2-Wire
b) Voice Grade 4-Wire
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c) DS0 - DCS to Collocation
d) DS1
e) DS3
f) OC3
g) OCI2
h) OC48
XII. Pricing
A. Attached hereto as Appendix Pricing Schedule is a schedule
which reflects the prices at which SWBT agrees to furnish
Unbundled Network Elements to LSP. LSP agrees to compensate
SWBT for unbundled Network elements at the rates contained in
this Appendix. Unbundled Network Elements are available from
SWBT on a per unbundled Network Element basis at prices as
contained in Appendix Pricing Schedule.
B. For any rate element and/or charge contained in or referenced
to in this Appendix that are not listed in the attached
Appendix Pricing Schedule, including Bona Fide Requests, SWBT
and LSP will negotiate prices.
C. Unless otherwise stated, SWBT will render a monthly bill for
Network Elements provided hereunder. Remittance in full will
be due within thirty (30) days of receipt of invoice. Interest
will apply on overdue amounts.
D. SWBT will recover the costs of modifying its outside plant
facilities for LSP space requirements. These costs will be
recovered via the Bona Fide Request process described herein.
E. Recurring Charges
1. Unless otherwise listed below, where Rates are shown
as monthly, a month will be defined as a calendar
month. The minimum term for each monthly rated
element will be one (1) month. After the initial
month, billing will be on the basis of whole or
fractional months used. The minimum service period
for elements provided under the Bona Fide Request
process may be longer.
2. When an unbundled network element with a minimum
period greater than one month is discontinued prior
to the expiration of the minimum period, the
applicable charge will be the total monthly charges,
for the remainder of the minimum period.
3. The minimum service period for unbundled dedicated
transport elements is 12 months.
4. Where rates will be based on minutes of use, usage
will be accumulated at the end office or other
measurement point without any per call rounding and
total minutes by end office are rounded to the next
higher minute. LSP will pay for all usage on such
calls
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including those that are not completed due to busy or
don't answer conditions.
5. Where rates are based on miles, the mileage will be
calculated on the airline distance involved between
the locations. To determine the rate to be billed,
SWBT will first compute the mileage using the V&H
coordinates method, as set forth in the National
Exchange Carrier Association, Inc. Tariff F.C.C. No
4. When the calculation results in a fraction of a
mile, SWBT will round up to the next whole mile
before determining the mileage and applying rates.
F. Non-Recurring Charges
1. There are non-recurring charges for the first
connection on an LSP order as well as separate
non-recurring charges for each additional connection
associated with the same LSP order at the same LSP
specified premises. When converting the SWBT account
to LSP or between LSP and another local service
provider, the conversion will be handled as a
disconnect of the current account and a new connect
of the unbundled network element account.
2. LSP will pay a non-recurring charge when an LSP adds
or removes a signaling point code. The rates and
charges for Signaling Point Code(s) are identified in
the Pricing Schedule. This charge also applies to
point code information provided by LSP allowing other
telecommunications providers to use LSP's SS7
signaling network.
3. A service order processing (Service Order) charge
will apply for each service order issued by SWBT to
process a request for installation, disconnection,
rearrangement, changes to or record orders for
unbundled elements.
G. Maintenance of Elements
1. The network elements provided by SWBT pursuant to
this Appendix will be maintained by SWBT. LSP or
others may not rearrange, move, disconnect, remove or
attempt to repair any facilities provided by SWBT,
other than by connection or disconnection to any
interface means used, except with the written consent
of SWBT.
2. If trouble occurs with unbundled network elements
provided by SWBT, LSP will first determine whether
the trouble is in LSP's own equipment and/or
facilities or those of the end user. If LSP
determines the trouble is in SWBT's equipment and/or
facilities, LSP will issue a trouble report to SWBT.
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3. LSP will pay Time and Material charges when LSP
reports a suspected failure of a network element and
SWBT dispatches personnel to the end user's premises
or a SWBT central office and trouble was not caused
by SWBT's facilities or equipment. Time and Material
charges will include all technicians dispatched'
including technicians dispatched to other locations
for purposes of testing.
4. LSP will pay Time and Material charges when SWBT
dispatches personnel and the trouble is in equipment
or communications systems provided an entity by other
than SWBT or in detariffed CPE provided by SWBT,
unless covered under a separate maintenance
agreement.
5. If LSP issues a trouble report allowing SWBT access
to the end user's premises and SWBT personnel are
dispatched but denied access to the premises, then
Time and Material charges will apply for the period
of time that SWBT personnel are dispatched.
Subsequently, if SWBT personnel are allowed access to
the premises, the charges discussed herein will still
apply.
6. Time and Material charges apply on a first and
additional basis for each half hour or fraction
thereof. If more than one technician is dispatched in
conjunction with the same trouble report, the total
time for all technicians dispatched will be
aggregated prior to the distribution of time between
the "First Half Hour or Fraction Thereof" and "Each
Additional Half Hour or Fraction Thereof" rate
categories. Basic Time is work related efforts of
SWBT performed during normally scheduled working
hours on a normally scheduled work day. Overtime is
work related efforts of SWBT performed on a normally
scheduled work day, but outside of normally scheduled
working hours. Premium Time is work related efforts
of SWBT performed other than on a normally scheduled
work day.
7. If LSP requests or approves a SWBT technician to
perform services in excess of or not otherwise
contemplated by the nonrecurring charges herein, LSP
will pay for any additional work to perform such
services, including requests for installation or
conversion outside of normally scheduled working
hours.
H. Other Pricing Terms and Conditions for Unbundled Local
Switching (ULS)
1. When LSP purchases Unbundled Local Switching, SWBT
will provide LSP the vertical features that the
switch is equipped to provide, as part of the usage
charges associated with ULS. LSP
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will pay non-recurring charges to activate such
features in association with a particular ULS Port
type. There are two levels of non-recurring charges.
The first will apply when the features are activated
at the same time the port is established. A different
non-recurring charge applies when the feature is
activated subsequent to initial installation of the
port.
2. When the NXX of the telephone number provided to LSP
is one associated with an optional EAS arrangement,
LSP will pay a flat-rated monthly port additive for
the optional EAS toll package(s) inherent in the
telephone number.
3. LSP will pay the Toll Free Database query rate for
each query received and processed by SWBT's database.
When applicable, the charge for the additional
features (Designated 10-Digit Translation, Call
Validation and Call Handling and Destination) are per
query and in addition to the Toll Free Database query
charge, and will also be paid by LSP.
4. Use of SWBT's SS7 signaling network will be provided
for unbundled local switching as set forth in
Appendix SS7. LSP does not separately order SS7 under
this method. LSP will be charged for the use of the
SWBT SS7 network on a per call basis when the SS7
network is used in conjunction with unbundled local
switching.
5. With Unbundled Local Switching, SWBT will make
available features that require resources outside the
switch, but LSP will pay additional charges (e.g.,
TCAP messages, SS7 Signaling, database queries, etc.)
for such features.
6. Associated with Unbundled Local Switching, LSP will
pay a non-recurring and a monthly recurring charge
for the establishment of common block for a
particular end user served by LSP. LSP will also pay
a non-recurring charge for activation of features
associated with individual ports and for subsequent
changes to features associated with individual ports.
These non-recurring charges are separate from the
service charges for service order processing.
I. Temporary Rate Structure for Unbundled Local Switching (ULS)
1. LSP will be charged a per minute rate for each local
call generated by an unbundled local ULS port, when
both the originating and terminating telephone number
are in the same 11 digit CLLI end office. When LSP
uses a ULS port to initiate a call to a terminating
number associated with a different 11 digit CLLI, LSP
will pay a rate per minute for ULS plus a rate per
minute for UCT
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transport. The parties agree to assume that SWBT's
common transport network is used in this latter case.
J. Standard Interim Structure for ULS
1. Intra Switch Calls - On calls originating and
terminating in the same switch:
a) LSP will pay ULS-O for a call originating
from an ULS line or trunk port that
terminates to a SWBT end user service line
or any other unbundled line or trunk port
which is connected to the same end office
switch.
b) LSP will pay ULS-O for a centrex-like ULS
intercom call in which the LSP's user dials
from one centrex-like station to another
centrex-like station in the same common
block defined system.
c) SWBT will not bill ULS-T for calls
originating from a bundled line port (a line
port associated with the provision of resold
local service by SWBT, or associated with
local service to SWBT end user) and
terminating to a ULS Port.
d) SWBT will not bill ULS-T for Intraswitch
calls originated by an unbundled ULS port
even when the line to which the call is
terminated is another ULS Port.
2. Inter Switch Calls - On calls not originating and
terminating in the same switch:
a) When a call originates from an ULS Port and
is routed to SWBT's public network via a
connection to UCT, ULS-O will apply. Charges
for UCT as outlined below will also apply.
b) When an InterLATA toll call is initiated
from an ULS port it will be routed to the
end user PIC choice. ULS-O usage charges
will apply to LSP in such event.
c) Until IntraLATA Dialing Parity, all
intraLATA toll calls initiated by ULS Port
will be routed to SWBT. The LSP will pay
IntraLATA toll rates for such calls. No ULS
usage charges will apply to LSP in such
event.
d) After IntraLATA Dialing Parity, IntraLATA
toll calls from ULS Ports will be routed to
the end user PIC choice. ULS-O charges will
apply.
e) When LSP uses ULS Ports to initiate an
800/888 call, SWBT will perform the
appropriate database query and
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route the call to the indicated IXC. No
ULS-O charges will apply to the ULS Port.
f) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from another of the same LSP's ports
or another LSP's ULS Port, ULS-T charges
will apply.
g) When a call that has been routed through
SWBT's public network terminates to an ULS
Port, from the bundled local exchange
service of SWBT, ULS-T charges will apply.
h) When a call terminates to an ULS Port via
terminating access services provided by SWBT
(e.g., FGA, FGB, FGD, WATS etc.) SWBT will
assess ULS-T charges.
i) When a call which has been routed from
another network terminates to an ULS line
port, ULS-T charges will apply.
<PAGE> 272
UNE PRICE LIST - KANSAS
<TABLE>
<CAPTION>
MONTHLY/MOU RATES NONRECURRING CHARGE
ZONE A ZONE B ZONE C INITIAL ADDITIONAL
------ ------ ------ ------- ----------
<S> <C> <C> <C> <C> <C>
Network Interface Device (NID)
Disconnect Loop from inside wiring,
per NI N/A N/A N/A $61.50 $30.75
Unbundled Loops
2-Wire Analog $70.30 $26.55 $19.65 $60.55 $25.30
Conditioning for dB Loss $7.05 $7.05 $7.05 $65.00 $24.75
4-Wire Analog $140.60 $53.10 $39.30 $60.55 $25.30
2-wire Digital $95.55 $48.20 $49.00 $157.20 $82.00
4-wire Digital $223.85 $136.10 $145.30 $372.40 $147.10
Loop Cross Connects
Analog Loop to Collocation
2-wire cross connect $2.10 $2.10 $2.10 $72.50 $69.05
4-wire cross connect $4.20 $4.20 $4.20 $85.85 $82.35
Digital Loop to Collocation
2-wire cross connect $2.10 $2.10 $2.10 $72.50 $69.05
4-wire cross connect $11.30 $11.30 $11.30 $85.85 $82.35
Analog Loop to
Multiplexer/Interoffice
2-wire cross connect $5.15 $5.15 $5.15 $106.60 $98.00
4-wire cross connect $6.90 $6.90 $6.90 $125.00 $116.45
Digital Loop to
Multiplexer/Interoffice
2-wire cross connect $12.35 $12.35 $12.35 $106.60 $98.00
Analog Loop to DCS/ Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Digital Loop to DCS/Switch Port
2-wire cross connect NC NC NC NC NC
4-wire cross connect NC NC NC NC NC
Local Switching
Interim Structure
Within the Same Central Office
Per Originating or Terminating MOU $0.006708 $0.006405 $0.006891 N/A N/A
Between Different Central Offices
Per Originating or Terminating MOU $0.015193 $0.014587 $0.015559 N/A N/A
Long Term Structure
Per Originating or Terminating MOU $0.006708 $0.006405 $0.006891 N/A N/A
Customized Routing ICB ICB ICB ICB ICB
Port Charge Per Month
Analog Line Port $3.10 $3.10 $3.10 $82.60 $74.05
Analog Trunk Side (DID) $26.30 $26.30 $26.30 $152.60 ---
BRI Port $7.00 $7.00 $7.00 $13.35 $7.30
PRI Port $208.75 $208.75 $208.75 $445.70 $204.55
Feature Activation per Port Type ICB ICB ICB ICB ICB
Centrex-like System Charges ICB ICB ICB ICB ICB
EAS Port Additive $24.40 $24.40 $24.40 NA NA
Tandem Switching
per Minute of Use $0.002335 $0.002335 $0.002335 --- ---
Common Transport
per Minute of Use $0.000609 $0.000609 $0.000609 --- ---
Dedicated Transport
Entrance Facility:
DS1 $148.95 $148.95 $148.95 $628.00 $456.00
DS3 $1,805.00 $1,805.00 $1,805.00 $637.00 $496.00
Interoffice Transport:
DS1 First Mile $69.00 $69.00 $69.00 $408.00 $314.00
Each Additional Mile $17.70 $17.70 $17.70 N/A N/A
DS3 First Mile $933.00 $933.00 $933.00 $473.00 $341.00
Each Additional Mile $118.00 $118.00 $118.00 N/A N/A
Dedicated Transport Cross Connects
Voice Grade 2-wire NC NC NC NC NC
</TABLE>
Page 1 of 2
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UNE PRICE LIST - KANSAS
<TABLE>
<S> <C> <C> <C> <C> <C>
Voice Grade 4-wire NC NC NC NC NC
DS0 to DCS NC NC NC NC NC
DS1 NC NC NC NC NC
DS3 NC NC NC NC NC
Digital Cross-Connect System
DCS Port Charge
DSO 12.00 $12.00 $12.00 $20.00 N/A
DS1 $45.14 $45.14 $45.14 $43.00 N/A
DS3 $490.05 $490.05 $490.05 $32.00 N/A
DCS Establishment Charge N/A N/A N/A $1,722.00 N/A
Database Modification Charge N/A N/A N/A $80.00 N/A
Reconfiguration Charge N/A N/A N/A $1.25 N/A
<CAPTION>
Service Order Charges - Unbundled Elements Simple Complex
<S> <C> <C>
New Service $60.00 $245.00
Charge $58.00 $136.00
Record $36.00 $114.00
Disconnect $30.00 $66.00
<CAPTION>
Maintenance of Service Charges Initial Additional
<S> <C> <C>
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
0
Basic Time $30.93 $21.32 per 1/2 hr. or fraction thereof
Overtime $36.35 $26.73 per 1/2 hr. or fraction thereof
Premium Time $41.77 $32.15 per 1/2 hr. or fraction thereof
</TABLE>
Page 2 of 2
<PAGE> 274
Appendix Wireless
Page 2 of 6
APPENDIX WIRELESS
This Appendix sets forth the terms and conditions under which the Parties will
distribute revenue from their joint provision of Wireless Interconnection
Service for traffic originated on a Commercial Mobile Radio Service (CMRS)
Provider's network and terminating through the Parties' respective wireline
switching networks within a Local Access and Transport Area (LATA). The Parties
will be compensated under this Appendix only to the extent that they are not
been compensated for Wireless Interconnection Service under other tariffs,
settlement agreements, contracts or other mechanism. This Appendix is subject to
the terms and conditions of applicable tariffs.
1.0 DEFINITIONS
1.1. Wireless Interconnection Service - The interchange of traffic
originated from a Commercial Mobile Radio Service (CMRS)
Provider's Mobile Telephone Switching Office (MTSO) through
SWBT's or the LSP's point of switching for termination on the
relevant Party's wireline switching network.
1.2. Commercial Mobile Radio Service (CMRS) Provider - A radio
common carrier provider of domestic public cellular
telecommunication service, as defined in Part 22, Part 24, or
Part 90 of the FCC Rules and Regulations.
1.3. End Office - SWBT or LSP switching system where exchange
service customer station loops are terminated for the purpose
of interconnection to each other and to the network.
1.4. Local Access and Transport Area ("LATA") - A geographic area
marking the boundaries beyond which a Bell Operating Company
formerly could not carry telephone calls pursuant to the terms
of the Modification of Final Judgment (MFJ), U.S. vs. American
Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C. 1983), affirmed sub
nom. Maryland v. United States, 460 U.S. 1001 (1983).
1.5. Local Calling Area or Local Calling Scope - That area in which
the message telephone exchange service between two or more end
offices, without a toll charge, is provided.
1.6. Minutes of Use (MOU) - For the purposes of this Appendix, MOU
means the Terminating Traffic as recorded by the Primary
Company or MOU provided by the CMRS Provider to the Primary
Company where the Primary Company is unable to measure the
actual terminating usage.
1.7. Mobile Telephone Switching Office ("MTSO") - A CMRS Provider's
switching equipment or terminal used to provide CMRS
Provider's switching services or,
<PAGE> 275
Appendix Wireless
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alternatively, any other point of termination designated by
the CMRS Provider. The MTSO directly connects the CMRS
Provider's customers within its licensed serving area to the
Primary Company's facilities.
1.8. Primary Company - The Party that provides the End Office or
Tandem Office where the CMRS Provider chooses to connect
terminating traffic. The Primary Company also bills the CMRS
Provider for Wireless Interconnection Service.
1.9. Revenues - Those monies the Primary Company bills and collects
from the CMRS Provider for jointly provided Wireless
Interconnection Service.
1.10. Secondary Company - The Party that receives Terminating
Traffic from the Primary Company.
1.11. Tandem Office - A Party's switching system that provides an
intermediate switching point for traffic between end offices
or the network.
1.12. Terminating Traffic - That traffic which is delivered by a
CMRS Provider to the Primary Company for termination at a
point on the intraLATA wireline switching network.
2.0 ADMINISTRATION OF REVENUE DISTRIBUTION
2.1. The Primary Company will compute, bill, collect and distribute
the revenue for jointly provided Wireless Interconnection
Service for calls terminating within a LATA. On jointly
provided Wireless Interconnection Service, the Primary Company
will distribute a portion of the Local Transport (LT) Revenues
as described below with the Secondary Company for its part in
terminating traffic from the CMRS Provider. The Primary
Company will distribute applicable Local Switching (LS) and
Carrier Common Line (CCL) charges which are collected from the
CMRS Provider to the Secondary Company, as described below.
2.2. Distribution of revenues will be computed using the rate
elements as defined in SWBT's applicable Wireless
Interconnection Tariff.
2.3. For terminating traffic, actual monthly wireless MOU will be
measured by the Primary Company for each office in the LATA or
provided to the Primary Company by the CMRS Provider in those
cases where the Primary Company is unable to measure the
actual terminating usage.
2.4. Each month, the amount of CCL and LS revenue (based on the
rates in the Primary Company's applicable tariffs) due the
Secondary Company from the Primary Company will be determined
by totaling the actual terminating MOU associated with each of
the Secondary Company's end offices and multiplying
<PAGE> 276
Appendix Wireless
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those MOU by the appropriate rates as set out above. The LT
revenues due to the Secondary Company will be determined for
each Secondary Company end office by multiplying the billed
MOU by the appropriate LT rate multiplied by the applicable
end office percentage ownership of facilities listed in
Exhibit A to this Appendix.
2.5. The Primary Company will prepare a revenue and usage statement
on a monthly basis. Within 90 calendar days after the end of
each billing period, except in cases of disputes, the Primary
Company will remit the compensation amount due the Secondary
Company. When more than one compensation amount is due, they
may be combined into a single payment. No distribution will be
made for the revenue the Primary Company is unable to collect.
2.6. The revenue and usage statement will contain the following
information:
2.6.1. The number of MOU for each of the Secondary Company's
end offices, the corresponding rate elements to be
applied to the MOUs for each end office, and the
resulting revenues;
2.6.2. The total of the MOU and revenues for the Secondary
Company;
2.6.3. The percent ownership factor used to calculate the
distribution of Local Transport revenues; and,
2.6.4. Adjustments for uncollectibles.
2.7. The Parties agree that revenue distribution under this
Appendix will apply as of the effective date of the Agreement.
The Primary Company will start revenue distribution on usage
within 60 calendar days from the date this Appendix is
effective.
3.0 TERMINATION PROVISIONS
3.1. This Appendix shall remain in effect until terminated by
either Party upon a minimum of 30 calendar days written notice
by such Party to the designated representative of the other.
3.2. This Appendix may be terminated by an order of an appropriate
regulatory commission or a court of competent jurisdiction.
4.0 MISCELLANEOUS PROVISIONS
4.1. Exhibit A to this Appendix is attached and incorporated into
this Appendix by reference. From time to time, by written
agreement of both parties, new Exhibits
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Appendix Wireless
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may be substituted for the attached Exhibit A, superseding and
canceling the Exhibit A previously in effect.
4.2. Each party will promptly upon request, furnish to the other
such information as may reasonably be required to perform
under this Appendix.
5.0 NOTICE
5.1. In the event any notices are required under the terms of this
Appendix, they shall be sent by registered mail, return
receipt requested to:
if to SWBT Jeff Fields
if to LSP Richard Weinstein
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Appendix Wireless
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EXHIBIT A TO APPENDIX WIRELESS
END OFFICE PERCENT OWNERSHIP OF LOCAL TRANSPORT FACILITIES
CLLI CODE
FACILITIES NPA-NXX % OWNERSHIP OF TRANSPORT
<PAGE> 279
APPENDIX WP
PAGE 2 OF 6
APPENDIX WP
WHITE PAGES DIRECTORY APPENDIX
SWBT and LSP agree to the following terms and conditions for the printing and
distribution of White Pages directories:
1. SWBT publishes White Pages directories for geographic areas in which
LSP also provides local exchange telephone service, and LSP wishes to
include listings information for its end users in the appropriate SWBT
White Pages directories.
2. LSP also desires distribution to its end users of the White Pages
directories that include listings of LSP's end users.
3. NOW THEREFORE, in consideration of these premises, SWBT and LSP agree
as follows:
I. SERVICE PROVIDED
A. Subject to SWBT's practices, as well as the rules and
regulations applicable to the provision of White Pages
directories, SWBT will include in appropriate White Pages
directories the primary alphabetical listings of all LSP end
users located within the local directory scope. The rules,
regulations and SWBT practices are subject to change from time
to time.
B. Prior to the issuance of a particular directory and at such
time or times as may be mutually agreed, the LSP shall furnish
to SWBT, in a form acceptable to both Parties, subscriber
listing information pertaining to LSP end users located within
the local directory scope, along with such additional
information as SWBT may require to prepare and print the
alphabetical listings of said directory.
C. LSP may provide LSP's subscriber listing information to SWBT
for inclusion in the White Pages directory via either a
mechanical or manual feed of the listing information to SWBT's
listing database or the LSP may choose to provide listings in
the form of camera ready copy.
D. If LSP provides its subscriber listing information to SWBT via
a mechanical or manual feed such listings are to be
alphabetically interfiled (interspersed) in the SWBT directory
among SWBT subscriber listings. If LSP provides its subscriber
listing information to SWBT in the form of camera ready copy,
SWBT will include such listings as a separate section of the
White Pages directory included in a separate section of the
SWBT White Pages directory.
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APPENDIX WP
PAGE 3 OF 6
E. Sixty (60) days prior to the business office close date for a
particular directory, SWBT shall provide LSP a verification
list of its subscriber listings, as such listings are to
appear in the directory. The verification list shall also
include Directory Delivery Address information for each LSP
end user. LSP shall review this verification list and shall
submit to SWBT any necessary additions, deletions or
modifications within thirty (30) days of receipt of the list
from SWBT.
F. If LSP provides its subscriber listing information to SWBT in
the form of camera ready copy. SWBT shall provide LSP sixty
(60) days written notice of the date by which LSP must provide
this information to SWBT.
G. Sixty (60) days prior to the directory close, LSP shall
provide to SWBT written specification of the total number of
directories that it will require, along with the number of
directory(ies) that each LSP end user will require. SWBT will
provide one ( 1) copy of the directory to LSP end users,
unless otherwise instructed by the LSP.
H. At LSP's request, SWBT will include LSP specific information
(i.e., business office, residence office, repair bureau, etc.)
in the White Pages directory on an "index-type" informational
page. This page will also include specific information
pertaining to other LSPs. At its option, LSP shall provide
SWBT with its logo and information in the form of a camera
ready copy, sized at 1/8th of a page.
I. At its request, LSP may purchase "Informational Page(s)" in
the informational section of the White Pages directory
covering a geographic area. Such page(s) shall be no different
in style, size, color and format than SWBT "Informational
Pages". Sixty (60) days prior to the directory close date, the
LSP shall provide to SWBT the "Informational Page" in the form
of camera- ready copy.
II. USE OF SUBSCRIBER LISTING INFORMATION
A. LSP authorizes SWBT to use the subscriber listing information
provided to SWBT pursuant to this Appendix for the sole
purpose of including the listings in the appropriate printed
White Pages directory and directory assistance databases where
such service is provided by SWBT.
B. At LSP's request, SWBT shall transmit LSP's end user listing
information to designated third party directory publishers
(limited to publishers that SWBT transmits its own listing
information) for a one-time administrative fee of $100.00 per
occurrence, per directory publisher.
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APPENDIX WP
PAGE 4 OF 6
III. PRICING
A. The rates for the services described herein are identified on
Exhibit I. If LSP provides its subscriber listing information
to SWBT via a mechanical or manual feed of the listings to
SWBT's listings database, SWBT will assess per book copy, per
subscriber line, charge when directories are delivered to LSP
end user premises, or an annual, per book copy charge when
delivered in bulk to LSP. Included in this rate, LSP will
receive for its end user, one single listing in SWBT's White
Page directory, and one copy of the directory delivered to
either its end user's premises, or in bulk to the LSP
location.
B. Where an LSP end user requires additional listings to appear
in the White Pages directory, SWBT will assess LSP an annual
charge for such listings at existing SWBT tariff rates.
C. For any "Subsequent" directory orders (orders placed after the
initial order/forecast is provided - see I. G. above), SWBT
shall charge LSP a per book copy charge. This rate applies,
per book copy, when such directories are delivered in bulk to
LSP or to the LSP's end user premises.
D. For inclusion of the LSP "Informational Page" in the White
Pages directory, SWBT shall charge the LSP an annual fee for
inclusion in the Metropolitan area book.
IV. ASSIGNMENT
The subscriber listing information shall remain the property of LSP.
Except as stated in Section II herein, SWBT shall not sublicense,
assign, sell or transfer the subscriber listing information provided
hereunder, nor shall SWBT authorize any other company or any person to
use the subscriber listing information for any other purpose. SWBT
shall take appropriate measures to guard against any unauthorized use
of the listings provided to it hereunder (at least the same measures
SWBT takes to protect its own listings from unauthorized use), whether
by SWBT, its agents, employees or others.
V. LIABILITY
A. LSP hereby releases SWBT from any and all liability for
damages due to errors or omissions in LSP's subscriber listing
information as provided to SWBT under this Appendix, and/or
LSP's subscriber listing information as it appears in the
White Pages directory, including, but not limited to, special,
indirect, consequential, punitive or incidental damages.
B. LSP shall indemnify, protect, save harmless and defend SWBT
(or SWBT's officers, employees, agents, assigns and
representatives) from and against any and all losses,
liability, damages and expense arising out of any demand,
claim, suit or
<PAGE> 282
APPENDIX WP
PAGE 5 OF 6
judgment by a third party in any way related to any error or
omission in LSP's subscriber listing information as it appears
in the White Pages directory, including any error or omission
related to non-published or non-listed subscriber listing
information. LSP shall so indemnify regardless of whether the
demand, claim or suit by the third party is brought jointly
against LSP and SWBT, and/or against SWBT alone. However, if
such demand, claim or suit specifically alleges that an error
or omission appears in LSP's subscriber listing information in
the White Pages directory, SWBT may, at its option, assume and
undertake its own defense, or assist in the defense of the
LSP, in which event the LSP shall reimburse SWBT for
reasonable attorney's fees and other expenses incurred by SWBT
in handling and defending such demand, claim and/or suit.
C. This Appendix shall not establish, be interpreted as
establishing, or be used by either party to establish or to
represent their relationship as any form of agency,
partnership or joint venture. Neither Party shall have any
authority to bind the other or to act as an agent for the
other unless written authority, separate from this Appendix,
is provided. Nothing in the Appendix shall be construed as
providing for the sharing of profits or losses arising out of
the efforts of either or both of the Parties. Nothing herein
shall be construed as making either Party responsible or
liable for the obligations and undertakings of the other
Party.
VI. BREACH OF CONTRACT
If either Party is found to have materially breached this Appendix, the
non-breaching Party may terminate the Appendix by providing written
notice to the breaching party, whereupon this Appendix shall be null
and void with respect to any issue of SWBT's White Pages directory
published sixty (60) or more days after the date of receipt of such
written notice.
VIII. TERM
A. This Appendix shall continue in force for one (1) until
terminated by sixty (60) days prior written notice by either
Party to the other. Upon termination, SWBT shall cease using,
for any purpose whatsoever, the subscriber listing information
provided hereunder by LSP, and shall promptly return such
subscriber listing information to the LSP.
B. Upon termination of the interconnection Agreement, this
Appendix will be null and void with respect to any issue of
directories published thereafter, except that the
indemnification provided by Section V herein shall continue
with respect to any directory published within sixty (60) days
of termination.
<PAGE> 283
APPENDIX WP
PAGE 6 OF 6
APPENDIX WP
EXHIBIT I
PRICE LIST
<TABLE>
<CAPTION>
PRICE PER BOOK
COPY PRICE PER BOOK PRICE PER SINGLE PRICE PER BOOK
DELIVERED IN COPY SIDED COPY(1) ORDERED
BULK DELIVERED TO INFORMATIONAL AFTER INITIAL
DIRECTORY TO LSP LSP END USER PAGE ORDER
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Kansas City $3.24 $3.72 $1,905.11 $10.00
Lawrence $3.24 $3.72 $1,905.11 $10.00
Topeka $3.24 $3.72 $1,905.11 $10.00
Wichita $3.24 $3.72 $1,905.11 $10.00
</TABLE>
(1) Subject to Availability
<PAGE> 284
APPENDIX TP
Page 2 of 2
ELECTRICAL/OPTICAL INTERFACES:
- SWBT Technical Publication TP-76839 - SONET Transmission
Requirements - Performance and Interface Specifications, Issue
1, January 1996, or the most current version.
- SWBT Technical Publication TP-76625 - High Capacity Digital
Service (1.544 Mbs and 44.736 Mbs Requirements and
Transmission Limits, Issue 1, June 1990, or the most current
version.
INTERCONNECTION RESPONSIBILITIES RELATED TO SIGNALING:
- SWBT Technical Publication, TP-76638 - Common Channel
Signaling Network Interface Specifications
- GR-000246-CORE, Bell Communications Research Specifications
of Signaling System 7
- GR-000317-CORE, Switching System Requirements for Call
Control Using the Integrated Services Digital Network User
Part
- GR-000394-CORE, Switching System Requirements for
Interexchange Carrier Interconnection Using the Integrated
Services Digital Network User Part
- GR-000606-CORE, LATA Switching Systems Generic Requirements-
Common Channel Signaling-Section 6.5
- GR-000905-CORE, Common Channel Signaling Network Interface
Specification Supporting Network Interconnection Message
Transfer Part (MTP) and Integrated Digital Services Network
User Part (ISDNUP)
COLLOCATION
- SWBT's Technical Publication for Physical Collocation (sixth
revision dated 2-18-97)
TECHNICAL EXHIBIT SETTLEMENT PROCEDURES
- TESP
<PAGE> 285
APPENDIX PORT
PAGE 2 OF 5
APPENDIX PORT
I. GENERAL
SWBT and LSP will provide Interim Number Portability (INP) in
accordance with requirements of the Act. INP will be provided by each
Party to the other upon request. INP will be provided with minimum
impairment of functionality, quality, reliability and convenience to
subscribers of LSP or SWBT. The Parties will provide Permanent Number
Portability (PNP) as soon as it is technically feasible, in conformance
with FCC rules and the Act, and will participate in development of PNP
in the state, in accordance with the FCC's First Report and Order in
Docket No. 95-116 (hereinafter called the Number Portability Order). As
described herein, INP is a service arrangement whereby an end user, who
switches subscription of local exchange service from one provider to
another is permitted to retain, for its use, the existing assigned
number provided that the end user remains in the same serving wire
center.
II. TERMS, CONDITIONS UNDER WHICH SWBT SHALL PROVIDE INP
A. SERVICE PROVIDED
1. SWBT shall only provide INP, as described herein, to
LSPs.
2. SWBT shall only provide INP services and facilities
where technically feasible, subject to the
availability of facilities, and only from properly
equipped central offices. SWBT does not offer INP
services and facilities for NXX codes 555, 976, 950,
or SWBT operated coin telephone service.
3. LSP shall not order INP services for local exchange
end user accounts of SWBT where the end user=s
payments are 45-days or more in arrears unless full
payment is made or an agreement is reached where the
LSP agrees to make full payment on the end user=s
behalf.
4. When the exchange service offerings associated with
INP service are provisioned using remote switching
arrangements, SWBT shall only make INP service
available from, or to host central offices.
B. OBLIGATIONS OF SWBT
1. SWBT's sole responsibility is to comply with the
service requests it receives from the LSP and to
provide INP in accordance with this Appendix.
<PAGE> 286
APPENDIX PORT
PAGE 3 OF 5
C. OBLIGATIONS OF LSPS
1. LSP shall coordinate the provision of service with
SWBT to assure that LSP's switch is capable of
accepting INP ported traffic.
2. LSP is solely responsible to provide equipment and
facilities that are compatible with SWBT's service
parameters, interfaces, equipment and facilities. LSP
shall provide sufficient terminating facilities and
services at the terminating end of an INP call to
adequately handle all traffic to that location and
shall ensure that its facilities, equipment and
services do not interfere with or impair any
facility, equipment or service of SWBT or any of its
end users. In the event that SWBT determines in its
sole judgment that the LSP will likely impair or is
impairing, or interfering with any equipment,
facility or service of SWBT or any of its end users,
SWBT may either refuse to provide INP service or
terminate it in accordance with other provisions of
this STC or SWBT's tariffs.
3. LSP shall provide an appropriate intercept
announcement service for any telephone numbers
subscribed to INP service for which LSP is not
presently providing local exchange service or
terminating to an end user.
4. Where LSP chooses to disconnect or terminate any INP
service, LSP shall designate which standard SWBT
intercept announcement SWBT shall provide for
disconnected number.
5. LSP shall designate to SWBT at the time of its
initial service request for INP service one of the
following options for handling and processing of
Calling Card, Collect, Third Party, and other
operator handled non-sent paid calls from or to LSP
assigned telephone numbers:
a. LSP may elect to block the completion of
third number and calling card calls through
the use of LIDB to select ported numbers.
b. For non-sent paid calls billed to INP
assigned numbers, a separate
sub-clearinghouse billing arrangement must
be established which will provide for the
transmission of the EMR 01-01-01 billing
records, and settlement of toll revenues.
D. LIMITATIONS OF SERVICE
1. SWBT is not responsible for adverse effects on any
service, facility or equipment from the use of INP
service.
2. End-to-end transmission characteristics may vary
depending on the distance and routing necessary to
complete calls over INP facilities and
<PAGE> 287
APPENDIX PORT
PAGE 4 OF 5
the fact that another carrier is involved in the
provisioning of service. Therefore, end-to-end
transmission characteristics cannot be specified by
SWBT for such calls.
E. SERVICE DESCRIPTIONS
1. INP-REMOTE. INP-Remote is a service whereby a call
dialed to an INP-Remote equipped telephone number,
assigned to SWBT, is automatically forwarded to an
LSP-assigned, 7 or 10 digit local telephone number.
The forwarded-to-number is specified by the LSP at
the same location.
a. INP-Remote provides an initial call path and
two additional paths for the forwarding of
no more than three (3) simultaneous calls to
the LSP's specified forwarded-to number.
Additional call paths are available on a per
path basis.
b. The LSP-assigned forwarded-to number shall
be treated as two separate calls with
respect to interconnection compensation, end
user toll billing and intercompany
settlement and access billing, i.e., an
incoming call to the SWBT ported number
shall be handled like any other SWBT call
being terminated to that end office and the
ported call to the LSP assigned telephone
number in the LSP switch shall be handled as
any local calls between SWBT and the LSP.
c. Where facilities exist, SWBT will provide
identification of the originating telephone
number, via SS7 signaling, to the LSP.
2. INP-DIRECT. INP-Direct is a service which provides
for the delivery of the called (dialed) number to the
LSP's switching (central office or premises)
equipment for identification and subsequent routing
and call completion.
a. INP-Direct is available either on a per
voice grade channel basis or a per DS1 (24
equivalent voice grade channels) basis.
(1) Where the location of the LSP's
switching equipment to which SWBT is
providing voice grade or DS1
INP-Direct service reside outside
the exchange or central office
serving area from which the
INP-Direct service is purchased, LSP
shall pay applicable interoffice
mileage charges as specified in the
applicable state Special Access
Tariff.
<PAGE> 288
APPENDIX PORT
PAGE 5 OF 5
b. INP-Direct service must be established with
a minimum configuration of two (2) voice
grade channels and one unassigned telephone
number per SWBT switch. Transport facilities
arranged for INP-Direct may not be mixed
with any other type of trunk group. Outgoing
calls may not be placed over facilities
arranged for INP-Direct service.
c. SS7 Signaling is not available on the
INP-Direct facilities.
F. PRICING
1. The Parties will comply with all effective FCC,
Commission and/or court Orders governing INP cost
recovery and compensation. The Parties acknowledge
that the Telephone Number Portability Order is
subject to pending Petitions for Reconsideration and
may be subject to appeal. As such, the Number
Portability Order may be reconsidered, revised and
remanded, or vacated, subject to further proceedings
before the FCC. As such, until a final decision is
rendered on INP cost recovery, the Parties agree to
track the costs associated with the implementation
and provision of INP and to "true-up" INP-related
accruals to reflect the final terms of any such
order.
2. Neither Party waives its rights to advocate its views
on INP cost recovery, or to present before any
appropriate regulatory agency or court its views on
FCC or Commission actions pertaining to INP cost
recovery.
<PAGE> 289
Agreement No. ____________
MASTER AGREEMENT FOR ACCESS
TO POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY (KANSAS)
This Agreement dated ______________, 19__, is made by and between
Southwestern Bell Telephone Company ("SWBT") and the undersigned Applicant. As
provided in this Agreement, SWBT will provide Applicant nondiscriminatory
access, in accordance with the Pole Attachment Act, the Telecommunications Act
of 1996, and applicable rules, regulations, and commission orders, to poles,
ducts, conduits, and rights-of-way owned or controlled by SWBT and located in
this state.
ARTICLE 1: PARTIES
1.01 Southwestern Bell Telephone Company. Southwestern Bell Telephone
Company is a corporation chartered in the State of Missouri. SWBT's principal
office is located at 1010 Pine Street, St. Louis, Missouri 63101.
1.02 Applicant. Applicant is a telecommunications carrier or cable
television system doing business or operating in this State under the following
name(s):
_______________________________________________________________________________
______________________________________________________________________________.
Applicant maintains offices in this State at the following address:
___________________
______________________________________________________________________________.
Applicant is more fully described in APPENDIX II ("Identification of
Applicant").
ARTICLE 2: PURPOSE OF AGREEMENT
2.01 Primary Purpose of Agreement. The primary purpose of this
Agreement is to set forth the rates, terms, conditions, and procedures under
which SWBT will provide Applicant access to SWBT's poles, ducts, conduits, and
rights-of-way located in this State.
2.02 Applicability. This Agreement applies to all poles, ducts,
conduits, and rights-of-way subject to the Pole Attachment Act, 47 U.S.C.
Section 224, as amended by the Telecommunications Act of 1996, and further
amendments.
2.03 Construction in Accordance with Purpose. All provisions of this
Agreement shall be construed and applied consistently with the requirements of
the Pole Attachment Act and those provisions of the Telecommunications Act of
1996, including but not limited to 47 U.S.C. Sections 251(b)(4) and 271
(c)(2)(B)(iii), which mandate access to SWBT's poles, ducts, conduits, and
rights-of-way.
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<PAGE> 290
2.04 Uniform Application and Nondiscriminatory Access. In Paragraph
1156 of the First Interconnection Order in CC Docket No. 96-98, the FCC has
ordered that "[W]here access is mandated, the rates, terms, and conditions of
access must be uniformly applied to all telecommunications carriers and cable
operators that have or seek access." In Paragraph 1157 of the First
Interconnection Order, the FCC has further stated that except as specifically
noted elsewhere in that order, "a utility may not favor itself over other
parties with respect to the provision of telecommunications or video programming
services." This Agreement has been drafted and shall be construed to effectuate
these nondiscriminatory access requirements.
2.05 Effect on Rights and Remedies under Law. This Agreement is
intended by the parties to implement, rather than abridge, their respective
rights under federal and state law. In the event of an irreconcilable conflict
between any provision of this Agreement and any applicable federal or state
laws, rules, regulations, or commission orders, the parties' rights and remedies
under such laws, rules, regulations, and orders shall take precedence over the
terms of this Agreement.
2.06 Additional Negotiations. This Agreement is one of many agreements
between SWBT and parties seeking access to SWBT's poles, ducts, conduits, and
rights-of-way in this State. Nothing contained in this Agreement shall preclude
SWBT from negotiating additional or different terms of access with third
parties. Applicant may, at any time, seek amendments to this Agreement to
conform to the terms of agreements between SWBT and third parties. In addition,
the parties acknowledge that it may be necessary to amend or supersede this
Agreement to conform to changes in the law, streamline procedures for granting
access, address issues not addressed in this Agreement, and resolve operational
concerns arising by virtue of the presence of competing providers of
telecommunications and cable television services on, within, or in the vicinity
of SWBT's poles, ducts, conduits, and rights-of-way. Each party shall,
therefore, at the request of the other party, engage in good faith negotiations
to supplement, amend or replace this Agreement.
2.07 Relationship to Interconnection Agreement. SWBT has provided
Applicant the option of executing this Agreement either as a standalone
agreement or as part of the interconnection agreement, if any, between the
parties. Applicant's election is reflected in this section, and this Agreement
shall be construed in accordance with Applicant's election. If this Agreement
has been executed as part of an interconnection agreement, Applicant shall have
the additional option of replacing this Agreement at any time with SWBT's
then-current Master Agreement for Access to Poles, Ducts, Conduits, and
Rights-of-Way.
[ ] This Agreement has been entered into as a standalone
Agreement.
[ ] This Agreement has been entered into, at Applicant's
request, as an appendix, attachment, or exhibit to an
interconnection agreement
PAGE 2
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between the parties. Except as otherwise specifically
stated in this Agreement, the terms of this Agreement,
which are specific to poles, ducts, conduits, and
rights-of-way, shall apply in the event of conflict
between the terms of this Agreement and the general terms
and conditions set forth in the interconnection
agreement.
2.08 Access Ancillary to Arrangements for Interconnection, Collocation,
and Access to Unbundled Network Elements. Nothing contained in this Agreement
shall be construed as precluding Applicant from having such additional access to
SWBT's poles, ducts, conduits, and rights-of-way as may be necessary to
effectuate the terms of other arrangements between Applicant and SWBT relating
to interconnection, collocation, and access to unbundled network elements. To
the extent that this Agreement does not provide the access required, additional
terms of access may be included in any tariff or agreement between the parties
establishing arrangements for interconnection, collocation, or access to
unbundled network elements.
ARTICLE 3: DEFINITIONS
3.01 Definitions in general. As used in this Agreement, the terms
defined in this article shall have the meanings set forth below in Sections 3.02
to 3.48 except as the context otherwise requires.
3.02 Agreement. The term "Agreement" refers to this Master Agreement
for Access to Poles, Ducts, Conduits, and Rights-of-Way. The term "Agreement"
includes all appendices, attachments, and addenda to this Agreement, including
but not limited to addenda, if any, reflecting state-specific requirements or
Applicant-specific requirements imposed by interconnection arbitration orders.
3.03 Anchor. The term "anchor" refers to a device, structure, or
assembly which stabilizes a pole and holds it in place. An anchor assembly may
consist of a rod and fixed object or plate, typically embedded in the ground,
which is attached to a guy strand or guy wire which, in turn, is attached to the
pole. The term "anchor" does not include the guy strand which connects the
anchor to the pole.
3.04 Appendix. The capitalized term "APPENDIX" refers to one of the
following appendices to this Agreement.
APPENDIX I: Schedule of Rates, Fees, and Charges
APPENDIX II: Identification of Applicant
APPENDIX III: Administrative Forms and Notices
SW-9433: Pole Attachments
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<PAGE> 292
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of
Pole Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of
Conduit Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by
Applicant
APPENDIX IV: Insurance Requirements
APPENDIX V: Nondisclosure Agreement
APPENDIX VI: Notices to Applicant
APPENDIX VII: Notices to SWBT
APPENDIX VIII: Identification of Utility Liaison Supervisor
(ULS)
3.05 Assigned. When used with respect to pole, duct, conduit, or
right-of-way space, the term "assigned" refers to space that is occupied by, or
has been designated for occupancy by, either party or by a third party. Except
as otherwise specifically provided in this Agreement, no person or entity shall
have the right to occupy space assigned to another person or entity (other than
on a temporary basis in the event of emergency as provided in Section 15.02 of
this Agreement) until the assignment has been released or lapsed.
Assignment procedures are described in Section 8.02 of this Agreement.
3.06 Authorized contractor. "Authorized contractors" are contractors
selected by Applicant who may, subject to Applicant's direction and control,
perform facilities modification or make-ready work which would ordinarily be
performed by SWBT or persons acting on SWBT's behalf. As used in this Agreement,
the term "authorized contractor" does not refer to contractors performing
routine installation, maintenance, or repair work on Applicant's behalf or other
contractors who may be selected by Applicant to perform work on Applicant's
behalf without SWBT's approval. More specifically, the term "authorized
contractor" refers only to those contractors included on a list of contractors
mutually approved by Applicant and SWBT to perform one or more of the following
tasks within a specified SWBT construction district: (a) installation of those
sections of Applicant's ducts or facilities which connect to SWBT's conduit
system as provided in Section 6.08(c); (b) installation of inner duct as
provided in Section 10.02(b); (c) excavation work in connection with the removal
of retired or inactive (dead) cables as provided in Section 10.02(c); or (d)
make-ready work as provided in Sections 10.04 and 10.05. A person or entity
approved as an authorized contractor is only an authorized
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<PAGE> 293
contractor with respect to those tasks for which such person or entity has been
approved by both parties and is an authorized contractor only in those SWBT
construction districts agreed to by both parties. Designation of an authorized
contractor for a specific category of tasks shall not be deemed to be the
designation of such person or entity as an authorized contractor for other
purposes, nor shall approval of an authorized contractor by one SWBT
construction district constitute approval of such authorized contractor for the
area served by a different SWBT construction district; provided, however, that
if a specific construction job extends beyond the boundaries of a single
construction district, an authorized contractor shall, for the purposes of that
job, be deemed to have been approved by all SWBT construction districts in which
the work is to be performed. If, by agreement of the parties or commission
order, Applicant has been approved as an authorized contractor, such approval
shall be noted by an addendum to this Agreement.
3.07 Available. When used with respect to pole, duct, conduit, and
right-of-way space, the term "available" refers to space that is not occupied or
assigned. In conduit systems owned or controlled by SWBT, maintenance ducts will
not be considered "available" for assignment. All other unassigned ducts, inner
ducts, sub-ducts, and partitioned conduits in a conduit system owned or
controlled by SWBT will be deemed available for assignment.
3.08 Cables. The term "cable" includes but is not limited to
twisted-pair copper, coaxial, and fiber optic cables. Cables are transmissions
media which may be attached to our placed in poles, ducts, conduits, and
rights-of-way but are not themselves poles, ducts, conduits, or rights-of-way.
Nothing contained in this Agreement shall be construed as a grant of access to
cables attached to SWBT's poles or placed in SWBT's ducts, conduits, or
rights-of-way.
3.09 Conduit. The term "conduit" refers to all SWBT conduits subject to
the Pole Attachment Act. In general, conduits are tubes or structures, usually
underground or on bridges, containing one or more ducts used to enclose cables,
wires, and associated transmission equipment. Except as the context otherwise
requires, the term "conduit" refers only to conduit owned or controlled by SWBT,
including the re-enterable manholes and handholes used to connect ducts and
provide access to cables, wires, and other facilities within the ducts. As used
in this Agreement, the term "conduit" refers only to conduit structures
(including ducts, manholes and handholes) and space within those structures and
does not include (a) cables and other telecommunications equipment located
within conduit structures or (b) central office vaults, controlled environment
vaults, or other SWBT structures (such as huts and cabinets) which branch off
from or are connected to SWBT's conduit.
3.10 Conduit occupancy. The term "conduit occupancy" refers to the
presence of wire, cable, optical conductors, or other equipment within any part
of SWBT's conduit system.
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3.11 Conduit system. The term "conduit system" refers to any
combination of ducts, conduits, manholes, and handholes joined to form an
integrated whole. As used in this Agreement, the term "conduit system" refers
only to conduit systems owned or controlled by SWBT and does not include (a)
cables and other telecommunications equipment located within conduit structures
or (b) central office vaults, controlled environment vaults, or other SWBT
structures (such as huts and cabinets) which branch off from or are connected to
SWBT's conduit.
3.12 Construction District. The term "construction district" refers to
the SWBT organization responsible for outside plant construction in a specified
geographic area. The term "construction district" connotes responsibility for
handling a function and not to the official name of the organization responsible
for outside plant construction matters.
3.13 Cost/Cost-based. The terms "cost" and "costs" refer to costs
determined in a manner consistent with the Pole Attachment Act and applicable
rules, regulations, and commission orders. The term "cost-based" refers to
rates, fees, and other charges which are based on costs and determined in a
manner consistent with the Pole Attachment Act and applicable rules,
regulations, and commission orders.
3.14 Duct. The term "duct" refers to all SWBT ducts subject to the Pole
Attachment Act. In general, a "duct" is a single enclosed tube, pipe, or channel
for enclosing and carrying cables, wires, and other equipment. As used in this
Agreement, the term "duct" includes "inner ducts" created by subdividing a duct
into smaller channels. Except as the context otherwise requires, the term "duct"
refers only to ducts owned or controlled by SWBT and space within those ducts
and does not include cables and other telecommunications equipment located
within such ducts.
3.15 Facilities. The terms "facility" and "facilities" refer to any
property, equipment, or items owned or controlled by any person or entity.
3.16 FCC. The acronym "FCC" refers to the Federal Communications
Commission.
3.17 First Interconnection Order. The term "First Interconnection
Order" refers to the First Report and Order adopted by the FCC on September 1,
1996, and released on September 8, 1996, in CC Docket No. 96-98, In the Matter
of Implementation of the Local Competition Provisions in the Telecommunications
Act of 1996 and CC Docket No. 95-185, In the Matter of Interconnection between
Local Exchange Carriers and Commercial Mobile Radio Service Providers. Access to
poles, ducts, conduits, and rights-of-way is addressed in the First
Interconnection Order in Paragraphs 1119-1240.
3.18 Handhole. The term "handhole" refers to a structure similar in
function to a manhole, but which is too small for personnel to enter. As used in
this Agreement, the term "handhole" refers only to handholes which are part of
SWBT's conduit system and does not refer to handholes which provide access to
buried cables not housed within
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SWBT ducts or conduits. As used in this Agreement, the term "handhole" refers
only to handhole structures owned or controlled by SWBT and does not include
cables and other telecommunications equipment located within handhole
structures.
3.19 Hazardous substances. The term "hazardous substances" refers to
hazardous and toxic substances, waste, pollutants, contaminants, and materials
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601(14), as amended, and other
federal, state, and local health, safety, and environmental laws, ordinances,
statutes, rules, and regulations applicable to sites subject to this Agreement,
including but not limited to the Occupational Safety and Health Act ("OSHA").
In general, the term "hazardous substances" refers to any substance the
presence, use, transport, abandonment or disposal of which (a) requires
investigation, remediation, compensation, fine, or penalty under health,
safety, and environmental laws, ordinances, statutes, rules, and regulations
applicable to sites subject to this Agreement or (b) poses risks to human
health, safety, or the environment and is regulated under any such laws,
ordinances, statutes, rules, and regulations. For the purposes of this
Agreement, the term "hazardous substances" shall also include petroleum,
natural gas, and other combustible or noxious liquids, gases, or solids which
may accumulate at sites subject to this Agreement.
3.20 Interconnection agreement. The term "interconnection agreement"
refers to the interconnection agreement, if any, to which this Agreement has
been made an appendix, attachment, or exhibit, or, as the context may require,
any other interconnection agreement between the parties.
3.21 Jacket. The term "jacket" refers to a single enclosed outer
covering containing communications wires, fibers, or other communications media.
As used in this Agreement, the term "jacket" refers to the outermost sheath or
jacket of a cable.
3.22 Joint user. The term "joint user" refers to any person or entity
which has entered or may enter into an agreement or arrangement with SWBT
permitting it to attach its facilities to SWBT's poles or place its facilities
in SWBT's ducts, conduits, or rights-of-way.
3.23 License. The term "license" refers to a written instrument
confirming that SWBT has granted the application of Applicant or a third party
for access to pole, duct, conduit, or right-of-way space and that, based on
Applicant's or such third party's representations (and SWBT's field inspection,
if any), it appears that no further facilities modification, capacity expansion
or make-ready work by SWBT is required before facilities described in the
application are installed in the space requested. The term "license" refers to
licenses issued by SWBT pursuant to this Agreement and may, if the context
requires, refer to licenses issued by SWBT before the date of this Agreement.
The parties' use of the term "license" in this Agreement shall not be construed
as conferring authority or discretion on SWBT's part to deny access to Applicant
in any manner inconsistent with the requirements of the Pole Attachment Act, the
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Telecommunications Act of 1996, and applicable rules, regulations, and
commission orders.
3.24 Local service provider ("LSP"). The terms "local service provider"
and "LSP" refer only to telecommunications carriers authorized by applicable
federal and state laws and regulations to provide local exchange service. As
used in this Agreement, these terms include SWBT.
3.25 Maintenance duct. The term "maintenance duct" generally refers to
a full-sized duct (typically three inches in diameter or larger) which may be
used, on a short-term basis, for maintenance, repair, or emergency restoration
activities. Maintenance ducts will be available, on a nondiscriminatory basis,
to all persons and entities (including SWBT, Applicant, other local service
providers, and other joint users) with facilities in the conduit section in
which the maintenance duct is located for (a) short-term emergency repairs as
provided in Article 15 of this Agreement and (b) short-term non-emergency
maintenance or repair activities as provided in Articles 12 and 13 of this
Agreement. No more than one full-sized duct within any given conduit section
will be designated by SWBT as the maintenance duct. In those locations where, on
the effective date of this Agreement, there is not a full-sized duct available
to be used as a maintenance duct, SWBT will designate an inner duct, if one is
available, as the maintenance duct although such inner duct may be too small to
accommodate some of the cables occupying the conduit section in which such inner
duct is located. The term "maintenance duct" does not include ducts and conduits
extending from a SWBT manhole to customer premises. Maintenance ducts will not
be considered "available" (as defined in Section 3.07) for assignment to SWBT,
Applicant, or joint users for purposes other than short-term uses contemplated
in this section; provided, however, that SWBT may assign the duct currently
designated as a maintenance duct if another suitable full-sized duct will be
made available to serve as a replacement maintenance duct and may assign an
inner duct currently designated as a maintenance duct if another inner duct will
be made available to serve as a replacement maintenance duct. Maintenance duct
designations may change from time to time and may or may not be reflected in
SWBT's outside plant records. When only one usable full-sized duct remains in a
conduit section, that duct shall be deemed to be the maintenance duct.
3.26 Make-ready work. The term "make-ready work" refers to all work
performed or to be performed to prepare SWBT's poles, ducts, conduits,
rights-of-way, and related facilities for the requested occupancy or attachment
of Applicant's facilities. Make-ready work does not include the actual
installation of Applicant's facilities. "Make-ready work" includes, but is not
limited to, clearing obstructions (e.g., by "rodding" ducts to ensure clear
passage), and rearranging, transferring, replacing, and removing existing
facilities on a pole or in a conduit system where such work is required to
accommodate Applicant's facilities (as contrasted with work performed on SWBT's
behalf in furtherance of SWBT's own business needs or convenience). "Make-ready
work" may require "dig-ups" of existing facilities and may include the repair,
enlargement or modification of SWBT's facilities (including, but not limited to,
poles,
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ducts, conduits, handholes, and manholes), consolidating services into fewer
cables, or the performance of other work required to make a pole, anchor, duct,
conduit, manhole, handhole, or right-of-way usable for the initial placement of
Applicant's facilities. As used in this Agreement, the term "make-ready work"
also includes associated planning and engineering work required to confirm or
determine the extent of make-ready work required and to plan make-ready
projects.
3.27 Manhole. The term "manhole" refers to an enclosure, usually below
ground level and entered through a hole on the surface covered with a cast iron,
cast aluminum, steel, or concrete manhole cover, which personnel may enter and
use for the purpose of installing, operating, and maintaining facilities in
ducts or conduits which are parts of SWBT's conduit system. As used in this
Agreement, the term "manhole" refers only to manhole structures owned or
controlled by SWBT and does not include cables and other telecommunications
equipment located within manhole structures.
3.28 Occupancy. The term "occupancy" refers to the presence of cables
or other facilities on a pole, in a duct or conduit, or within a right-of-way.
3.29 Overlashing. The term "overlashing" refers to the practice of
placing an additional cable or inner duct by lashing such cable or inner duct
with spinning wire over an existing cable and strand.
3.30 Person acting on Applicant's behalf. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms include both natural persons and firms and ventures of every type,
including, but not limited to, corporations, partnerships, limited liability
companies, sole proprietorships, and joint ventures. The terms "person acting on
Applicant's behalf," "personnel performing work on Applicant's behalf," and
similar terms specifically include, but are not limited to, Applicant, its
officers, directors, employees, agents, representatives, attorneys, contractors,
subcontractors, and other persons or entities performing services at the request
of or as directed by Applicant and their respective officers, directors,
employees, agents, and representatives. An authorized contractor selected by
Applicant to perform make-ready work shall be deemed to be a person acting on
Applicant's behalf while performing such work at Applicant's request.
3.31 Person acting on SWBT's behalf. The terms "person acting on SWBT's
behalf," "personnel performing work on SWBT's behalf," and similar terms include
both natural persons and firms and ventures of every type, including but not
limited to corporations, partnerships, limited liability companies, sole
proprietorships, and joint ventures. The terms "person acting on SWBT's behalf,"
"personnel performing work on SWBT's behalf," and similar terms specifically
include, but are not limited to, SWBT, its officers, directors, employees,
agents, representatives, attorneys, contractors, subcontractors, and other
persons or entities performing services at the request of or as directed by SWBT
and their respective officers, directors, employees, agents, and
representatives. An authorized contractor selected by SWBT to perform make-ready
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work shall be deemed to be a person acting on SWBT's behalf while performing
such work at SWBT's request.
3.32 Pole. The term "pole" refers to all SWBT poles subject to the Pole
Attachment Act. Except as the context otherwise requires, the term "pole" refers
only to poles (and associated anchors) which are owned or controlled by SWBT and
does not include cables and other telecommunications equipment attached to pole
structures.
3.33 Pole Attachment. As defined in the Pole Attachment Act, 47 U.S.C.
Section 224(a)(4), the term "pole attachment" refers to "any attachment by a
cable television system or provider of telecommunications service to a pole,
duct, conduit, or right-of-way owned or controlled by a utility." In this
Agreement, except as the context otherwise requires, the term "pole attachment"
refers to any attachment by a cable television system or provider of
telecommunications service to a pole (and associated anchors) owned or
controlled by SWBT. The term "pole attachment" includes all such facilities
attached to or supported by a SWBT pole, including but not limited to cables,
risers and U-guards, equipment boxes, drop wires, anchors, bolts, clamps, drive
rings, guys, hooks, strands, and other hardware affixed to the pole. Groupings
of associated pole attachments for billing purposes shall be consistent with
the Pole Attachment Act and applicable rules, regulations, and commission
orders. Except as otherwise authorized by applicable FCC rules, regulations, or
orders, Applicant's pole attachments occupying the same usable space (or
otherwise associated with facilities occupying the same usable space on a pole)
shall be treated as a single attachment for billing purposes.
3.34 Pole Attachment Act. The term "Pole Attachment Act" refers to
those provisions of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, now codified as 47 U.S.C. Section 224, as those
provisions may be amended from time to time.
3.35 Pre-license survey. The term "pre-license survey" refers to work
and activities performed or to be performed by SWBT or by persons acting on
SWBT's behalf for the primary purpose of:
(a) confirming or determining the existing availability and
capacity of a pole, duct, conduit, or right-of-way and
identifying capacity, safety, reliability, or engineering
concerns, if any, relating to Applicant's application;
(b) confirming or determining the extent, if any, to which
modifications to SWBT's poles, ducts, conduits, or
right-of-ways are required to accommodate Applicant's
facilities;
(c) confirming or determining what make-ready work, if any, will
be required to prepare SWBT's poles, ducts, conduits, or
rights-of-way to accommodate Applicant's facilities; and
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(d) estimating the costs, if any, that Applicant will be
required to pay for any such facilities modification,
capacity expansion, or make-ready work.
3.36 Pre-occupancy survey. The term "pre-occupancy survey" refers to
work and activities performed or to be performed by Applicant or persons acting
on Applicant's behalf for the primary purpose of enabling Applicant to
determine:
(a) whether SWBT's poles, ducts, conduits, or rights-of-way, in
their existing condition, are suitable for Applicant's
intended use;
(b) the extent, if any, to which modifications of SWBT's poles,
ducts, conduits, or rights-of-way will be proposed by
Applicant to expand the capacity of SWBT's poles, ducts,
conduits, or rights-of-way to accommodate Applicant's
facilities; and
(c) what other capacity expansion or make-ready work, if any,
will be proposed by Applicant to prepare SWBT's poles,
ducts, conduits, and rights-of-way to accommodate
Applicant's facilities.
3.37 Primary point of contact. The term "primary point of contact"
refers to the persons designated by Applicant and SWBT, respectively, to
coordinate arrangements for Applicant's access to SWBT's poles, ducts, conduits,
and rights-of-way and records relating to such poles, ducts, conduits, and
rights-of-way. SWBT's designated primary point of contact shall be the Utility
Liaison Supervisor unless the parties have arranged for that function to be
performed by a designated account representative who will serve as an
intermediary between Applicant and the Utility Liaison Supervisor.
3.38 Rights-of-way. The term "rights-of-way" refers to all SWBT
rights-of-way subject to the Pole Attachment Act. In general, rights-of-way are
legal rights to pass over or through property of another party for limited
purposes as defined in a statute, ordinance, easement, grant or other
conveyance. Rights-of-way include but are not limited to (a) public
rights-of-way which SWBT may occupy as permitted by law for the placement of its
facilities (e.g., rights-of-way on, under, or over streets, highways, and other
public roads) and (b) easements or servitudes granted by property owners or
obtained through the exercise of eminent domain authority authorizing SWBT to
pass over, place facilities on, and have rights of ingress and egress to the
property of such property owners. Rights-of-way may also include easements
which, at the time of land development or subdivision, were dedicated for use by
public or private utilities and are being occupied, in whole or in part, by
SWBT's facilities. Except as the context otherwise requires, the term
"rights-of-way" as used in this Agreement refers only to rights-of-way owned or
controlled by SWBT and does not include (a) cables and other telecommunications
equipment buried or located on such rights-of-way, (b) public rights of way
(which are owned by and subject to the control of governmental entities), or (c)
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any space which is owned and controlled by a third-party property owner and
occupied by SWBT with permission from such owner rather than as a matter of
legal right. As used in this Agreement, the term "right-of-way" may also include
certain fee-owned or leased property acquired by SWBT for the specific purpose
of installing poles, ducts, or conduits or burying underground cables which are
part of SWBT's network distribution facilities.
3.39 Sheath. The term "sheath" refers to an enclosed covering
containing communications wires, fibers, or other communications media. A cable
may include both inner and outer sheaths.
3.40 Spinning. The term "spinning" refers to a method of attaching a
cable or inner duct to a supporting strand. "Spinning" is sometimes referred to
as "lashing."
3.41 State. When capitalized, the term "State" (as used in terms such
as "this State") refers to the State of Kansas.
3.42 State Commission. The term "State Commission" refers to the
Kansas Corporation Commission.
3.43 Strand. The term "strand" refers to support wires, typically
stranded together, or other devices attached to a pole and connecting that pole
to an anchor or to another pole for the purpose of increasing pole stability or
supporting wires, cables, and associated facilities. The term "strand" includes,
but is not limited to, strands sometimes referred to as "anchor strands,"
"anchor/guy strands," "down guys," "guy strands," "pole-to-pole guys," and
"messengers."
3.44 Telecommunications Act of 1996. The term "Telecommunications Act
of 1996" refers to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56, enacted February 8, 1996.
3.45 Third party. The terms "third party" and "third parties" refer to
persons and entities other than the parties to this Agreement (that is, persons
and entities other than Applicant and SWBT).
3.46 Utility Liaison Supervisor ("ULS"). The terms "Utility Liaison
Supervisor" and "ULS" refer to the person or persons designated by SWBT to be
responsible for handling and processing requests for access to SWBT's poles,
ducts, conduits, and rights-of-way in this State. The term "ULS" connotes
responsibility for handling a function and is not a job title. Except as
otherwise specifically provided in this Agreement or in the parties'
interconnection agreement, if any, the ULS shall serve as Applicant's single
point of contact for arranging access to SWBT's poles, ducts, conduits, and
rights-of-way and access to SWBT's records relating to SWBT's poles, ducts,
conduits, and rights-of-way. The Utility Liaison Supervisor for this State is
identified in APPENDIX VIII.
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3.47 Vault. The term "vault" includes central office and controlled
environment vaults ("CEVs"). Vaults may be connected to, but are not considered
part of, SWBT's conduit system. Access, if any, to vaults (and to ducts,
conduits, and risers which serve no purpose other than to provide a means of
entry to and exit from such vaults) shall be governed by the tariffs,
agreements, or commission orders, if any, establishing arrangements for
interconnection, collocation, and access to unbundled network elements, and not
by this Agreement.
3.48 "Vicinity of ...". When used in terms such as "vicinity of SWBT's
conduit system," "vicinity of SWBT's poles," "vicinity of SWBT's rights-of-way,"
or "vicinity of SWBT's poles, ducts, conduits, or rights-of-way," the term
"vicinity of ..." includes sites on, within, near to, surrounding, or adjoining
SWBT's poles, ducts, conduits, and rights-of-way. These sites include, but are
not limited to, all sites within a distance of 10 feet of any SWBT pole, duct,
conduit, or right-of-way.
ARTICLE 4: NATURE AND SCOPE OF AGREEMENT
4.01 Scope of Agreement. This Agreement establishes the rates, terms,
conditions, and procedures for access to SWBT's poles, ducts, conduits, and
rights-of-way located within this State, without regard to whether such poles,
ducts, conduits, or rights-of-way are located on public or private property;
provided, however, that nothing contained in this Agreement shall be construed
as a grant of access to any facilities which are not poles, ducts, conduits, or
rights-of-way subject to the Pole Attachment Act or to any poles, ducts,
conduits, rights-of-way, facilities, or property owned and controlled by parties
other than SWBT. Separate tariffs or agreements, including other portions of the
parties' interconnection agreement, and not this Agreement, shall govern
Applicant's access, if any, to the following facilities which require special
security, technical, and construction arrangements outside the scope of this
Agreement:
(a) SWBT's central office vaults and ducts and conduits which
serve no purpose other than to provide a means of entry to
and exit from SWBT's central offices;
(b) controlled environment vaults (CEVs), huts, cabinets, and
other similar outside plant structures and ducts and
conduits which serve no purpose other than to provide a
means of entry to and exit from such vaults, huts, cabinets,
and structures;
(c) ducts and conduits located within buildings owned by SWBT; and
(d) ducts, conduits, equipment rooms, and similar spaces located
in space leased by SWBT from third-party property owners for
purposes other than to house cables and other equipment in
active service as part of SWBT's network distribution
operations.
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4.02 No Transfer of Property Rights to Applicant. Nothing contained in
this Agreement or any license subject to this Agreement shall create or vest (or
be construed as creating or vesting) in either party any right, title, or
interest in or to any real or personal property owned by the other. The payment
of fees and charges as provided by this Agreement and licenses subject to this
Agreement shall not create or vest (or be construed as creating or vesting) in
either party any right, title, or interest in or to any real or personal
property owned by the other. No use, however extended, of SWBT's poles, ducts,
conduits, or rights-of-way shall create or vest (or be construed as creating or
vesting) in Applicant any right, title, or interest in or to any real or
personal property owned by SWBT, and the placement of Applicant's facilities on
or in SWBT's poles, ducts, conduits and rights-of-way shall not create or vest
in SWBT any right, title, or interest in such facilities.
4.03 No Effect on SWBT's Right to Abandon, Convey or Transfer Poles,
Ducts, Conduits, or Rights-of-Way. Except as provided in subsections (a)-(d) of
this section, nothing contained in this Agreement or any license subject to this
Agreement shall in any way affect SWBT's right to abandon, convey, or transfer
to any other person or entity SWBT's interest in any of SWBT's poles, ducts,
conduits, or rights-of-way.
(a) SWBT shall give Applicant no less than 60 days written
notice prior to abandoning, conveying, or transferring any
pole, duct, conduit, or right-of-way (1) to or in which
Applicant has attached or placed facilities pursuant to this
Agreement or (2) with respect to which Applicant has been
assigned pole attachment or conduit occupancy space. The
notice shall identify the transferee, if any, to whom any
such pole, duct, conduit, or right-of-way is to be conveyed
or transferred.
(b) SWBT represents that prior to the effective date of this
Agreement, and prior to enactment of the Telecommunications
Act of 1996, SWBT entered into one or more "joint use pole
agreements" with electric utilities located in this State
and that such agreements may require SWBT to transfer or
convey poles to such electric utilities from time to time.
Nothing contained in this Agreement shall abridge the rights
of SWBT or any electric utility under any contract executed
prior to the effective date of this Agreement. In the event
of any transfer or conveyance of poles to an electric
utility pursuant to such a joint pole agreement, SWBT will,
at Applicant's request, provide Applicant and the transferee
utility with such information as may be necessary to
minimize any burdens to Applicant which may arise out of or
in connection with the transfer or conveyance.
(c) Transfers of SWBT's poles, ducts, conduits, and
rights-of-way shall be subject to Applicant's rights at the
time of transfer. Applicant shall, at the request of SWBT or
the transferee, provide SWBT or the transferee with all
information required to assess Applicant's rights,
post-transfer
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intentions with respect to continued occupancy, and
willingness to negotiate new rates, terms, and conditions of
access. Applicant shall not unreasonably refuse to negotiate
with the transferee. If the transferee itself is a local
exchange carrier or other utility subject to the Pole
Attachment Act, Applicant shall, at the request of the
transferee, negotiate in good faith new rates, terms, and
conditions of access.
(d) Transfers or conveyances of poles, ducts, conduits, or
rights-of-way to any entity controlling, controlled by, or
under common control with SWBT or to any entity which
acquires or succeeds to ownership of substantially all of
SWBT's assets shall be subject to Applicant's rights under
this Agreement and licenses subject to this Agreement.
4.04 No Effect on SWBT's Rights to Manage its Poles, Ducts, Conduits,
and Rights-of-Way. Subject to Applicant's rights under this Agreement and
applicable federal and state laws, rules, regulations, and commission orders,
including, but not limited to, 47 C.F.R. Section 1.1403 (requiring 60 days'
notice of contemplated modifications), SWBT may (a) locate, relocate, move,
replace, modify, maintain, and remove all poles, ducts, conduits, and
rights-of-way subject to this Agreement at any time and in any manner as SWBT
deems appropriate and (b) enter into new agreements or arrangements with other
persons or entities permitting them to attach facilities to SWBT's poles or
place facilities in or on SWBT's ducts, conduits, or rights-of-way.
4.05 No Right to Interfere. Except to the extent expressly provided by
the provisions of this Agreement, the provisions of this Agreement shall not be
construed as authorizing either party to this Agreement, or persons acting on
their behalf, to rearrange or interfere in any way with (a) the facilities of
the other party or joint users, (b) the use of or access to such facilities by
the other party or joint users, or (c) the ability of either party or joint
users to conduct normal business operations, serve their respective customers,
or avail themselves of new business opportunities.
4.06 Required Franchises, Permits, Certificates, and Licenses. This
Agreement shall not be construed as relieving either party from any obligations
it may have to obtain legal authority to construct, operate, maintain, repair,
and remove its facilities on public or private property (including but not
limited to any required franchises, permits, certificates, licenses, easements,
or the like) from all appropriate public authorities and private persons or
entities.
4.07 DISCLAIMER OF WARRANTIES. SWBT MAKES NO REPRESENTATIONS THAT
SWBT'S POLES, DUCTS, CONDUITS, OR RIGHTS-OF-WAY ARE SUITABLE FOR APPLICANT'S
INTENDED USES. SWBT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN THIS AGREEMENT, SWBT MAKES NO IMPLIED
WARRANTIES OF ANY KIND.
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4.08 Third-party Beneficiaries. Except as may be specifically set forth
in this Agreement, this Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
ARTICLE 5: ACCESS TO RIGHTS-OF-WAY
5.01 Public Rights-of-Way. SWBT and Applicant agree that neither party
has the right to restrict or interfere with the other party's lawful access to
and use of public rights-of-way, including public rights-of-way which pass over
property owned by either party. Except as otherwise specifically provided in
this Agreement, SWBT and Applicant shall each be responsible for obtaining their
own rights-of-way and permission to use real or personal property owned or
controlled by any governmental body.
5.02 Private Rights-of-Way Not Owned or Controlled by Either Party.
SWBT and Applicant agree that neither party shall restrict or interfere with the
other party's access to or right to occupy property owned by third-parties which
is not subject to the other party's control, including property as to which
either party has access subject to non-exclusive rights-of-way. Subject to the
procedures set forth in Section 5.04 below, each party shall make its own,
independent legal assessment of its right to enter upon or use the property of
third-party property owners and shall bear all expenses, including legal
expenses, involved in making such determinations.
5.03 Access to Rights-of-Way Generally. Each pole attachment and
conduit occupancy assignment or license made, issued, or subject to this
Agreement shall include access to and use of all associated rights-of-way
including, but not limited to, rights-of-way required by Applicant for ingress,
egress, or other access to any sites where SWBT's poles or any part of SWBT's
conduit system are located, but only to the extent, if any, that SWBT has the
legal authority to grant such access and use. At locations where SWBT has access
to third-party property pursuant to non-exclusive rights-of-way, SWBT shall not
interfere with Applicant's negotiations with third-party property owners for
similar access or with Applicant's access to such property pursuant to easements
or other rights-of-ways obtained by Applicant from the property owner; provided,
however, that neither party shall conduct activities on such right-of-way which
interfere with the facilities of the other party or with the other party's
access to and use of its own facilities. At locations where SWBT has obtained
exclusive rights-of-way from third-party property owners or otherwise controls
the right-of-way, SWBT shall, to the extent space is available, and subject to
reasonable safety, reliability, and engineering conditions, provide access to
Applicant and third parties on a nondiscriminatory, first-come, first-served
basis, provided that the underlying agreement with the property owner permits
SWBT to provide such access, and provided further that Applicant agrees to
indemnify, on request defend, and hold SWBT harmless from any injury, loss,
damage, claim, or liability arising out of or in connection with such access or
use. Such access shall be granted, on a case-by-case basis, in the form of a
license, sublicense, sub-easement, or other mutually acceptable writing.
Except as otherwise agreed to by the parties, SWBT's
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charges for such access (obtained from SWBT rather than from the third-party
property owner) shall include (a) a pro rata portion of the charges (including
but not limited to one-time charges and recurring charges), if any, paid by SWBT
to obtain the right-of-way plus (b) any other documented legal, administrative,
and engineering costs incurred by SWBT in obtaining the right-of-way and
processing Applicant's request for access. Applicant's pro rata portion of the
charge paid by SWBT shall be negotiated on a case-by-case basis and shall take
into account the size of the area used by Applicant and the number of users
occupying the right-of-way.
5.04 Special Procedures for Obtaining Access to Third-party Property.
Although SWBT will afford access to rights-of-way owned or controlled by it and
permit Applicant to utilize SWBT's rights-of-way to the extent that SWBT has
legal authority to do so, Applicant acknowledges that SWBT may not own or
control certain rights-of-way to the extent necessary to permit Applicant full
access to such rights-of-way. The following general principles shall be applied
with respect to access to rights-of-way on third-party property in those
situations in which SWBT does not have authority to permit Applicant access or
either party has a good faith belief that SWBT does not have such authority:
(a) Applicant will first attempt to obtain right-of-way directly
from the property owner.
(b) If Applicant has the right of eminent domain under state
law, Applicant will independently attempt to obtain the
right-of-way it seeks through the exercise of that right.
(c) If Applicant is unable to obtain access to a right-of-way
under subsections (a) or (b) above, Applicant may request in
writing that SWBT exercise its right of eminent domain to
condemn the right-of-way for Applicant's use and SWBT will
respond to Applicant's written request within 45 days. SWBT
will exercise its right of eminent domain on Applicant's
behalf only if permitted to do so under applicable state
law, and only if Applicant agrees to bear all costs and
expenses, including but not limited to legal fees, arising
out of or in connection with the condemnation proceedings.
5.05 Access to Rights-of-Way Incident to the Use of CEVs and Similar
Structures. SWBT will provide Applicant nondiscriminatory access, consistent
with the requirements of the Pole Attachment Act and Telecommunications Act of
1996, and as provided in Sections 5.03 and 5.04 above, to rights-of-way
containing Controlled Environment Vaults (CEVs), huts, cabinets, and other
similar structures. SWBT will place no restrictions on access to such
rights-of-way that are more restrictive than those SWBT places on itself;
provided, however, that neither party shall conduct activities on such
rights-of-way which interfere with the facilities of the other party, with the
privacy of communications carried over the other party's network, or with the
other party's access to and use of its own facilities. This section relates only
to access to rights-of-way and
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shall not be construed as granting access to the CEVs, huts, cabinets, and
similar structures located on such rights-of-way. Access, if any, to CEVs, huts,
cabinets, and similar structures, and to ducts, conduits, and risers which serve
no purpose other than to provide a means of entering or exiting such structures,
shall be governed by the tariff, agreement, or order, if any, granting Applicant
access to such structures.
5.06 Access to Building Entrance Facilities, Building Distribution
Facilities, and Equipment Rooms. The parties acknowledge that ownership and
control of building entrance and distribution ducts, building entrance and
distribution conduits, building entrance and building distribution space,
equipment rooms, equipment closets, mechanical rooms, telephone communications
rooms, and similar spaces will vary from location to location and that the
respective rights of third-party property owners, tenants in buildings owned by
third-party property owners, telecommunications carriers, cable television
systems, and other providers of telecommunications services with respect to such
ducts, conduits, and spaces must be determined on a case-by-case basis. Each
party shall, when feasible, directly obtain from third-party property owners
such access to building entrance and building distribution ducts, building
entrance and building distribution conduits, building entrance and distribution
space, equipment rooms, equipment closets, mechanical rooms, telephone
communications rooms, and other similar areas as may be needed by such party to
serve the building owner and tenants located within buildings owned by third
parties or to access other space in the building occupied or to be occupied by
such party. In those situations in which Applicant cannot obtain from the
building owner access on terms satisfactory to Applicant, Applicant may request
access from SWBT as provided in Sections 5.03-5.04 of this Agreement; provided,
however, that a separate, building-specific notice of intent to occupy under
Section 8.02(b) or license application under Section 9.02, including such
additional information as may be necessary to identify the space to be occupied
and the facilities to be placed in such space, shall be required for access to
the facilities and space subject to this section. Any such notice or application
shall conspicuously note on its face that access to building entrance or
building distribution facilities or space is being sought. Applicant
acknowledges that SWBT must, before providing access to building space and
facilities located on or within third-party property, review applicable legal
documents and physical arrangements relating to the property, including physical
arrangements within the building. Upon completion of that review, SWBT will
notify Applicant whether Applicant's request can be granted under this
Agreement, will require access arrangements under a tariff or other applicable
agreement, or will require other special handling (e.g., direct negotiations
with the third-party property owner). Pending such notice, Applicant may not
occupy any duct, conduit, or space subject to this section pursuant to Section
8.03 without SWBT's express written consent but may exercise occupancy rights
obtained directly from the building owner. If SWBT has lawful authority to
provide such access and is required by the Pole Attachment Act to do so, SWBT
shall provide Applicant access under this Agreement. Such access shall be
negotiated on a case-by-case basis taking into account any special legal,
technical, security, or construction considerations applicable to the ducts,
conduits, or space which Applicant seeks to access. Such access, when provided,
shall only include access to
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ducts, conduits, and available space (as distinguished from access to cables and
other equipment not subject to the Pole Attachment Act). Such access shall be
subject to such reasonable terms and conditions as may be appropriate to protect
the equipment and other property of the parties and third parties, the
reliability of the parties' networks and the networks of third parties, and the
privacy of communications carried over the parties' networks and networks of
third parties.
(a) Applicant's access, if any, to building entrance ducts and
building entrance conduits entering SWBT-owned buildings
(including but not limited to central offices) and access,
if any, to other building entrance and building distribution
facilities and space located within such buildings shall be
arranged under and shall be subject to tariffs, agreements,
and, if applicable, commission or court orders establishing
such access rights rather than this Agreement.
(b) Applicant's access to and use of building entrance ducts,
building entrance conduits, building entrance space, and
other building entrance facilities owned and controlled by
third-parties shall be obtained by Applicant through direct
negotiations between Applicant and the third-party property
owners who own and control access to such facilities. If
SWBT owns a building entrance duct, building entrance
conduit, or other building entrance space, or if SWBT has
sufficient control over a building entrance duct, building
entrance conduit, or other building entrance space to permit
other telecommunications carriers or cable television
systems to have access to such ducts, conduits, or space
without approval or consent from the third-party property
owner, SWBT shall, if adequate capacity is available, and
subject to reasonable safety, reliability, and engineering
conditions, provide access to Applicant and other
telecommunications carriers and cable television systems on
a nondiscriminatory, first-come, first-served basis;
provided, however, that Applicant agrees to indemnify, on
request defend, and hold SWBT harmless from any injury,
loss, damage, claim or liability arising out of or in
connection with Applicant's access to or use of such
building entrance ducts, building entrance conduits, or
other building entrance space. Such access shall be granted,
on a case-by-case basis, in the form of a license,
sublicense, easement, sub-easement, or other mutually
acceptable writing and shall not include access to or the
right to use SWBT's cables or other SWBT telecommunications
equipment occupying such ducts, conduits, or space. Except
as otherwise agreed to by the parties, SWBT's charge for
such access (obtained from SWBT rather than from the
third-party property owner) shall include (1) a pro rata
portion of all charges (including but not limited to
one-time charges and recurring charges), if any, paid by
SWBT to obtain the building entrance duct, building entrance
conduit, or building entrance space and (2) any other
documented legal, administrative, engineering costs and
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construction costs incurred by SWBT to obtain such duct,
conduit, or space, process Applicant's request for access,
or prepare the facilities for Applicant's occupancy or use.
SWBT's charges to Applicant under this subsection shall be
calculated and negotiated on a case-by-case basis.
(c) Applicant's access to and use of building distribution
ducts, building distribution conduits, building distribution
space, and other building distribution facilities owned and
controlled by third-parties shall be obtained by Applicant
through direct negotiations between Applicant and the
third-party property owners who own and control access to
such facilities. If SWBT owns a building distribution duct,
building distribution conduit, or other building
distribution space, or if SWBT has sufficient control over a
building distribution duct, building distribution conduit,
or other building distribution space to permit other
telecommunications carriers or cable television systems to
have access to such duct, conduit, or space without approval
or consent from the third-party property owner, SWBT shall,
if adequate capacity is available, and subject to reasonable
safety, reliability, and engineering conditions, provide
access to Applicant and other telecommunications carriers
and cable television systems on a nondiscriminatory,
first-come, first-served basis; provided, however, that
Applicant agrees to indemnify, on request defend, and hold
SWBT harmless from any injury, loss, damage, claim or
liability arising out of or in connection with Applicant's
access to or use of such building distribution ducts,
building distribution conduits, or other building
distribution space. Such access shall be granted, on a
case-by-case basis, in the form of a license, sublicense,
easement, sub-easement, or other mutually acceptable writing
and shall not include access to or the right to use SWBT's
cables or other SWBT telecommunications equipment occupying
such ducts, conduits, or space. Except as otherwise agreed
to by the parties, SWBT's charges for such access (obtained
from SWBT rather than from the third-party property owner)
shall include (1) a pro rata portion of all charges
(including but not limited to one-time charges and recurring
charges) paid by SWBT to obtain the building distribution
duct, building distribution conduit, or building
distribution space and (2) any other documented legal,
administrative, engineering costs and construction costs
incurred by SWBT to obtain such duct, conduit, or space,
process Applicant's request for access, or prepare the
facilities for Applicant's occupancy or use. SWBT's charges
to Applicant under this subsection shall be calculated and
negotiated on a case-by-case basis.
(d) Access to equipment rooms, equipment closets, mechanical
rooms, telephone communications rooms, and similar areas
located in buildings owned and controlled by third-parties
shall be subject to access as provided in subsection (c);
provided, however, that when any such room
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or space is leased to SWBT on an exclusive basis (as may be
the case if the room or space will be used to house remote
switching equipment, pair gain equipment, or other network
equipment used to provide or support telecommunications
services to customers at locations outside the building in
which such room is located), access, if any, shall be also
subject to facilities collocation tariffs, agreements, or
arrangements.
(e) Nothing contained in this section shall be construed as
authorizing Applicant to occupy space owned or controlled by
third parties or to utilize third-party facilities or
property without permission or authority from the owner of
such property, where such permission or authority is
required. Neither this section nor any license or permission
granted under or subject to this section shall be construed
as a representation by SWBT to Applicant that Applicant has
the right to have access to or occupy any duct, conduit, or
space owned and controlled by a third-party property owner
or to utilize any telecommunications equipment owned or
controlled by SWBT or any third party (including but not
limited to owner- or tenant-owned cables, wires, and
equipment located on the customer side of any network
interface device).
(f) If Applicant has been granted access to a building entrance
or building distribution duct, conduit, or space pursuant to
this section, Applicant shall, at SWBT's request, relinquish
such access to SWBT if it is subsequently determined that
Applicant's use of such space will preclude SWBT from
meeting carrier- or provider-of-last-resort obligations to
customers on the premises affected.
ARTICLE 6: SPECIFICATIONS
6.01 Compliance with Requirements, Specifications, and Standards.
Applicant agrees that Applicant's facilities attached to SWBT's poles or
occupying space in SWBT's ducts, conduits, and rights-of-way shall be attached,
placed, constructed, maintained, repaired, and removed in full compliance with
the requirements, specifications, and standards specified in this Agreement.
6.02 Design to Minimize the Need for Access to SWBT's Poles, Ducts, and
Conduits. The parties shall each design their facilities to minimize the need
for the parties to access SWBT's poles, ducts, and conduits.
6.03 Infrequent Construction Techniques and Connectivity Solutions.
Unless precluded by documented engineering criteria or written guidelines SWBT
applied to itself as of January 1, 1996, and consistent with considerations of
safety, reliability, and sound engineering practice, SWBT will permit Applicant
at its own expense to utilize the following techniques to avoid high or unusual
expenditures: (a) placement of pole attachments on both the "field" side and
"road" side of a pole; (b) placement of extension
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arms or stand-off brackets on poles; and (c) building conduit branches into
SWBT's conduit systems. Applicant acknowledges that use of the above techniques
will be rare, will be permitted only on a case-by-case basis, and must be
performed in a manner which does not jeopardize the structural integrity of
SWBT's facilities, the safety of personnel working on or in SWBT's poles, ducts,
or conduits, and does not render unusable other available space on the pole or
in the duct or conduit. Except as otherwise agreed to by the parties in writing,
extension arms or stand-off brackets, if utilized, shall be installed as
make-ready work in accordance with SWBT's specifications and at Applicant's
expense. Once installed, extension arms and stand-off brackets shall become part
of the pole and shall be owned by SWBT. Unused capacity on any such extension
arms or stand-off brackets shall be deemed "available" (as defined in Section
3.07) for assignment.
6.04 Published Standards. SWBT and Applicant agree that the following
standards equally apply to either party with respect to facilities attached to
or placed in SWBT's poles, ducts, conduits, and rights-of-way and further agree
that facilities shall be placed, constructed, maintained, repaired, and removed
in accordance with current (as of the date when such work is performed) editions
of the following publications:
(a) the Blue Book Manual of Construction Procedures, Special
Report SR-TAP-001421, published by Bell Communications
Research, Inc. ("Bellcore"), and sometimes referred to as the
"Blue Book";
(b) the National Electrical Safety Code ("NESC"), published by
the Institute of Electrical and Electronic Engineers, Inc.
("IEEE"); and
(c) the National Electrical Code ("NEC"), published by the
National Fire Protection Association ("NFPA").
6.05 Additional Electrical Design Specifications: Conduit. The parties
agree that, in addition to the specifications and requirements referred to in
Sections 6.01-6.04 above, facilities placed in SWBT's conduit system after the
effective date of this Agreement shall meet the electrical design specifications
set forth in this section.
(a) No facilities shall be placed in SWBT's conduit system in
violation of FCC regulations, including regulations relating
to electrical interference. In addition, neither party shall
place any facility in SWBT's conduit system which causes or
may cause electrical interference with the facilities of the
other party or joint users sufficient to jeopardize network
integrity or degrade the quality of any communications
services offered by either party or a joint user. If either
party is notified by the other party or a joint user that
its facilities are causing, or have the potential to cause,
unacceptable levels of electrical interference, the party
notified shall either correct the problem, remove the
facility, or initiate good faith negotiations with the
complaining party or joint user to resolve the issue.
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(b) Facilities placed in SWBT's conduit system shall not be
designed to use the earth as the sole conductor for any part
of the circuits.
(c) Facilities placed in SWBT's conduit system and carrying more
than 50 volts AC (rms) to ground or 135 volts DC to ground
shall be enclosed in an effectively grounded sheath or
shield.
(d) No coaxial cable shall be placed in SWBT's conduit system
unless such cable meets the voltage limitations of Article
820 of the National Electrical Code.
(e) Coaxial cable placed in SWBT's conduit system may carry
continuous DC voltages up to 1800 volts to ground where the
conductor current will not exceed one-half ampere and where
such cable has two separate grounded metal sheaths or
shields and a suitable insulating jacket over the outer
sheath or shield. The power supply shall be so designed and
maintained that the total current carried over the outer
sheath shall not exceed 200 microamperes under normal
conditions. Conditions which would increase the current over
this level shall be cleared promptly.
(f) The integrity of SWBT's conduit system and overall safety of
personnel require that "dielectric cable" be used within
SWBT's conduit system when a cable facility utilizes a duct
or route shared in the same trench by any electric
transmission facilities such as the facilities of a power
utility.
6.06 Additional Physical Design Specifications: Conduit. Facilities
placed in SWBT's conduit system following the effective date of this Agreement
shall meet all of the following physical design specifications:
(a) Except as otherwise specifically agreed in this Agreement or
licenses subject to this Agreement, Applicant's facilities
shall enter SWBT's conduit system at locations consistent
with the physical design specifications that SWBT applies to
itself (typically through a manhole) or at such other
designated locations agreed upon in writing (e.g., through
the licensing process) by the parties in accordance with
Section 6.03 (infrequent construction techniques and
connectivity solutions).
(b) Cables bound or wrapped with cloth or having any kind of
fibrous coverings or impregnated with an adhesive material
shall not be placed in SWBT's conduit or ducts.
(c) Neither party shall circumvent the corrosion mitigation
measures of the other party or joint users.
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(d) New construction splices in cables (including but not
limited to fiber optic and twisted pair cables) shall be
located in manholes, pull boxes or handholes.
6.07 Efficient Use of Conduit. To ensure efficient use of conduits,
SWBT will, when cable diameters permit, install inner ducts in multiples that
fully utilize duct space (typically three or four inner ducts in a full
four-inch duct) as needed for SWBT's own business purposes and to accommodate
Applicant and other joint users; provided, however, that SWBT will not be
required to install inner duct in advance of need or in anticipation of
potential future requests for access by Applicant and other joint users. In
addition, the parties shall, in accordance with SWBT's duct selection standards,
install cables in inner duct when cable diameters permit.
6.08 Specifications Applicable to Connections: Conduit. Except as
otherwise specifically agreed in this Agreement or licenses subject to this
Agreement, or as mutually agreed upon by the parties in writing, the following
specifications apply to connections of Applicant's ducts and conduits to SWBT's
conduit system:
(a) Applicant shall not bore, make, or enlarge any hole in, or
otherwise structurally modify or alter any manhole,
handhole, duct, conduit, or other facility which is part of
SWBT's conduit system except as provided in this Agreement,
in licenses subject to this Agreement, or as mutually agreed
upon by the parties in writing.
(b) Nothing contained in subsection (a) shall be construed as
precluding Applicant or qualified personnel acting on
Applicant's behalf from reattaching cable racks or
performing similar routine work which is minor in nature and
associated with the placement and splicing of Applicant's
cable.
(c) Where Applicant's duct or facility physically connects with
SWBT's conduit system, the section of Applicant's duct or
facility which connects to SWBT's conduit system shall be
installed by SWBT or its contractor at Applicant's expense
(which will be SWBT's actual costs or the price charged SWBT
by the contractor performing such work). SWBT will perform
this work in an interval consistent with the intervals SWBT
performs the same or similar types of work for itself. If
SWBT's interval for beginning or completing this work does
not meet Applicant's needs, Applicant may arrange for the
work to be performed by an authorized contractor selected by
Applicant from a list, jointly developed by Applicant and
SWBT, of mutually agreed contractors qualified to perform
such work. Work performed by an authorized contractor
selected by Applicant to perform work under this subsection
shall be performed in accordance with both parties'
specifications and in accordance with both parties'
standards and practices. Each party shall
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indemnify, on request defend, and hold the other party
harmless from any injuries, losses, damages, claims, or
liabilities resulting from the performance of work by the
indemnifying party or by persons acting on the indemnifying
party's behalf under this subsection.
(d) SWBT will have the option to monitor the entrance and exit
of Applicant's facilities into SWBT's conduit system and the
physical placement of Applicant's facilities in and removal
of such facilities from any part of SWBT's conduit system.
Notice requirements for such monitoring are addressed in
Section 6.11 of this Agreement.
(e) If Applicant constructs or utilizes a duct (other than a
duct owned or controlled by SWBT) which is connected to
SWBT's conduit system, the duct and all connections between
that duct and SWBT's conduit system shall be sealed to
prevent the entry of gases or liquids into SWBT's conduit
system. If Applicant's duct enters a building, it shall also
be sealed where it enters the building and at all other
locations necessary to prevent the entry of gases and
liquids into SWBT's conduit system.
6.09 General Requirements Relating to Personnel, Equipment, Materials,
and Public Safety. Except as otherwise specifically provided in this Agreement,
Applicant shall be responsible for selecting the employees and contractors who
will perform work on Applicant's behalf on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way. Applicant, its contractors,
subcontractors, and other vendors acting on Applicant's behalf shall also be
responsible for selecting the personnel who perform work on Applicant's behalf
at such sites, directing the work performed by such personnel, compensating
their respective employees, and complying with all applicable laws, rules,
regulations, and agency orders relating to withholding taxes, social security
taxes, and other employment-related taxes. The provisions of this section are
intended to protect the integrity of the networks, facilities and operations of
SWBT, Applicant and joint users, to protect the health and safety of persons
working on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, to assure the financial responsibility of all persons and
entities performing work on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way, and to protect the public at large. The
requirements of this section (other than the provisions of subsection (h)) shall
be reciprocal and shall apply to SWBT and personnel acting on SWBT's behalf to
the same extent they apply to Applicant.
(a) Contractors, subcontractors, and other vendors, including
authorized contractors, performing work on Applicant's
behalf on, within, or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way shall meet the same
financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and vendors performing work on SWBT's behalf
on, within, or in the vicinity of such
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poles, ducts, conduits, or rights-of-way. SWBT shall advise
Applicant of SWBT's requirements and any changes in such
requirements. Applicant shall be solely responsible for
assuring compliance with such requirements by contractors,
subcontractors, and other vendors acting on Applicant's
behalf and shall be liable to SWBT for any injury, loss, or
damage suffered by SWBT as a result of its failure to do so.
(b) Only properly trained persons shall work on, within, or in
the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Applicant shall be responsible for
determining that all such persons acting on Applicant's
behalf have proper training.
(c) Neither Applicant nor any person acting on Applicant's
behalf shall permit any person to climb or work on SWBT's
poles or in the vicinity of SWBT's poles, or enter SWBT's
manholes or work within or in the vicinity of SWBT's conduit
system, unless such person has the training, skill, and
experience required to recognize potentially dangerous
conditions relating to the pole or conduit system and to
perform the work safely.
(d) Neither Applicant nor any person acting on Applicant's
behalf shall permit any person acting on Applicant's behalf
to perform any work on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way without first
verifying, to the extent practicable, on each date when such
work is to be performed, that conditions at the work site
(including but not limited to the physical condition of the
pole or any part of SWBT's conduit system) are sufficiently
safe for the work to be performed. If Applicant or any
person acting on Applicant's behalf determines that the
condition of any pole, duct, conduit, conduit system, or
right-of-way is not safe enough for the work to be
performed, Applicant shall notify SWBT of conditions at the
site and shall not proceed with the work until Applicant is
satisfied that the work can be safely performed.
(e) Neither Applicant nor any person acting on Applicant's
behalf shall knowingly permit defective equipment or
materials to be used on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way.
(f) When Applicant or personnel performing work on Applicant's
behalf are working on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way located within,
under, over, adjacent to, or in the vicinity of streets,
highways, alleys or other traveled rights-of-way, such
personnel shall follow procedures which Applicant deems
appropriate for the protection of persons and property.
Applicant and its contractors shall be responsible, at all
times, for determining and implementing the specific steps
required to protect persons and property at the site.
Applicant and its contractors
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shall be responsible, at all times, for determining and
implementing the specific steps required to protect persons
and property at the site. Applicant and its contractors
shall provide all traffic control and warning devices
required to protect pedestrian and vehicular traffic,
workers, and property from danger. Applicant and its
contractors shall have sole responsibility for the safety of
all personnel performing work on Applicant's behalf, for the
safety of bystanders, and for insuring that all operations
performed by persons acting on Applicant's behalf conform to
current OSHA regulations and all other governmental rules,
ordinances or statutes.
(g) Neither Applicant nor any persons acting on Applicant's
behalf shall engage in any conduct which damages public or
private property in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way, interferes with the use or
enjoyment of such public or private property except as
expressly permitted by the owner of such property, or
creates a hazard or nuisance on such property (including but
not limited to a hazard or nuisance resulting from any
abandonment of Applicant's facilities, failure to remove
such facilities or any construction debris from the
property, failure to erect warning signs or barricades as
may be necessary to exclude others from the premises or give
notice to others of unsafe conditions on the premises while
work performed on Applicant's behalf is in progress, or
failure to restore the property to a safe condition after
such work has been completed).
(h) Applicant shall promptly suspend activities on, within, or
in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way (other than sites owned or controlled by
Applicant) if notified by SWBT that such activities create
an unreasonable risk of injury to persons or property
(including unreasonable risks of service interruptions).
Applicant shall not resume such activities on or in the
vicinity of SWBT's poles or rights-of-way until Applicant is
satisfied that the work may safely proceed and that any
hazardous conditions at the site have been rectified and
shall not resume such activities within or in the vicinity
of SWBT's conduit system until both Applicant and SWBT are
satisfied that the work may safely proceed and that
hazardous conditions at the site have been rectified. In the
event that SWBT requires Applicant to suspend work
activities and it is later determined that there was no
reasonable basis for the work suspension, SWBT shall
reimburse Applicant for actual costs resulting from the
delay.
(i) All personnel acting on Applicant's behalf shall, while
working on or in SWBT's poles, ducts, conduits, or
rights-of-way, carry with them suitable identification and
shall, upon the request of any SWBT employee or
representative, produce such identification.
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(j) Applicant and persons acting on Applicant's behalf are
encouraged to report unsafe conditions on, within, or in the
vicinity of SWBT's poles or conduit system to SWBT.
(k) Applicant shall establish sufficient controls and safeguards
to assure compliance with all provisions of this section.
6.10 Specific Requirements Relating to Personnel, Equipment, Materials,
and Construction Practices Within or in the Vicinity of SWBT's Conduit Systems.
When Applicant, its contractors, and other persons acting on Applicant's behalf
perform work for Applicant within or in the vicinity of SWBT's ducts, conduits,
and rights-of-way where such ducts or conduits are located, they will be guided
by the following:
(a) Except as may be mutually agreed upon by the parties in
writing, Applicant shall not "rod" or clear any duct or
inner duct in SWBT's conduit system other than a duct or
inner duct assigned to Applicant. Following the assignment
of a specific duct or inner duct to Applicant, Applicant may
request that SWBT rod or clear the duct or inner duct. If
the duct or inner duct cannot be cleared, SWBT will assign
the next available duct or inner duct to Applicant.
Applicant's request for assignment of the next available
duct shall be in writing, may be transmitted to SWBT via fax
or other transmission media mutually agreed upon by the
parties, and shall be processed within the same intervals
applicable to the processing of similar requests by SWBT's
own personnel.
(b) Personnel performing work within SWBT's conduit system on
either party's behalf shall not climb on, step on, or
otherwise disturb the cables, air pipes, equipment, or other
facilities located in any manhole or other part of SWBT's
conduit system.
(c) Personnel performing work within or in the vicinity of
SWBT's conduit system (including any manhole) on either
party's behalf shall, upon completing their work, make
reasonable efforts to remove all tools, unused materials,
wire clippings, cable sheathing and other materials brought
by them to the work site.
(d) All of Applicant's facilities shall be firmly secured and
supported in accordance with Bellcore and industry standards
and any applicable construction standards adopted by SWBT
and applicable to SWBT's own facilities.
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(e) Applicant's facilities shall be plainly identified with
Applicant's name in each manhole with a firmly affixed
permanent tag that meets the identification standards set by
SWBT for its own facilities.
(f) Manhole pumping and purging required in order to allow
Applicant's work operations to proceed shall be performed by
Applicant or its contractor in accordance with the
requirements of Sections 6.14 and 6.15 of this Agreement.
(g) Planks or other types of platforms shall be supported only
by cable racks.
(h) Any leak detection liquid or device used by Applicant or
personnel performing work on Applicant's behalf within or in
the vicinity of SWBT's conduit system shall be of a type
approved by SWBT and included on SWBT's then-current list of
approved types of leak-detection liquids and devices;
provided, however, that Applicant may use any type of leak
detection liquid or device which meets Bellcore's published
standards if SWBT has not provided Applicant SWBT's list of
approved types of leak detection liquids or devices at least
60 days in advance of Applicant's work.
(i) Applicant and its contractors shall be responsible for
providing proper ventilation while work is being performed
in SWBT's conduit system on Applicant's behalf. Except for
protective screens, no temporary cover shall be placed over
an open manhole unless it is at least four feet above the
surface level of the manhole opening.
(j) Smoking or the use of any open flame is prohibited in
manholes, in any other portion of the conduit system, or
within 10 feet of any open manhole entrance.
(k) Artificial lighting, when required by Applicant, will be
provided by Applicant. Only explosion-proof lighting
fixtures shall be used.
(l) Neither Applicant nor personnel performing work on
Applicant's behalf shall allow any combustible gas, vapor,
liquid, or material to accumulate in SWBT's conduit system
(including any manhole) during work operations performed
within or in the vicinity of SWBT's conduit system.
(m) Applicant shall comply with the standards set by SWBT for
its own personnel restricting the use of spark producing
tools, equipment, and devices (including but not limited to
such tools as electric drills and hammers, meggers,
breakdown sets, induction sets, and the like) in
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manholes and other portions of SWBT's conduit system,
provided that such standards have been communicated in
writing to Applicant at least 60 days in advance of the
construction, installation, or placement of Applicant's
facilities within SWBT's conduit system.
(n) Cable lubricants used in conduit systems shall be of a type
or types approved by SWBT and included on SWBT's
then-current list of approved types of cable lubricants;
provided, however, that Applicant may use any type of cable
lubricant which meets Bellcore's published standards if SWBT
has not provided Applicant SWBT's list of approved types of
cable lubricants at least 60 days in advance of Applicant's
work.
6.11 Opening of Manholes and Access to Conduit. The following
requirements apply to the opening of SWBT's manholes and access to SWBT's
conduit system.
(a) Applicant will notify SWBT not less than 48 hours in advance
before entering SWBT's conduit system to perform
non-emergency work operations. Such operations shall be
conducted during normal business hours except as otherwise
agreed by the parties. The notice shall state the general
nature of the work to be performed. As a courtesy, Applicant
shall, when feasible, provide SWBT with 10 working days
advance notice before entering SWBT's conduit system. SWBT
shall, within 10 working days after the effective date of
this Agreement, advise Applicant of the manner in which
notices required by this section shall be given.
(b) An authorized employee or representative of SWBT may be
present as a construction inspector at any time when
Applicant or personnel acting on Applicant's behalf enter or
perform work within SWBT's conduit system. Such inspectors
may inspect the performance and quality of the work and
monitor the work for compliance with the terms, conditions,
and specifications of this Agreement or, in the case of
facilities modification, capacity expansion or make-ready
work, the plans and specifications of the facilities
modification, capacity expansion, or make-ready project.
When SWBT inspectors are present, Applicant and its
contractors shall have sole authority, responsibility, and
control over the method or manner by which the work is to be
performed. SWBT's inspectors may call violations to
Applicant's attention but shall have no authority to direct
or advise Applicant or personnel acting on Applicant's
behalf concerning the method or manner by which the work is
to be performed; provided, however, that nothing contained
in this subsection shall relieve Applicant from complying
with any requirements of this Agreement.
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(c) The parties contemplate that Applicant may need to perform
operations in SWBT's conduit system other than during normal
business hours and may on occasion require access to
manholes on shorter notice than contemplated in subsection
(a) above. Under these circumstances, Applicant shall notify
SWBT as soon as is reasonably possible of its intent to
enter and perform work in the conduit system and SWBT shall
not, without due cause and justification, insist on literal
compliance with scheduling requirements of subsection (a).
SWBT will establish procedures enabling SWBT to receive
notices from Applicant under this subsection 24 hours a day,
seven days a week.
(d) Each party must obtain any necessary authorization from
appropriate authorities to open manholes for such party's
own conduit work and operations therein.
(e) Applicant shall reimburse SWBT for costs associated with the
presence of construction inspectors only as specified in
APPENDIX I and only as permitted by applicable laws, rules,
regulations, and commission orders. SWBT shall not charge
Applicant for more than one such construction inspector per
site at any given time.
(f) If the presence of SWBT personnel at the site is requested
by Applicant or, in Applicant's opinion, is integral to
successful completion of the work, Applicant shall pay the
costs of having such personnel present.
6.12 OSHA Compliance. The parties agree that:
(a) facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way shall be constructed,
placed, maintained, repaired, and removed in accordance with
the Occupational Safety and Health Act (OSHA) and all rules
and regulations promulgated thereunder;
(b) all persons acting on such party's behalf shall, when
working on, within, or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way, comply with OSHA and all
rules and regulations thereunder; and
(c) Applicant shall establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
6.13 Hazardous Substances. Applicant acknowledges that, from time to
time, hazardous substances (as defined in Section 3.19 of this Agreement) may
enter SWBT's conduit system and accumulate in manholes or other conduit
facilities and that hazardous substances may be present at other sites where
SWBT's poles, ducts, conduits, or rights-of-way are located.
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(a) Applicant may, at its expense, perform such inspections and
tests at the site of any pole, duct, conduit, or
right-of-way occupied by or assigned to Applicant as
Applicant may deem necessary to determine the presence at
such sites of hazardous substances. SWBT will assist
Applicant, at Applicant's request and expense, in the
performance of such inspections and tests.
(b) SWBT makes no representations to Applicant or personnel
performing work on Applicant's behalf that SWBT's poles,
ducts, conduits, or rights-of-way will be free from
hazardous substances at any particular time. Before entering
a manhole or performing any work within or in the vicinity
of SWBT's conduit system or any other site subject to access
under this Agreement, Applicant or personnel acting on
Applicant's behalf shall independently determine, to their
satisfaction, whether such hazardous substances are present
and conduct their work operations accordingly.
(c) Each party shall promptly notify the other of hazardous
substances known by such party to be present within or in
the vicinity of poles, ducts, conduits, or rights-of-way
occupied by or assigned to Applicant pursuant to this
Agreement if, in the sole judgment of such party, such
hazardous substances create a serious danger to (1) the
health or safety of personnel working within or in the
vicinity of the conduit or (2) the physical condition of the
other party's facilities placed or to be placed within the
conduit.
(d) Nothing contained in this Agreement (including but not
limited to the acknowledgments and representations set forth
in this section) shall relieve either party from its
responsibility to comply with all applicable environmental
laws or its responsibility for any liability arising out of
such party's failure to comply with such laws. Nothing
contained in this Agreement shall be construed as relieving
SWBT of liability for hazardous substances present at any
site subject to this Agreement or as relieving either party
of liability for introducing hazardous substances to the
site or causing or contributing to the release of any such
substances. Failure to comply with the requirements of this
section may, however, be considered in determining issues
relating to negligence, causation of injury, and comparative
responsibility for injuries to persons, property, and the
environment.
6.14 Compliance with Environmental Laws and Regulations. Applicant and
SWBT agree to comply with the following provisions relating to compliance with
environmental laws and regulations.
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(a) Facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, and rights-of-way following the effective
date of this Agreement shall be constructed, placed,
maintained, repaired, and removed in accordance with all
applicable federal, state, and local environmental statutes,
ordinances, rules, regulations, and other laws.
(b) All persons acting on Applicant's or SWBT's behalf,
including but not limited to the parties' employees, agents,
contractors, and subcontractors, shall, when working on,
within or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way, comply with all applicable federal, state,
and local environmental laws, including but not limited to
all environmental statutes, ordinances, rules, and
regulations. Applicant and personnel acting on Applicant's
behalf are expected to be familiar with their obligations
under environmental laws such as the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. Sections 9601 et seq.), the Toxic Substance Control Act
(15 U.S.C. Sections 2601-2629), the Clean Water Act (33 U.S.C.
Sections 1251 et seq.), and the Safe Drinking Water Act (42
U.S.C. Sections 300f-300j).
(c) The parties shall each establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
(d) From and after the effective date of this Agreement, neither
party nor personnel acting on either party's behalf shall
discharge or release hazardous substances onto or from the
site of any SWBT pole, duct, conduit, or right-of-way.
Neither Applicant nor SWBT nor personnel acting on either
party's behalf shall discharge water or any other substance
from any SWBT manhole or other conduit facility onto public
or private property, including but not limited to any storm
water drainage system, without first determining that such
discharge would not violate any environmental law, create
any environmental risk or hazard, or damage the property of
any person. Applicant will be expected to test such water or
substance for hazardous substances in accordance with
then-applicable SWBT standards and practices.
(e) Applicant and SWBT and all personnel performing work on
Applicant's or SWBT's behalf shall, when working on, within,
or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, comply with such additional standards,
practices, and requirements as SWBT may from time to time
adopt to comply with environmental laws, provided that such
standards are communicated in writing to Applicant at least
60 days in advance of Applicant's work.
6.15 Compliance with Other Governmental Requirements (Including
Aeronautical Navigation Safeguards). Facilities attached to SWBT's poles or
placed in
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SWBT's ducts, conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the ordinances, rules, and
regulations of any governing body having jurisdiction of the subject matter
(including but not limited to any valid ordinances, rules, and regulations
requiring permits, certificates, licenses or the like). Applicant and SWBT shall
comply with all statutes, ordinances, rules, regulations, and other laws
requiring the marking and lighting of aerial wires, cables, and other structures
to ensure that such wires, cables, and structures are not a hazard to
aeronautical navigation.
6.16 Differences in Specifications. To the extent that there may be
differences in the specifications, the most stringent specification will apply
except as otherwise specifically provided by SWBT in writing. Applicant will
consult with SWBT when Applicant is uncertain as to which specification is to be
followed.
6.17 Responsibility for the Condition of Facilities. Each party will be
responsible at all times for the condition of its facilities (including but not
limited to those extending from SWBT's poles, ducts, conduits, or rights-of-way
directly to any other location) and for its compliance with the requirements and
specifications of this article and all applicable laws, rules, regulations, and
ordinances.
ARTICLE 7: PRIMARY POINTS OF CONTACT, ACCESS TO RECORDS,
AND PRE-OCCUPANCY INSPECTIONS
7.01 Designation of Primary Points of Contact. Each party will, at the
request of the other party, designate a primary point of contact to facilitate
communications between the parties and the timely processing of Applicant's
applications for access to SWBT's poles, ducts, conduits, and rights-of-way
located within this State. Designations of primary points of contact will be
made by written notices including the name, title, address, phone number, and
fax number of the person designated as the primary point of contact; provided,
however, that unless and until a different designation is made, SWBT's primary
point of contact shall be the Utility Liaison Supervisor identified in APPENDIX
VIII. Designation of primary points of contact pursuant to this section will not
affect notice requirements or other legal requirements set forth in other
provisions of this Agreement.
7.02 Determinations by Applicant of Suitability and Availability.
Applicant shall make its own, independent assessment of the suitability of
SWBT's poles, ducts, conduits, and rights-of-way for Applicant's intended
purposes.
7.03 Access to Records Relating to SWBT's Poles, Ducts, Conduits, and
Rights-of-Way. This section establishes procedures through which certain records
and information relating to SWBT's poles, ducts, conduits, and rights-of-way
will be made available to Applicant for planning and other purposes. Access to
such records and information will be conditioned on Applicant's execution of a
nondisclosure agreement equivalent in substance to the Nondisclosure Agreement
attached to this Agreement as
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APPENDIX V or such other nondisclosure agreement as shall be mutually acceptable
to the parties, and no person acting on Applicant's behalf will be granted
access to such records and information without first signing such a
nondisclosure agreement. Applicant will reimburse SWBT for all reasonable costs
incurred by SWBT in granting Applicant's requests for access to records and
information under this section.
(a) Applicant may, at any time after the effective date of this
Agreement, request permission to inspect SWBT's pole and
conduit maps and records, cable plat maps, and other plant
location records, if any, recording or logging assignments
of pole, duct, and conduit space. Applicant will be
permitted to examine these records during regular business
hours at a location where copies of such records are
maintained or at such other location as may be mutually
agreed upon by the parties. Access to such maps and records
will be by appointment only, and SWBT will make such maps
and records available for inspection by Applicant on two
business days advance notice; provided, however, that
Applicant will, as a courtesy, when feasible, provide SWBT
with 10 business days advance notice of its intent to
examine such records.
(b) The access described in subsection (a) shall include the
right to make copies, at Applicant's expense, except for
cable plat maps, which shall be made available for
inspection only. In all instances, such access shall include
the ability to take notes and make drawings with references
to those maps and records. No references to cable counts or
circuit information may be included in any such copies,
notes, or drawings. With respect to other cable-specific or
customer-specific information, Applicant's copies, notes, or
drawings may include only such information as needed for
bona fide engineering and construction purposes (e.g.,
proposing cable consolidations and identifying plant
discrepancies) and not for sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and
similar activities. Applicant's copies, notes, and drawings
may include estimates regarding the physical characteristics
(such as size and weight) of cables when necessary to make
engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts,
conduits, and rights-of-way for Applicant's intended uses.
(c) SWBT will provide Applicant the best information available
from SWBT's current pole and conduit maps and records, cable
plat maps, and other outside plant and construction records.
SWBT represents that such records reflect approximate
geographical locations of the facilities depicted and may
not accurately reflect information such as:
(1) the exact location of the facilities depicted;
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(2) the physical size, characteristics, or condition of the
facilities depicted;
(3) the ducts or inner ducts presently occupied, assigned,
or available within any particular conduit segment or
manhole;
(4) the arrangement of facilities attached to a pole, the
position of facilities suspended between poles or their
relationship to each other and to the ground, or the
positioning of cables and other facilities housed
within ducts, conduits, manholes or other portions of
SWBT's conduit system; and
(5) other information which must be assessed before it can
be determined that space is available on or in a pole,
duct, or conduit for the attachment or occupancy of
Applicant's facilities or that the poles, ducts, or
conduits depicted are suitable for Applicant's intended
use.
7.04 Pre-occupancy Inspection of Poles, Ducts, Conduits and
Rights-of-Way. Applicant shall be permitted to view and inspect specified poles,
ducts, conduits, and rights-of-way on a pre-occupancy basis as provided in this
section.
(a) After the effective date of this Agreement, Applicant may
view specified poles, ducts, conduits, and rights-of-way on
a pre-occupancy basis. Nothing contained in this section
shall preclude Applicant from visually inspecting SWBT's
poles, ducts, conduits, or rights-of-way from any vantage
point lawfully accessible to Applicant without SWBT's
permission.
(b) Applicant shall not enter any SWBT manhole for the purpose
of performing a pre-occupancy inspection without complying
with all applicable requirements set forth in Article 6 of
this Agreement, including but not limited to the provisions
of Section 6.11 relating to the opening of manholes.
ARTICLE 8: POLE, DUCT, AND CONDUIT SPACE ASSIGNMENTS
8.01 Selection of Space. Applicant will select the space Applicant will
occupy on SWBT's poles or in SWBT's conduit systems. Applicant's selections will
be based on the same criteria SWBT applies to itself. To enable Applicant to
make such selections in accordance with SWBT's criteria, SWBT will provide
Applicant information about the network guidelines and engineering protocols
used by SWBT in determining the placement of facilities on SWBT's poles and in
SWBT's conduit systems. In conduit systems owned or controlled by SWBT,
maintenance ducts (as defined in Section 3.25) shall not be considered available
for Applicant's use except as specifically provided
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elsewhere in this Agreement. All other ducts, inner ducts, sub-ducts, and
partitioned conduits which are not assigned or occupied shall be deemed
available for use by SWBT, Applicant, and third parties entitled to access under
the Pole Attachment Act.
8.02 Pole, Duct, and Conduit Space Assignments. Pole, duct, and conduit
space selected by Applicant will be assigned to Applicant as provided in this
section. Information received by SWBT in connection with this section shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
(a) After Applicant's application for a pole attachment or
conduit occupancy license has been received by SWBT, the
pole, duct, and conduit space selected by Applicant in such
application will be assigned to Applicant for a
pre-occupancy period not to exceed 12 months. The assignment
(and date and time of assignment) will be logged and
recorded in the appropriate SWBT records. If such space has
been provisionally assigned to Applicant as authorized below
in subsection (b), the 12-month pre-occupancy assignment
period will begin on the date the provisional assignment is
recorded in SWBT's records or the date of SWBT's receipt of
Applicant's notice of intent to occupy under subsection (b),
whichever date first occurs.
(b) SWBT shall, within 60 days after the effective date of this
Agreement, adopt interim procedures which will enable pole,
duct, and conduit space to be provisionally assigned to
Applicant and other applicants prior to the submission of
formal applications required pursuant to Section 9.02 of
this Agreement. Where indicated below, the interim
procedures will apply to the assignment of space to SWBT as
well as to Applicant and other applicants. SWBT may, on 60
days advance notice to Applicant, revise such interim
procedures if such procedures prove to be unworkable, in
which event Applicant may challenge SWBT's decision in
accordance with procedures available to Applicant under
applicable federal and state laws and regulations. The
procedures will enable Applicant and other applicants, by
written notice, to advise SWBT of their intent to occupy
unassigned space which appears, from SWBT's records, to be
available for assignment. Upon receipt of such notice, SWBT
shall date-and-time stamp the notice and provisionally
assign the space selected by Applicant or such other
applicant by logging and recording the assignment (and date
and time of assignment) in the appropriate SWBT records,
which records will be available for inspection as provided
in Section 7.03 of this Agreement. Space provisionally
assigned to Applicant or such other applicant will not be
available for assignment to any other person or entity,
including SWBT. Notwithstanding such provisional assignment,
Applicant shall not occupy such space without first
obtaining a license, except as provided in Section 8.03. The
following additional requirements shall apply.
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(1) Before giving SWBT notice of its intent to occupy
unassigned space, Applicant shall make a good faith
determination that it actually plans to occupy such
space. The assignment process shall not be used by
either party for the purpose of holding or reserving
space which such party does not plan to use or for the
purpose of precluding SWBT or any other person or
entity from utilizing or having access to SWBT's poles,
ducts, conduits, or rights-of-way.
(2) With respect to unassigned conduit occupancy space, the
notice must include all information required to enable
SWBT and joint users, including other persons or
entities which may from time to time seek space in the
same ducts and conduits, to determine the specific
space which Applicant desires to occupy. The notice
must, therefore, include, at a minimum, the following
information:
(i) the specific conduit sections, and each manhole,
to be occupied;
(ii) the number of ducts, and number of inner ducts,
to be occupied by Applicant within each conduit
section;
(iii) the physical size (diameter) of the cables to be
placed in such duct, if known, or the maximum and
minimum sizes of the cables which may be placed
if more than one size cable is being considered
for the space to be occupied;
(iv) the anticipated use by Applicant of any
infrequent construction techniques and
connectivity solutions authorized under Section
6.03 to avoid high or unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete
construction at the sites specified in the
notice;
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section
8.03 of this Agreement; and
(vii) if applicable, a conspicuous statement, as
required by Section 5.06 of this Agreement, that
the notice pertains to a building entrance or
building distribution duct or conduit or other
space within a building.
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(3) With respect to unassigned pole space, such notice must
include all information required to enable SWBT and
other joint users, including other persons or entities
seeking space on the same poles, to determine the
specific space which Applicant desires to occupy. The
notice must, therefore, include, at a minimum, the
following information:
(i) the specific poles to be occupied;
(ii) the specific space on each pole to be occupied,
including the height (distance from the ground)
of the attachment and the side (road or field)
where the attachment is to be made;
(iii) the anticipated number and types of cables to be
attached, together with the anticipated physical
size (diameter) and weight (weight per foot) of
such cables, and the anticipated number and types
of strands, if any, to be used to support the
cables, such information to be sufficient to give
notice to SWBT and other joint users of the
remaining space on the pole available and what
facilities modification, capacity expansion, or
make-ready work may be required of subsequent
applicants as a result of the provisional
assignment of space to Applicant;
(iv) the anticipated use by Applicant of any
infrequent construction techniques and
connectivity solutions authorized under Section
6.03 to avoid high or unusual expenditures;
(v) Applicant's best estimates of the dates when
Applicant plans to begin and complete
construction at the sites specified in the
notice; and
(vi) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section
8.03 of this Agreement.
(4) No later than 30 days after giving such notice,
Applicant shall file an application under Section 9.02
or the provisional assignment will lapse.
(5) As stated in Section 7.03(c), SWBT does not represent
that its records accurately reflect the information
necessary to enable Applicant to rely upon a
records-based assignment process. SWBT shall have no
duty to verify that space provisionally assigned
pursuant to this subsection is actually available.
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(c) Assignments made prior to the issuance of a license will be
provisional assignments and will be subject to modification
if it is subsequently determined that the space selected by
or assigned to Applicant is already occupied or that a
different assignment is required to comply with SWBT's
standards for assigning pole, duct, and conduit occupancy
space.
(d) Applicant's obligation to pay semiannual pole attachment or
conduit occupancy fees will commence from the date of
assignment or provisional assignment, as logged and recorded
in the appropriate SWBT records.
(e) During the 12-month assignment period following the date
space is assigned to Applicant and entered into the
appropriate SWBT record, SWBT shall not occupy or use such
space without Applicant's permission, shall not assign such
space to any party other than Applicant, and shall not
knowingly permit any party other than Applicant to occupy or
use such space without Applicant's permission except as
otherwise specifically provided in this Agreement. The
assignment to Applicant will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if Applicant has not occupied such
assigned space within such 12-month period; provided,
however, that if Applicant's failure to occupy the space
within such 12-month period results from SWBT's failure to
perform make-ready work on schedule, the parties shall
negotiate a single extension of the assignment period, which
extension shall not extend the assignment period beyond
three months from the date of completion of SWBT's
make-ready work; and, provided further, that if Applicant
can demonstrate that its failure to occupy the space within
such 12-month period results from the actions of SWBT or
third parties other than persons acting on Applicant's
behalf, or from acts of God, the assignment may be extended
for a period no longer than three months from the date
Applicant is first able to commence construction activities
at the site involved. Assignments to third parties shall be
subject to the same rules applicable to Applicant under this
subsection. Extensions permitted under this subsection must
be requested in writing before expiration of the original
12-month period and shall be recorded on the appropriate
SWBT records available for inspection under Section 7.03.
(f) SWBT may assign space to itself by making appropriate
entries in the same records used to log assignments to
Applicant and third parties. If SWBT assigns pole, duct, or
conduit space to itself, such assignment will automatically
lapse 12 months after the date the assignment has been
entered into the appropriate SWBT record if SWBT has not
occupied such assigned space within such 12-month period;
provided,
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however, that if SWBT's failure to occupy the space within
such 12-month period results from the actions of Applicant
or third parties other than persons acting on SWBT's behalf,
or from acts of God, SWBT's assignment may be extended for a
period no longer than three months from the date SWBT is
able to commence construction at the site involved.
Extensions permitted under this subsection must be recorded
before expiration of the original 12-month period on the
appropriate SWBT records available for inspection under
Section 7.03.
(g) If facilities modifications, capacity expansions, or other
make-ready work are required due to the assignment of space
to either party under this section, the party to whom such
space has been assigned will reimburse the person or entity
incurring the costs for such facilities modifications,
capacity expansions, or make-ready work if the party to whom
such space has been assigned fails to occupy the assigned
space within the 12-month assignment period or any extension
thereof.
(h) Except as provided in subsections (e)-(f) above, assignments
shall not be extended, renewed, or sequentially repeated in
any manner (other than by actual occupancy) that enables
Applicant, SWBT, or any joint user to preclude access by
others to unused pole attachment or conduit occupancy space
for any period greater than 12 months after the date of
initial assignment.
(i) At Applicant's election, Applicant may file an application
for access which specifically requests that the space sought
by Applicant not be assigned to Applicant immediately and
not be recorded immediately in the SWBT records available
for inspection by other telecommunications carriers, cable
television systems, or other providers of telecommunications
services under Section 7.03 of this Agreement. In that
event, the space sought by Applicant will not be assigned to
Applicant and will remain available for assignment to others
without restriction until such time as such space is
formally assigned to Applicant in accordance with
Applicant's written instructions and the assignment is
recorded in the records available for inspection under
Section 7.03. The assignment shall be made no later than the
date of issuance to Applicant of a license confirming that
Applicant has the right to occupy the space described in the
license. In the event that Applicant elects to proceed under
this subsection, Applicant's obligation to pay pole
attachment and conduit occupancy fees shall not commence
until the date the assignment is recorded in the appropriate
SWBT records and Applicant shall bear the risks that (1) the
space sought by Applicant will be assigned to and occupied
by another person or entity or (2) circumstances will occur
which may require that SWBT reevaluate
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Applicant's application and repeat the field inspection
portion of the pre-license survey at Applicant's expense.
(j) Notices and applications including assignment requests will
be date- and time-stamped on receipt. Because space will be
selected and further assignments made based on entries
logged and recorded in the appropriate SWBT records, the
date and time of assignment will be the date and time when
the assignment is recorded rather than the date and time of
receipt of the application or notice requesting such
assignment. Although SWBT's clerical personnel will promptly
process assignment requests included in applications and
notices transmitted to SWBT by mail, courier, fax, or other
transmission media, SWBT shall not be liable for any failure
by Applicant to obtain the space desired by Applicant due to
delay in logging assignment requests. Applicant acknowledges
that, to maximize the probability that Applicant will be
assigned the space Applicant desires, Applicant should, when
possible, submit applications and notices including
assignment requests in person to SWBT at the site where the
applicable records are maintained and should countersign the
entry reflecting the assignment and time of assignment.
8.03 Immediate Occupancy. SWBT shall, within 60 days after the
effective date of this Agreement, adopt interim procedures which will provide
Applicant the ability to attach or place facilities on or in SWBT's poles,
ducts, conduits, and rights-of-way on an immediate basis when such space is
available for Applicant's use and no make-ready work or infrequent construction
techniques or connectivity solutions are required. SWBT may, on 60 days advance
notice to Applicant, revise or terminate such interim procedures if they prove
to be unworkable, in which event Applicant may seek renegotiation of this
Agreement or challenge SWBT's decision in accordance with procedures available
to Applicant under applicable federal and state laws, regulations, and
commission orders. The special procedures established under this section shall
supplement, rather than replace, the regular assignment and licensing procedures
set forth in Articles 8-10 of this Agreement, are intended to be used only under
special circumstances (e.g., when the regular procedures allow insufficient time
to meet customer service commitments or resolve non-routine construction or
network contingencies), shall not be used on a routine basis, and shall be
consistent with subsections (a)-(f) below.
(a) Upon giving SWBT the notice required by this subsection,
Applicant may immediately occupy space assigned or
provisionally assigned to Applicant pursuant to Section 8.02
of this Agreement. The notice shall be contained in either a
notice of intent to occupy as provided in Section 8.02(b) or
a license application under Section 9.02. Applicant shall
not give such notice or occupy such space without first
reviewing SWBT's records and determining that the records
reflect that the space sought is available.
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(b) Applicant shall not occupy space which has not been assigned
or provisionally assigned to Applicant. The assignment must
be recorded on the appropriate SWBT records, as provided in
Section 8.02, prior to Applicant's occupancy. If Applicant
subsequently determines that the records are inaccurate and
that the space assigned to Applicant is not available, or
that the space assigned is not suitable for Applicant's
intended use, Applicant shall, within one business day,
notify SWBT in writing that it no longer intends to occupy
the space earlier assigned and is releasing the assignment.
Except as otherwise provided in this subsection, Applicant
shall not occupy other space on the pole or in the duct or
conduit without first obtaining an assignment or provisional
assignment of the space which Applicant will occupy. To
avoid high or unusual expenditures resulting from
unanticipated conditions at the site, Applicant may occupy
space not assigned to Applicant subject to the following
terms and conditions.
(1) Applicant may occupy the next available space shown on
SWBT's records as available at the time of Applicant's
last review of the records. Applicant shall not
knowingly occupy space occupied by or assigned to SWBT
or any third party without consent of the party to whom
the space has been assigned.
(2) Within one business day after occupying such space,
Applicant shall submit to SWBT a written notice of
intent to occupy or an application for the space
occupied showing the reason for Applicant's use of the
space occupied.
(3) Applicant shall bear the risk that space occupied by
Applicant pursuant to this section was assigned to SWBT
or a third party during the period between Applicant's
last review of the records and Applicant's occupancy of
such space. After occupying space not previously
assigned to Applicant, Applicant shall review the
records and promptly notify the affected party if
Applicant determines that it has occupied space
assigned to such party. At the request of the party to
whom such space has been assigned, Applicant shall,
within 24 hours, or within such other period of time
mutually agreed to by the parties affected, remove its
facilities from the space in question if the parties
affected cannot reach an acceptable alternative
solution. SWBT and Applicant anticipate that all
parties affected will act in good faith to work out
acceptable solutions and that the parties affected will
not insist on strict adherence to the 24-hour removal
requirement unless there is a legitimate business need
for compelling removal within such time period.
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(4) SWBT shall be entitled to recover from Applicant actual
costs, if any, directly incurred by SWBT as a result of
Applicant's decision under this subsection to occupy
space subject to a valid prior assignment to SWBT.
Applicant shall indemnify, on request defend, and save
SWBT harmless from any injury, loss, damage, liability,
or claim asserted against SWBT by any third party
resulting from Applicant's decision under this
subsection to occupy space assigned to such third
party.
(c) Nothing in this section authorizes Applicant to place its
facilities on or in any pole, duct, or conduit space already
occupied by the facilities of SWBT or a third party, even if
the presence of such facilities is not reflected on SWBT's
records.
(d) Nothing in this section authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires make-ready work (other than third-party make-ready
work arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity solution
described in Section 6.03.
(e) If Applicant has not done so already, within 24 hours after
occupying space pursuant to this section, Applicant will
submit to SWBT an application for the space occupied as
provided in Section 9.02 of this Agreement. The application
may be submitted by fax.
(f) Applicant will bear all risks resulting from the possibility
that assigned space which appears from the records to be
available is not available or in suitable condition to be
used by Applicant and shall indemnify, on request defend,
and hold SWBT harmless from any injury, loss, damage, claim,
or liability (including but not limited to third-party
claims) resulting from Applicant's occupancy of space in
violation of this section.
ARTICLE 9: APPLICATIONS AND PRE-LICENSE SURVEYS
9.01 Licenses Required. Except as otherwise specifically permitted in
this Agreement, Applicant shall apply in writing for and receive a license
before attaching facilities to specified SWBT poles or placing facilities within
specified SWBT ducts, conduits, manholes, or handholes. License applications and
information received by SWBT in connection with such applications shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
9.02 Application Form. To apply for a pole attachment or conduit
occupancy license under this Agreement, Applicant shall submit to SWBT two
signed copies of the
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appropriate application forms. SWBT represents that the forms specified in
subsections (a)-(b) are forms in use prior to the effective date of this
Agreement and that SWBT is in the process of revising such forms to conform to
the provisions of this Agreement and to streamline the application process. The
parties therefore agree that the forms specified in subsections (a) and (b) will
be interim forms only. SWBT reserves the right to change the format and content
of these forms upon 60 days written notice to Applicant.
(a) To apply for a pole attachment license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9433 ("Pole Attachments"). An
application for a pole attachment license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9433 and SW-9434
are attached to this Agreement as parts of APPENDIX III.
(b) To apply for a conduit occupancy license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization") together
with completed Form SW-9435 ("Conduit Occupancy"). An
application for a conduit occupancy license will not be
complete or subject to processing by SWBT until these forms
have been submitted to SWBT; provided, however, that such
forms will be deemed to be substantially complete if they
contain the information specified in subsections (c)-(h)
below, as applicable. Copies of Forms SW-9434 and SW-9435
are attached to this Agreement as parts of APPENDIX III.
(c) Each application for a license under this Agreement shall
include, at a minimum, the following information:
(1) the poles, ducts, and conduits (including all manholes)
along Applicant's proposed route to or within which
Applicant desires to attach or place its facilities;
(2) a description of the facilities to be attached to
SWBT's poles and a description of the facilities to be
placed within each component of SWBT's conduit system
(including but not limited to ducts, conduits,
manholes, and handholes) along the proposed route;
(3) for poles, the proposed points of attachment;
(4) for building entrance or building distribution ducts or
conduits or other space within a building, a
conspicuous statement, as required
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by Section 5.06 of this Agreement, that the application
pertains to a building entrance or building
distribution duct or conduit or other space within a
building;
(5) if applicable, a conspicuous notation that the space
requested is not to be assigned (or billed) to
Applicant until SWBT has received Applicant's written
instruction to make such assignment or issued a license
authorizing Applicant to occupy the space requested;
and
(6) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement.
(d) Facilities descriptions which apply to multiple pole
attachments or conduit occupancies need only be described
once on any form. Facilities descriptions shall include, at
a minimum, the following information:
(1) the number and types of cables, including the physical
size (diameter) and weight (weight per foot);
(2) the number and types of strands, if any, which will be
used to support the cables, including the rated holding
capacity expressed in thousand pound increments (e.g.,
2.2M) of such strands; and
(3) sufficient information to identify and describe the
physical characteristics (size, dimensions, and weight)
of apparatus enclosures and other facilities to be
attached to SWBT's poles or placed in SWBT's conduit
system.
(e) When it appears to Applicant that facilities modification,
capacity expansion, or make-ready work may be required to
accommodate Applicant's access requests, Applicant shall
describe the facilities modification, capacity expansion, or
make-ready work which Applicant proposes. Applicant shall
also describe its plans, if any, to use any infrequent
construction technique or connectivity solution authorized
under Section 6.03 to avoid high or unusual expenditures and
state its reasons for the use of such technique or solution.
(f) Applicant acknowledges that the poles along a particular
pole line or route may include poles owned by firms (such as
electric utilities) other than SWBT, that it may be
necessary for SWBT to rearrange its facilities or perform
other make-ready work on poles other than poles it owns or
controls in order to accommodate Applicant's request for
access to SWBT's poles and that, at the time an application
is submitted, it may be difficult for Applicant to determine
with certainty whether a particular
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pole is owned or controlled by SWBT or by another entity.
Accordingly, the application shall, to the extent feasible,
identify all poles utilized by SWBT (without regard to
ownership) along Applicant's proposed route.
(g) Each application for a license under this Agreement shall be
accompanied by a construction schedule showing Applicant's
projected dates for beginning and completing construction at
the sites specified in the application. Information on this
schedule may be used by SWBT's engineering and outside plant
construction personnel in scheduling work required to
process Applicant's applications and scheduling such
capacity expansions, make-ready work, and facilities
modifications, if any, as may be necessary to accommodate
Applicant's facilities.
(h) Applicant may include multiple cables in a single license
application and may provide multiple services (e.g., CATV
and non-CATV services) under the same cable sheath or
jacket. When both CATV and non-CATV services are provided
under the same cable sheath or jacket, or CATV and non-CATV
services are provided using different cables attached or
lashed to the same strand or otherwise occupying the same
space on a pole or the same duct or inner duct within a
conduit, Applicant will so advise SWBT and SWBT shall, if
permitted by law, adjust its charges to enable SWBT to
charge Applicant the rate applicable to telecommunications
carriers rather than the rate applicable to cable television
systems solely to provide cable service.
9.03 Cooperation in the Application Process. The orderly processing of
applications submitted by Applicant and other firms seeking access to SWBT's
poles, ducts, conduits, and rights-of-way requires good faith cooperation and
coordination between SWBT's personnel and personnel acting on behalf of
Applicant and other firms seeking access. The parties therefore agree to the
following transitional procedures which will remain in effect during the term of
this Agreement unless earlier modified by mutual agreement of the parties.
(a) Before submitting a formal written application for access to
SWBT's poles, ducts, conduits, and rights-of-way, the firm
submitting the application shall make a good faith
determination that it actually plans to attach facilities to
or place facilities within the poles, ducts, conduits, or
rights-of-way specified in the application. Applications
shall not be submitted for the purpose of holding or
reserving space which the applicant does not plan to use or
for the purpose of precluding SWBT or any other provider of
telecommunications or cable television services from using
such poles, ducts, conduits, or rights-of-way.
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(b) Applicant shall only submit applications for access to
poles, ducts, conduits, and rights-of-way which it plans to
use within one year following the date access is granted and
shall use its best efforts to submit applications in an
orderly manner in accordance with Applicant's needs. If
Applicant contemplates the need to submit more than 10
applications within any 45-day period with respect to poles,
ducts, conduits, and rights-of-way within the territory of
any single SWBT construction district, Applicant shall give
SWBT advance notice as promptly as is reasonably
practicable.
(c) No more than 300 poles shall be the subject of any single
pole attachment license application.
(d) No more than 20 manholes shall be the subject of any single
conduit occupancy license application.
9.04 Applicant's Priorities. When Applicant has multiple applications
on file within a single SWBT construction district, Applicant shall, at SWBT's
request, designate its desired priority of completion of pre-license surveys,
facilities modifications, capacity expansions, and make-ready work with respect
to all such applications.
9.05 Pre-license Survey. A pre-license survey (including a review of
records and field inspection, if necessary) will be completed by SWBT after
Applicant has submitted its written license application as specified in Section
9.02 of this Agreement. SWBT shall not, without due cause and justification,
repeat pre-occupancy survey work performed by Applicant.
(a) The field inspection portion of the pre-license survey,
which includes the visual inspection of existing pole and
conduit facilities, shall be performed by SWBT or its
authorized representative. Primary purposes of the field
inspection will be to enable SWBT to (1) confirm or
determine the facilities modification, capacity expansion,
and make-ready work, if any, necessary to accommodate
Applicant's facilities; (2) plan and engineer the facilities
modification, capacity expansion, and make-ready work, if
any, required to prepare SWBT's poles, ducts, conduits,
rights-of-way, and associated facilities for Applicant's
proposed attachments or occupancy; and (3) estimate the
costs associated with such facilities modification, capacity
expansion, or make-ready work. SWBT may dispense with the
field inspection if it appears that the information
necessary to process Applicant's license application is
already available from existing sources, including the
application forms and such other information as may be
available to SWBT. If Applicant has occupied the space
requested before the issuance of a license, a
post-installation inspection of Applicant's
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facilities may be performed, in place of the field
inspection portion of the pre-license survey, to determine
whether such facilities are in compliance with the
specifications of Article 6 and other provisions of this
Agreement. In performing such inspection, SWBT will not,
without due cause and justification, repeat pre-occupancy
survey work performed by Applicant.
(b) The administrative processing portion of the pre-license
survey (which includes processing the application and
reviewing records) will be performed by SWBT.
(c) Before performing any portion of the pre-license survey,
SWBT shall obtain Applicant's written authorization to
perform such work. Authorization may be given, when
possible, when the application is submitted. No
authorization shall be required for post-installation
inspections of Applicant's facilities when installation has
occurred before the issuance of a license.
ARTICLE 10: ISSUANCE AND DENIAL OF LICENSES
(INCLUDING FACILITIES MODIFICATIONS,
CAPACITY EXPANSIONS, AND MAKE-READY WORK
10.01 Response Within 45 Days. Within 45 days of Applicant's submission
of a license application pursuant to Section 9.02 of this Agreement, or within
such other period of time as may be mutually agreed upon in writing by the
parties, SWBT shall respond to the application. The response shall state whether
the application is being granted or denied. If denial is anticipated, or if SWBT
personnel involved in the processing of Applicant's request for access become
aware of hazardous substances at the site requested by Applicant, SWBT shall
promptly advise Applicant and shall, at Applicant's request, discuss
alternatives to denial and issues associated with the presence of such hazardous
substances. Additional state-specific response and notice requirements, if any,
shall be addressed by an addendum to this Agreement.
(a) If access is granted, SWBT shall, no later than 45 days
after Applicant's submission of the license application,
further advise Applicant in writing (1 ) what facilities
modifications, capacity expansions, or make-ready work, if
any, will be required to prepare SWBT's pole or conduit
facilities, (2) provide Applicant an estimate of charges for
such facilities modifications, capacity expansions, or
make-ready work and (3) disclose to Applicant any hazardous
substances known by SWBT to be present at the site.
(b) SWBT may take into account issues of capacity, safety,
reliability, and engineering when considering requests for
access, provided the assessment of such factors is done in a
nondiscriminatory manner. If
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access is denied, SWBT shall confirm the denial in writing
by the 45th day after the receipt by SWBT of Applicant's
completed application. A denial of access shall be specific,
shall include all relevant evidence and information
supporting the denial, and shall explain how such evidence
and information relates to a denial of access for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. If Applicant in its
completed application sets forth in writing specific
proposals for expanding capacity, the denial statement shall
specifically address such proposals.
(c) Applicant agrees that if, at any time prior to the 45th day,
it has determined that it no longer seeks access to specific
poles, ducts, or conduit facilities, Applicant shall
promptly withdraw or amend its application, thereby
minimizing the administrative burdens on SWBT of processing
and responding to the application.
(d) Notwithstanding the 45-day deadline, SWBT will, pursuant to
Section 8.03 of this Agreement, make available to Applicant
for immediate occupancy any pole, duct, or conduit space
which is not currently assigned, not designated as a
maintenance duct, and not subject to applicable make-ready
requirements.
(e) If SWBT fails to respond in writing within 30 days of SWBT's
documented receipt of a license application pursuant to
Section 9.02 of this Agreement, or within such other period
of time as may be mutually agreed upon in writing by the
parties, Applicant may by written notice inquire whether
SWBT intends to deny Applicant's request for access. After
such notice has been given and receipt by SWBT of a properly
submitted license application has been confirmed, SWBT's
failure to respond in writing within 15 days after receipt
of the notice shall be deemed to constitute approval of the
request for access. In such event, Applicant shall be
entitled to occupy the space requested without the formality
of a license; provided, however, that nothing contained in
this subsection shall authorize Applicant to occupy space
already occupied or subject to a prior valid space
assignment to SWBT or any third-party; and provided further
that nothing in this subsection authorizes Applicant,
without first obtaining SWBT's written authorization, to (1)
place its facilities on any pole or in any duct or conduit
that requires make-ready work (other than third-party
make-ready work arranged directly by Applicant) or (2)
utilize any infrequent construction technique or
connectivity solution described in Section 6.03.
10.02 Obligation to Construct or Modify Facilities: Capacity
Expansions. SWBT may grant access subject to Applicant's approval of such
make-ready work (including facilities modifications) as may be required to
expand capacity to accommodate
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Applicant's request, in which event Applicant shall either accept such
conditions, initiate good faith negotiations to explore other potential
accommodations, or withdraw its request for access. If SWBT does not offer to
expand capacity and denies Applicant's request for access, SWBT shall promptly
notify Applicant of such determination. SWBT shall not deny Applicant's request
for access on lack of capacity grounds when capacity can be expanded as provided
in this section and in Section 6.03 (infrequent construction techniques and
connectivity solutions).
(a) At Applicant's request, SWBT will replace, expand, or modify
its poles and conduit system, or otherwise expand the
capacity of such facilities to accommodate the placement of
Applicant's facilities; provided, however, that such
modifications shall be consistent with the capacity, safety,
reliability, and engineering considerations which SWBT would
apply to itself if the work were performed for SWBT's own
benefit. Outside plant facilities modifications and capacity
expansions contemplated by this subsection include, but are
not limited to, installation of inner duct, cable
consolidations and the removal of cables that are retired or
inactive (dead). Except as otherwise specifically provided
in this section, SWBT may recover from Applicant the costs
of facilities modifications and capacity expansions to make
space available for Applicant's facilities and charges for
such modifications and expansions shall be determined and
billed as provided in APPENDIX I of this Agreement.
(b) SWBT will, at its own expense, install inner duct in SWBT's
conduit system as necessary to make space available for
Applicant's facilities. Inner duct installations to
accommodate Applicant's facilities will be performed by SWBT
within the same time intervals which would apply if SWBT
were performing such installations for itself. If SWBT's
intervals for beginning or completing inner duct
installation do not meet Applicant's needs, Applicant may
arrange for the inner duct installation to be performed by
an authorized contractor selected by Applicant from a list,
jointly developed and maintained by the parties, of
contractors mutually approved as qualified to perform inner
duct installations. Applicant may install the inner duct
itself if Applicant is on the list of mutually approved
contractors at the time the work is performed. When inner
duct is installed in SWBT's conduit system by Applicant or
an authorized contractor selected by Applicant, SWBT will
provide the inner-ducting materials to be installed and
Applicant shall bear all other installation expenses.
Applicant shall give SWBT sufficient advance notice of the
materials needed to enable SWBT to provide such materials to
Applicant on a timely basis. Applicant shall return all
unused materials, including unused inner duct and reels, to
SWBT or purchase them from SWBT. Inner duct installed by
Applicant or an authorized contractor selected by Applicant
shall be installed in accordance with
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SWBT's specifications and in accordance with the same
standards and practices which would be followed if the inner
duct were being installed by SWBT or SWBT's contractors.
Applicant shall indemnify, on request defend, and hold SWBT
harmless for any injuries, losses, damages, claims, or
liabilities directly resulting from the installation of
inner duct by Applicant or any authorized contractor
selected by Applicant under this subsection. Applicant shall
not, without SWBT's prior written approval, arrange for
inner duct installation to be performed by subcontractors
who are not authorized contractors.
(c) SWBT shall, at its expense, remove cables that are retired
or inactive (dead) to free-up requested duct and pole space,
provided that such removal is reasonably feasible (i.e.,
cable pulls easily without incident). If a section of cable
is "frozen" in a duct and would require excavation to
remove, Applicant may, at its option, request that SWBT
excavate the obstruction or, in the alternative, arrange for
excavation of the obstruction to be performed by an
authorized contractor selected by Applicant from a list,
jointly developed and maintained by the parties, of
contractors mutually approved as qualified to perform such
excavations. Applicant may excavate the obstruction itself
if Applicant is on the list of mutually approved contractors
at the time the work is performed. Such excavations will be
at Applicant's expense. Removal of the remainder of the
cable will be at SWBT's expense. Excavation work performed
by Applicant or an authorized contractor selected by
Applicant shall be performed in accordance with SWBT's
specifications and in accordance with the same standards and
practices which would be followed if such excavation work
were being performed by SWBT or SWBT's contractors. Neither
Applicant nor any authorized contractor selected by
Applicant to perform excavation work under this subsection
shall conduct facility excavation activities in any manner
which jeopardizes or degrades the integrity of SWBT's
structures or interferes with any existing use of the
facilities. Applicant shall indemnify, on request defend,
and hold SWBT harmless for any injuries, losses, damages,
claims, or liabilities directly resulting from the
performance of excavation work by Applicant or any
authorized contractor selected by Applicant under this
subsection. Applicant shall not, without SWBT's prior
written approval, arrange for excavation work to be
performed under this subsection by subcontractors who are
not qualified contractors.
10.03 Issuance of Licenses and Immediate Access When No Make-ready Work
is Required. If, on the basis of Applicant's representations or SWBT's field
inspection, if any, SWBT determines that no make-ready work is necessary to
accommodate Applicant's facilities, SWBT will issue a license without performing
make-ready work and pole attachment or conduit occupancy space will be made
available to Applicant for
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immediate occupancy. Immediate occupancy prior to the issuance of a license
shall be governed by Section 8.03.
10.04 Make-ready Work. If SWBT determines that make-ready work will be
necessary to accommodate Applicant's facilities, SWBT shall promptly notify
Applicant of the make-ready work proposed to enable the accommodation of
Applicant's facilities.
(a) The notice shall be given in writing no later than 45 days
after the receipt by SWBT of Applicant's completed
application pursuant to Section 9.02 of this Agreement or
within such other period of time as may be mutually agreed
upon in writing by the parties.
(b) The notice will include SWBT's estimate of make-ready
charges, which estimate shall be stated on SWBT Form SW-9434
("Access Application and Make-Ready Authorization"), a copy
of which is attached hereto as part of APPENDIX III.
(c) Applicant shall have 20 days (the "acceptance period") after
receiving SWBT's estimate of make-ready charges to authorize
completion of the make-ready work proposed by SWBT or to
advise SWBT of its willingness to perform the proposed
make-ready work itself. If Applicant advises SWBT that it is
willing to perform the make-ready work proposed by SWBT in
accordance with SWBT's plans and specifications, SWBT will
not, without due cause and justification, refuse to accept
Applicant's offer to perform the work. Authorization shall
be accomplished by Applicant's signing the estimate and
returning it to SWBT within the 20-day acceptance period.
(d) Within the 20-day acceptance period, the parties may
negotiate modifications of the make-ready work to be
performed. If the parties reach agreement through
negotiation, a new estimate shall be prepared and
authorization shall be accomplished by Applicant's signing
the revised estimate and returning it to SWBT within the
original 20-day acceptance period, or within such period of
time as may be mutually agreed upon by the parties.
(e) If Applicant does not sign and return the estimate within
the 20-day acceptance period, or within such other period of
time as may be mutually agreed upon in writing by the
parties, Applicant shall notify SWBT in writing by the 20th
day whether Applicant is withdrawing its application,
electing to perform the make-ready work itself as provided
in subsection (c) or electing to treat SWBT's make-ready
requirements as a denial of access.
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(1) If no such notice is given by the 20th day, or such
later date as may be mutually agreed upon by the
parties, SWBT shall contact Applicant to determine
whether Applicant intends to withdraw its application.
Applicant shall be deemed to have withdrawn its
application if, in response to SWBT's inquiry,
Applicant does not immediately sign and return the
estimate to SWBT.
(2) If Applicant timely notifies SWBT that it is electing
to treat SWBT's make-ready requirements as a denial of
access, SWBT shall, within 20 days after receiving the
notice, provide Applicant with a written statement
explaining its decision to grant access only if the
specified make-ready work is performed. The statement
shall be specific, shall include all relevant evidence
and information supporting SWBT's decision to grant
access only if the specified make-ready work is
performed, and shall explain how such evidence and
information relates to SWBT's decision for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. The statement shall
also set forth the basis for SWBT's make-ready
proposals and specifically address SWBT's rationale for
rejecting Applicant's alternative written proposals, if
any.
10.05 Performance of Make-ready Work. Except as otherwise specifically
provided in Section 10.02 and in this section, make-ready work shall be
performed by SWBT or by contractors, subcontractors, or other persons acting on
SWBT's behalf and shall be performed by SWBT in accordance with the same time
intervals which would be applicable if SWBT were performing the work for itself
(a) Applicant and SWBT will mutually establish and maintain for each
SWBT construction district lists of authorized contractors which
may be selected by Applicant to perform make-ready work when
SWBT's interval for beginning or completing such make-ready work
does not meet Applicant's needs. At Applicant's request,
Applicant will be included on such lists upon Applicant's
demonstrating that (1) its personnel are qualified to perform
such work in accordance with SWBT's specifications and (2)
Applicant meets the financial responsibility (insurance and
bonding) requirements generally applicable to contractors,
subcontractors, and other vendors performing the same or similar
work on SWBT's behalf or the self-insurance requirements of
Section 23.02.
(b) If SWBT's interval for beginning or completing make-ready work
does not meet Applicant's needs, Applicant may (1) perform the
make-ready work itself, if Applicant is on the applicable list of
authorized contractors at the time the work is to be performed or
(2) arrange for the work to be performed by an authorized
contractor selected by Applicant
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from the applicable list of authorized contractors. Subject to
the availability of personnel, Applicant may also request that
SWBT perform the work on an expedited basis; provided, however,
that make-ready work will not be performed on an expedited basis
unless Applicant first approves any overtime or premium rates or
charges associated with performance of the work on an expedited
basis.
(c) From time to time, additional contractors, subcontractors or
other vendors may be jointly approved by Applicant and SWBT to
perform specific make-ready work in the event that the work load
exceeds the capacity of the authorized contractors on the
approved list to perform the make-ready work in a timely manner.
(d) Make-ready work performed by Applicant, by an authorized
contractor selected by Applicant, or by a contractor,
subcontractor, or other vendor jointly approved by the parties
under subsection (c) shall be performed in accordance with SWBT's
specifications and in accordance with the same standards and
practices which would be followed if such excavation work were
being performed by SWBT or SWBT's contractors. Neither Applicant
nor authorized contractors selected by Applicant to perform
make-ready work under this section shall conduct such work in any
manner which jeopardizes or degrades the integrity of SWBT's
structures or interferes with any existing use of SWBT's
facilities. Applicant and any authorized contractor selected by
Applicant to perform make-ready work shall indemnify, on request
defend, and hold SWBT harmless from any and all injuries, losses,
damages, claims, or liabilities directly resulting from their
activities under this section.
(e) Nothing contained in this section authorizes Applicant, any
authorized contractor selected by Applicant, or any other person
acting on Applicant's behalf to consolidate SWBT's cables.
10.06 Multiple Applications. Applications shall be processed on a
first-come, first-served basis. Applications filed on the same date shall be
treated as having been filed simultaneously and shall be processed accordingly.
10.07 Payments to Others for Expenses Incurred in Transferring or
Arranging Their Facilities. Applicant shall make arrangements with the owners of
other facilities attached to SWBT's poles or occupying space in SWBT's conduit
system regarding reimbursement for any expenses incurred by them in transferring
or rearranging their facilities to accommodate the attachment or placement of
Applicant's facilities to or in SWBT's poles, ducts, and conduits.
10.08 Reimbursement for the Creation or Use of Additional Capacity. As
a result of facilities modification, capacity expansion, or other make-ready
work performed to
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accommodate Applicant's facilities, additional capacity may
become available on SWBT's poles or in its conduit system. In such event,
Applicant shall not have a preferential right to utilize such additional
capacity in the future and shall not be entitled to any pole attachment or
conduit occupancy fees subsequently paid to SWBT for the use of such additional
capacity. SWBT shall, however, establish procedures for giving Applicant notice
of the subsequent use by SWBT or third parties of additional space or capacity
created at Applicant's expense. If SWBT utilizes additional space or capacity
created at Applicant's expense, SWBT will reimburse Applicant on a pro-rata
basis for SWBT's share, if any, of Applicant's capacity expansion costs, to the
extent reimbursement is required by the Pole Attachment Act and applicable
rules, regulations, and commission orders. If any third party later utilizes any
such additional space or capacity, SWBT shall, at the request of Applicant or
such third party, provide such information as may be available to SWBT to assist
Applicant and such third party in determining the amount, if any, which such
third party may owe Applicant as its pro-rata share of Applicant's capacity
expansion costs. Nothing contained in this section shall be construed as
conferring or imposing on SWBT any right or duty to determine the amounts owing
by a third party to Applicant, to collect or remit any such amounts to
Applicant, to resolve or adjudicate disputes over reimbursement between
Applicant and third parties, to deny a third party access to SWBT's poles,
ducts, conduits, or rights-of-way due to such third party's failure to satisfy
Applicant's reimbursement demands, or to take any other action to enforce
Applicant's reimbursement rights against any third party. In like manner, for
additional capacity created by SWBT from and after the date of enactment of the
Telecommunications Act of 1996, SWBT shall be entitled to recover from Applicant
and third parties, to the full extent permitted by law, their pro-rata shares of
such capacity expansion costs incurred by SWBT. To the extent that either party
seeks to avail itself of this cost-saving mechanism, such party shall be
responsible for maintaining adequate records documenting the costs subject to
reimbursement, including but not limited to costs incurred for facilities
modification and capacity expansion work performed directly by such party or
contractors performing work on such party's behalf.
10.09 License and Attachment. After all required make-ready work is
completed, SWBT will issue a license confirming that Applicant may attach
specified facilities to SWBT's poles or place specified facilities in SWBT's
conduit system. Applicant shall have access to attach or place only those
facilities specifically described in licenses subject to this Agreement, and no
others, except as otherwise specifically provided in (a) Sections 8.03 and 12.03
or other provisions of this Agreement, (b) any other written agreement between
the parties providing for such access, or (c) the provisions of any applicable
tariffs or commission orders.
ARTICLE 11: CONSTRUCTION OF APPLICANT'S FACILITIES
11.01 Responsibility for Attaching and Placing Facilities. Each party
shall be responsible for the actual attachment of its own facilities to SWBT's
poles and the placement of such facilities in SWBT's ducts, conduits, and
rights-of-way and shall be solely responsible for all costs and expenses
incurred by it or on its behalf in connection
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with such activities. In this regard, each party and its contractors shall be
solely responsible for (a) paying all persons and entities who provide
materials, labor, access to real or personal property, or other goods or
services in connection with the construction and attachment of its facilities
and (b) directing the activities of all personnel acting on such party's behalf
while they are physically present on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way.
11.02 Construction Schedule. After the issuance of a license, Applicant
shall provide SWBT with an updated construction schedule and thereafter keep
SWBT informed of anticipated changes in the construction schedule. Construction
schedules received by SWBT shall be subject to the provisions of Article 28 of
this Agreement (Confidentiality of Information). Construction schedules required
by this section shall include, at a minimum, the following information:
(a) the name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
(b) the names of each contractor and subcontractor which will be
involved in the construction activities;
(c) the estimated dates when construction will begin and end;
and
(d) the approximate dates when Applicant or personnel working on
Applicant's behalf will be performing construction work in
connection with the attachment of Applicant's facilities to
SWBT's poles or the placement of Applicant's facilities in
any part of SWBT's conduit system.
ARTICLE 12: USE AND ROUTINE MAINTENANCE
OF APPLICANT'S FACILITIES
12.01 Use of Applicant's Facilities. Each license subject to this
Agreement authorizes Applicant to have access to Applicant's facilities on or
within SWBT's poles, ducts, and conduits as needed for the purpose of serving
Applicant's customers.
12.02 Routine Maintenance of Applicant's Facilities. Each license
subject to this Agreement authorizes Applicant to engage in routine maintenance
of facilities located on or within SWBT's poles, ducts, and conduits. Routine
maintenance does not include the replacement or modification of Applicant's
facilities in any manner which results in Applicant's facilities differing
substantially in size, weight, or physical characteristics from the facilities
described in Applicant's license.
12.03 Installation of Drive Rings and J-Hooks. Applicant may install
drive rings and J-hooks on SWBT's poles for the attachment of drop wires as
specified in this section.
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(a) Drive rings and J-hooks may be installed as specified in
pole attachment licenses issued to Applicant.
(b) If attachment space has already been licensed to Applicant
on a given SWBT pole, Applicant may install drive rings and
J-hooks within the space assigned to Applicant (typically
six inches above and six inches below Applicant's point of
attachment on the pole if the point of attachment is in the
center of the space assigned to Applicant) without applying
for or obtaining a new or amended license. No additional
attachment charges shall apply with respect to drive rings
and J-hooks installed in Applicant's licensed attachment
space.
(c) Applicant's first choice for placement of drive rings and
J-hooks shall be the licensed attachment space assigned to
Applicant as provided in subsection (b) above; provided,
however, that if attachment space already licensed to
Applicant on a given SWBT pole is not adequate for
Applicant's drive rings or J-hooks, Applicant may, when
necessary, and without applying for or obtaining a new or
amended license, install such drive rings and J-hooks above
or below Applicant's licensed attachment space as described
in subsection (b) above. No additional attachment charges
shall apply with respect to drive rings and J-hooks
installed outside Applicant's licensed attachment space as
permitted in this subsection.
(d) If Applicant has not already been licensed attachment space
on a given SWBT pole, Applicant may, when necessary, install
drive rings and J-hooks to unassigned space on such pole
without first obtaining a license for such attachment and
shall, promptly following such installation, notify SWBT of
the attachment. Such notification shall be made on a form to
be developed by SWBT for this purpose and shall constitute
an application for a license. Such application may be
conditionally granted without a pre-license survey or other
inquiry by SWBT, and SWBT shall not be required to process
the application, log the attachment as an assignment in its
outside plant records, or issue a permanent license for the
attachment unless specifically requested by Applicant to do
so; provided, however, that a conditionally granted
application under this subsection shall be subject to
revocation if it is subsequently determined that such
attachment has been made in violation of subsection (e) of
this section or other provisions of this Agreement.
Drive-rings and J-hooks installed pursuant to this
subsection are pole attachments and charges for such
attachments shall be determined in accordance with the Pole
Attachment Act and applicable rules, regulations, and
commission orders.
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(e) Notwithstanding the provisions of subsections (c)-(d) above,
Applicant may not install drive rings and J-hooks in space
assigned to SWBT or another joint user without the approval
of SWBT or such other joint user and may not install drive
rings and J-hooks in unassigned space in any manner which
will block or preclude the subsequent occupancy or use of
space by SWBT or other joint users. If the presence of
Applicant's facilities in space not assigned to Applicant
will block or preclude the use of assigned or otherwise
assignable space by SWBT or other joint users, Applicant
shall, on SWBT's request, promptly relocate the facilities
in order to accommodate the facilities of other users and
shall bear all expenses associated with such relocation.
(f) SWBT may not install drive rings of J-hooks in space
assigned to Applicant without Applicant's approval and
shall, at Applicant's request, and at SWBT's expense,
promptly relocate or, if necessary, remove, any drive rings
or J-hooks installed in violation of this subsection. If
SWBT drive rings or J-hooks have been installed in space
subsequently assigned to Applicant, or if the presence of
SWBT drive rings or J-hooks blocks or precludes the use of
otherwise assignable space on SWBT's poles, SWBT shall, at
Applicant's request, relocate such facilities, if it is
feasible to do so, as make-ready work.
(g) Applicant shall, at the request of SWBT or another joint
user, at Applicant's expense, promptly relocate or, if
necessary, remove any drive rings and J-hooks placed on
SWBT's poles other than as permitted in this section.
12.04 Short-term Use of Maintenance Ducts for Repair and Maintenance
Activities. Maintenance ducts shall be available, on a nondiscriminatory basis,
for short-term (not to exceed 30 days) non-emergency maintenance or repair
activities by any person or entity (including but not limited to SWBT,
Applicant, other local service providers, and other joint users) with facilities
in the conduit section in which the maintenance duct is located; provided,
however, that use of the maintenance duct for non-emergency maintenance and
repair activities must be scheduled by SWBT. A person or entity using the
maintenance duct for non-emergency maintenance or repair activities shall
immediately notify SWBT of such use and must either vacate the maintenance duct
within 30 days or, with SWBT's consent, which consent shall not be unreasonably
withheld, rearrange its facilities to ensure that at least one full-sized
replacement maintenance duct, (or, if the designated maintenance duct was an
inner duct, a suitable replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such person or entity
occupies the maintenance duct. Cables temporarily placed in the maintenance duct
on a non-emergency basis shall be subject to such accommodations as may be
necessary to rectify emergencies which may occur while the maintenance duct is
occupied.
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12.05 Responsibility for Maintenance of Facilities. Each party shall be
solely responsible for maintaining its own facilities and (a) paying all persons
and entities who provide materials, labor, access to real or personal property,
or other goods or services in connection with the maintenance of such party's
facilities and (b) directing the activities of all such personnel while they are
physically present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
12.06 Information Concerning the Maintenance of Applicant's Facilities.
Promptly after the issuance of a license, Applicant shall provide SWBT with the
name, title, business address, and business telephone number of the manager
responsible for routine maintenance of Applicant's facilities and shall
thereafter notify SWBT of changes to such information. The manager responsible
for routine maintenance of Applicant's facilities shall, on SWBT's request,
identify any contractor, subcontractor, or other person performing maintenance
activities on Applicant's behalf at a specified site.
ARTICLE 13: MODIFICATION OF APPLICANT'S FACILITIES
13.01 Notification of Planned Modifications. Applicant shall notify
SWBT in writing at least 30 days before adding to, relocating, replacing or
otherwise modifying its facilities already attached to a SWBT pole or located in
any SWBT duct or conduit. The notice shall contain sufficient information to
enable SWBT to determine whether the proposed addition, relocation, replacement,
or modification is within the scope of Applicant's present license or requires a
new or amended license. No notice shall be required for such routine
modifications as the installation or placement of drive rings or J-hooks,
terminals, and other ancillary apparatus routinely used in providing service to
customers, having no effect on the structural integrity of SWBT's poles, ducts,
or conduits, and having no effect on the ability of SWBT or joint users to use
or have access to SWBT's poles, ducts, conduits, or rights-of-way.
13.02 New or Amended License Required. A new or amended license will be
required if the proposed addition, relocation, replacement, or modification:
(a) requires that Applicant occupy additional space on SWBT's
poles (except on a temporary basis in the event of an
emergency);
(b) requires that Applicant occupy additional space (other than
space in the maintenance duct in accordance with Sections
12.04, 13.03, and 15.02 of this Agreement) in any SWBT duct
or conduit except on a temporary basis in the event of an
emergency;
(c) results in the facilities attached to SWBT's poles or placed
in SWBT's ducts or conduits being different from those
described in Applicant's current license (e.g., different
duct or size increase causing a need to recalculate storm
loadings, guying, or pole class); or
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(d) requires additional holding capacity on a permanent basis.
13.03 Use of Maintenance Duct in Connection with Facility Modifications
and Replacements. Non-emergency access to the maintenance duct in connection
with facilities modifications and replacements shall be subject to the
provisions of Section 12.04 of this Agreement.
13.04 Replacement of Facilities and Spinning/Overlashing Additional
Cables. Applicant may replace existing facilities with new facilities occupying
the same pole, duct, or conduit space, and may spin or overlash additional
cables to its own existing facilities; provided, however, that such activities
shall not be considered to be routine maintenance and shall be subject to the
requirements of this article.
13.05 Streamlined Procedures for the Issuance of Amended Licenses. SWBT
may streamline procedures for the issuance of amended licenses with respect to
proposed additions, relocations, replacements, or modifications of Applicant's
facilities when it appears to SWBT that the proposed additions, relocations,
replacements, or modifications will not require make-ready work by SWBT, will
not interfere with SWBT's use of its poles, conduit systems, or facilities
attached or connected thereto or contained therein, and will not interfere with
the use of existing facilities attached or connected thereto or contained
therein by joint users.
ARTICLE 14: REQUIRED REARRANGEMENTS
OF APPLICANT'S FACILITIES
14.01 Notice of Planned Modifications. The parties acknowledge that the
Pole Attachment Act recites in part that "Whenever the owner of a pole, duct,
conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or
right-of-way, the owner shall provide written notification of such action to any
entity that has obtained an attachment to such conduit or right-of-way so that
such entity may have a reasonable opportunity to add to or modify its existing
attachment." The parties further acknowledge that the FCC, in the First
Interconnection Order in CC Docket No. 96-98, recites that "... absent a private
agreement establishing notification procedures, written notification of a
modification must be provided to parties holding attachments on the facility to
be modified at least 60 days prior to the commencement of the physical
modification itself." This article is intended by the parties to alter the
above-described notification requirements only as provided in Section 14.02(b)
below.
14.02 Required Rearrangement of Applicant's Facilities. Applicant
acknowledges that, from time to time, it may be necessary or desirable for SWBT
to rearrange facilities on or within its poles or conduit systems, change out
poles, add poles to a pole line, relocate or reconstruct poles, pole lines,
conduit segments, or conduit runs, enlarge manholes, reinforce conduit, or
otherwise modify poles, pole lines, or portions of its conduit system and that
such changes may be necessitated by SWBT's own business needs or by factors
outside of SWBT's control, such as the decision by a municipality to
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widen streets or the decision by a third party to seek access to SWBT's poles,
ducts, conduits, or rights-of-way.
(a) Applicant agrees that Applicant will cooperate with SWBT and
joint users in making such rearrangements as may be
necessary to enable such changes to be made and that costs
incurred by Applicant in making such rearrangements shall,
in the absence of a specific agreement to the contrary, be
borne by the parties in accordance with then applicable
statutes, rules, regulations, and commission orders,
including the Pole Attachment Act, rules, regulations, and
commission orders thereunder.
(b) Whenever feasible, SWBT shall give Applicant not less than
60 days prior written notice of the need for Applicant to
rearrange its facilities pursuant to this section. The
notice shall state the date by which such rearrangements are
to be completed. Applicant shall complete such
rearrangements within the time prescribed in the notice.
SWBT may request that such modification be made within a
shorter period of time, in which event Applicant shall not
refuse to comply such request without due cause and
justification. In determining due cause and justification,
the following factors, among others, may be considered:
(1) the circumstances under which the rearrangements are
sought (e.g., street-widening project, request by a
competing provider for access);
(2) the timeliness of SWBT's request to Applicant;
(3) the nature and number of rearrangements sought;
(4) the impact on the ability of the parties and joint
users to meet customer service needs; and
(5) risks of service interruption to customers of the
parties and joint users.
(c) Nothing contained in this article shall preclude Applicant
from advising SWBT, within 60 days from the date of the
notice, of its desire to add to or modify its existing
attachment.
ARTICLE 15: EMERGENCY REPAIRS AND POLE REPLACEMENTS
15.01 Applicability. The parties acknowledge that in the event of an
emergency, services provided by the parties and joint users to their respective
customers may be interrupted, that it may not be possible for all service
providers with facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, or rights-of-way to restore service to all customers at the same time,
that disputes may arise between the parties concerning the
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manner in which emergency repairs shall be made, that it is essential that
decisions be made quickly, and that it is highly desirable that all service
providers utilizing SWBT's poles, ducts, conduits, and rights-of-way enter into
appropriate arrangements relating to emergency repairs and service restoration.
In the absence of prearranged agreements, it is expected that disputes will be
immediately resolved at the site by the affected parties present based upon the
criteria set forth in Section 15.05 of this Agreement. The provisions of this
article shall apply in the absence of more comprehensive agreements relating to
emergency repairs.
15.02 Responsibility for Emergency Repairs; Access to Maintenance Duct.
In general, each party shall be responsible for making emergency repairs to its
own facilities and for formulating appropriate plans and practices enabling such
party to make such repairs.
(a) Nothing contained in this Agreement shall be construed as
requiring either party to perform any repair or service
restoration work of any kind with respect to the other
party's facilities or the facilities of joint users.
(b) Maintenance ducts shall be available, on a nondiscriminatory
basis, for emergency repair activities by any person or
entity (including but not limited to SWBT, Applicant, other
local service providers, and other joint users) with
facilities in the conduit section in which the maintenance
duct is located; provided, however, that a person or entity
using the maintenance duct for emergency repair activities
shall immediately notify SWBT of such use and must either
vacate the maintenance duct within 30 days or, with SWBT's
consent, which consent shall not be unreasonably withheld,
rearrange its facilities to ensure that at least one
full-sized replacement maintenance duct (or, if the
designated maintenance duct was an inner duct, a suitable
replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such
person or entity occupies the maintenance duct. The parties
agree not to exceed 30 days' use except in unusual
emergencies that may require longer than 30 days to rectify.
(c) If necessary, other unoccupied ducts or inner ducts may be
used on a short-term basis when the maintenance duct is
unavailable. Any such use shall be subject to the same rules
applicable to the maintenance duct and shall be subject to
the rights of any party or joint user to whom such duct or
inner duct has been assigned.
15.03 Designation of Emergency Repair Coordinators and Other
Information. For each SWBT construction district, Applicant shall provide SWBT
with the emergency contact number of Applicant's designated point of contact for
coordinating the handling of emergency repairs of Applicant's facilities and
shall thereafter notify SWBT of changes to such information.
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15.04 Reporting of Conditions Requiring Emergency Repairs. As a
courtesy, each party shall endeavor to notify the other party at the earliest
practicable opportunity after discovering any condition on or in any of SWBT's
poles, ducts, conduits, or rights-of-way requiring emergency repairs to the
other party's facilities.
15.05 Order of Precedence of Work Operations: Access to Maintenance
Duct and Other Unoccupied Ducts in Emergency Situations. When notice and
coordination are practicable, SWBT, Applicant, and other affected parties shall
coordinate repair and other work operations in emergency situations involving
service disruptions. Disputes will be immediately resolved at the site by the
affected parties present in accordance with the following principles.
(a) Emergency service restoration work requirements shall take
precedence over other work operations.
(b) Except as otherwise agreed upon by the parties, restoration
of lines for emergency services providers (e.g., 911, fire,
police, and hospital lines) shall be given the highest
priority and temporary occupancy of the maintenance duct
(and, if necessary, other unoccupied ducts) shall be
assigned in a manner consistent with this priority.
Secondary priority shall be given to restoring services to
the local service providers with the greatest numbers of
local lines out of service due to the emergency being
rectified. The parties shall exercise good faith in
assigning priorities, shall base their decisions on the best
information then available to them at the site in question,
and may, by mutual agreement at the site, take other factors
into consideration in assigning priorities and sequencing
service restoration activities.
(c) SWBT shall determine the order of precedence of work
operations and assignment of duct space in the maintenance
duct (and other unoccupied ducts) only if the affected
parties present are unable to reach prompt agreement;
provided, however, that these decisions shall be made by
SWBT on a nondiscriminatory basis in accordance with the
principles set forth in this section.
15.06 Unilateral Corrective Action. When either party reasonably
believes that, due to the condition of the other party's facilities placed on,
within, or in the vicinity of SWBT's poles, ducts, conduits, or rights-of-way,
there is an immediate or imminent threat to the safety or health of employees or
any other person, to the physical integrity or functioning of either party, or
either party's ability to meet its service obligations, either party may
unilaterally perform such limited corrective work as may be necessary to prevent
or mitigate against the injury threatened. For example, if facilities of the
other party have become detached or partially
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detached from a pole, or detached or partially detached from supporting racks or
wall supports within a manhole, either party may reattach them as provided in
this section but shall not be obligated to do so.
(a) Before performing any corrective work involving facilities
of the other party, SWBT or Applicant shall first attempt to
notify the other party. After such notice has been given,
the parties shall coordinate corrective work.
(b) When an emergency situation exists such that advance notice
and coordination are not practicable, either party may
perform corrective work without first giving notice to the
other party and shall promptly notify the other party of the
corrective work performed and the reason why notice was not
given.
15.07 Emergency Pole Replacements. Applicant will cooperate fully with
SWBT when emergency pole replacements are required.
(a) When emergency pole replacements are required, SWBT shall
promptly make a good faith effort to contact Applicant to
notify Applicant of the emergency and to determine whether
Applicant will respond to the emergency in a timely manner.
(b) If notified by SWBT that an emergency exists which will
require the replacement of a pole, Applicant shall transfer
its facilities immediately, provided such transfer is
necessary to rectify the emergency. If the transfer is to a
SWBT replacement pole, the transfer shall be in accordance
with SWBT's placement instructions.
(c) If Applicant is unable to respond to the emergency situation
immediately, Applicant shall so advise SWBT and thereby
authorize SWBT (or any joint user sharing the pole with
SWBT) to perform such emergency-necessitated transfers (and
associated facilities rearrangements) on Applicant's behalf.
15.08 Expenses Associated with Emergency Repairs. Each party shall bear
all reasonable expenses arising out of or in connection with emergency repairs
of its own facilities and transfers or rearrangements of such facilities
associated with emergency pole replacements made in accordance with the
provisions of this article.
(a) Each party shall be solely responsible for paying all
persons and entities who provide materials, labor, access to
real or personal property, or other goods or services in
connection with any such repair, transfer, or rearrangement
of such party's facilities.
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(b) Applicant shall reimburse SWBT for the costs incurred by
SWBT for work performed by SWBT on Applicant's behalf in
accordance with the provisions of this article; provided,
however, that when the costs incurred by SWBT are for work
performed in part for Applicant and in part for SWBT and
third parties, Applicant shall only reimburse SWBT for
Applicant's pro-rata share of the costs.
ARTICLE 16: INSPECTION BY SWBT OF APPLICANT'S FACILITIES
16.01 SWBT's Right to Make Periodic or Spot Inspections. SWBT shall
have the right, but not the duty, to make periodic or spot inspections at any
time of any or all facilities attached to SWBT's poles or placed within SWBT's
poles, ducts, conduits, or rights-of-way. Inspections of Applicant's facilities
may be conducted for the purpose of determining whether facilities attached to
SWBT's poles or placed in SWBT's conduit system are in compliance with the terms
of this Agreement and conform to licenses subject to this Agreement. Charges for
inspections shall be allocated among all parties benefiting from the inspection
in accordance with the Pole Attachment Act and applicable rules, regulations,
and commission orders. When an inspection is conducted for the specific purpose
of auditing or investigating Applicant's compliance with this Agreement, SWBT
may charge Applicant for inspection expenses only if the inspection reflects
that Applicant is in substantial noncompliance with the terms of this Agreement.
If the inspection reflects that Applicant's facilities are not in compliance
with the terms of this Agreement, Applicant shall bring its facilities into
compliance promptly after being notified of such noncompliance and shall notify
SWBT in writing when the facilities have been brought into compliance.
16.02 Report of Inspection Results. SWBT will provide Applicant the
results of any inspection of Applicant's facilities performed under Section
16.01 of this Agreement.
16.03 Post-installation Inspections. This article does not apply to
post-installation inspections performed as part of a pre-license survey in those
cases when Applicant has occupied space on or in SWBT's poles, ducts, conduits,
or rights-of-way prior to the issuance of a license pursuant to Section 8.03 of
this Agreement.
ARTICLE 17: TAGGING OF FACILITIES AND
UNAUTHORIZED ATTACHMENTS
17.01 Facilities to Be Marked. Applicant shall tag or otherwise mark
all of Applicant's facilities placed on or in SWBT's poles, ducts, conduits, and
rights-of-way in a manner sufficient to identify the facilities as Applicant's
facilities.
17.02 Removal of Untagged Facilities. Subject to the provisions of
subsections (a)-(d) of this section, SWBT may, without notice to any person or
entity, remove from SWBT's poles or any part of SWBT's conduit system any
untagged or unmarked facilities, including any such facilities owned or used by
Applicant, if SWBT determines
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that such facilities are not the subject of a current license authorizing their
continued attachment to SWBT's poles or occupancy of SWBT's conduit system and
are not otherwise lawfully present on SWBT's poles or in SWBT's conduit system.
(a) Before removing any such untagged or unmarked facilities,
SWBT shall first attempt to determine whether the facilities
are being used by Applicant or any other firm, are
authorized by any license subject to this Agreement, or are
otherwise lawfully present on SWBT's poles or in SWBT's
conduit system.
(b) SWBT shall not remove untagged or unmarked facilities which
are thought to be operational without first making
reasonable efforts to (1) determine the identity of the
owner or other person or entity thought to be responsible
for the facilities and (2) give advance written notice to
such person or entity.
(c) If the facilities appear to be facilities of Applicant
described in a current license or application subject to
this Agreement, SWBT shall give written notice to Applicant
requesting Applicant to tag or mark the facilities within 60
days and Applicant shall either tag the facilities within
the 60-day period, advise SWBT in writing of its schedule
for tagging the facilities, or notify SWBT in writing that
it disclaims ownership of or responsibility for the
facilities. If Applicant disclaims ownership of or
responsibility for the facilities, Applicant shall disclose
to SWBT the identity of the owner or other person or entity,
if any, thought by Applicant to be responsible for the
facilities.
(d) If the facilities appear to be facilities used by Applicant
but not subject to a current license granted under this
Agreement, the provisions of Sections 17.05-17.12 shall
apply.
17.03 Verification That Presently Attached Facilities Are Subject to
Existing Licenses. Applicant warrants and represents that, to the best of its
information and belief, all facilities presently owned or used by Applicant and
attached to SWBT's poles or occupying space within any part of SWBT's conduit
system in this State have been disclosed to SWBT and are subject to current
licenses or are otherwise lawfully present on or in SWBT's poles, ducts, and
conduits. If Applicant determines that any such facilities are not the subject
of current licenses, Applicant shall so advise SWBT and promptly apply for
licenses for such facilities or remove the facilities from SWBT's poles or
conduits. Nothing contained in this section shall be construed as requiring
Applicant to make a field audit of its existing facilities to confirm the
licensing status of its facilities as a prerequisite to entering into this
Agreement.
17.04 Updating of Plant Location Records. Applicant shall furnish SWBT,
upon request, with such information as may from time to time be necessary for
SWBT to
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correct and update SWBT's pole and conduit maps and records, cable plat maps,
and other plant location records recording or logging assignments of pole, duct,
and conduit space.
17.05 Notice to Applicant. If any of Applicant's facilities for which
no license is presently in effect are found attached to SWBT's poles or anchors
or within any part of SWBT's conduit system, SWBT, without prejudice to other
rights or remedies available to SWBT under this Agreement, and without prejudice
to any rights or remedies which may exist independent of this Agreement, shall
send a written notice to Applicant advising Applicant that no license is
presently in effect with respect to the facilities and that Applicant must,
within 60 days, respond to the notice as provided in Section 17.06 of this
Agreement.
17.06 Applicant's Response. Within 60 days after receiving a notice
under Section 17.05 of this Agreement, Applicant shall acknowledge receipt of
the notice and submit to SWBT, in writing, either:
(a) a denial or disclaimer of ownership or other interest in the
facilities, together with an explanation of the factual and
claimed legal basis for such denial or disclaimer;
(b) a statement that the facilities are the subject of a current
license, together with an explanation of the factual and
claimed legal basis for Applicant's assertion that the
facilities are currently licensed, or a statement that no
license is required, and an explanation of the factual and
claimed legal basis for that assertion; or
(c) an application for a new or amended license with respect to
such facilities, together with a full and complete
explanation of the circumstances under which such facilities
were attached to, placed within, or allowed to remain on or
in SWBT's poles or any part of SWBT's conduit system. Such
explanation shall include, at a minimum, the following:
(1) the date (or estimated date) when such facilities were
attached to SWBT's poles or placed in SWBT's conduit
system, and the factual basis supporting Applicant's
selection of such date (or estimated date); and
(2) the factual basis for Applicant's assertion, if any,
that decisions to attach, place or allow the facilities
to remain on or in SWBT's poles or conduit system were
made in good faith and without intent to circumvent
SWBT's pole attachment or conduit occupancy licensing
requirements.
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17.07 Denial or Disclaimer of Ownership or Other Interest. Applicant's
submission to SWBT of a denial or disclaimer of ownership or other interest in
the facilities shall constitute Applicant's waiver of any objection Applicant
may have to SWBT's removal of the facilities. Submission of such a denial or
disclaimer shall not be construed as an agreement by Applicant to pay any
charges associated with removal of the facilities and shall be deemed to be a
denial of any such responsibility; provided, however, that nothing contained in
this section shall prohibit SWBT from invoking the dispute resolution process or
filing suit, in a court of competent jurisdiction, to establish that Applicant
is liable to SWBT for the costs of removal notwithstanding its denial or
disclaimer.
17.08 Review by SWBT of Licensing Status. Within 15 business days after
receiving Applicant's statement that the facilities are the subject of a current
license or that no license is required, SWBT shall review Applicant's
explanation of the factual and claimed legal basis for Applicant's assertions
and shall advise Applicant, in writing, whether it agrees or disagrees with
Applicant's assertions. If SWBT agrees with Applicant's assertions, the parties
may amend the applicable license and no further action shall be required of
Applicant. If SWBT does not accept Applicant's position, Applicant shall, within
15 business days, apply for a new or amended license as provided by Section
17.06(c) of this Agreement.
17.09 Approval of License and Retroactive Charges. If SWBT approves
Applicant's application for a new or amended license, Applicant shall be liable
to SWBT for all fees and charges associated with the unauthorized attachments as
specified in Section 17.10 of this Agreement. The issuance of a new or amended
license as provided by this article shall not operate retroactively or
constitute a waiver by SWBT of any of its rights or privileges under this
Agreement or otherwise.
17.10 Fees and Charges. This section applies to fees and charges with
respect to Applicant's facilities placed on or in SWBT pole, duct, or conduit
space which has not been assigned to Applicant. Applicant shall be liable to
SWBT for all fees and charges associated with any such unauthorized pole
attachments or conduit occupancy for which it is responsible. Attachment and
occupancy fees and charges shall continue to accrue until the unauthorized
facilities are removed from SWBT's poles or conduit system and shall include,
but not be limited to, all fees and charges which would have been due and
payable if Applicant and its predecessors had continuously complied with all
applicable SWBT licensing requirements. Such fees and charges shall be due and
payable 30 days after the date of the bill or invoice stating such fees and
charges. The parties shall engage in good faith discussions to reach a mutually
agreed determination as to the amount due and owing. In some cases, it may be
impractical, unduly difficult, or uneconomical to determine the actual amount of
fees which would have been due and payable if all licensing requirements had
been met. Therefore, if the parties, through good faith discussions fail to
reach agreement on the amount due and owing, and if the amount due and owing
cannot be determined due to Applicant's inability to provide the information
required to determine the correct amount, the amount owing with respect to each
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unauthorized attachment or occupancy shall be equal to three times the annual
attachment and occupancy fees in effect on the date Applicant is notified by
SWBT of the unauthorized attachment or occupancy. Payment of such fees shall be
deemed liquidated damages and not a penalty. In addition, Applicant shall
rearrange or remove its unauthorized facilities at SWBT's request to comply with
applicable placement standards, shall remove its facilities from any space
occupied by or assigned to SWBT or another joint user, and shall pay SWBT for
all costs incurred by SWBT in connection with any facilities rearrangements,
modifications, or replacements necessitated as a result of the presence of
Applicant's unauthorized facilities.
17.11 Removal of Unauthorized Attachments. If Applicant does not apply
for a new or amended pole attachment license with respect to unauthorized
facilities within the specified period of time, or if such application is
received and specifically disapproved, SWBT shall by written notice request to
Applicant to remove its unauthorized facilities not less than 60 days from the
date of notice and Applicant shall remove the facilities within the time
specified in the notice; provided, however, that SWBT may request Applicant to
remove such facilities at an earlier date if such earlier removal is necessary
for reasons beyond SWBT's control. If the facilities have not been removed
within the time specified in the notice, SWBT may, at SWBT's option, remove
Applicant's facilities at Applicant's expense.
17.12 No Ratification of Unlicensed Attachments or Unauthorized Use of
SWBT's Facilities. No act or failure to act by SWBT with regard to any
unlicensed attachment or occupancy or unauthorized use of SWBT's facilities
shall be deemed to constitute a ratification by SWBT of the unlicensed
attachment or occupancy or unauthorized use, nor shall the payment by Applicant
of fees and charges for unauthorized pole attachments or conduit occupancy
exonerate Applicant from civil or criminal liability for any deliberate trespass
or other illegal or wrongful conduct in connection with the placement or use of
such unauthorized facilities.
ARTICLE 18: REMOVAL OF APPLICANT'S FACILITIES
18.01 Responsibility for Removing Facilities. Applicant shall be
responsible for and shall bear all expenses arising out of or in connection with
the removal of its facilities from SWBT's poles, ducts, conduits, and
rights-of-way. Such removals shall be performed in accordance with the
provisions of this article.
(a) When practicable, Applicant shall give SWBT at least 30
days' advance notice in writing of its intent to remove
facilities from any part of SWBT's conduit system and the
proposed method of removal. The notice shall include the
locations of the facilities to be removed, the name and
telephone number of the manager responsible for removal of
the facilities, and the estimated dates when removal of the
facilities will begin and end.
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(b) Applicant shall, if requested by SWBT to do so, place a pull
mandrel (slug) through all or any specified part of the duct
which was occupied by Applicant.
(c) Except as otherwise agreed upon in writing by the parties,
Applicant must, after removing its facilities, plug all
previously occupied ducts at the entrances to SWBT's
manholes (if SWBT would itself plug the ducts under the same
circumstances) in accordance with the standards set by SWBT
for its own operations, provided that such standards have
been communicated in writing to Applicant at least 60 days
in advance of the removal of Applicant's facilities.
(d) Applicant shall be solely responsible for the removal of its
own facilities from SWBT's poles, ducts, conduits, and
rights-of-way and for (1) paying all persons and entities
which provide materials, labor, access to real or personal
property, or other goods or services in connection with the
removal of Applicant's facilities from SWBT's poles, ducts,
conduits, or rights-of-way and (2) directing the activities
of all such personnel while they are physically present on,
within, or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way.
(e) When Applicant no longer intends to occupy space on a SWBT
pole or in a SWBT duct or conduit, Applicant will provide
written notification to SWBT that it wishes to terminate the
license with respect to such space and will remove its
facilities from the space described in the notice. Upon
removal of Applicant's facilities, the license shall
terminate and the space shall be available for reassignment.
18.02 Removal of Facilities Not in Active Use. At SWBT's request,
Applicant shall remove from SWBT's poles, ducts, conduits, and rights-of-way any
of Applicant's facilities which are no longer in active use; provided, however,
that Applicant shall not be required to remove such facilities when due cause
and justification exists for allowing them to remain in place. Applicant shall
not be required to remove retired or inactive (dead) cables that have been
overlashed by other facilities which remain in active use unless removal
expenses are paid by the person or entity requesting removal of such facilities.
Applicant shall not be required to remove cables that would require excavation
to remove unless the person or entity requesting removal of such cables bears
the expenses of such excavation in a manner analogous to the provisions of
Section 10.02(c) of this Agreement. Applicant shall not abandon any of its
facilities by leaving them on SWBT's poles, in SWBT's ducts, conduits, or
rights-of-way, at any location where they may block or obstruct access to SWBT's
poles or any part of SWBT's conduit system, or on any public or private property
(other than property owned or controlled by Applicant) in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
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18.03 Removal Following Termination of License. Applicant shall remove
its facilities from SWBT's poles, ducts, conduits, or rights-of-way within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after termination of the license authorizing the attachment of such
facilities to SWBT's poles or the placement of such facilities in SWBT's ducts,
conduits, or rights-of-way.
18.04 Removal Following Replacement of Facilities. Applicant shall
remove facilities no longer in service from SWBT's poles or conduit system
within 60 days, or within such other period of time as shall be mutually
agreeable to the parties, after the date Applicant replaces existing facilities
on a pole or in a conduit with substitute facilities on the same pole or in the
same conduit; provided, however, that removal of facilities from the maintenance
duct shall be governed by Sections 12.04, 13.03, and 15.02 of this Agreement and
not by this section.
18.05 Removal to Avoid Forfeiture. If the presence of Applicant's
facilities on SWBT's poles or in SWBT's ducts, conduits, or rights-of-way would
cause a forfeiture of the rights of SWBT to occupy the property where such pole,
duct, conduit, or right-of-way is located, SWBT will promptly notify Applicant
in writing and Applicant shall not, without due cause and justification, refuse
to remove its facilities within such time as may be required to prevent such
forfeiture. SWBT will give Applicant not less than 60 days from the date of
notice to remove Applicant's facilities unless prior removal is required to
prevent the forfeiture of SWBT's rights. At Applicant's request, the parties
will engage in good faith negotiations with each other, with joint users, and
with third-party property owners and cooperatively take such other steps as may
be necessary to avoid the unnecessary removal of Applicant's facilities in the
face of a threatened forfeiture.
18.06 Notice of Completion of Removal Activities. Applicant shall give
written notice to SWBT stating the date on which the removal of its facilities
from SWBT's poles, ducts, conduits, and rights-of-way has been completed.
Charges shall continue to accrue with respect to such facilities until
Applicant's facilities have been removed, pull mandrels (slugs) have been pulled
if required by Section 18.01(b) of this Agreement, Applicant has plugged all
previously occupied ducts at the entrances to SWBT's manholes as required by
Section 18.01(c) of this Agreement, and the notice required by this section has
been given.
18.07 Removal of Facilities by SWBT; Notice of Intent to Remove. If
Applicant fails to remove its facilities from SWBT's poles, ducts, or conduits
in accordance with the provisions of Sections 18.01-18.06 of this Agreement,
SWBT may remove such facilities and store them at Applicant's expense in a
public warehouse or elsewhere without being deemed guilty of trespass or
conversion and without becoming liable to Applicant for any injury, loss, or
damage resulting from such actions. SWBT shall give Applicant not less than 60
days prior written notice of its intent to remove Applicant's facilities
pursuant to this section. The notice shall state:
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(a) the date when SWBT plans to commence removal of Applicant's
facilities, and that Applicant may remove the facilities at
Applicant's sole cost and expense at any time before the
date specified;
(b) SWBT's plans with respect to disposition of the facilities
removed; and
(c) that Applicant's failure to remove the facilities or make
alternative arrangements with SWBT for removal and
disposition of the facilities shall constitute an
abandonment of the facilities and of any interest therein.
18.08 Removal of Facilities by SWBT. If SWBT removes any of Applicant's
facilities pursuant to this article, Applicant shall reimburse SWBT for SWBT's
costs in connection with the removal, storage, delivery, or other disposition of
the removed facilities.
18.09 Reattachment or Subsequent Attachment Following Removal. After
Applicant's facilities have been properly removed pursuant to the provisions of
this article, neither the removed facilities nor replacement facilities shall be
attached to SWBT's poles or placed in SWBT's conduit system until Applicant has
first submitted new applications for the facilities and complied with the
provisions of this Agreement.
ARTICLE 19: RATES, FEES, CHARGES, AND BILLING
19.01 Rates, Charges and Fees Subject to Applicable Laws, Regulations,
Rules, and Commission Orders. All rates, charges and fees set forth in this
Agreement, including rates, charges and fees set forth in APPENDIX I (Schedule
of Rates, Fees, and Charges), shall be subject to all applicable federal and
state laws, rules, regulations, and commission orders, including but not limited
to (a) the Pole Attachment Act and rules, regulations, and commission orders
issued thereunder and (b) applicable orders of the State Commission in
interconnection arbitration proceedings.
19.02 Schedule of Rates, Fees, and Charges. SWBT's current schedule of
rates, fees, and charges is attached to this Agreement as APPENDIX I and
incorporated herein as an integral part of this Agreement.
19.03 Pole Attachment and Conduit Occupancy Fees. Until such time as
the FCC authorizes the charging of different rates to cable television systems
and telecommunications carriers, SWBT's annual rates for access to poles, ducts,
conduits, and rights-of-way shall be the same for cable television systems and
telecommunications carriers. For all attachments to SWBT's poles and occupancy
of SWBT's ducts and conduits, Applicant will pay SWBT's semiannual pole
attachment and conduit occupancy fees as specified in APPENDIX I. Pole
attachment and conduit occupancy fees shall be assessed and billed with respect
to (a) occupied space whether or not subject to a current license and (b)
assigned space as well as occupied space. Fees for pole attachments shall
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be based on the number of Applicant's pole attachments as of the date of billing
by SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders. Fees for conduit occupancy shall be based on the number
of duct feet occupied by or assigned to Applicant as of the date of billing by
SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders.
19.04 Billing for and Payment of Pole Attachment and Conduit Occupancy
Fees. Pole Attachment and conduit occupancy fees under this Agreement and
licenses subject to this Agreement shall be payable semiannually in advance.
(a) Bills shall be submitted to Applicant for two semiannual
billing periods, the first period including charges for the
months of January through June and the second including
charges for the months of July through December.
(b) Charges associated with newly licensed pole attachments and
conduit occupancy shall be prorated on a daily basis and
billed with the next semiannual bill.
(c) Charges shall be adjusted and retroactively prorated on a
daily basis following the removal of Applicant's facilities
and shall be retroactively adjusted as a credit on the next
semiannual bill.
19.05 Application Fees. SWBT does not currently charge application fees
in connection with requests for access to poles, ducts, conduits, and
rights-of-way. SWBT does, however, impose charges, on a case-by case basis, for
work performed in processing applications for access and preparing SWBT's poles,
ducts, conduits, and rights-of-way to accommodate the facilities of parties
seeking access.
19.06 Charges for Pre-license Survey Work. Subject to applicable
commission orders, Applicant will pay SWBT's charges for pre-license survey work
associated with the processing of Applicant's request for access. SWBT's
pre-license survey charges are not set on a fixed fee basis and will vary from
case-to-case depending on such factors as the number and location of the poles,
ducts, conduits, and rights-of-way subject to Applicant's access request, the
completeness and quality of information submitted by the Applicant in its
application, the nature of the facilities to be placed by Applicant, and the
nature and extent of facilities modification, capacity expansion, and make-ready
work proposed by Applicant.
19.07 Charges for Facilities Modifications, Capacity Expansions, and
Make-ready Work. Subject to applicable commission orders, Applicant will pay
SWBT's charges for facilities modification, capacity expansion, and make-ready
work performed by SWBT, or by persons acting on SWBT's behalf, as provided in
other provisions of this Agreement and APPENDIX I.
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19.08 Contract Administration Fee. Subject to applicable commission
orders, SWBT may charge Applicant a one-time contract administration as provided
in APPENDIX I. This fee, if applicable, shall be assessed for work performed in
the initial processing of this Agreement and shall be non-refundable upon
acceptance of this Agreement by SWBT.
19.09 Administrative Record-keeping Fees. Subject to applicable
commission orders, SWBT may charge Applicant cost-based administrative
record-keeping fees (e.g., fees associated with records and billing changes
resulting from the sale, consolidation, or other transfer of Applicant's
business or facilities, name changes, and the like) as provided in APPENDIX I.
19.10 Charges for Work Performed by SWBT Employees. Except as otherwise
specifically required by applicable commission orders, SWBT's charges to
Applicant for worked performed by SWBT employees pursuant to this Agreement
shall be computed by multiplying the fully loaded hourly rates for such
employees times the number of hours required to perform the work. Disputes over
SWBT's charges for work performed by SWBT employees, including disputes between
the parties concerning the number of hours required to perform the work, shall
be subject to the dispute resolution procedures of Article 30. Notwithstanding
the execution of this Agreement, Applicant shall have the right to challenge the
methodology utilized by SWBT to determine hourly rates for SWBT employees at any
time in any forum having jurisdiction over the subject matter.
19.11 Due Date for Payment, Interest on Past Due Invoices, Remedies for
Non-payment, and Procedures for Disputing Charges. For fees and charges other
than charges for make-ready work, each bill or invoice submitted by SWBT to
Applicant shall state the date that payment is due, which date shall be not less
than 60 days after the date of the bill or invoice. Applicant will pay each such
bill or invoice on or before the stated due date. For make-ready work, the
payment due date shall be not less than 30 days after the date of the bill or
invoice.
(a) Interest on past due bills and invoices shall accrue at the
rate of 12% per annum, or the maximum rate allowed by law,
whichever is less.
(b) Applicant's failure to pay SWBT's fees and charges shall be
grounds for terminating this Agreement and licenses subject
to this Agreement.
(c) If Applicant fails to pay, when due, any fees or charges
billed to Applicant under this Agreement, and any portion of
such fees or charges remains unpaid more that 15 calendar
days after the due date, SWBT may send Applicant a written
notice advising Applicant that this Agreement, or specified
licenses subject to this Agreement, may be terminated if
such fees or charges are not paid within 15 calendar days
after the date of the notice. Applicant must remit to SWBT
all such unpaid fees or charges, whether disputed or
undisputed, within 15 days
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after the date of the notice. If Applicant pays disputed
fees under protest, and it is later determined that such
fees or any portion thereof should be refunded, the portion
of fees to be refunded shall be refunded with interest at
the rate of 12% per annum or the maximum rate allowed by
law, whichever is less.
(d) Applicant may dispute any fees or charges billed by SWBT to
Applicant under this Agreement by invoking the dispute
resolution procedures set forth in Article 30 of this
Agreement.
(e) If Applicant does not dispute such fees or charges and any
portion of such undisputed fees or charges remains unpaid 30
calendar days after the date of the notice, SWBT may, to the
extent permitted by the Pole Attachment Act and applicable
rules, regulations, and commission orders, terminate this
Agreement and licenses subject to this Agreement, suspend
the processing of pending applications for access to SWBT's
poles, ducts, conduits, and rights-of-way located in this
State, and refuse to accept further applications for access
until such undisputed fees or charges, together with accrued
interest thereon, have been paid in full.
19.12 Modification of Rates, Fees and Charges. Subject to applicable
federal and state laws, rules, regulations, and commission orders, SWBT shall
have the right to modify all rates, charges and fees set forth in this
Agreement, including but not limited to those listed in APPENDIX I, as provided
in this section.
(a) Upon written notice to Applicant, SWBT may change, on a
going-forward basis, the amounts of any rates, fees or
charges assessed under this Agreement. Pole attachment and
conduit occupancy rates shall not be increased more than
once annually.
(1) The notice shall state the effective date of the
changes, which, in the event of a rate increase, shall
be no earlier than the 60th day after the notice is
given.
(2) The changes shall be effective on the effective date
stated in the notice unless stayed or prohibited by a
court or agency of competent jurisdiction.
(3) The changes shall be reflected on the first semiannual
bill issued on or after the effective date specified in
the notice.
(b) If the rates, fees and charges set forth in the notice are
not acceptable to Applicant, Applicant may, notwithstanding
any other provisions of this Agreement, at Applicant's
option (1) seek the renegotiation of this Agreement, (2)
terminate this Agreement, or (3) seek relief through the
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dispute resolution process or before a court or agency of
competent jurisdiction.
19.13 Disputes Over Charging Methodologies. The parties acknowledge
that the Pole Attachment Act grants the FCC regulatory authority over the rates,
terms, and conditions of access to poles, ducts, conduits, and rights-of-way.
The parties further acknowledge that, as of the date of this Agreement, this
State has not elected to assume reverse preemptive regulatory authority over
such rates, terms, and conditions by certifying to the FCC that it has made such
election. Accordingly, complaints concerning and challenges to SWBT's charging
methodologies shall be brought, in the first instance, before the FCC in
accordance with FCC procedural rules unless this State elects to preempt FCC
regulation of pole attachment rates, terms, and conditions of access; provided,
however, that nothing contained in this section shall be construed as affecting
the right of either party to seek relief from any court or agency of competent
jurisdiction in connection with the negotiation, arbitration, and approval of
interconnection agreements under 47 U.S.C. Section 252.
ARTICLE 20: PERFORMANCE AND PAYMENT BONDS
20.01 Bond May Required. SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to execute
performance and payment bonds (or provide other forms of security) in amounts
and on terms sufficient to guarantee the performance of their respective
obligations arising out of or in connection with this Agreement only as provided
in subsections (a)-(b) of this section and Section 20.02. Bonds shall not be
required for entities meeting all self-insurance requirements of Section 23.02
of this Agreement.
(a) If Applicant elects to perform make-ready or facilities
modification work under Section 6.08(c) or Sections
10.02-10.05 of this Agreement, SWBT may require Applicant,
authorized contractors, and other persons acting on
Applicant's behalf to execute bonds equivalent to those
which would be required by SWBT if the work had been
performed by contractors, subcontractors, or other persons
selected directly by SWBT. No bonds shall be required of
Applicant, authorized contractors, or other persons acting
on Applicant's behalf except in those situations where a
bond would be required if the work were being performed on
SWBT's behalf.
(b) No other bond shall be required of Applicant to secure
obligations arising under this Agreement in the absence of
due cause and justification.
(c) If a bond or similar form of assurance is required of
Applicant, an authorized contractor, or other person acting
on Applicant's behalf, Applicant shall promptly submit to
SWBT, upon request, adequate proof that the bond remains in
full force and effect and provide certification
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from the company issuing the bond that the bond will not be
cancelled, changed or materially altered without first
providing SWBT 60 days written notice.
(d) SWBT may communicate directly with the issuer of any bond
required by SWBT pursuant to this section to verify the
terms of the bond, to confirm that the bond remains in
force, and to make demand on the issuer for payment or
performance of any obligations secured by the bond.
20.02 Payment and Performance Bonds in Favor of Contractors and
Subcontractors. Applicant shall be responsible for paying all employees,
contractors, subcontractors, mechanics, materialmen and other persons or
entities performing work or providing materials in connection with (a) the
performance of facilities modification, capacity expansion, or make-ready work
by Applicant, authorized contractors, or other persons acting on Applicant's
behalf under Sections 6.08(c) and 10.02-10.05 of this Agreement or (b) the
construction, attachment, use, inspection, maintenance, repair, rearrangement,
modification, and removal of any of Applicant's facilities attached or to be
attached to SWBT's poles or placed or to be placed within SWBT's ducts,
conduits, or rights-of-way. In the event any claim or demand is made on SWBT by
any such employee, contractor, subcontractor, mechanic, materialman, or other
person or entity providing such materials or performing such work, SWBT may
require, in addition to any security provided under Section 20.01 of this
Agreement, that Applicant execute payment or performance bonds, or provide such
other security, as SWBT may deem reasonable or necessary to protect SWBT from
any such claim or demand.
ARTICLE 21: INDEMNIFICATION
21.01 Risks Associated with Outside Plant Operations. The parties
acknowledge that SWBT's outside plant facilities include thousands of miles of
pole lines, conduits, and rights-of-way located on public and private property
throughout SWBT's service area, that SWBT cannot control or continuously monitor
activities that occur at these sites, and that the risks associated with outside
plant operations and facilities are not similar to the risks associated with
operations occurring inside SWBT's central offices and other secure SWBT
buildings and structures. The parties further acknowledge that the presence of
multiple firms on or in poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT requires that liability risks be fairly allocated between the
parties and that it is the parties' intent to allocate such risks in a just,
reasonable, and nondiscriminatory manner which addresses known risks associated
with the outside plant environment and activities and conditions at outside
plant locations.
21.02 Control of Premises. Applicant acknowledges that its employees
and other persons acting on Applicant's behalf, and employees of joint users and
other persons acting on behalf of joint users, will be present, without
supervision or control by SWBT, and in many cases without SWBT's knowledge, on,
within, and in the vicinity of
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SWBT's poles, ducts, conduits, and rights-of-way. During those times when
Applicant's employees and personnel are present at such sites, Applicant shall
be deemed, for the purpose of allocating liabilities between the parties, to be
an independent contractor in control of the premises except as otherwise
provided in this section. Although SWBT inspectors may be present at the site of
work being performed by Applicant or persons acting on Applicant's behalf, such
inspectors shall have no authority to direct Applicant or personnel acting on
Applicant's behalf concerning the method or manner by which the work is to be
performed, and the presence of a SWBT inspector shall not result in SWBT's being
deemed to be in control of the premises. When both parties are present and
performing work operations at a site subject to this section, SWBT and Applicant
shall be deemed to be jointly in control of the premises. When poles, ducts,
conduits, or rights-of-way occupy property owned by third parties, neither party
shall be deemed to be in control of the premises, except as otherwise provided
by law, at times when such party's work operations are not in progress. Work
operations shall be considered to be in progress from the time work commences
until such work is completed whether or not employees of a party or persons
acting on such party's behalf are actually present at the site.
21.03 INDEMNITY AGAINST AND LIMITATIONS OF LIABILITY WITH RESPECT TO
CERTAIN NEGLIGENT ACTS AND OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS
INDEMNIFYING EACH PARTY FROM LIABILITIES ARISING OUT OF OR IN CONNECTION WITH
CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY. THIS ARTICLE ALSO INCLUDES
PROVISIONS LIMITING THE LIABILITIES OF EACH PARTY ARISING OUT OF OR IN
CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY.
21.04 Indemnities Excluded. Except as otherwise specifically provided
in this article, neither party (as an "indemnifying party") shall be required to
indemnify or defend the other party (as an "indemnified party") against, or hold
the indemnified party harmless from, any suit, claim, demand, loss, damage,
liability, fine, penalty, or expense arising out of:
(a) any breach by the indemnified party of any provision of this
Agreement or any breach by the indemnified party of the
parties' interconnection agreement, if any;
(b) the violation of any law by any employee of the indemnified
party or other person acting on the indemnified party's
behalf;
(c) willful or intentional misconduct or gross negligence
committed by any employee of the indemnified party or by any
other person acting on the indemnified party's behalf; or
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(d) any negligent act or acts committed by any employee of the
indemnified party or other person acting on the indemnified
party's behalf, if such negligent act or acts are the sole
producing cause of the injury, loss, or damage giving rise
to the suit, claim, demand, loss, damage, liability, fine,
penalty, or expense for which indemnity is requested.
21.05 Workplace Injuries. The parties acknowledge that injuries may
occur at sites where work is being performed by or for either party and that
primary responsibility for preventing workplace injuries shall be placed on the
party controlling work operations at the site. Workplace injuries may result
from any of variety of causes, including but not limited to electrocution
associated with contact with electric power lines on poles or use of defective
equipment, falls from poles resulting from the negligence of the injured person
or co-workers or due to the existence of unsafe conditions on or in the vicinity
of the pole, cave-ins and other accidents at excavation sites, explosion of
combustible gases within or in the vicinity of a conduit system, exposure to
hazardous substances or noxious gases at the site, acts of God, and acts and
omissions of third parties over whom neither party has control. Except as
expressly provided in this Agreement to the contrary, each party shall
indemnify, on request defend, and hold the other party harmless from any and all
suits, claims, demands, losses, damages, liabilities, fines, penalties, or
expenses of every kind and character, on account of or in connection with any
injury, loss, or damage suffered by any person, which arises out of or in
connection with the personal injury or death of any employee of the indemnifying
party (or other person acting on the indemnifying party's behalf) if such injury
or death results, in whole or in part, from any occurrence or condition on,
within, or in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way;
provided, however, that Applicant's indemnification duties under this section
shall arise only if the person injured is present at such site in connection
with the performance or anticipated performance of any act required or permitted
to be performed by Applicant or by persons acting on Applicant's behalf pursuant
to this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with any injury, sickness, disease, or death of any employee of
the indemnifying party or any person acting on the indemnifying party's behalf
attributable or allegedly attributable to occurrences or conditions on, within,
or in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way. EXCEPT
AS PROVIDED ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL ARISE EVEN IF THE INJURY,
SICKNESS, DISEASE, OR DEATH WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFIED PARTY.
21.06 Other Claims Brought Against Either Party by Employees and Other
Persons Acting on the Other Party's Behalf. Nothing contained in this Agreement
shall create any contractual liability or other liability on the part of either
party to any employee, contractor, or subcontractor of the other party or any
other person acting on the other party's behalf. Each party shall indemnify, on
request defend, and hold the other
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party harmless from any and all suits, claims, demands, losses, damages,
liabilities, or expenses of every kind and character (other than workplace
injury claims subject to Section 21.05 above) made, brought, or sought against
the indemnified party by any employee, contractor, or subcontractor of the
indemnifying party or by any other person acting on the indemnifying party's
behalf; provided, however, that this section shall apply only to suits, claims,
demands, losses, damages, liabilities, or expenses related to the subject matter
of this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with the employment relationship or other claimed relationship
between the indemnifying party and the employee, contractor, subcontractor, or
other person acting on the indemnifying party's behalf; claims arising out of
disputes over payments due or allegedly due to any employee, contractor,
subcontractor, or other person acting on the indemnifying party's behalf; and
claims arising out of other contract disputes between the indemnifying party and
the employee, contractor, subcontractor, or other person acting on the
indemnifying party's behalf. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.07 Claims Brought Against Either Party by Vendors, Suppliers,
Customers, and other Persons in Privity of Contract with the Other Party. The
parties acknowledge that neither party controls the contractual relationships
between the other party and vendors, suppliers, customers, and other persons in
privity of contract with the other party and that nothing contained in this
Agreement shall create any contractual or other liability of either party to any
vendor, supplier, customer, or other person or entity in privity of contract
with the other party. Each party shall indemnify, on request defend, and hold
the other party harmless from any and all suits, claims, demands, losses,
damages, liabilities, or expenses of every kind and character, made, brought, or
sought against the indemnified party by any vendor, supplier, or customer of the
indemnifying party or by any other person or entity in privity with the
indemnifying party; provided, however, that this section shall apply only to
suits, claims, demands, losses, damages, liabilities, or expenses related to the
subject matter of this Agreement or Applicant's use of SWBT's poles, ducts,
conduits, or rights-of-way. The indemnifying party may not, as a defense to any
obligations of the indemnifying party under this section, assert that the
indemnified party's claims against the indemnifying party are barred by any
tariff or contract limitation of liability applicable to the indemnifying
party's vendor, supplier, or customer or to such other person in privity of
contract with the indemnifying party. Indemnities provided by this section shall
be subject to the exclusions set forth in Section 21.04 and include but are not
limited to indemnities for claims against either party arising out of or in
connection with the failure by the other party to meet its obligations
(including but not limited to contract and tariff obligations) to such other
party's customers and suppliers. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
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SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.08 Claims Brought Against Either Party by Such Party's Own
Employees, Contractors, Subcontractors, or Other Persons Acting on Such Party's
Behalf, and Claims Brought Against Either Party by Such Party's Own Vendors,
Suppliers, Customers, or Other Persons in Privity of Contract with Such Party.
Neither party shall be entitled to indemnity, contribution, or subrogation from
or by the other party with respect to any suits, claims, demands, losses,
damages, liabilities, or expenses, of any kind or character, made, brought, or
sought against such party by any employee, contractor, or subcontractor of such
party, by any other person acting on behalf of such party, by any vendor,
supplier, or customer of such party, or by any other person or entity in privity
of contract with such party, if such suit, claim, demand, loss, damage,
liability, or expense arises directly out of or in connection with the subject
matter of this Agreement or the use by Applicant of SWBT's poles, ducts,
conduits, or rights-of-way. Indemnities excluded by this section include, but
are not limited to, indemnities for claims against either party arising out of
or in connection with employment-related disputes between either party and its
employees; claims against either party by contractors, subcontractors, and
suppliers performing work or supplying materials to SWBT sites at the request of
such party; and other failures by either party to meet its obligations
(including but not limited to contract and tariff obligations) to such party's
own customers and suppliers. THE INDEMNIFICATION EXCLUSIONS OF THIS SECTION
SHALL APPLY EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO THE NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFYING PARTY BUT SHALL NOT APPLY IF THE INJURY, LOSS, OR
DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM AROSE FROM WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR ANY OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF
OR AROSE FROM ANY NEGLIGENT ACT OR ACTS COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF, IF
SUCH NEGLIGENT ACT OR ACTS ARE THE SOLE PRODUCING CAUSE OF THE INJURY, LOSS, OR
DAMAGE GIVING RISE TO THE SUIT, CLAIM, DEMAND, LOSS, DAMAGE, LIABILITY, FINE,
PENALTY, OR EXPENSE FOR WHICH INDEMNITY IS REQUESTED.
21.09 Injuries to Third Parties and Third-Party Property Owners
Resulting from the Parties' Conduct. Each party shall indemnify, on request
defend, and hold the other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or expenses, of every
kind and character, on account of or in connection with the personal injury or
death of any third party or physical damage to real or personal property owned
by a third party, arising, in whole or in part, out of or in connection with the
conduct of employees of the indemnifying party or other persons acting on the
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indemnifying party's behalf while such employees or other persons are present
on, within, or in the vicinity of any SWBT pole, duct, conduit, or right-of-way
in connection with the performance or anticipated performance of any act
required or authorized to be performed pursuant to this Agreement. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities arising out of or in
connection with personal injury, death, and property damage claims by third
parties based on willful or intentional misconduct and negligent acts and
omissions of the indemnifying party.
21.10 Indemnification for Environmental Claims. The parties acknowledge
that hazardous substances may be present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way; that employees and other
persons acting on the parties' behalf working on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way should be familiar with
environmental laws and environmental concerns which arise in outside plant
contexts; that all such employees and other persons should be prepared to
recognize and deal with environmental contingencies existing at specific sites;
and that liabilities associated with environmental claims arising out of or in
connection with the subject matter of this Agreement shall be allocated between
the parties as set forth in this section.
(a) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the violation or breach, by any employee of
the indemnifying party or other person acting on the
indemnifying party or other person acting on the
indemnifying party's behalf, of (1) any federal, state, or
local environmental statute, rules, regulation, ordinance,
or other law or (2) any provision or requirement of this
Agreement dealing with hazardous substances or protection of
the environment.
(b) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the release or discharge, onto any public or
private property, of any hazardous substances, regardless of
the source of such hazardous substances, by any employee of
the indemnifying party, or by any person acting on the
indemnifying party's beheld, while present on, within, or in
the vicinity of any SWBT pole, duct, conduit, or
right-of-way. Indemnities provided by this subsection
include but are not limited to indemnities arising out of or
in connection with the release or discharge of water and
other substances from SWBT's manholes or other conduit
facilities.
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(c) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims,
demands, losses, damages, liabilities, fines, penalties, or
expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or
property, or to the environment, arising out of or in
connection with the removal or disposal of any hazardous
substances by the indemnifying party or by any person acting
on the indemnifying party's behalf, or arising out of or in
connection with the subsequent storage, processing or other
handling of such hazardous substances by any person or
entity after they have been removed by the indemnifying
party or persons acting on the indemnifying party's behalf
from the site of any SWBT pole, duct, conduit, or
right-of-way. For the purposes of this subsection, any
person or entity removing or disposing of hazardous
substances at the request of the indemnifying party or at
the request of any person acting on the indemnifying party's
behalf, and any person or entity subsequently receiving,
storing, processing, or otherwise handling such hazardous
substances shall be considered to be a person acting on the
indemnifying party's behalf.
(d) Except as otherwise specifically provided in this section,
neither party shall be required to indemnify or defend the
other party against, or hold the other party harmless from
any loss, damage, claim, demand, suit, liability, fine,
penalty or expense for which the other party may be liable
under any federal, state, or local environmental statute,
rule, regulation, ordinance, or other law.
21.11 Miscellaneous Claims. Applicant shall indemnify, on request
defend, and hold SWBT harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, and expenses, of every kind and
character, made, brought, or sought against SWBT by any person or entity,
arising out of or in connection with the subject matter of this Agreement and
based on either:
(a) claims for taxes, municipal fees, franchise fees,
right-to-use fees, and other special charges assessed on
SWBT due to the placement or presence of Applicant's
facilities on or within SWBT's poles, ducts, conduits, or
rights-of-way; or
(b) claims based on the violation by Applicant of any third
party's intellectual property rights, including but not
limited to claims for copyright infringement, patent
infringement, or unauthorized use or transmission of
television or radio broadcast programs or other program
material.
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21.12 Applicant's General Indemnity Obligations to SWBT. This section
applies only in those situations not expressly covered by Sections 21.05-21.11
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from Applicant's enforcement of its rights against SWBT pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
and subject to the exclusions set forth in Section 21.04, Applicant shall
indemnify, on request defend, and hold SWBT harmless from any and all suits,
claims, demands, losses, damages, liabilities, fines, penalties, and expenses,
of every kind and character, on account of or in connection with any injury,
loss, or damage to any person or property, or to the environment, arising out of
or in connection with Applicant's access to or use of SWBT's poles, ducts,
conduits, or rights-of-way, Applicant's performance of any acts authorized under
this Agreement, or the presence or activities of Applicant's employees or other
personnel acting on Applicant's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
21.13 SWBT's General Indemnity Obligations to Applicant. This section
applies only in those situations not expressly covered by Sections 21.05-21.10
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from SWBT's enforcement of its rights against Applicant pursuant to
this Agreement or other provisions in the parties' interconnection agreement, if
any. Except as otherwise expressly provided in this Agreement to the contrary,
SWBT shall indemnify, on request defend, and hold Applicant harmless from any
and all suits, claims, demands, losses, damages, liabilities, fines, penalties,
and expenses, of every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the environment,
arising out of or in connection with SWBT's access to or use of SWBT's poles,
ducts, conduits, or rights-of-way, SWBT's performance of any acts authorized
under this Agreement, or the presence or activities of SWBT's employees or other
personnel acting on SWBT's behalf on, within, or in the vicinity of SWBT's
poles, ducts, conduits, or rights-of-way.
21.14 No Rights, Claims, Causes of Action, or Remedies for the Benefit
of Third Parties. Nothing contained in this article is intended to create any
rights, claims, causes of action, or remedies for the benefit of any third
party.
21.15 Assertion of Limitation of Liability Defenses. Each party shall
diligently assert the limitation of liability provisions of any applicable
tariff or contract in any case involving injury, loss, or damage to any customer
of such party for which the other party is not exempt from indemnification
liabilities to the indemnified party under this Agreement.
21.16 Indemnity Liabilities Not Subject to Article 22 Limitations of
Liability. Indemnity liabilities under this article shall not be subject to
Article 22 limitations of liability.
21.17 Defense of Suits. Upon request by the indemnified party, the
indemnifying party shall defend any suit brought against the indemnified party
for any injury, loss, or
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damage subject to indemnification under this Agreement. The indemnified party
shall notify the indemnifying party promptly in writing of any written claims,
lawsuits, or demands for which the indemnifying party may be responsible under
this Agreement. The indemnified party shall cooperate in every reasonable way to
facilitate defense or settlement. The indemnifying party shall have the right to
control and conduct the defense and settlement of any action or claim subject to
consultation of the indemnified party. The indemnifying party shall not be
responsible for any settlement unless the indemnifying party approved such
settlement in advance and agrees to be bound by the settlement agreement.
ARTICLE 22: LIABILITIES AND LIMITATIONS OF LIABILITY
22.01 LIMITATIONS OF LIABILITY WITH RESPECT TO NEGLIGENT ACTS AND
OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS LIMITING THE LIABILITIES OF EACH
PARTY ARISING OUT OF OR IN CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS
OF SUCH PARTY.
22.02 LIMITATIONS OF LIABILITY IN GENERAL. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN SECTIONS 21.16 AND 22.05, NEITHER PARTY'S LIABILITY TO THE
OTHER PARTY FOR DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY NEGLIGENT ACT
OR OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT OR
TORT, SHALL EXCEED IN THE AGGREGATE FOR ANY CALENDAR YEAR THE GREATER OF
$250,000, OR THE TOTAL AMOUNT CHARGED BY SWBT TO APPLICANT UNDER THIS AGREEMENT
FOR THE CALENDAR YEARS WHEN THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY
OCCURRED. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS LIMITING
EITHER PARTY'S LIABILITY FOR ACTS OR OMISSIONS CONSTITUTING WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE BY SUCH PARTY.
22.03 EXCLUSION OF LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE LIABLE 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 ANY ACT OR FAILURE TO ACT PURSUANT TO THIS
AGREEMENT, EVEN IF THE OTHER PARTY HAS ADVISED SUCH PARTY OF THE POSSIBILITY OF
SUCH DAMAGES. THIS SECTION LIMITS EACH PARTY'S LIABILITY FOR INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION
WITH NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF SUCH PARTY BUT
DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR INTENTIONAL MISCONDUCT.
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22.04 SWBT Not Liable to Applicant for Acts of Third Parties or Acts of
God. By affording Applicant access to poles, ducts, conduits, and rights-of-way
owned or controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by Applicant. Except as specifically
provided in Section 22.05 of this Agreement, Applicant assumes all risks of
injury, loss, or damage (and the consequences of any such injury, loss, or
damage) to Applicant's facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, or rights-of-way, and SWBT shall not be liable to Applicant for
any damages to Applicant's facilities other than as provided in Section 22.05.
In no event shall SWBT be liable to Applicant under this Agreement for any
injury, loss, or damage resulting from the acts or omissions of (1) any joint
user or any person acting on a joint user's behalf, (2) any governmental body or
governmental employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invites, trespasser, or
other person present at the site or in the vicinity of any SWBT pole, duct,
conduit, or right-of-way in any capacity other than as a SWBT employee or person
acting on SWBT's behalf. In no event shall SWBT be liable to Applicant under
this Agreement for injuries, losses, or damages resulting from acts of God
(including but not limited to storms, floods, fires, and earthquakes), wars,
civil disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than SWBT's
employees or persons acting on SWBT's behalf, or other causes beyond SWBT's
control which occur at sites subject to this Agreement.
22.05 Damage to Facilities. Except as otherwise specifically provided
in this section, neither party shall be liable to the other party for any
injury, loss, or damage (or for the direct or indirect consequences of any such
injury, loss, or damage) to such other party's facilities attached to SWBT's
poles or placed within or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way.
(a) Each party (the "responsible party"), and persons acting on
behalf of the responsible party, shall exercise due care to
avoid damaging the facilities of the other party (the
"injured party"). In the event such damage occurs, the
responsible party or persons acting on behalf of the
responsible party shall immediately report such damages to
the injured party, and the injured party shall promptly make
such arrangements as may be necessary to restore service to
its customers using the facilities affected.
(b) The responsible party shall reimburse the injured party for
the actual costs incurred by the injured party for repair of
facilities damaged by the willful misconduct, grossly
negligent acts, grossly negligent omissions, and negligent
acts (but not negligent omissions other than grossly
negligent omissions) of employees of the responsible party.
(c) The responsible party shall reimburse the injured party for
the actual costs incurred by the injured party for repair of
facilities damaged by the
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willful misconduct, grossly negligent acts or omissions, and
negligent acts (but not negligent omissions other than
grossly negligent omissions) of independent contractors
acting on the responsible party's behalf; provided, however,
that the injured party shall be limited to recovery of those
costs which cannot be recovered from the independent
contractor causing the damage. The responsible party shall
not be liable to the injured party under this section until
the injured party's claims against the independent
contractor causing the damage have been adjudicated or
settled and the amount of the injured party's claim against
the responsible party is determinable.
(d) NEITHER PARTY SHALL BE REQUIRED BY THIS SECTION TO REIMBURSE
THE OTHER PARTY FOR COSTS INCURRED AS A RESULT OF NEGLIGENT
OMISSIONS OTHER THAN GROSSLY NEGLIGENT OMISSIONS COVERED BY
SUBSECTIONS (c)-(d) OF THIS SECTION.
(e) THIS SECTION LIMITS, BUT DOES NOT EXCLUDE, THE RESPONSIBLE
PARTY'S LIABILITY TO THE INJURED PARTY FOR DAMAGES CAUSED BY
NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OF THE
RESPONSIBLE PARTY AND PERSONS ACTING ON THE RESPONSIBLE
PARTY'S BEHALF.
22.06 No Limitations of Liability in Contravention of Federal or State
Law. Nothing contained in this article shall be construed as exempting either
party from any liability, or limiting such party's liability, in contravention
of federal law or in contravention of the laws of this State.
22.07 Claims Against Third Parties. Nothing contained in this article
shall be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to contractors,
subcontractors, or persons (other than the other party's employees) acting on
the other party's behalf.
ARTICLE 23: INSURANCE
23.01 Insurance Required. Applicant shall comply with the insurance
requirements specified in this section.
(a) Unless Applicant has provided proof of self-insurance as
permitted in Section 23.02 below, Applicant shall obtain and
maintain in full force and effect, for so long as this
Agreement remains in effect, insurance policies specified in
APPENDIX IV of this Agreement. Each policy shall name SWBT
as an additional insured and shall include provisions
requiring the insurer to give SWBT notice of any lapse,
cancellation, or
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termination of the policy or any modification to the
policy affecting SWBT's rights under the policy, including
but not limited to any decrease in coverage or increase in
deductibles.
(b) Except as provided in this subsection, exclusions from
coverage or deductibles, other than those expressly
permitted in APPENDIX IV, must be approved in writing by
SWBT. For authorized contractors and other contractors
performing work on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way on Applicant's
behalf, exclusions from coverage or deductibles, other than
those expressly permitted in APPENDIX IV, must be approved
in writing by Applicant.
(c) Authorized contractors and other contractors performing work
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way on Applicant's behalf shall be
required to meet the same insurance requirements applicable
to contractors performing similar work on SWBT's behalf.
Applicant shall be responsible for securing compliance by
its contractors with this requirement and shall be liable to
SWBT for any damages resulting from its failure to do so.
(d) Self-insurance shall be permitted for persons and entities
(including but not limited to Applicant and authorized
contractors) meeting the self-insurance requirements set
forth in Section 23.02.
23.02 Proof of Insurance or Self-insurance. Proof of insurance or
self-insurance shall be made pursuant to the provisions of this section.
(a) Applicant shall submit to SWBT adequate proof (as determined
by SWBT) that the companies insuring Applicant are providing
all coverages required by this Agreement. Applicant's
insurers shall provide SWBT with certifications that
required coverages will not be cancelled, changed or
materially altered (e.g., by increasing deductibles or
altering exclusions from coverage) except after 30 days
written notice to SWBT.
(b) SWBT will accept certified proof of a person or entity's
qualification as a self-insurer for Workers' Compensation
and Employers Liability, where self-insurance is permitted,
upon receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. SWBT will accept self-insurance by
a person or entity in lieu of other Commercial General
Liability and Automobile Liability Coverage if such person
or entity warrants that its net worth, as shown by its most
recent audited financial statement with no negative notes,
is at least 10 times the minimum liability limits set forth
in APPENDIX IV and SWBT is satisfied that
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such entity will be able to meet its liability obligations
under this Agreement.
(c) Applicant shall be responsible for determining whether
contractors and other persons present on Applicant's behalf
on, within, and in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way meet the self-insurance
requirements of this subsection. Applicant may accept
certified proof of any such person's or entity's
qualification as a self-insurer for Workers' Compensation
and Employers Liability, where self-insurance is permitted,
upon receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. Applicant may accept proof of
self-insurance by a person or entity in lieu of other
Commercial General Liability and Automobile Liability
Coverage if such person or entity warrants that its net
worth, as shown by its most recent audited financial
statement with no negative notes, is at least 10 times the
minimum liability limits set forth in APPENDIX IV and
Applicant is satisfied that such entity will be able to meet
its liability obligations with respect to activities
performed on, within, and in the vicinity of SWBT's poles,
ducts, conduits, and rights-of-way.
23.03 Licensing Contingent on Proof of Insurance. All insurance
required in accordance with APPENDIX IV, or self-insurance as permitted in
Section 23.02, must be in effect before SWBT will issue pole attachment or
conduit occupancy licenses under this Agreement and shall remain in force until
all of Applicant's facilities have been removed from SWBT's poles, ducts,
conduits, and rights-of-way.
23.04 Failure to Obtain or Maintain Coverage. Applicant's failure to
obtain and maintain the required levels and types of insurance coverage required
under this Agreement shall be grounds for termination of this Agreement and
licenses subject to this Agreement. If an insurance carrier shall at any time
notify Applicant or SWBT that any policy or policies of insurance required under
this Agreement will be cancelled or changed in any manner which will result in
Applicant's failure to meet the requirements of this Agreement, SWBT may
terminate this Agreement and all licenses subject to this Agreement not less
than 60 days after giving Applicant written notice of its intention to do so,
and such termination shall be effective on the termination date specified in the
notice unless Applicant has obtained (or made arrangements satisfactory to SWBT
to obtain) the required coverage from another source. In the alternative, SWBT
may, in its sole discretion, elect to take such action as may be necessary to
keep such policy in effect with the required coverages.
ARTICLE 24: ASSIGNMENT OF RIGHTS
24.01 Assignment Permitted. Neither party may assign or otherwise
transfer its rights or obligations under this Agreement except as provided in
this section.
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(a) SWBT may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without Applicant's consent, to any entity controlling,
controlled by, or under common control with SWBT or which
acquires or succeeds to ownership of substantially all of
SWBT's assets.
(b) Applicant may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without SWBT's consent, to: any telecommunications carrier
or cable system operator which (1) is entitled to access to
SWBT's poles, ducts, conduits, and rights-of-way under the
Pole Attachment Act and (2) controls, is controlled by, or
is under common control with Applicant or acquires and
succeeds to ownership of substantially all of Applicant's
assets; provided, however, that such assignment shall not be
effective until Applicant has given SWBT written notice of
the assignment pursuant to Section 24.03 and guaranteed the
performance of Applicant's assignee or successor.
Applicant's assignee or successor shall assume all
outstanding obligations of Applicant under this Agreement,
including but not limited to all liabilities and contingent
liabilities of Applicant arising out of or in connection
with this Agreement.
(c) Applicant may, ancillary to a bona fide loan transaction
between Applicant and any lender, and without SWBT's
consent, grant security interests or make collateral
assignments in substantially all of Applicant's assets,
including Applicant's rights under this Agreement, subject
to the express terms of this Agreement. In the event
Applicant's lender, in the bona fide exercise of its rights
as a secured lender, forecloses on its security interest or
arranges for a third party to acquire Applicant's assets
through public or private sale or through an Agreement with
Applicant, Applicant's lender or the third party acquiring
Applicant's rights under this Agreement shall assume all
outstanding obligations of Applicant under the agreement and
provide proof satisfactory to SWBT that such lender or third
party has complied or will comply with all requirements
established under this Agreement. Notwithstanding any
provisions of this Agreement to the contrary, such
foreclosure by Applicant's lender or acquisition of assets
by such third party shall not constitute a breach of this
Agreement and, upon such foreclosure or acquisition,
Applicant's lender or such third party shall succeed to all
rights and remedies of Applicant under this Agreement (other
than those rights and remedies, if any, which have not been
transferred and, if Applicant is a debtor under the Federal
Bankruptcy Code, those rights, if any, which remain a part
of the debtor's estate notwithstanding an attempted
foreclosure or transfer) and to all duties and obligations
of Applicant under the Agreement, including liability to
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SWBT for any act, omission, default, or obligation that
arose or occurred under the Agreement prior to the date on
which such lender or third party succeeds to the rights of
Applicant under the Agreement, as applicable.
(1) In the event Applicant or Applicant's lender requests
that SWBT, in connection with a bona fide loan
transaction between Applicant and Applicant's lender,
sign any additional consents, or make other
accommodations to protect such lender's interest,
Applicant or Applicant's lender shall reimburse SWBT
for all expenses incurred by SWBT in connection with
such requests and accommodations, including but not
limited to in-house or outside legal expenses incurred
by SWBT in processing the request.
(2) In the event Applicant or Applicant's lender desires
that SWBT provide notices to Applicant's lender or
permit Applicant's lender, in the event of a breach, to
cure any default or termination event if Applicant
fails to do so, Applicant shall notify SWBT's
authorized agent, as designated in Article 29 of this
Agreement, that such notices may be sent to Applicant's
lender as well to Applicant. Nothing contained in this
subsection shall be construed as imposing any duty on
SWBT in favor of Applicant's lender, and this section
shall not be construed to provide Applicant's lender or
any other third parties with any rights, claims, causes
of action of any kind. Applicant waives any and all
claims or causes of action, of every kind and
character, past, present, or future, arising out of or
in connection with the giving of any notice to
Applicant's lender pursuant to this section or any
failure to give such notice.
(d) Either party may assign or transfer rights or obligations
under this Agreement on such terms and conditions as are
mutually acceptable to the other party and with such other
party's prior written consent, which consent may be withheld
only for due cause and justification.
(e) No assignment or transfer by Applicant of rights under this
Agreement, licenses subject to this Agreement, or
authorizations granted under this Agreement shall be
effective until Applicant, its successors, and assigns have
complied with the provisions of this article, secured SWBT's
prior written consent to the assignment or transfer, if
necessary, and given SWBT notice of the assignment or
transfer pursuant to Section 24.03.
(f) Except as otherwise expressly provided in this article,
neither this Agreement, nor any licenses or authorizations
subject to this Agreement, shall inure to the benefit of
Applicant's successors or assigns without SWBT's prior
written consent.
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24.02 Incorporations, Mergers, Acquisitions, and Other Changes in
Applicant's Legal Identity. When the legal identity or status of Applicant
changes, whether by incorporation, reincorporation, merger, acquisition, or
otherwise, such change shall be treated as an assignment subject to the
provisions of this article.
24.03 Notice of Assignment. Applicant shall provide SWBT with 60 days
advance notice in writing of any assignment.
24.04 Assignment Shall Not Relieve Applicant of Prior Obligations.
Except as otherwise expressly agreed by SWBT in writing, no assignment permitted
by SWBT under this Agreement shall relieve Applicant of any obligations arising
under or in connection with this Agreement, including but not limited to
indemnity obligations under Article 21 of this Agreement or the interconnection
agreement, if any.
24.05 Satisfaction of Existing Obligations and Assumption of Contingent
Liabilities. SWBT may condition its approval of any requested assignment or
transfer on the assignee's or successor's payment or satisfaction of all
outstanding obligations of Applicant under this Agreement and the assignee's or
successor's assumption of any liabilities, or contingent liabilities, of
Applicant arising out of or in connection with this Agreement.
24.06 Satisfaction of All Other Licensing Requirements. Applicant's
assignee or successor must, within 60 days following the assignment, provide
proof satisfactory to SWBT that such assignee or successor has complied or will
comply with all licensing requirements established under this Agreement,
including but not limited to requirements that such assignee or successor
verify, to the best of its information and belief, as provided in Section 17.03,
that all facilities owned or used by such assignee or successor and presently
attached to SWBT's poles or placed within any portion of SWBT's conduit system
within this State have been disclosed to SWBT and are subject to existing
licenses and that such assignee or successor has complied with the insurance
requirements set forth in Article 23 of this Agreement.
24.07 Additional Post-Assignment Requirements. Applicant's assignee or
successor shall, within 60 days following the assignment:
(a) sign this Agreement as an assignee or successor expressly
agreeing to be bound by all provisions of this Agreement and
licenses subject to this Agreement;
(b) provide proof, satisfactory to SWBT, of such assignee's
assumption of the obligations of this Agreement; and
(c) pay a one-time contract administration fee, as provided in
APPENDIX I of this Agreement, if no Master Agreement for
Access to SWBT's Poles,
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Ducts, Conduits, or Rights-of-Way between SWBT and such
assignee is in effect for this State, or an
administrative record-keeping fee as provided in
APPENDIX I of this Agreement, if there is a Master Agreement
in effect for this State.
24.08 Sublicenses Prohibited. Nothing contained in this Agreement shall
be construed as granting Applicant the right to sublicense any rights under this
Agreement or licenses subject to this Agreement to any third party. Except as
otherwise expressly permitted in this Agreement, Applicant shall not allow third
party to attach or place facilities to or in pole or conduit space occupied by
or assigned to Applicant or to utilize such space.
ARTICLE 25: TERMINATION OF AGREEMENT OR LICENSES;
REMEDIES FOR BREACHES
25.01 Termination Due to Non-Use of Facilities or Loss of Required
Authority. Applicant shall, by written notice to SWBT, terminate this Agreement
and all licenses subject to this Agreement if Applicant ceases to have authority
to do business or ceases to do business in this State, ceases to have authority
to provide or ceases to provide cable television services in this State (if
Applicant is cable television system having access to SWBT's poles, ducts,
conduits or rights-of-way solely to provide cable television service), ceases to
have authority to provide or ceases to provide telecommunications services in
this State (if Applicant is a telecommunications carrier which does not also
have authority to provide cable television service in this State), or ceases to
make active use of SWBT's poles, ducts, conduits, and rights-of-way in this
State. Applicant shall, by written notice to SWBT, terminate individual licenses
subject to this Agreement if (a) Applicant ceases to utilize the pole attachment
or conduit occupancy space subject to such licenses or (b) Applicant's
permission to use or have access to particular poles, ducts, conduits, or
rights-of-way has been revoked, denied, or terminated for reasons of safety or
any other lawful reason by any federal, state, or local governmental authority
or third-party property owner having authority to revoke, deny, or terminate
such use or access. Responsibility for terminating this Agreement or individual
licenses under the circumstances set forth in this section shall be a
contractual obligation imposed on Applicant, and the failure by Applicant to
terminate this Agreement or individual licenses pursuant to this section shall
be a material breach of this Agreement.
25.02 Limitation, Termination, or Refusal of Access for Certain
Material Breaches. Applicant's access to SWBT's poles, ducts, conduits, and
rights-of-way shall not materially interfere with or impair service over any
facilities of SWBT or any joint user, cause material damage to SWBT's plant or
the plant of any joint user, impair the privacy of communications carried over
the facilities of SWBT or any joint user, or create serious hazards to the
health or safety of any persons working on, within, or in the vicinity of SWBT's
poles, ducts, rights-of-way or to the public. Upon reasonable notice and
opportunity to cure, SWBT may limit, terminate or refuse access if Applicant
violates this provision; provided, however, that such limitation, termination or
refusal will be
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limited to Applicant's access to poles, ducts, conduits, and rights-of-way
located in the SWBT construction district in which the violation occurs, shall
be as narrowly limited in time and geographic scope as may be necessary to
enable Applicant to adopt suitable controls to prevent further violations, and
shall be subject to review, at Applicant's request, pursuant to the dispute
resolution procedures set forth in this Agreement (or, if applicable, the
parties' interconnection agreement) or, as permitted by law, before any court,
agency, or other tribunal having jurisdiction over the subject matter. In the
event Applicant invokes dispute resolution procedures or seeks review before a
court, agency, or other tribunal having jurisdiction of the subject matter, the
limitation, termination, or refusal of access may be stayed or suspended by
agreement of the parties or by order of the tribunal having jurisdiction over
the parties' dispute.
25.03 Notice and Opportunity to Cure Breach. In the event of any
claimed breach of this Agreement by either party, the aggrieved party may give
written notice of such claimed breach as provided in this section.
(a) The notice shall set forth in reasonable detail:
(1) the conduct or circumstances complained of, together
with the complaining party's legal basis for asserting
that a breach has occurred;
(2) the action believed necessary to cure the alleged
breach; and
(3) any other matter the complaining party desires to
include in the notice.
(b) Except as provided in Section 25.02 and subsection (c) of
this section, the complaining party shall not be entitled to
pursue any remedies available under this Agreement or
relevant law unless such notice is given and (1) the
breaching party fails to cure the breach within 30 days of
such notice, if the breach is one which can be cured within
30 days, or (2) the breaching party fails to commence
promptly and pursue diligently a cure of the breach, if the
required cure is such that more than 30 days will be
required to effect such cure; provided, however, that
nothing contained in this section shall preclude either
party from invoking the dispute resolution procedures set
forth in Article 30 of this Agreement, or any complaint or
dispute resolution procedures offered by the FCC or State
Commission, at any time.
(c) Nothing contained in this section shall preclude either
party from filing a complaint or bringing suit in any court,
agency, or other tribunal of competent jurisdiction to
restrain or enjoin any conduct of the other party which
threatens the complaining party with irreparable injury,
loss
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or damage without first giving the notice otherwise
required by subsection (b).
25.04 Remedies for Breach. Subject to the provisions of this article
and the dispute resolution procedures of Article 30, either party may terminate
this Agreement in the event of a material breach by the other party or exercise
any other legal or equitable right which such party may have to enforce the
provisions of this Agreement. Except as otherwise specifically provided in
Section 30.07, in any action based on an alleged breach of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred by
such party, including but not limited to reasonable attorneys' fees.
ARTICLE 26: FAILURE TO ENFORCE
26.01 No Waiver. The failure by either party to take action to enforce
compliance with any of the terms or conditions of this Agreement, to give notice
of any breach, or to terminate this Agreement or any license or authorization
subject to this Agreement shall not constitute a waiver or relinquishment of any
term or condition of this Agreement, a waiver or relinquishment of the right to
give notice of breach, or waiver or relinquishment of any right to terminate
this Agreement. Notwithstanding any such failure, all terms and conditions of
this Agreement and all rights of either party hereunder shall be and remain at
all times in full force and effect.
ARTICLE 27: EFFECTIVE DATE, TERM, AND ELECTIVE TERMINATION
27.01 Effective Date. This Agreement shall be effective as of the
____day of ____________, 199_, or, if this Agreement has been entered into as an
appendix, attachment, or exhibit to an interconnection agreement between the
parties, the date of approval by the State Commission of the interconnection
agreement, whichever date first occurs.
27.02 Initial Term. Unless sooner terminated as herein provided, the
initial term of this Agreement shall run from the effective date until the end
of the calendar year which includes the effective date.
27.03 Automatic Renewal. Unless sooner terminated as herein provided,
this Agreement shall be automatically renewed for successive one-year terms
beginning on the first day of each calendar year after the effective date.
27.04 Elective Termination. Either party may terminate this Agreement
by giving the other party at least six months prior written notice as provided
in this section.
(a) Applicant may terminate this Agreement with or without
cause.
(b) The parties acknowledge that the Pole Attachment Act, 47
U.S.C. Section 224(e), as added by the Telecommunications
Act of 1996, expressly
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directs the FCC to promulgate new regulations governing
charges to telecommunications carriers for access to poles,
ducts, conduits, and rights-of-way and that such new
regulations are to take effect five years after the date of
enactment of the Telecommunications Act of 1996 (that is,
February 8, 2001). The parties further acknowledge that due
to nondiscrimination requirements, it is desirable that
formal attachment agreements establishing rates, terms, and
conditions of access be revised simultaneously, to the
extent possible. Accordingly, the parties agree that SWBT
may terminate this Agreement only for cause during the
period beginning with the effective date of this Agreement
through February 8, 2001. Thereafter, SWBT may terminate
this Agreement with or without cause, subject to the
provisions of subsection (d) and Section 27.05 below.
(c) The notice of termination shall state the effective date of
termination, which date shall be no earlier than the last to
occur of the following dates: the last day of the current
term of this Agreement or six months after the date the
notice is given.
(d) The elective termination of this Agreement by SWBT under
this section shall not require immediate removal of
Applicant's facilities from poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT and shall be
subject to the provisions of Section 27.05 below; provided,
however, that Applicant shall, within 60 days after the
effective date of the termination, either initiate
negotiations for continued access to SWBT's poles, ducts,
conduits, and rights-of-way or remove its facilities in
accordance with the provisions of Article 18 of this
Agreement.
27.05 Effect of Elective Termination. Elective termination of this
Agreement by Applicant, as permitted under Section 27.04 of this Agreement,
shall not affect Applicant's liabilities and obligations incurred under this
Agreement prior to the effective date of termination and shall not entitle
Applicant to the refund of any advance payment made to SWBT under this
Agreement. Elective termination of this Agreement by SWBT shall not affect
SWBT's obligations to afford access to SWBT's poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT as required by the Pole Attachment
Act, the Telecommunications Act of 1996, and other applicable laws, regulations,
and commission orders.
ARTICLE 28: CONFIDENTIALITY OF INFORMATION
28.01 Information Provided by Applicant to SWBT. Except as otherwise
specifically provided in this Agreement, all company-specific and
customer-specific information submitted by Applicant to SWBT in connection with
this Agreement (including but not limited to information submitted in connection
with Applicant's applications for the assignment of pole attachment and
occupancy space and for pole
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attachment and conduit occupancy licenses) shall be deemed to be "confidential"
or "proprietary" information of Applicant and shall be subject to the terms set
forth in this article. Confidential or proprietary information specifically
includes information or knowledge related to Applicant's review of records
regarding a particular market area, or relating to assignment of space to
Applicant in a particular market area, and further includes knowledge or
information about the timing of Applicant's request for or review of records or
its inquiry about SWBT facilities. This article does not limit the use by SWBT
of aggregate information relating to the occupancy and use of SWBT's poles,
ducts, conduits, and rights-of-way by firms other than SWBT (that is,
information submitted by Applicant and aggregated by SWBT in a manner that does
not directly or indirectly identify Applicant).
28.02 Access Limited to Persons with a Need to Know. Confidential or
proprietary information provided by Applicant to SWBT in connection with this
Agreement shall not be disclosed to, shared with, or accessed by any person or
persons (including but not limited to personnel involved in sales, marketing,
competitive intelligence, competitive analysis, strategic planning, and similar
activities) other than those who have a need to know such information for the
limited purposes set forth in Sections 28.03-28.06.
28.03 Permitted Uses of Applicant's Confidential Information.
Notwithstanding the provisions of Sections 28.01 and 28.02 above, SWBT and
persons acting on SWBT's behalf may utilize Applicant's confidential or
proprietary information for the following purposes: (a) posting information, as
necessary, to SWBT's outside plant records; (b) placing, constructing,
installing, operating, utilizing, maintaining, monitoring, inspecting,
repairing, relocating, transferring, conveying, removing, or managing SWBT's
poles, ducts, conduits, and rights-of-way and any SWBT facilities located on,
within, or in the vicinity of such poles, ducts, conduits, and rights-of-way;
(c) performing SWBT's obligations under this Agreement and similar agreements
with third parties; (d) performing SWBT's general obligations to afford
nondiscriminatory access to telecommunications carriers and cable television
systems under the Pole Attachment Act; (e) determining which of SWBT's poles,
ducts, conduits, and rights-of-way are (or may in the future be) available for
SWBT's own use, and making planning, engineering, construction, and budgeting
decisions relating to SWBT's poles, ducts, conduits, and rights-of-way; (f)
preparing cost studies; (g) responding to regulatory requests for information;
(h) maintaining SWBT's financial accounting records; and (i) complying with
other legal requirements relating to poles, ducts, conduits, and rights-of-way.
28.04 Access by Third Parties. Information reflecting the assignment of
pole attachment and conduit occupancy space to Applicant may be made available
to personnel of third parties seeking access to SWBT's records under provisions,
and subject to protections, equivalent to those contained and required by
Section 7.03 of this Agreement.
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28.05 Defense of Claims. In the event of a dispute between SWBT and any
person or entity, including Applicant, concerning SWBT's performance of this
Agreement, satisfaction of obligations under similar agreements with third
parties, compliance with the Pole Attachment Act, compliance with the
Telecommunications Act of 1996, or compliance with other federal, state, or
local laws, regulations, commission orders, and the like, SWBT may utilize
confidential or proprietary information submitted by Applicant in connection
with this Agreement as may be reasonable or necessary to demonstrate compliance,
protect itself from allegations of wrongdoing, or comply with subpoenas, court
orders, or reasonable discovery requests; provided, however, that SWBT shall not
disclose Applicant's proprietary or confidential information without first, at
SWBT's option: (a) obtaining an agreed protective order or nondisclosure
agreement that preserves the confidential and proprietary nature of Applicant's
information; (b) seeking such a protective order as provided by law if no agreed
protective order or nondisclosure agreement can be obtained; or (c) providing
Applicant notice of the subpoena, demand, or order and an opportunity to take
affirmative steps of its own to protect such proprietary or confidential
information.
28.06 Response to Subpoenas, Court Orders, and Agency Orders. Nothing
contained in this article shall be construed as precluding SWBT from complying
with any subpoena, civil or criminal investigative demand, or other order issued
or entered by a court or agency of competent jurisdiction; provided, however,
that SWBT shall not disclose Applicant's proprietary or confidential information
without first, at SWBT's option: (a) obtaining an agreed protective order or
nondisclosure agreement that preserves the confidential and proprietary nature
of Applicant's information; (b) seeking such a protective order as provided by
law if no agreed protective order or nondisclosure agreement can be obtained; or
(c) providing Applicant notice of the subpoena, demand, or order and an
opportunity to take affirmative steps of its own to protect such proprietary or
confidential information.
28.07 Other Uses of Confidential Information. No other uses of
confidential information received from Applicant pursuant to this Agreement are
authorized or permitted without Applicant's express written consent.
ARTICLE 29: NOTICES
29.01 Notices to Applicant. Except as otherwise provided in APPENDIX VI
("Notices to Applicant"), all written notices required to be given to Applicant
shall be delivered or mailed to Applicant's duly authorized agent or attorney,
as designated in this section.
(a) Such notice may be delivered to Applicant's duly authorized
agent or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to Applicant's duly authorized
agent or attorney by registered or certified mail, return
receipt requested. When
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notice is given by mail, such notice
shall be complete upon deposit of the notice, enclosed in a
postpaid, properly addressed wrapper, in a post office or
official depository under the care and control of the United
States Postal Service and shall be deemed to have been given
three days after the date of deposit.
(c) Applicant may authorize delivery of the notice by telephonic
document transfer to the Applicant's duly authorized agent
or attorney. Notice by telephonic document transfer after
5:00 p.m. local time of the recipient shall be deemed given
on the following day.
(d) Notices to Applicant shall be sent to the authorized agent
or attorney designated below:
Name:
----------------------------------------------
Title:
----------------------------------------------
Firm:
----------------------------------------------
Address:
-------------------------------------------
City/State/Zip:
-------------------------------------
29.02 Notices to SWBT. Except as otherwise provided in APPENDIX VII
("Notices to SWBT"), all written notices required to be given to SWBT shall be
delivered or mailed to SWBT's duly authorized agent or attorney, as designated
in this section.
(a) Such notice may be delivered to SWBT's duly authorized agent
or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to SWBT's duly authorized agent or
attorney by registered or certified mail, return receipt
requested. When notice is given by mail, such notice shall
be complete upon deposit of the notice, enclosed in a
postpaid, properly addressed wrapper, in a post office or
official depository under the care and control of the United
States Postal Service and shall be deemed to have been given
three days after the date of deposit.
(c) SWBT may authorize delivery of the notice by telephonic
document transfer to SWBT's duly authorized agent or
attorney. Notice by telephonic document transfer after 5:00
p.m. local time of the recipient shall be deemed given on
the following day.
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(d) On the effective date of this Agreement, and until further
notice to Applicant, SWBT's duly authorized agent shall be
the Utility Liaison Supervisor ("ULS") designated in
APPENDIX VIII.
29.03 Changes in Notice Requirements. Either party may, from time to
time, change notice addressees and addresses by giving written notice of such
change to the other party. Such notice shall state, at a minimum, the name,
title, firm, and full address of the new addressee.
ARTICLE 30: DISPUTE RESOLUTION
30.01 Purpose. The provisions of this article are intended to minimize
litigation between the parties with respect to disputes arising in connection
with this Agreement and shall be construed accordingly. Any dispute between the
parties arising under this Agreement may be submitted by either party for
resolution under this article.
30.02 Exclusive Remedy for Monetary Claims under $25,000. Except for
actions seeking injunctive relief related to the purposes of this Agreement or
suits to compel compliance with the dispute resolution processes set forth in
this article, the parties agree to use the dispute resolution processes set
forth in this Agreement as their sole remedy with respect to any monetary claim
of $25,000 or less which arises out of or in connection with this Agreement.
30.03 Prerequisite to Litigation. The provisions of this article shall
also apply to all disputes, without regard to the amount in controversy, in
which Applicant contests charges billed by SWBT to Applicant under the terms of
this Agreement. No suit, except for actions seeking injunctive relief related to
the purposes of this Agreement or suits to compel compliance with the dispute
resolution processes set forth in this article, shall be filed by either party
against the other with respect to such contested charges until the parties have
engaged in good faith negotiations as provided in Section 30.04, and, if the
parties agree, in mediation under Section 30.05.
30.04 Good Faith Negotiation. Good faith negotiation as provided in
this section shall be the first step in the dispute resolution process.
(a) With respect to any dispute subject to the provisions of
this article, either party may initiate negotiation
proceedings by writing a certified or registered letter to
the other party setting forth the particulars of the
dispute, the terms of the Agreement that are involved, and a
suggested resolution of the problem.
(b) The recipient of the letter shall respond within 21 days to
the proposed solution. The recipient shall either agree to
the proposed solution or explain its disagreement.
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(c) If the correspondence does not resolve the dispute, each
party, at the request of either party, will appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve the dispute. The
location, form, frequency, duration, and conclusion of these
discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such
as mediation to assist in the negotiations.
(d) Discussions and correspondence among the representatives as
provided by this section are for purposes of settlement, are
exempt from discovery and production, and shall not be
admissible in arbitration, judicial, regulatory, or other
proceedings in any forum.
30.05 Mediation. If the parties agree to mediation, the mediation may
be conducted as provided in this section or in such other manner as may be
mutually agreeable to the parties.
(a) If agreed to by the parties, the dispute shall be referred
to the nearest office of the American Arbitration
Association, or such other mediator as may be selected by
agreement of the parties, for mediation, that is, an
informal, non-binding conference or conferences between the
parties in which a mediator will seek to guide the parties
to a resolution of the dispute.
(b) If the dispute is referred to the American Arbitration
Association, the parties are free to select any mutually
acceptable panel member from the list of mediators at the
American Arbitration Association. If the parties cannot
agree or have no particular choice of a mediator and simply
request that the American Arbitration Association assign a
mediator to the dispute, then a list and resumes of
available mediators, numbering one more than there are
parties, will be sent to the parties, each of whom may
strike one name leaving the remaining name as the mediator.
If more than one name remains, the designated mediator shall
be selected by the Administrator of the American Arbitration
Association from the remaining names.
(c) Mediation sessions shall be private.
(d) All records, reports or other documents considered by the
mediator shall be confidential.
(e) The parties agree that the mediator shall not be compelled
to divulge confidential materials or to testify about the
mediation in arbitration, regulatory, judicial, or other
proceedings in any forum.
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<PAGE> 391
(f) The parties agree to maintain the confidentiality of the
mediation and shall not rely on, or introduce as evidence in
any arbitration, judicial, or other proceeding:
(1) views expressed or suggestions made by the other party
with respect to a possible settlement of the dispute;
(2) admissions made by the other party during the mediation
proceedings;
(3) proposals made or views expressed by the mediator; or
(4) the fact that the other party had or had not indicated
willingness to accept a proposal for settlement made by
the mediator.
(g) Subsections (e) and (f) of this section shall apply to
anything said, done or occurring in the course of the
mediation, including any private caucus or discussions
between the mediator and any party or counsel before or
after the joint mediation session. There shall be no
stenographic record of the mediation process, except to
memorialize a settlement record.
(h) The mediation process shall be considered settlement
negotiation for the purpose of all state and federal rules
protecting disclosures made during such conferences from
later discovery or use in evidence. All conduct, statements,
promises, offers, views, and opinions, oral or written, made
during the mediation by any party or a party's agent,
employee, or attorney are confidential and, where
appropriate, are to be considered work product and
privileged. Such conduct, statements, promises, offers,
views, and opinions shall not be subject to discovery or
admissible for any purpose, including impeachment, in any
litigation or other proceeding involving the parties;
provided, however, that evidence otherwise subject to
discovery or admissible is not excluded from discovery or
admission in evidence simply as a result of its having been
used in connection with this settlement process.
30.06 Arbitration. If negotiations and mediations do not resolve the
dispute within 90 days after the initiation of dispute resolution proceedings as
provided in subsection (a) of Section 30.04 of this Agreement, the dispute shall
be submitted to binding arbitration by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association if the
dispute involves any monetary claim of $25,000 or less which arises out of or in
connection with this Agreement. The parties may voluntarily elect to arbitrate
disputes in which the amount in controversy exceeds $25,000, but they shall not
be required by this Agreement to do so.
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(a) Either party may demand such arbitration in accordance with
the procedures set out in the Commercial Arbitration Rules.
(b) Discovery shall be controlled by the arbitrator and shall be
permitted to the extent set out in this subsection.
(1) Each party may submit in writing to any other party,
and such other party shall so respond, to a maximum of
any combination of 35 of the following:
interrogatories, document production requests, and
requests for admissions. The interrogatories, document
production requests, and requests for admissions shall
not have subparts.
(2) Additional discovery may be permitted upon mutual
agreement of the parties or upon order of the
arbitrator on a showing of good cause.
(c) The arbitrator shall control the scheduling so as to process
the matter expeditiously. The times set forth in this
subsection shall apply unless extended upon mutual agreement
of the parties or by the arbitrator on a showing of good
cause.
(1) The arbitration hearing shall commence within 60 days
of the demand for arbitration and shall be held, in the
absence of agreement by the parties to a different
venue, in St. Louis, Missouri.
(2) The parties shall submit written briefs five days
before the hearing.
(3) The arbitrator shall rule on the dispute by issuing a
written opinion within 30 days after the close of
hearings.
(4) The arbitrator shall have no authority to order
punitive or consequential damages.
(5) Judgment upon the award rendered by the arbitrator may
be entered in any court of competent jurisdiction.
30.07 Costs. Except as specifically provided in this section, each
party shall bear its own costs of all dispute resolution procedures under this
article.
(a) A party seeking discovery shall reimburse the responding
party for the costs incurred by the responding party in
producing documents.
(b) The parties shall equally split the fees of the arbitration
and the arbitrator.
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30.08 No Abridgment of Rights under the Communications Act of 1934 or
the Pole Attachment Act. Nothing contained in this article shall abridge the
rights of either party to seek relief from the FCC with respect to any dispute
subject to the jurisdiction of the FCC under the Communications Act of 1934 or
the Pole Attachment Act, or from the State Commission with respect to any
dispute subject to its jurisdiction, except that the parties may not seek relief
from the FCC or the State Commission with respect to any dispute that has
already been resolved by mediation under Section 30.05 or by binding arbitration
under Section 30.06.
ARTICLE 31: ACCESS TO APPLICANT'S
POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY
31.01 No Reciprocal Access to Applicant's Facilities. This Agreement
does not include provisions for reciprocal access by SWBT to Applicant's poles,
ducts, conduits, and rights-of-way.
ARTICLE 32: GENERAL PROVISIONS
32.01 Entire Agreement. This Agreement, together with the
interconnection agreement, if any, to which this Agreement is an appendix,
attachment, or exhibit, sets forth the entire understanding and agreement of the
parties.
32.02 Prior Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, whether written or oral, between Applicant and
SWBT relating to the placement and maintenance of Applicant's facilities on and
within SWBT's poles, ducts, and conduits within this State.
32.03 Amendments Shall Be in Writing. Except as otherwise specifically
provided to the contrary by other provisions of this Agreement, the terms and
conditions of this Agreement shall not be amended, changed or altered except in
writing and with approval by authorized representatives of both parties.
32.04 Survival of Obligations. Any liabilities or obligations of either
party for acts or omissions prior to the termination of this Agreement, any
obligations of either party under provisions of this Agreement relating to
confidential and proprietary information, indemnification, limitations of
liability, and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or be performed after) termination of this Agreement,
will survive the termination of this Agreement.
32.05 Multiple Counterparts. This Agreement may be executed in
multiple counterparts.
32.06 Effect on Licenses Issued Under Prior Agreements. All currently
effective pole attachment and conduit occupancy licenses granted to Applicant
shall, on the
PAGE 105
<PAGE> 394
effective date of this Agreement, be subject to the rates, terms,
conditions, and procedures set forth in this Agreement.
32.07 Force Majeure. Except as otherwise specifically provided in this
Agreement, neither party will be liable for any delay or failure in performance
of any part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, disputes,
freight embargoes, earthquakes, volcanic actions, wars, civil disturbances,
cable cuts, or other causes beyond the reasonable control of the party claiming
excusable delay or other failure to perform; provided, however, that Force
Majeure will not include acts of any governmental authority relating to
environmental, health, or safety conditions at work locations. If any Force
Majeure condition occurs, the party whose performance fails or is delayed
because of such Force Majeure condition will give prompt notice to the other
party, and, upon cessation of such Force Majeure condition, will give like
notice and commence performance hereunder as promptly as reasonably practicable.
32.08 Severability. If any article, section, subsection, or other
provision or portion of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not materially alter
the essence of this Agreement as to either party, the invalidity of such
provision shall not render this entire Agreement unenforceable and this
Agreement shall be administered as if it did not contain the invalid provision.
32.09 Choice of Law. Except to the extent that federal law controls any
aspect of this Agreement, the validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and duties of the
parties will be governed by the laws of this State, applied without regard to
the provisions of this State's laws relating to conflicts-of-laws.
32.10 Changes in the Law. Because the primary purpose of this Agreement
is to provide access to poles, ducts, conduits, and rights-of-way in accordance
with the Pole Attachment Act, as amended by the Telecommunications Act of 1996
and subsequent amendments, the parties contemplate that changes in this
Agreement may from time to time be necessary or desirable to conform to changes
in the Pole Attachment Act as that Act is amended, interpreted, and applied.
This Agreement is based in large part on regulatory decisions by the FCC, which
has jurisdiction over the rates, terms, and conditions of access to poles,
ducts, conduits, and rights-of-way (except to the extent that such jurisdiction
has been pre-empted by individual states) and decisions by the State Commission.
More specifically, this Agreement is based in large part on the FCC's First
Interconnection Order in CC Docket No. 96-98, on FCC rules announced with the
First Interconnection Order, and on Arbitration Orders by the State Commission.
[ ] Applicant desires to have access to SWBT's poles, ducts,
conduits, and rights-of-way on terms that are not less
favorable than those obtained by firms participating in
interconnection arbitration
PAGE 106
<PAGE> 395
proceedings before the State Commission. Applicant also
desires to have access to SWBT's poles, ducts, conduits,
and rights-of-way to the full extent permitted under the
FCC's First Interconnection Order in CC Docket No. 96-98.
SWBT is entering into this Agreement for the purpose of
providing nondiscriminatory access in compliance with the
Pole Attachment Act and regulatory decisions thereunder,
including decisions by the State Commission in
interconnection arbitration proceedings in which Applicant
is not a party. Each party is entering into this Agreement
based on current interpretations of the law by the FCC and
State Commission. In the event of any changes in the Pole
Attachment Act, changes in applicable FCC or State
Commission rulings, or judicial determinations that such
rulings are erroneous or invalid, each party shall, at the
request of the other, engage in good faith negotiations to
supplement, amend or replace any provisions of this
Agreement affected by such changes or determinations and
to conform this Agreement to changes in the underlying
laws on which the Agreement is based.
[ ] This Agreement has been entered into as a result of
private negotiation between the parties and arbitration by
the State Commission, acting pursuant to the
Telecommunications Act of 1996. If the actions of any
legislative bodies, courts, or regulatory agencies of
competent jurisdiction invalidate, modify, or stay the
enforcement of laws, rules, regulations, or commission
orders that were the basis for a provision of this
Agreement (including but not limited to any provision of
this Agreement required by any arbitration award approved
by the State Commission), the affected provision shall be
invalidated, modified, or stayed as required by action of
the legislative body, court, or regulatory agency. In the
event of such a change in the law, each party shall expend
diligent efforts to arrive at an agreement respecting the
modifications to the Agreement required by the law or
requested in good faith by the other party. If
negotiations fail, disputes between the parties concerning
interpretation of the actions required or provisions
affected by such governmental actions shall be resolved
pursuant to the dispute resolution process provided for in
the interconnection agreement or this Agreement; provided,
however, that this section shall not be construed as
precluding either party from seeking appropriate relief
from the FCC in connection with the parties' rights and
obligations under the Pole Attachment Act. In the event of
any material change in the law, each party agrees to enter
into good faith negotiations to conform this Agreement to
the changes in the law.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
SOUTHWESTERN BELL TELEPHONE COMPANY
By:
-----------------------------------------------------------------------
Signature of SWBT's Authorized Officer/Employee
-----------------------------------------------------------------------
Name of SWBT's Authorized Officer/Employee (Printed or Typed)
-----------------------------------------------------------------------
Position/Title of SWBT's Authorized Officer/Employee
-----------------------------------------------------------------------
Date
-----------------------------------------------------------------------
City and State of Execution by SWBT
Applicant's Name (Printed or Typed)
By:
-----------------------------------------------------------------------
Signature of Applicant's Authorized Officer/Employee
-----------------------------------------------------------------------
Name of Authorized Officer/Employee (Printed or Typed)
-----------------------------------------------------------------------
Position/Title of Authorized Officer/Employee
-----------------------------------------------------------------------
Date
-----------------------------------------------------------------------
City and State of Execution by Applicant
PAGE 108
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Agreement No.
---------------------
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (KANSAS) - PAGE 1 OF 4
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and sets forth
the rates, fees and charges to be paid by Applicant to SWBT pursuant to the
Master Agreement and licenses subject to the Master Agreement. The rates, fees,
and charges set forth in this Appendix shall be subject to all applicable laws,
rules, regulations, and commission orders as provided in Section 19.01 of the
Master Agreement and shall be subject to revision as provided in Section 19.12
of the Master Agreement.
A) Pole Attachment Fees
1) General
a) For billing purposes, pole attachments shall be
considered i) to have commenced on the first to occur
of the following dates: the date of assignment (or
provisional assignment) of pole attachment space, the
date a license for such pole attachment is issued, or
the date of actual attachment and ii) to have ended
on the last to occur of the following dates: the date
Applicant's assignment lapses or is relinquished, the
date of actual removal of the attached facilities
from SWBT's pole, or the date of termination of
Applicant's license.
b) Fees shall be payable semiannually in advance on the
first days of January and July and shall be prorated
on a daily basis as provided in Section 19.04. Fees
for pole attachments shall be based on the number of
pole attachments as of the date of billing. If
Applicant occupies more than one usable space on a
pole, separate attachment fees shall apply to each
space occupied. For billing purposes, a single pole
attachment includes the point of attachment and all
facilities located in the usable space on the pole in
the space assigned to Applicant (typically six inches
above and six inches below the point of attachment),
together with routine ancillary apparatus such as
anchors, anchor/guy strands, drive rings, J-hooks,
dead-end clamps, and other apparatus which does not
interfere with the ability of SWBT to occupy or
assign usable space on the pole other than the usable
space licensed to Applicant. Fees for pole space
assignments and unauthorized pole attachments shall
be billed in the same manner as if a license had been
issued.
2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Pole Attachment Fees Annual Semiannual
------------------------------- ------ ----------
<S> <C> <C>
Per pole attachment (cable service only) $1.75 $0.875
----- ------
Per pole attachment (telecommunications carriers) $1.75 $0.875
----- ------
Per pole attachment (other) $ N/A $ N/A
----- ------
</TABLE>
<PAGE> 398
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (KANSAS) - PAGE 2 OF 4
B) Conduit Occupancy Fees
1) General
a) For billing purposes, conduit occupancy shall be
considered to have i) begun on the first to occur of
the following dates: the date of assignment (or
provisional assignment) of conduit occupancy space,
the date a license for such conduit occupancy is
issued, or the date of actual occupancy; and ii)
ended on the last to occur of the following dates:
the date Applicant's assignment lapses or is
relinquished, the date of actual removal of the
attached facilities from SWBT's conduit, or the date
of termination of Applicant's license. Occupancy ends
when facilities have been removed from SWBT's conduit
system and required post-removal procedures (e.g.,
plugging ducts) have been completed. Fees for
conduit space assignments and unauthorized conduit
occupancy shall be billed in the same manner as if a
license had been issued.
b) Fees shall be payable semiannually in advance on the
first days of January and July.
(2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Per Foot Conduit Occupancy Fees Annual Semiannual
------------------------------------------ --------- ----------
<S> <C> <C>
Full duct/duct foot (cable service only) $ 0.41/ft $ 0.205/ft
--------- ----------
Full duct/duct foot (telecommunications carriers) $ 0.41/ft $ 0.205/ft
--------- ----------
Full duct/duct foot (other) $ N/A $ N/A
--------- ----------
Half duct/duct foot (cable service only)* $0.205/ft $0.1025/ft
--------- ----------
Half duct/duct foot (telecommunications carriers)* $0.205/ft $0.1025/ft
--------- ----------
Half duct/duct foot (other)* $ N/A $ N/A
--------- ----------
*Each inner duct is billed at the half duct rate
</TABLE>
a) Facility footage shall be measured i) from the center
of one manhole to the center of an adjacent manhole
if the facility runs between two manholes, ii) from
the center of a manhole to the end of a duct not
terminated in a manhole, or iii) from the center of a
manhole to the property line if the duct is connected
at the property line to a duct owned and controlled
by a third-party property owner.
b) Semiannual full duct conduit occupancy fees will
apply to the first facility placed in a previously
unoccupied duct except as provided in c)-d) below.
c) If two or more facilities occupy a duct that has not
been subdivided by inner duct, a semiannual half duct
conduit occupancy fee will be charged for each
<PAGE> 399
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (KANSAS) - PAGE 3 OF 4
facility placed in the duct.
d) A semiannual half duct occupancy fee will apply to
the first facility placed by Applicant in a
previously unoccupied duct that has not been
subdivided by inner duct if and only if the presence
of Applicant's facility does not render the other
half of the duct unusable by others.
e) When Applicant's facilities are installed within
inner duct, a single semiannual half duct conduit
occupancy fee will apply to each inner duct occupied.
C) Application Fees. No application fees shall be charged for the
submission of access applications or provisional space assignments.
D) Pre-license Survey Work. Charges for pre-license survey work are not
set on a fixed fee basis and will be determined on a case-by-case. If
pre-license survey work is performed by SWBT's contractors, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by
SWBT for such work. If pre-license survey work is performed by SWBT
employees, pre-license survey charges shall be computed by multiplying
the applicable hourly rates times the number of hours reasonably spent
by SWBT's employees on pre-license survey work.
E) Facilities Modification, Capacity Expansion, and Make-ready Work.
Charges for facilities modification, capacity expansion, and make-ready
work are not set on a fixed fee basis and will be determined in a
case-by-case basis. In all cases, except as otherwise specifically
provided to the contrary in the Master Agreement, such charges shall
include the costs of materials required to perform the work. If such
work is performed by SWBT's contractors, Applicant shall reimburse SWBT
for the actual out-of-pocket costs incurred by SWBT for such work. If
such work is performed by SWBT employees, charges for such work shall
be computed by multiplying the applicable hourly rates times the number
of hours reasonably spent by SWBT's employees on the work. Except as
otherwise specifically provided in other parts of this Agreement,
Applicant will pay half of SWBT's estimated charges at 50 percent job
completion and the remainder at 100 percent completion. SWBT may, at
its election, require Applicant to pay SWBT's out-of-pocket costs for
materials as those costs are incurred and may require Applicant to pay
outside contractor costs on the same schedule SWBT pays such outside
contractors. Bills and invoices submitted by SWBT to Applicant for
make-ready charges shall be due and payable 30 days after the date of
the bill or invoice.
F) Construction Inspectors. Subject to all applicable commission orders,
where work is being performed on Applicant's behalf in SWBT's manholes
or other portions of SWBT's conduit system by persons other than
contractors approved by SWBT or qualified employees of Applicant,
Applicant shall pay SWBT's costs attributable to having a construction
inspector present; provided, however, that SWBT shall not charge
Applicant for more than one such construction inspector per site at any
given time. If the construction inspector is a SWBT contractor,
Applicant shall reimburse SWBT for the actual out-of-
<PAGE> 400
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (KANSAS) - PAGE 4 OF 4
pocket costs incurred by SWBT in connection with the presence of such
inspector. If the construction inspector is a SWBT employee, charges
for the construction inspector shall be computed by multiplying the
applicable hourly rate times the number of hours reasonably spent by
the employee as a construction inspector in connection with the
project.
G) Other Work Performed Pursuant to the Master Agreement. For all other
work performed by SWBT's contractors pursuant to this Agreement,
including but not limited to work performed in opening manholes and
participating in work operations at Applicant's request, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by
SWBT in connection with the performance of such work. For all other
work performed by SWBT's employees pursuant to this Agreement,
including but not limited to work performed in opening manholes,
providing access to and copies of records, and participating in work
operations at Applicant's request, SWBT's charges shall be computed by
multiplying the applicable hourly rates times the number of hours
reasonably spent by SWBT's employees on such work.
H) Contract Administration Fee and Administrative Record-keeping Fees. A
one time contract administration fee of $250.00 shall be due and
payable at the time of the execution of the Master Agreement. SWBT may
charge administrative record-keeping fees not exceeding $125.00 in
connection with records and billing changes resulting from the sale,
consolidation, or other transfer of Applicant's business or facilities,
name changes, and the like. SWBT shall provide Applicant, on
Applicant's request, a statement of the basis for the fees, as ordered
by the State Commission.
I) Other Administrative and Ancillary Fees. No other administrative or
ancillary fees are charged by SWBT on a fixed fee basis.
J) Hourly Rates. Except as otherwise provided by any applicable law, rule,
regulation, or commission order, hourly rates charged for SWBT
employees shall be such employees' fully loaded hourly rates.
K) Payment Date. For fees and charges other than charges for make-ready
work, each bill or invoice submitted by SWBT to Applicant shall state
the date that payment is due, which date shall be not less than 60 days
after the date of the bill or invoice. For make-ready work, the payment
due date shall be not less than 30 days after the date of the bill or
invoice. Interest on past due charges shall accrue as provided in
Section 19.1l(a) of the Master Agreement.
<PAGE> 401
Agreement No.
-------------------
APPENDIX II
IDENTIFICATION OF APPLICANT (KANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Applicant's legal name is:
----------------------------------------------------
Applicant's principal place of business is located in the State of
- -.
- ------------------------------------------------------------------------------
Applicant does business under the following assumed names:
- -
- ------------------------------------------------------------------------------
Applicant is:
- -
- ------------------------------------------------------------------------------
[ ] a corporation organized under the laws of the State of
charter no. ; -------------------
-----------------
[ ] a partnership organized under the laws of the State of
or -------------------
[ ] another entity, as follows:
---------------------------------------------
Applicant represents that Applicant is:
[ ] (1) a cable system (as defined in 47 U.S.C. Sections 153(37) and
522(7)) seeking a pole attachment or conduit occupancy license solely
to provide cable service (as defined in 47 U.S.C. Section 522(6);
[ ] (2) a telecommunications carrier, as defined in 47 U.S.C. Section 153(49),
as modified by 47 U.S.C. Section 224; or
[ ] (3) a person or entity which is neither (1) nor (2) above, as
follows:
<PAGE> 402
Agreement No._______________
APPENDIX II
IDENTIFICATION OF APPLICANT (KANSAS)
_______________________________________________
<PAGE> 403
Agreement No.________________
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES (KANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and contains
administrative forms referred to in the Master Agreement or used in connection
with the provision of access to SWBT's poles, ducts, conduits, and
rights-of-way. The forms are forms presently in use and have not been conformed
to the Master Agreement. The forms may be further revised by SWBT to conform to
the Master Agreement and revised from time to time to reflect changes in the
applicable law, changes in the Master Agreement, and changes in the procedures
through which access to poles, ducts, conduits, and rights-of-way is afforded by
SWBT to Applicant and others.
SW-9433: Pole Attachments
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole
Attachment License by Licensee
SW-9436B: Notification of Surrender or Modification of Conduit
Occupancy License by Applicant
SW-9436C: Notification of Unauthorized Attachments by Applicant
<PAGE> 404
SOUTHWESTERN BELL TELEPHONE
POLE ATTACHMENTS
[SWBT Logo]
<TABLE>
<CAPTION>
Retention Period: Active, Plus 5 Years
FIRM'S NAME: _____________________ Pole Attachments PAGE ______ OF ________
AGREEMENT No.: ___________________ [ ] Provisional, Records Based Assignment TYPE: __________________
APPLICATION No.: _________________ [ ] Pre-Occupancy Survey (CATV, Telecom, Other)
- ------------------------------------------------------------------------------------------------------------------------------------
<S><C>
Item Record Pole Ownership Street Proposed Guy Make Ready Make Ready Pole Mntd
- ------------------------------------------------------------------------------------------------------------------------------------
# # # SWBT or Address Attachment Rq'd Work Description Apparatus
- ------------------------------------------------------------------------------------------------------------------------------------
Power Height Y or N Y or N Height
- ------------------------------------------------------------------------------------------------------------------------------------
1
- ------------------------------------------------------------------------------------------------------------------------------------
2
- ------------------------------------------------------------------------------------------------------------------------------------
3
- ------------------------------------------------------------------------------------------------------------------------------------
4
- ------------------------------------------------------------------------------------------------------------------------------------
5
- ------------------------------------------------------------------------------------------------------------------------------------
6
- ------------------------------------------------------------------------------------------------------------------------------------
7
- ------------------------------------------------------------------------------------------------------------------------------------
8
- ------------------------------------------------------------------------------------------------------------------------------------
9
- ------------------------------------------------------------------------------------------------------------------------------------
10
- ------------------------------------------------------------------------------------------------------------------------------------
11
- ------------------------------------------------------------------------------------------------------------------------------------
12
- ------------------------------------------------------------------------------------------------------------------------------------
13
- ------------------------------------------------------------------------------------------------------------------------------------
14
- ------------------------------------------------------------------------------------------------------------------------------------
15
- ------------------------------------------------------------------------------------------------------------------------------------
16
- ------------------------------------------------------------------------------------------------------------------------------------
17
- ------------------------------------------------------------------------------------------------------------------------------------
18
- ------------------------------------------------------------------------------------------------------------------------------------
19
- ------------------------------------------------------------------------------------------------------------------------------------
20
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Cables ________________ Other Notes: ____________________________
- ------------------------------------------------------------------------------------------------------------------------------------
Weight/per ft. and Size/O.D. ________________ _________________________________________
- ------------------------------------------------------------------------------------------------------------------------------------
Number and Types of Strands ________________ _________________________________________
- ------------------------------------------------------------------------------------------------------------------------------------
Date:___________________________________
SIGNED: ______________________________ Time:___________________________________ SIGNED: _______________________
SWBT Representative [ ] Official File Copy, If Checked in Red Applicant's Representative
</TABLE>
<PAGE> 405
SW9433
POLE ATTACHMENTS
FORM INSTRUCTIONS
From SW9433 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete
the SW9433 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring pole attachment space
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant
elects to a Provisional, Records Based Assignment. The form will be signed and
dated at the bottom by both the applicant and the SWBT representative. A copy
will be provided to the applicant and the original will be maintained by SWBT.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or the SWBT mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company based on SWBT's records.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Not required for Provisional, Records Based assignment.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Pole Mntd Apparatus Height: Not required for Provisional, Records Based
assignment.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
<PAGE> 406
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by SWBT.
[ ] Pre-Occupancy Survey: This would be checked when this form is being used
as a Pre-Occupancy Survey. The form would be completed in its entirety and
signed by the applicant and submitted to SWBT for review in obtaining pole
attachment space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Applicant will state if a guy is required. (Yes or No).
Make Ready Work: Applicant will state it make ready work is required.
(Yes or No)
Make Ready Description: Applicant will give description of make ready work
required.
Pole Mntd Apparatus Height: Applicant will state any proposed apparatus that
would be placed on the pole. (Terminal, etc.)
Number of Cables: Applicant will state the number of cables that will be
placed on the pole.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 407
<TABLE>
<S> <C> <C> <C> <C>
SOUTHWESTERN BELL TELEPHONE ACCESS APPLICATION AND MAKE-READY
AUTHORIZATION
Retention Period: Active, plus 5 years (Request for Access to Poles, Ducts, Conduit)
Name of Applicant______________________________________________________________
Agreement No._________________________________________________________________
Application No.________________________________________________________________
Provisional Assignment
- ------------------------------------------------------------------------------------------------------------------
As specified in the attached documents, and in accordance with the terms and conditions of the Master Agreement
between SWBT and Applicant, application is hereby made for a provisional assignment of space in anticipation of a
nonexclusive license of communication facilities to access the quantity of SWBT facilities indicated below:
______ SWBT poles _____ Feet SWBT Whole Duct _______ SWBT Innerduct
Applicant desires immediate assignment of space and acknowledges that the effective date is ____________________.
Applicant agrees to provide an application for assignment/access/occupancy of the assigned space when 30 days
from the date of the assignment, or forfeit the assignment.
Expiration Date:___________________
Assignment/Access/Occupancy
- ------------------------------------------------------------------------------------------------------------------
As specified in the attached documents, and in accordance with the terms and conditions of the Master Agreement
between SWBT and Applicant, application is hereby made for occupancy of space through a nonexclusive license of
communication facilities to access the quantity of SWBT facilities indicated below:
______ SWBT poles ______ Feet SWBT Whole Duct _____ Feet SWBT Innerduct
Application authorizes SWBT to perform the required pre-licensing survey including any field inspections required
to evaluate capacity, safety, reliability, and engineering standards; and to determine the cost, if any, of
required modifications or make-ready work.
Expiration Date:_____________________
- ------------------------------------------------------------------------------------------------------------------
Applicant's Estimated Construction Start Date:________________________
Applicant's Estimated Construction Completion Date:___________________
Authorized by Applicant:________________________________________
Signature Title
Date:____________________________
- ------------------------------------------------------------------------------------------------------------------
Make-Ready Work
---------------
Estimated Costs Hours Rate Total
Constr. Labor _____ X $____________ $____________
Material _XXX_ X $_____XXX____ $____________
Engr. Design _____ X $____________ $____________
Total $____________
Estimated SWBT Completion Date
[ ] No Make-Ready Work Required. [ ] No Make-Ready Work Required under 8.03(a)
[ ] Make-Ready Work will be completed by applicant's authorized contractor.
[ ] I authorize SWBT to complete the required make-ready work. Payments due upon 50% completion and 100%
completion. Costs will be based upon actual costs incurred by SWBT. (This may vary depending on state)
___________________________________________________ Date:_____________________________
Applicant's Signature Title
- ------------------------------------------------------------------------------------------------------------------
License No._____________________________ Authorized by SWBT:___________________________________________
Date:_________________________ Signature Time
[ ] Official File Copy, If Checked In Red
</TABLE>
<PAGE> 408
SW-9434
ACCESS APPLICATION and MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
Form SW-9434 is used to request access to poles, ducts, and conduit; to
transmit notice of Provisional Assignments; and to provide other information
required in the access process.
REQUIRED INFORMATION
NAME OF APPLICANT. Name of firm requesting space on poles or in conduit.
AGREEMENT NO. Number obtained from the Master Agreement Number.
APPLICATION NO. Will be provided by applicant in sequential ascending order.
PROVISIONAL ASSIGNMENT BOX DATA
"ATTACHED DOCUMENTS" Copies of the Assignment Of Space Logs showing the
applicant's entries for the requested space or completed Forms SW-9433 or
SW-9435 if appropriate. Assignment is not official until the required
data is entered in the Assignment Of Space Log.
______ SWBT POLES The number of poles for which space is requested.
______ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
______ FEET SWBT INNERDUCT The accumulated Center-to-Center measurements
for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
PROVISIONAL ASSIGNMENT EXPIRATION DATE: 30 calendar days from the date
entered in the Assignment of Space Log (i.e., Date Application must
be submitted to hold the assignment of space.)
ASSIGNMENT/ACCESS/OCCUPANCY BOX DATA
"ATTACHED DOCUMENTS" Completed Forms SW-9433 and/or SW-9435.
______ SWBT POLES The number of poles to be accessed.
______ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
______ FEET SWBT INNERDUCT The accumulated Center-to-Center
measurements for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
ASSIGNMENT EXPIRATION DATE: 12 Months from the date entered in Assignment
Of Space Log (Date facilities must be placed to avoid forfeiture of
assigned space.)
Page 1
<PAGE> 409
SW-9434
ACCESS APPLICATION and MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
APPLICANT'S ESTIMATED CONSTRUCTION START DATE: Current "best estimate" of the
date project construction will begin. "ASAP" IS NOT AN ACCEPTABLE DATE.
APPLICANT'S ESTIMATED CONSTRUCTION COMPLETION DATE: Current "best estimate" of
the date placements and splicing will be completed. "ASAP" IS NOT AN
ACCEPTABLE DATE.
AUTHORIZED BY APPLICANT: Signature and Title of the Applicant's representative
authorizing the request for access and payment (if am) of related SWBT
engineering charges in connection with such access.
DATE: Date of authorization by Applicant's representative.
MAKE-READY WORK Box Data
ESTIMATED COSTS: SWBT will calculate data for Construction Labor,
Material, and Engineering Design hours and summarize the TOTAL estimated
SWBT Make-Ready Costs.
ESTIMATED SWBT COMPLETION DATE SWBT Engineering will provide the estimated
completion date of SWBT Make-Ready Work based upon current scheduling
loads.
[ ] NO MAKE-READY WORK REQUIRED. Applicant should check this box if it
has determined that fully code/specifications-compliant access can be
granted without any work or modifications by SWBT or other parties. If
inner duct must be placed, box should not be checked.
[ ] MAKE-READY WORK WILL BE COMPLETED BY APPLICANT'S AUTHORIZED
CONTRACTOR. If Applicant plans to utilize a mutually approved contractor
to perform all the Make-Ready work, this box only should be checked.
[ ] I AUTHORIZE SWBT TO COMPLETE THE REQUIRED MAKE-READY WORK.... If
Applicant wants SWBT to perform all the Make-Ready Work, this box only
should be checked.
IF SOME MAKE-READY WORK MUST BE DONE BY SWBT AND SOME WILL BE DONE BY THE
APPLICANT'S AUTHORIZED CONTRACTOR, THE LAST TWO BOXES SHOULD BE CHECKED.
A DETAILED DESCRIPTION OF THE WORK TO BE DONE BY SWBT MUST BE INCLUDED.
APPLICANT'S SIGNATURE, TITLE AND DATE:
It the No Make-Ready Work Required box is checked by Applicant,
Applicant's Signature confirms the accuracy of the current Applicant
construction schedule. If the Not Make-Ready Work Required under
8.03(a) box is checked, Applicant confirms conditions under 8.03
Immediate Occupancy apply.
If Make-Ready Work will be completed by Applicant's Authorized
contractor is checked, Applicant's signature concurs with any changes
in proposed Make-Ready work identified by SWBT and confirms the
accuracy of the current schedule.
If SWBT will perform any Make-Ready Work, Applicant's signature
authorizes payment to SWBT of actual cost to perform the required
make-ready work.
LICENSE NO.__________ AUTHORIZED BY SWBT: The SWBT State ULS will authorize,
date, and issue the License No. on the SW-9434 which becomes the
Applicant's License For Access.
Page 2
<PAGE> 410
[SWBT Logo] Southwestern Bell Telephone
<TABLE>
<S><C>
Retention Period: Active, Plus 5 Years
FIRM'S NAME:_________________________________ Conduit Occupancy PAGE_______ OF_____
AGREEMENT NO.:_______________________________ [ ] Provisional, Records Based Assignment TYPE:_______________
APPLICATION NO.:_____________________________ [ ] Pre-Occupancy Survey (CATV, Telecom, Other)
- ------------------------------------------------------------------------------------------------------------------------------------
Item Oper. Record Manhole Street Distance To Proposed Make Ready Make Ready
- ------------------------------------------------------------------------------------------------------------------------------------
# # # # Address Next Manhole Duct or Work Description
- ------------------------------------------------------------------------------------------------------------------------------------
(Ctr to Ctr) Innerduct Y or N
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1
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2
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4
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5
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9
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16
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18
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19
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20
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TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Cables______________ Splice Information Manhole #___________________ , Details__________________
- ------------------------------------------------------------------------------------------------------------------------------------
Size of Cable (O.D. Inches)_______________ Splice Information Manhole #___________________ , Details__________________
- ------------------------------------------------------------------------------------------------------------------------------------
Slack Loop Info. Manhole #___________________ , Details__________________
- ------------------------------------------------------------------------------------------------------------------------------------
Slack Loop Info. Manhole #___________________ , Details__________________
- ------------------------------------------------------------------------------------------------------------------------------------
Date:________________________
SIGNED:_________________________________ Time:________________________ SIGNED:__________________________________
SWBT Representative Applicant's Representative
[ ] Official File Copy, If Checked in Red
</TABLE>
<PAGE> 411
SW9435
CONDUIT OCCUPANCY
FORM INSTRUCTIONS
From SW9435 may be used for the following two purposes. Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete
the SW9435 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring duct and/or inner duct space.
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant
would make a Provisional, Records Based Assignment. The form will be signed
and dated at the bottom by both the applicant and the SWBT representative. A
copy will be provided to the applicant and the original will be maintained by
SWBT.
Type: Applicant indicates that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Proposed Duct or Inner duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Number of Cables: Applicant will enter the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Not required for Provisional, Records Based
assignment.
Slack Loop Info. Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
<PAGE> 412
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Pre-Occupancy Survey: Applicable when this form is being used as a Pre
Occupancy Survey. The form would be completed in its entirety and signed by
the applicant and submitted to SWBT for review in obtaining conduit space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Oper. #: Applicant will provide the operation number when required. The same
operation number may very well be referenced on an attached map.
Record #: This would refer to either the SWBT paper record or mechanized
record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, if
applicable.
Distance to Manhole: Applicant will state the distance from manhole to manhole
in feet.
Proposed Duct or Inner Duct: Applicant will state the number of ducts and/or
inner ducts.
Make Ready Work: Applicant will state if make ready work is required.
(Yes or No)
Make Ready Description: Applicant will give description of make ready work
required.
Number of Cables: Applicant will indicate the number of cables.
Size of Cable (O.D. Inches): Applicant will indicate size of cable.
Splice Information Manhole #: Applicant will enter any relevant splice
information.
Details: Applicant will provide any relevant details regarding splice
information.
Slack Loop Info. Manhole #: Applicant will provide.
Details: Applicant will provide any relevant Slack Loop Information.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 413
[SWBT LOGO] Southwestern Bell SW-9436A
Telephone (Rev. 5-89)
Ref. 002-011-900SW
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
Page ____ of _____
Agreement Number______________
_______________________________
(Licensee)
_______________________________
(Address)
_______________________________
Southwestern Bell Telephone Company:
In accordance with the terms and conditions of the License Agreement
between us, dated_______________ , 19__, notice is hereby given that the
licenses covering attachments to the following poles and/or anchors
and/or utilization of anchor/guy strand is surrendered (or modified as
indicated in Licensee's prior notification to Licensor, dated
___________________, 19___) effective_______________________.
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
DATE FAC.
ANCHOR A/GS RMVD. OR
POLE NO. (ASSOC. POLE NO.) LIC. NO. & DATE SURRENDEER OR MODIFICATION MODIFIED
---------------------------------------------------------------------------------------------------------------------------------
<S><C>
1.
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- --------------------------------------------------
Date Notification Received _____________________ _________________________________________________
Date Modification Accepted _____________________ Name of Licensee
By _____________________________________________
Discontinued: By _________________________________________
Poles __________________
Anchors_________________ Title ______________________________________
Anchor/Guy Strands______________
- --------------------------------------------------
</TABLE>
<PAGE> 414
[SWBT LOGO]
Southwestern Bell
Telephone
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY APPLICANT
Page ____ of _____
License Agreement #________________
_________________________
(Applicant)
_________________________
(Address)
_________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the Licensing Agreement between
us, dated_______________ , 19__, notice is hereby given that the licenses
covering occupancy of the following conduit are surrendered (or modified
as indicated in Applicant's prior notification to SWBT, dated
___________________, 19___,) effective________________________ .
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
<S><C>
DATE
FAC. RMVD.
CONDUIT LOCATION LIC. NO. & DATE SURRENDER OR MODIFICATION OR MODIFIED
---------------------------------------------------------------------------------------------------------------------------------
1.
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2.
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3.
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--------------------------------------------------------------
Date Notification Received ____________________ _______________________________________
S Date Modification Accepted ____________________ (Applicant)
W By ____________________________________________
B By ______________________________________
T Discontinued:__________________________________ (Name of Authorized Agent)
Total duct footage____________ Title ____________________________________
-------------------------------------------------------------- (Title of Authorized Agent)
</TABLE>
<PAGE> 415
[SWBT LOGO]
Southwestern Bell
Telephone
NOTIFICATION OF UNAUTHORIZED
ATTACHMENTS BY APPLICANT
Applicant Name__________________________
In accordance with the terms and conditions of the License Agreement between
us, dated____________ , 19__, notice is hereby given that the license covering
attachments to the following is unauthorized (as indicated in
Applicant's prior agreement to SWBT, dated ______________________, 19___,)
effective__________________________ .
SOUTHWESTERN BELL
TELEPHONE
By:________________________
Title:_____________________
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
<S><C>
POLE NO. LOCATION DATE FAC.
OR (ASSOC. POLE NO.) RMVD. OR
CONDUIT # MANHOLES Involved LIC. NO. & DATE UNAUTHORIZED ATTACHMENT MODIFIED
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1.
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--------------------------- ______________________________________
SKETCH OF (Name of Applicant)
UNAUTHORIZED
ATTACHMENTS By ___________________________________
ATTACHED
Date Notification
Sent_____________ Title ________________________________
---------------------------
</TABLE>
<PAGE> 416
Agreement No. ___________
APPENDIX IV
INSURANCE REQUIREMENTS (KANSAS)--PAGE 1 OF 4
This Appendix IV is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
1) Premises. As used in this Appendix, the term "premises" refers to any
site located on, within, or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way and any location where Applicant or any person acting on
Applicant's behalf may be physically present while traveling to or departing
from any such site.
2) Requirements Applicable to Applicant and All Persons and Entities
Acting on Applicant's Behalf. Applicant shall maintain, at all times during
the term of this Master Agreement, all insurance and coverages set forth below.
Such insurance and coverages shall not only cover Applicant but all
contractors, subcontractors, and other persons or entities acting on
Applicant's behalf at the premises described in 1) above. Applicant should
require that all contractors, subcontractors, and other persons or entities
acting on Applicant's behalf at premises described in 1 ) above obtain the same
insurance and coverages.
3) Workers' Compensation Insurance. Applicant shall maintain, at all
times during the term of this Agreement, Workers' Compensation Insurance and
Employer's Liability Insurance with minimum limits of $100,000 for bodily
injury-each accident, $100,000 for bodily injury by disease-each employee, and
$500,000 for bodily injury by disease-policy limits, for all employees
performing work or otherwise present on the premises described in 1) above.
Such insurance must comply with the Workers' Compensation laws of this State
and shall provide coverage, at a minimum, for all benefits required by such
Worker's Compensation laws. Applicant shall require any contractor,
subcontractor, or other person or entity acting on Applicant's behalf to
provide Workers' Compensation Insurance and Employer's Liability Insurance for
their respective employees unless such employees are covered by the protection
afforded by Applicant.
4) General Liability Insurance. To protect SWBT and any joint user from
any liability for bodily injury or property damage, Applicant shall maintain,
at all times during the term of this Agreement, General Liability insurance
satisfactory to SWBT. SWBT shall be added as an additional insured in the
standard policy or an endorsement thereto. Applicant shall also require any
contractor, subcontractor, or other person or entity acting on Applicant's
behalf to provide General Liability coverage with the same limits and with SWBT
added as an additional insured unless such contractor, subcontractor, or other
person or entity is covered by the General Liability protection afforded by
Applicant.
a) The following coverages must be included in (and may
not be excluded from) the policy or policies obtained to satisfy
the General Liability insurance requirements of Applicant and
any contractor, subcontractor, or other person or entity acting
on Applicant's behalf. The coverages may be provided by the
standard policy or endorsements thereto. Exclusion endorsements
deleting these coverages will not be accepted.
<PAGE> 417
APPENDIX IV
INSURANCE REQUIREMENTS (KANSAS)--PAGE 2 OF 4
1) Personal Injury and Advertising Injury coverage.
2) Premises/Operations coverage, including also
coverage for any newly acquired ownership or controlled
premises or operations.
3) Independent Contractors coverage to provide
protection for Applicant's contractors, subcontractors, and
other persons or entities acting on Applicant's behalf.
4) Explosion, Collapse, and Underground Hazard
(XCU) coverage.
5) Completed Operations coverage providing for
bodily injury and property damage liabilities which may occur
once the operations have been completed or abandoned.
6) Contractual Liability coverage to provide
financial responsibility for the Applicant to meet its
indemnification obligations.
7) Broad Form Property Damage (BFPD) coverage for
damage to property in the care or custody of Applicant and
damage to work performed by or on behalf of the Applicant.
b) Minimum policy limits shall be as follows:
General Aggregate Limit: $1,000,000.
Sublimit for all bodily injury, property damages, or medical
expenses incurred in any one occurrence: $1,000,000.
Sublimit for personal injury and advertising: $1,000,000.
Products/Operations Aggregate Limit: $1,000,000.
Each occurrence sublimit for Products/Operations:
$1,000,000.
c) No coverage shall be deleted from the standard
policy without notification of individual exclusions being
attached for review and acceptance.
d) Policy language or endorsements adding SWBT as an
additional insured shall not include exclusions or exceptions
which defeat the purpose of protecting SWBT
<PAGE> 418
APPENDIX IV
INSURANCE REQUIREMENTS (KANSAS)--PAGE 3 OF 4
from any liability for bodily injury or property
damage arising out of Applicant's operations.
5) Automobile Liability insurance. The parties contemplate that
Applicant and personnel acting on Applicant's behalf will utilize automobiles,
trucks, and other motor vehicles on public and private property, including
public rights of way, in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. Accordingly, Applicant shall maintain, at all times during the
term of this Agreement, Automobile Liability insurance with minimum limits of
$1,000,000 combined single limits per occurrence for bodily injury and property
damage which may arise out of the operation or use of motor vehicles of any
type. Coverage shall extend to "any auto" -- that is, coverage shall be
extended to all owned, non-owned, and hired vehicles used by Applicant or by
any person or entity acting on Applicant's behalf in connection with any work
performed, or to be performed, on, within, or in the vicinity of SWBT's poles,
ducts, conduits, or rights-of-way.
6) Layering of General Liability and Automobile Liability coverages.
Applicant's insurance may be written via a primary policy with either an excess
or umbrella form over the primary policy. If coverage is written in this
manner, the total of the combined policy limits must meet or exceed the minimum
limits specified in this Agreement.
7) Deductibles. No deductibles shall be allowed without the express
written consent of SWBT.
8) Claims Made Policies. Claims Made Policies will not be accepted.
9) Proof of Insurance. Certificates of Insurance stating the types of
insurance and policy limits provided the insured, or other proof of insurance
satisfactory to SWBT, must be received by SWBT prior to the issuance of any
licenses pursuant to this Agreement and before Applicant or any person acting
on Applicant's behalf performs any work on the premises described in 1) above.
a) Certificates of Insurance using the insurance
industry standard ACORD form are preferred.
b) Certificates provided with respect to General
Liability policies and certificates provided with respect to
Automobile Liability policies shall indicate SWBT as an
Additional Insured.
c) Deductibles, if permitted, shall be listed on the
Certificate of Insurance.
d) The cancellation clause on the certificate of
insurance shall be amended to read as follows:
<PAGE> 419
APPENDIX IV
INSURANCE REQUIREMENTS (KANSAS)--PAGE 4 OF 4
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
OR MATERIALLY CHANGED BEFORE THE EXPIRATION DATE, THE
ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT."
A certificate which does not include the phrase "or materially
changed" does not meet SWBT's requirements. A certificate
reciting that the issuing company will "endeavor to" mail 30 days
written notice to the certificate holder does not meet SWBT's
requirements. The language "but failure to mail such notice shall
impose no obligation or liability of any kind upon the company,
its agents, or representatives" or similar language must be
deleted from the certificate.
e) The certificate holder shall be:
Southwestern Bell Telephone Company
500 E. 8th, Room 598
Kansas City, Missouri 64106
ATTENTION: Utility Liaison Supervisor
f) Failure to object to any coverage described in a
certificate shall not constitute written permission from SWBT to
any variance from or alteration of any requirement set forth in
this Appendix and shall not be construed as a waiver by SWBT of
any rights under this Agreement.
10) Rating of Insurers. SWBT requires that companies affording insurance
coverage have a B+VII or better rating, as rated in the current A.M. Best Key
Rating Guide for Property and Casualty Insurance Companies.
11) Self-insurance. If authorized in the Master Agreement,
self-insurance shall be allowed in lieu of the above requirement s upon
Applicant's submission of proof that it has met the self-insurance requirements
stated in the Master Agreement.
<PAGE> 420
Agreement No. ___________
APPENDIX V
NONDISCLOSURE AGREEMENT (KANSAS) -- PAGE 1 OF 4
Nondisclosure Agreement (SWBT Pole, Duct, Conduit, and Right-of-Way)
This Nondisclosure Agreement, effective as of the _____ day of
____________, 19__, has been entered into by and between Southwestern Bell
Telephone Company ("SWBT"), a Missouri corporation, and the undersigned person
or firm ("Recipient") as a condition of access to certain records and
information maintained by SWBT. The parties stipulate and agree as follows:
1) SWBT maintains records and information, including but not limited to
outside plant engineering and construction records, which relate to poles,
ducts, conduits, and rights-of-way which SWBT owns or controls. SWBT
represents that such records and information are not made generally available
for inspection or copying by the public and include business, economic, and
engineering information (including but not limited to plans, designs, maps,
diagrams, cable counts and cable-specific information, circuit records, and
other competitively sensitive information) which SWBT intends to keep secret
and which has economic value by virtue of not being generally known to or
readily ascertainable by the public, including SWBT's competitors.
2) SWBT has agreed to make certain of its records and information
relating to poles, ducts, conduits, and rights-of-way available to cable
television systems and telecommunications carriers who are presently entitled
under federal law to have access to the poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT.
3) Recipient represents that Recipient is a cable television system or
telecommunications carrier entitled under federal law to access to poles, ducts,
conduits, and rights-of-way owned or controlled by SWBT, or, if an individual,
that he or she is acting on behalf of_________________________________________ ,
which is such a cable television system or telecommunications carrier.
Recipient further represents that Recipient is seeking access to SWBT's records
and information relating to poles, ducts, conduits, and rights-of-way for the
limited purpose of enabling engineering and construction personnel employed by
or acting on behalf of such cable television system or telecommunications
carrier to make engineering and construction decisions necessary to utilize
SWBT's poles, ducts, conduits, and rights-of-way.
4) SWBT agrees that permitted uses of records and information concerning
SWBT's poles, ducts, conduits, and rights-of-way are (a) determining which
poles, ducts, conduits, and rights-of-way owned or controlled by SWBT are
available for use by such cable television systems or telecommunications
carriers as permitted by federal law, (b) designing, engineering, constructing,
installing, maintaining, and removing equipment which is to be attached to or
placed within such poles, ducts, conduits, and rights-of-way, and (c)
contesting decisions, if any, by SWBT not to provide access to such poles,
ducts, conduits, and rights-of-
<PAGE> 421
APPENDIX V
NONDISCLOSURE AGREEMENT (KANSAS) -- PAGE 2 OF 4
way as requested. No other uses of such records or information are authorized
or permitted under this Agreement.
5) Recipient agrees that Recipient will not use, or permit any other
person or entity to use or have access to SWBT's records and information
relating to poles, ducts, conduits, or rights-of-way or information for any
purpose other than the limited purposes stated in 4) above and that such
records and information shall not be disclosed or shared with any person or
persons other than those who have a need to know such information for such
limited purposes. Recipient specifically agrees that such records and
information shall not be used or accessed by any person involved in sales,
marketing, competitive intelligence, competitive analysis, strategic planning,
and similar activities. Recipient further agrees that Recipient shall not
furnish copies of such records or disclose information contained in such
records to any person or entity which has not executed and delivered to SWBT a
counterpart of this Agreement prior to receipt of such copies or information.
6) Recipient agrees that Recipient will not without SWBT's express
written authorization copy, duplicate, sketch, draw, photograph, download,
photocopy, scan, replicate, transmit, deliver, send, mail, communicate, or
convey any of SWBT's records relating to poles, ducts, conduits, or
rights-of-way. Recipient further agrees that Recipient will not conceal,
alter, or destroy any SWBT records furnished to Recipient pursuant to this
Agreement.
7) Notwithstanding the provisions of 6) above, and except as provided in
8) below, Recipient may copy, take notes from, make, and use (for the limited
purposes specified herein) drawings with reference to the following records
provided by SWBT to Recipient for inspection: pole and conduit route maps,
cable plat maps, and plant location records reflecting approximate locations of
SWBT's existing poles, ducts, conduits, and rights-of-way. All such copies,
notes, and drawings (whether in hardcopy or electronic form) shall be marked
with the legend: "PROPRIETARY INFORMATION: NOT FOR USE BY OR DISCLOSURE TO
ANY PERSON WHO HAS NOT EXECUTED A NONDISCLOSURE AGREEMENT (SWBT POLE, DUCT,
CONDUIT, AND RIGHT-OF-WAY)."
8) No references to cable counts, cable designations or cable-specific
information, circuit information, or customer-specific information of any kind
may be included in any copies, notes, or drawings made pursuant to 7) above;
provided, however, that Recipient may make estimates regarding the physical
characteristics (such as size and weight) of the cables being surveyed when
necessary to make engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits, or rights-of-way
for Recipient/Applicant's intended uses.
<PAGE> 422
APPENDIX V
NONDISCLOSURE AGREEMENT (KANSAS) -- PAGE 3 OF 4
9) All records and information relating to poles, ducts, conduits, and
rights-of-way provided to Recipient/Applicant by SWBT (whether in writing,
orally, or in electronic or other formats) shall be deemed to be proprietary
information subject to this Agreement without regard to whether such
information, at the time of disclosure, has been marked with restrictive
notations such as "Proprietary," "Restricted Proprietary," "Confidential," "Not
to Be Copied or Reproduced," or the like.
10) This Agreement applies only to records and information provided to
Recipient by SWBT and does not apply to records and information obtained by
Recipient from other lawful sources.
11) This Agreement does not prohibit the disclosure of records or
information in response to subpoenas and/or orders of a governmental agency or
court of competent jurisdiction. In the event Recipient receives an agency or
court subpoena requiring such disclosure, Recipient shall immediately, and in
no event later than five calendar days after receipt, notify SWBT in writing.
12) The Parties agree that, in the event of a breach or threatened breach
of this Agreement, SWBT may seek any and all relief available in law or in
equity as a remedy for such breach, including but not limited to monetary
damages, specific performance, and injunctive relief. The Parties acknowledge
that SWBT's records and information relating to poles, ducts, conduits, and
rights-of-way include valuable and unique information and that disclosure of
such information (including circuit information) will result in irreparable
injury to SWBT. In the event of any breach of this Agreement for which legal
or equitable relief is sought, SWBT shall be entitled to recover from Recipient
all reasonable attorney's fees and other reasonable costs (including but not
limited to fees of expert witnesses) incurred by SWBT in connection with the
prosecution of its claims against Recipient.
13) This Agreement shall be effective on the effective date shown above
and shall remain in full force and effect until terminated by either party as
provided herein. Either party may, at any time, with or without cause,
terminate this Agreement by giving the other party 60 days' advance written
notice of its decision to terminate. The parties further agree that
termination of this Agreement shall have no effect on the duty of any person or
entity, including Recipient, to abide by all terms of this Agreement with
respect to records and information received by Recipient while this Agreement
is in effect.
14) This Agreement shall benefit and be binding on the parties below and
their respective heirs, successors, and assigns.
15) This Agreement will be governed by the laws of the State of Kansas.
<PAGE> 423
APPENDIX V
NONDISCLOSURE AGREEMENT (KANSAS) -- PAGE 1 OF 4
16) This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter hereof, and none of the
terms of this Agreement may be amended or modified except by written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by their duly authorized representatives,
in duplicate, as of the dates set forth below.
<TABLE>
<S> <C>
__________________________________________ Southwestern Bell Telephone Company
Recipient (Print or Type Name)
By________________________________________ By________________________________
Signature of Recipient or Representative Signature
__________________________________________ __________________________________
Name (Printed or Typed) Name (Printed or Typed)
__________________________________________ __________________________________
Address Address
__________________________________________ __________________________________
City, State, and Zip Code City, State, and Zip Code
__________________________________________ __________________________________
Phone Phone
__________________________________________ __________________________________
Date Date
</TABLE>
<PAGE> 424
Agreement No.________________________
APPENDIX VI
NOTICES TO APPLICANT (KANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Notices in general. Except as otherwise stated in this Appendix, all
notices to Applicant shall be given to Applicant's duly authorized agent or
attorney as specified in Section 29.01 of the Master Agreement.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by Applicant from time to time in accordance
with the provisions of Section 29.03 of the Master Agreement.
Special notice provisions. The following special notice provisions, if
any, shall apply:
<PAGE> 425
Agreement No.________________________
APPENDIX VII
NOTICES TO SWBT (KANSAS) -- PAGE 1 OF 3
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Utility Liaison Supervisor (ULS). Except as otherwise stated in this
Appendix, all notices to SWBT shall be given to the Utility Liaison Supervisor
(ULS) designated in APPENDIX VIII of the Master Agreement. The Utility Liaison
Supervisor is generally responsible for coordinating applications for access to
SWBT's poles, ducts, conduits, and rights-of-way and serving as Applicant's
initial point of contact for matters arising out of or in connection with the
administration of the Master Agreement. Notices to the ULS shall be given in
writing in the manner prescribed in Section 29.02. Notices to be sent to the
ULS include, but are not limited to, notices under the following provisions of
the Master Agreement.
<TABLE>
<S> <C>
7.01 Notification of Designation of Primary Point of Contact
7.03(a) Notification of intent to review records
8.XX All Notifications in Article 8
9.XX All Notifications in Article 9
10.04(e) Notification Regarding Make-Ready Work
12.03(d) Notification of placing J-hook on non-licensed pole
12.04 Notification of occupation of maintenance duct for short-term use
12.06 Notification of Applicant's maintenance contact
13.01 Notification of planned modifications
14.02(c) Notification of Applicant's desire to add to or modify its existing attachment
15.02(b) Notification of occupation of maintenance duct for short-term emergency use
15.03 Notification of emergency repair coordinators
16.01 Notification that facilities have been brought into compliance
17.02(c) Disclaimer of ownership or responsibility for untagged facilities
17.06 Notification of Applicant's response to ownership of facilities in question
</TABLE>
<PAGE> 426
APPENDIX VII
NOTICES TO SWBT (KANSAS) -- PAGE 2 OF 3
<TABLE>
<S> <C>
18.01(a) Notice of intent to remove facilities
18.01(e) Notice of intent to terminate license
18.06 Notification of completion of removal of facilities
20.01(c) Notification of change of bond
21.17 Notification of claims
23.XX All notifications of insurance coverage in Article 23
24.03 Notification of assignment
25.01 Notification of termination
25.03 Notification of cure of breach
27.04 Notice of elective termination
29.03 Notification of change in notice requirements
</TABLE>
Other notices. The following notices may be given orally or in writing
(including fax) and shall be given to SWBT's Local Service Provider Center
(LSPC) at 1-800-486-5598 instead of the ULS.
<TABLE>
<S> <C>
6.05(a) Notifications relating to electrical interference
6.09(d) Notifications of unsafe conditions
6.11(a) Notification of manhole entry
6.13(c) Notification of environmental contaminants
10.02(b) Notification of materials required for self-provisioning of inner duct
15.04 Notification of conditions requiring emergency repair
15.06(a) Notification of performing corrective work on emergency repair.
(advanced notice)
</TABLE>
<PAGE> 427
APPENDIX VII
NOTICES TO SWBT (KANSAS) -- PAGE 3 OF 3
<TABLE>
<S> <C>
15.06(a) Notification of performing corrective work on emergency repair.
(advanced notice)
</TABLE>
Additional information and questions concerning notice requirements. The
ULS, as Applicant's initial point of contact, will provide additional
information to Applicant concerning notification procedures for notices to be
given to LSPC. Questions to SWBT concerning notice requirements should be
directed to the ULS. The ULS is not authorized to provide Applicant legal
advice with respect to notice requirements. Questions by Applicant's personnel
and other persons acting on Applicant's behalf concerning Applicant's legal
obligations should be directed to Applicant's legal counsel or such other
personnel as Applicant may direct.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by SWBT from time to time in accordance with
the provisions of Section 29.03 of the Master Agreement.
<PAGE> 428
Agreement No._________________________
APPENDIX VIII
IDENTIFICATION OF UTILITY LIAISON SUPERVISOR (KANSAS)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
The Utility Liaison Supervisor for Kansas is named below. Notices to the
Utility Liaison Supervisor should be addressed as follow:
Name: Wayne White
------------------------------------------------
Title: Utility Liaison Supervisor
------------------------------------------------
Firm: Southwestern Bell Telephone Company
------------------------------------------------
Address: 500 E. 8th, Room 598
---------------------------------------------
City/State/Zip: Kansas City. Missouri 64106
--------------------------------------
<PAGE> 1
EXHIBIT 10.22
INDEX
<TABLE>
<S> <C>
SWBT/Digital Teleport, Inc. (Oklahoma) Tab 1
800 Tab 2
911 - Texas Tab 3
AIN Tab 4
BCR Tab 5
CH Tab 6
CNAM Tab 7
DCO Tab 8
DA Tab 9
FGA Tab 10
HOST Tab 11
ITR Tab 12
LIDB-AS Tab 13
LIDB-V Tab 14
OSS Tab 15
OS Tab 16
NIM/Physical Collocation Agreement Tab 17
SS7 Tab 18
RECORDING Tab 19
RESALE Tab 20
UNE Tab 21
WIRELESS Tab 22
WP Tab 23
TP Tab 24
PORT Tab 25
Poles, Ducts, Conduits & ROW Tab 26
</TABLE>
<PAGE> 2
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
by and between
SOUTHWESTERN BELL TELEPHONE COMPANY
and
DIGITAL TELEPORT, INC.
<PAGE> 3
PAGE 1 OF 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
1.0 DEFINITIONS.............................................................. 1
2.0 INTERPRETATION AND CONSTRUCTION.......................................... 5
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES............. 5
4.0 INTERCONNECTION PURSUANT TO SECTION 25l(c)(2)........................... 6
4.1 Scope.............................................................. 6
4.2 Interconnection Coverage........................................... 6
4.3 Methods for Interconnection........................................ 7
4.4 Physical Architecture.............................................. 8
4.5 Technical Specifications........................................... 9
4.6 Interconnection in Additional Metropolitan Exchange Areas.......... 9
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT
TO SECTION 251(c)(2)..................................................... 10
5.1 Scope of Traffic.................................................... 10
5.2 Responsibilities of the Parties..................................... 10
5.3 Reciprocal Compensation for Termination of Local Traffic............ 11
5.4 Reciprocal Compensation for Transit Traffic......................... 12
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange
Traffic............................................................. 12
5.6 Compensation for Origination and Termination of Switched Access
Service Traffic to or From an IXC (Meet-Point Billing (MPB)
Arrangements)....................................................... 13
5.7 Billing Arrangements for Compensation for Termination of IntraLATA,
Local, and Transit Traffic.......................................... 14
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT
TO 251 (c)(2)............................................................ 15
6.1 Scope of Traffic.................................................... 15
6.2 Trunk Group Architecture Traffic Routing............................ 16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC..................... 16
7.1 Information Services Traffic....................................... 16
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic... 16
7.3 Wireless Traffic................................................... 16
8.0 SIGNALING............................................................... 17
9.0 NUMBERING............................................................... 17
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and
271(c)(2)(B)(xiv)...................................................... 19
</TABLE>
<PAGE> 4
PAGE 2 OF 3
<TABLE>
<S> <C>
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x)................................................ 19
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)............................... 19
13.0 COLLOCATION -- SECTION 251 (c)(6).................................... 19
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271 (c)(2)(B)(xi)....... 20
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and
271(e)(2)............................................................ 20
16.0 ACCESS TO RIGHTS-OF-WAY.-- SECTION 251(b)(4) and 271(c)(2)(B)(iii)... 20
17.0 DATABASE ACCESS -- SECTION 271 (c)(2)(B)(x).......................... 21
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS..................................... 21
19.0 COORDINATED REPAIR CALLS............................................. 21
20.0 OTHER SERVICES 271 (c)(B)(2)(vii) and 271(c)(2)(B)(viii)............. 22
20.1 White Pages........................................................ 22
20.2 Calling Name Information........................................... 22
20.3 Billing/Collecting/Remitting....................................... 22
20.4 911 /E911 Service.................................................. 22
20.5 Directory Assistance (DA).......................................... 22
20.6 Operator Services.................................................. 22
20.7 Clearinghouse Services............................................. 22
20.8 Hosting............................................................ 22
20.9 Signaling System 7 Interconnection................................. 23
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES.............................. 23
22.0 EFFECTIVE DATE, TERM, AND TERMINATION................................ 24
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES......................... 25
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION......... 25
25.0 SEVERABILITY........................................................ 26
26.0 INTELLECTUAL PROPERTY............................................... 26
27.0 INDEMNIFICATION..................................................... 26
28.0 LIMITATION OF LIABILITY............................................. 28
</TABLE>
<PAGE> 5
PAGE 3 OF 3
<TABLE>
<CAPTION>
<S> <C>
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES.......................... 28
29.1 Certain Definitions............................................ 28
29.2 Specified Performance Breach................................... 29
29.3 Liquidated Damages............................................. 29
29.4 Limitations.................................................... 30
29.5 Sole Remedy.................................................... 30
29.6 Records........................................................ 30
30.0 REGULATORY APPROVAL.................................................. 30
31.0 MISCELLANEOUS........................................................ 31
31.1 Authorization.................................................. 31
31.2 Compliance and Certification................................... 31
31.3 Law Enforcement................................................ 31
31.4 Independent Contractor......................................... 32
31.5 Force Majeure.................................................. 32
31.6 Confidentiality................................................ 33
31.7 Governing Law.................................................. 34
31.8 Taxes.......................................................... 35
31.9 Non-Assignment................................................. 36
31.10 Non-Waiver..................................................... 36
31.11 Audits......................................................... 36
31.12 Disputed Amounts............................................... 37
31.13 Disputed Resolutions........................................... 37
31.14 Notices........................................................ 38
31.15 Publicity and Use of Trademarks or Service Marks............... 38
31.16 Section 252(i) Obligations..................................... 39
31.17 Joint Work Product............................................. 39
31.18 Intervening Law................................................ 39
31.19 No Third Party Beneficiaries; Disclaimer of Agency............. 40
31.20 No License..................................................... 40
31.21 Survival....................................................... 40
31.23 Scope of Agreement............................................. 40
31.24 Entire Agreement............................................... 40
</TABLE>
<PAGE> 6
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Bell Telephone Company, a Missouri Corporation ("SWBT"), and Digital Teleport,
Inc. ("DTI").
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 Oklahoma; and
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 DTI, a competitive local
exchange carrier, is certified by the Oklahoma Corporation Commission, as
required.
NOW, THEREFORE, DTI 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 number 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:
<PAGE> 7
(i) "End Office Switches" which are Class 5 switches where end user
Exchange Services are directly connected and offered; and
(ii) "Tandem Office Switches" or "Tandems" which are Class 4 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 (combination Class 5/Class 4).
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 includes, but is not limited to, collocation of 38 GHz
basic transmission equipment, provided it complies with the guidelines in
SWBT's current Physical Collocation 02/14/97 Technical Publication provided to
DTI.
1.9 "Commission" means the Oklahoma Corporation Commission.
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 cross connect
rate element which is used to designate 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 DTI 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.
<PAGE> 8
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. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps third-level in
the time-division multiplex hierarchy. In the time-division multiplexing
hierarchy of the telephone network, DS3 is defined as the third level of
multiplexing.
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,
directly or indirectly, interLATA or intraLATA Telephone 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 in order to
originate or terminate traffic to/from DTI's end users.
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
<PAGE> 9
1.25 "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.
1.26 "Local Traffic," for purposes of intercompany compensation, is if (i)
the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "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).
1.28 "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 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.
1.29 "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.
1.30 "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.
1.31 "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.
1.32 "Network Element Bona Fide Request" means the process described [in
Appendix BFR 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.
<PAGE> 10
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 "Telephone Exchange Services"
1.35 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base rate is 51.84 Mbps (OC-1/STS-1) and higher rates are direct
multiples of the base rate, up to 13.22 Gpbs.
1.36 "Telephone Exchange Service" is as defined in the Act.
1.37 "Wire Center" means an occupied structure or portion thereof in which
a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative, regulatory,
judicial order, rule or regulations, or other legal action that revises or
reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and 95-185 or any
applicable order or arbitration award purporting to apply the provisions of the
federal Act, the Parties reserve all of their rights and remedies, including
those to amend, alter, or revise this Agreement.
3.0 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 by modifying or updating Appendix DCO.
<PAGE> 11
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 sub-section
7.2).
4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and shall
interconnect their facilities as stated below:
4.2.1. DTI shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which DTI chooses to offer local exchange
service, DTI, 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 DTI will terminate its traffic will be called SWBT Interconnection
Wire Centers and are identified in Appendix DCO. As DTI initiates Exchange
Service operations in additional SWBT exchange areas, SWBT and DTI shall agree
upon additional SWBT Interconnection Wire Centers in each new exchange area. DTI
agrees that if SWBT establishes additional tandems in an exchange area within
which DTI offers local exchange service, DTI will interconnect to the additional
tandems.
b. Interconnection to a SWBT local tandem(s) will provide DTI local access
to the SWBT end offices and NXXs which subtend that tandem(s), and to other
Local Exchange Carriers ("LECs") (subject to sub-section 5.4) which are
connected to that tandem(s). Interconnection to SWBT EO(s) will provide DTI
access only to the NXXs served by that individual EO(s) to which DTI
interconnects.
c. Interconnection to a SWBT access tandem will provide DTI interexchange
access to SWBT, IXCs, LECs and CRMS providers (subject to sub-section 7.3)
which are connected to that tandem. Where an access tandem also provides local
tandem functions, interconnection to a SWBT access tandem
<PAGE> 12
serving that exchange will also provide DTI access to SWBT's EOs with the same
functionality described in (b) above.
d. Where DTI requires ancillary services (e.g., Directory Assistance,
Operator Assistance, E911/911) 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 DTI's facilities under terms and
conditions no less favorable than those identified in sub-section 4.2.1, above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods 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 DTI provides
fiber cable and connects to its equipment located in the SWBT Wire Center. DTI
owns and maintains DTI's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where DTI provides
fiber cable to SWBT for connection to DTI-designated basic transmission
equipment dedicated solely for DTI'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 DTI provides fiber cable
to SWBT for connection to SWBT-designated basic transmission equipment located
at the SWBT Interconnection Wire Center and dedicated solely for DTI'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 network facilities
exist, either Party may lease facilities from the other Party at rates no
greater than SWBT Access Tariff rates.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties agree to
interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix MSFI attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
<PAGE> 13
4.3.6 The Parties may agree to utilize another Interconnection Method as
may be determined to be technically feasible in the future.
4.4 PHYSICAL ARCHITECTURE. 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 above. 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.
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.
<PAGE> 14
4.5 TECHNICAL SPECIFICATIONS
4.5.1 DTI and SWBT shall work cooperatively to install and maintain a
reliable network. DTI 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 DTI 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 and incorporated by reference. Appendix TP will
herein assist the Parties in meeting their respective Interconnection
responsibilities. Copies of the publications listed in Appendix TP have been or
shall be provided to DTI by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If DTI decides to offer Telephone Exchange Services in any other
Metropolitan Exchange and Areas in which SWBT also offers Telephone Exchange
Services, DTI 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 DTI has designated in the Metropolitan Exchange Area; (ii) DTI's
requested Interconnection Activation Date; and (iii) a non-binding forecast of
DTI's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall designate
the Wire Center that DTI has identified as its initial Routing Point in the
Metropolitan Exchange Area as DTI 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 (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 the one-hundred
and fiftieth (150th) day following the date on which DTI delivered notice to
SWBT of the need to establish Interconnection pursuant to Section 4.6.1 above.
Within ten (10) business days of SWBT's receipt of DTI's notice, SWBT and DTI
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.
<PAGE> 15
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. The Parties shall employ for the transmission
and routing of all Local and IntraLATA Toll Traffic between the Parties'
respective Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between DTI and SWBT will be classified as
either Local Traffic, Transit 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.
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.
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 Toll Traffic in direct proportion to the
minutes of use (MOU) of calls exchanged with CPN information. If the
percentage of calls passed with CPN is less than ninety percent (90%), all
calls passed without CPN will be billed as switched access.
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
<PAGE> 16
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 sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section 5.3 apply only to the
termination of Local Traffic, except as explicitly noted.
ii) The Parties agree to compensate each other for the termination of Local
Traffic on a minute of use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem 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 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.
<PAGE> 17
5.3.4 Local Traffic Interconnection Rates
<TABLE>
<CAPTION>
Serving Method Prices Per MOU
<S> <C>
Tandem Served $.00975
End Office Served $.00720
</TABLE>
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 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 MOUs between a Party and third party networks that transit the
other Party's tandem switch. The originating Party is responsible for the
appropriate rates unless otherwise specified. The Transit Traffic rate element
is only applicable when calls do not originate with (or terminate to) the
transit Party's end user. The Local Transit Traffic rate element applies when
both the originating and terminating end users are within SWBT local and
mandatory exchanges.
<TABLE>
<CAPTION>
Type of Transit Traffic Prices Per MOU
<S> <C>
Local Transit $0.003
</TABLE>
5.4.2 All other traffic which transits a tandem shall be treated as
Meet-Point Billing Traffic as described in Section 5.6 below or as intraLATA
interexchange traffic as described in Section 5.5.3 below, unless otherwise
agreed.
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.
5.5 RECIPROCAL COMPENSATION FOR TERMINATION OF INTRALATA INTEREXCHANGE TRAFFIC
5.5.1 For intrastate intraLATA interexchange service traffic, compensation
for termination of intercompany traffic will be at terminating access rates for
Message Telephone Service (MTS) and originating access rates for 800 Service,
including the Carrier Common Line (CCL) charge, as set forth in each party's
Intrastate Access Service Tariff or as otherwise mutually agreed. For interstate
intraLATA intercompany service traffic, compensation for termination of
intercompany traffic will be at terminating access rates for MTS and originating
<PAGE> 18
access rates for 800 Service including the CCL charge, as set forth in each
party's interstate Access Service Tariff or as otherwise mutually agreed.
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. DTI'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/multiple 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,
DTI is the Initial Billing Company (IBC) and SWBT is the Subsequent Billing
Company (SBC). The assignment of revenues, by rate element, and the Meet-Point
Billing percentages applicable to this Agreement are set forth in Appendix DCO.
The actual rate values for each element shall be the rates contained in that
Party's own applicable access rates.
5.6.4 The Parties, as applicable, 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/multiple tariff method, as described in the MECAB document. Each
Party will render a bill to the IXC in accordance with its own rate structure
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.
<PAGE> 19
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 BAR/BACR number.
5.6.9 Each Party will provide the other with the Exchange Access detailed
usage data within thirty (30) days of the end of the billing period. SWBT will
perform assembly and editing, messages processing and provision of Access Usage
Records in accordance with Appendix Recording, attached hereto and incorporated
by reference. 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 DTI provides SWBT with Access
Usage Records, SWBT will compensate DTI on the same terms as DTI 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 DTI's request, SWBT will negotiate a mutual and reciprocal
charge for provision of Summary Usage Data Records.
5.6.10 Errors may be discovered by DTI, the IXC or SWBT. Both SWBT and DTI
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,
AND TRANSIT TRAFFIC
5.7.1 Other than for traffic described in sub-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),
<PAGE> 20
previously provided by SWBT to DTI. Reference to this technical publication is
included in Appendix TP.
(a) Where DTI 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 DTI Less Direct End Office Terminating
MOUs Recorded By SWBT Equals Total MOUs To Be Compensated As Tandem Traffic
(b) Where DTI has direct/high usage trunks to a third party with overflow
trunking through a SWBT tandem, DTI must differentiate the originating MOU
records for the Parties to ascertain how many MOUs should be compensated as
Transit Traffic. If DTI 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.
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.
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 above, for the
<PAGE> 21
transmission and routing of Exchange Access traffic between DTI 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 will jointly provide tandem-transported
Switched Exchange Access Services to IXCs to enable DTI's end users to
originate and terminate traffic to/from such IXCs.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Switched Exchange Access to allow DTI end users to
originate and terminate traffic to/from any IXCs which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow DTI's end users
to connect to, or be connected to, the 800 Services of any Telecommunications
Carrier connected to the SWBT Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA Information
Services Traffic to one another, they shall agree to exchange rating and
billing information to effectively allow the Parties to 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 to 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.
7.3 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. If one Party enters into an interconnection agreement
with a CMRS provider, Appendix Wireless shall no longer be
<PAGE> 22
applicable between the Parties with respect to such CMRS providers, and the
other Party shall be obligated to enter into an agreement with such CMRS
provider for the termination of wireless to landline traffic.
7.3.2 DTI shall pay the Local Transit Traffic rate to SWBT for calls that
originate on DTI's network and are sent to SWBT for termination to a CMRS
Provider as long as such Traffic can be identified as wireless traffic. SWBT
shall pay the Local Transit Traffic rate to DTI for such calls that originate
on SWBT's network are sent through DTI for termination on a CMRS Provider's
network. Each Party shall be responsible for interconnection agreements with
CMRS providers for terminating compensation regarding traffic originating on
the Party's network and terminating on the CMRS provider's network.
7.3.3 When traffic is originated by either Party to a CMRS Provider, and
the traffic cannot be specifically identified as wireless traffic for purposes
of compensation between SWBT and DTI, the traffic will be rated either as
Local, or Access and the appropriate compensation rate shall be paid by the
originating Party to the transiting Party. The originating Party agrees to
indemnify the transiting Party for any claims of compensation that may be made
by the CMRS provider against the transiting Party regarding compensation for
such traffic.
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 DTI.
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(1), or to establish, by
(1) Last published by the Industry Numbering Committee ("INC") as
INC 95-0407-008, Revision 4/7/95, formerly ICCF 93-0729-010.
<PAGE> 23
tariff or otherwise, Exchanges and Rating Points corresponding to such NXX
codes. Each Party is responsible for administering the NXX codes it is
assigned.
9.2 At a minimum, in those Metropolitan Exchange Areas where DTI intends
to provide local exchange service, DTI 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 DTI 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 DTI 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 per NXX to the Party formerly assigned the NXX.
<PAGE> 24
10.0 RESALE -- SECTIONS 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 DTI 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 DTI RETAIL TELECOMMUNICATION SERVICES FOR RESALE
DTI 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 DTI 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 DTI shall make available to SWBT 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.
13.0 COLLOCATION -- SECTION 251(c)(6)
<PAGE> 25
13.1 SWBT shall provide to DTI 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 that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
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 DTI 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 DTI 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 Local Dialing Parity to each other as
required under Section 251 (b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY - SECTION 251(b)(4) 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 and/or standard
agreements.
<PAGE> 26
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
DTI 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, DTI will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
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 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
<PAGE> 27
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 alternated billed
local message 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 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.
20.7 CLEARINGHOUSE SERVICES. To the extent requested by DTI, 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.
20.8 HOSTING. At DTI's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an DTI for distribution to the appropriate billing and/or
processing location or for delivery to an DTI of such data via SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference.
<PAGE> 28
20.9 SIGNALING SYSTEM 7 INTERCONNECTION. At DTI's request, SWBT shall
perform SS7 interconnection services for DTI pursuant to Appendix SS7, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and DTI 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 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 26.0, each
Party shall provide, in its tariffs and contracts with its end users that relate
to any Telecommunications Service provided or contemplated under this Agreement,
that in no case shall such Party or any of its agents, contractors or others
retained by such parties be liable to any end user or third party
<PAGE> 29
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 DTI 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 ten (10) days after approval by the
Commission when it has determined that the Agreement complies with Sections 251
and 252 of the Act ("Effective Date").
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, below.
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.
22.4 If pursuant to Section 22.2, above, 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,
below. 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, below.
22.5 Upon termination or expiration of this Agreement in accordance with
this Section 22.0, above:
<PAGE> 30
(a) each-Party shall comply immediately with its obligations set forth in
Section 30.6, below; 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, below, 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 DTI 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.
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. The
Parties shall make authorization available to each other 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 DTI that the end
user requests local
<PAGE> 31
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 the end user's authorized agent.
Further, when an end user abandons the premise, SWBT is free to reclaim the
unbundled network element facilities 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 INTELLECTUAL PROPERTY
LSP is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. SWBT will
provide a list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a request for
such a list by LSP. SWBT agrees to use its best efforts to facilitate the
obtaining of any necessary license or right to use agreement. SWBT makes no
warranties, express or implied, concerning LSP's (or any third party's) rights
with respect to intellectual property (including with limitation, patent,
copyright, and trade secret rights) or contract rights associated with LSP's
rights to interconnect with SWBT's network and to Unbundled Network Elements.
27.0. INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices, 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 service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
<PAGE> 32
27.2 Except as otherwise provided herein or in specific appendices, 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 connection with the indemnifying provision of
services or functions under this Agreement.
27.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by the Indemnified
Party, unless the Loss was caused by the gross negligence or intentional
misconduct of the other (Indemnified) Party.
27.4 LSP agrees to indemnify, defend and hold harmless SWBT from any Loss
arising out of SWBT's provision of 911 services or out of LSP's end users' use
of the 911 service, whether suffered, made, instituted, or asserted by LSP 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.
27.5 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from
a Party's own communications or the communications of its end users.
27.6 SWBT shall be indemnified, defended, and held harmless by the LSP for
claims for patent, trademark, infringement or other infringement or
intellectual property rights, arising from the LSP's use of services or
unbundled elements provided under this Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation
of the Indemnified Party. The Indemnifying Party shall not be responsible for
any settlement unless the Indemnifying Party approved such settlement in
advance and agrees to be bound by the settlement agreement.
<PAGE> 33
28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, or except as
otherwise provided in specific appendices, each Party's liability to the other
Party for any Loss relating to or arising out of any negligent act or omission
in its performance under this Agreement, whether in contract or tort, shall not
exceed in total the amount SWBT or LSP has to or would have charged the other
Party for the affected service(s) or function(s) which were not performed or
were otherwise improperly performed.
28.2 Except for Losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under
this section shall be limited to, that portion (as mutually agreed to by the
Parties) of the resulting expense caused by its own negligence or willful
misconduct or that of its agents, servants, contractors, or others acting in
aid or concert with it.
28.3 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
indemnify, 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 attorney's
fees) and Consequential Damages of such third party.
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
29.1 CERTAIN DEFINITIONS. When used in this Section 29.0, the following
terms shall have the meanings indicated:
29.1.1 "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.
29.1.2 "Specified Activity" means any of the following activities:
(i) the installation by SWBT of unbundled elements associated with
DTI end user Lines;
(ii) SWBT's provision of Interim Number Portability; or
(iii) the repair of out of service problems for DTI ("Out of Service
Repairs").
<PAGE> 34
29.1.3 "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:
<TABLE>
<CAPTION>
SPECIFIED ACTIVITY PERFORMANCE INTERVAL DATE
(i) DTI END USER LINES
<S> <C>
1-l0 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
</TABLE>
29.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss of end
user opportunities, revenues and goodwill which DTI might sustain in the event
of a Specified Performance Breach; (2) the uncertainty, in the event of such a
Specified Performance Breach, of DTI having available to it customer
opportunities similar to those opportunities currently available to DTI; and
(3) the difficulty of accurately ascertaining the amount of damages DTI would
sustain in the event of such a Specified Performance Breach, SWBT agrees to pay
DTI, subject to Section 29.4 below, damages as set forth in Section 29.3 below
in the event of the occurrence of a Specified Performance Breach.
29.3 LIQUIDATED DAMAGES. The damages payable by SWBT to DTI as a result of
a Specified Performance Breach shall be $25,000 for each Specified Performance
Breach (collectively, the "Liquidated Damages"). DTI and SWBT agree and
acknowledge that: (a) the
<PAGE> 35
Liquidated Damages are not a penalty and have been determined based upon the
facts and circumstances of DTI 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 DTI would sustain if its damages were readily
ascertainable; and (c) DTI shall not be required to provide any proof of the
Liquidated Damages.
29.4 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 DTI 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 DTI; (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.
29.5 SOLE REMEDY. The Liquidated Damages shall be the sole and exclusive
remedy of DTI 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 DTI 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.
29.6 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 DTI such records in a self-reporting format on a monthly basis.
Notwithstanding Section 31.6.1, below, the Parties agree that such records
shall be deemed "Proprietary Information" under Section 31.6, below.
30.0 REGULATORY APPROVAL
30.1 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.
30.2 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
<PAGE> 36
requirements of the Competitive Checklist, under Section 271 of the Act. DTI
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.
31.0 MISCELLANEOUS
31.1 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) DTI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.
31.2 COMPLIANCE AND CERTIFICATION.
31.2.1 Each Party shall comply with all federal, state, and local laws,
rules, and regulations applicable to its performance under this Agreement.
31.2.2 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.
31.2.3 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.
31.3 LAW ENFORCEMENT.
31.3.1 SWBT and DTI shall handle law enforcement requests as follows:
<PAGE> 37
(a) Intercept Devices: Local and federal law enforcement agencies
periodically request information or assistance from local telephone service
providers. When either Party receives a request associated with an end user of
the other Party, it shall refer such request to the Party that serves such end
user, unless the request directs the receiving Party to attach a pen register,
trap-and-trace or form of intercept on the Party's facilities, in which case
that Party shall comply with any valid request.
(b) Subpoenas: If a Party receives a subpoena for information concerning
an end user the Party knows to be an end user of the other Party, it shall
refer the subpoena to the requesting party with an indication that the other
Party is the responsible company, unless the subpoena requests records for a
period of time during which the Party was the end user's service provider, in
which case the Party will respond to any valid request.
(c) Emergencies: If a Party receives a request from a law enforcement
agency for temporary number change, temporary disconnect, or one-way denial of
outbound calls for an end user of the other Party by the receiving Party's
switch, that Party will comply with an valid emergency request. However,
neither Party shall be held liable for any claims or damages arising from
compliance with such requests on behalf of the other Party's end user and the
Party serving such end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
31.4 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.
31.5 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
<PAGE> 38
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.
31.6 CONFIDENTIALITY.
31.6.1 All information, including but not limited to specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information, data, employee records, maps,
financial reports, and market data; (i) furnished by one Party (the "Disclosing
Party") to the other Party (the "Receiving Party") dealing with
customer-specific, facility-specific, or usage-specific information, other than
customer information communicated for the purpose of publication or directory
database inclusion, 911, call processing, billing or settlement or as otherwise
mutually agreed upon; or (ii) in written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery as "Confidential" or
"Proprietary;" or (iii) communicated orally and declared to the Receiving Party
at the time of delivery, or by written notice given to the Receiving Party
within ten (10) days after declaration to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary Information"), shall remain the
property of the Disclosing Party.
31.6.2 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.
31.6.3 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.
31.6.4 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;
<PAGE> 39
(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;
(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 31.6 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.
31.6.5 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.
31.6.6 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.
31.7 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
<PAGE> 40
the exclusive remedy for such claims shall be as provided for by such
Commission. In all other respects, this Agreement shall be governed by the
domestic laws of the State of Missouri without reference to conflict of law
provisions.
31.8 TAXES.
31.8.1 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")
imposed on or with respect to the services provided by or to such Party, except
for any Tax on either party's corporate existence, status, or income. Whenever
possible, these amounts shall be billed as a separate item on the invoice. To
the extent a sale is claimed to be for resale tax exemption, the purchasing
party shall furnish the providing party a proper resale tax exemption
certificate as authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Failure to timely provide
said resale tax exemption certificate will result in no exemption being
available to the purchasing Party until such time as the purchasing Party
presents a valid certification. Failure to timely provide said resale tax
exemption certificate will result in no exemption being available to the
purchasing Party until such time as the purchasing Party presents a valid
certificate.
31.8.2 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.
31.8.3 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.
31.8.4 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.
<PAGE> 41
31.8.5 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.
31.9 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 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.
31.10 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.
31.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
31.11.1 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.
<PAGE> 42
Each Party's right to access information for audit purposes is limited to data
not in excess of twenty-four (24) months in age.
31.12 DISPUTED AMOUNTS.
31.12.1 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 31.12, 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.
31.12.2 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.
31.12.3 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, above, then either
Party may file a complaint with the Commission to resolve such issues or
proceed with any other remedy pursuant to law or equity. The Commission may
direct release of any or all funds (including any accrued interest) in the
escrow account, plus applicable late fees, to be paid to either Party.
31.12.4 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.
31.12.5 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 (l-1/2%) per month; or (ii) the highest rate of interest that may be
charged under applicable law.
31.13 DISPUTE RESOLUTION.
31.13.1 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.
<PAGE> 43
31.13.2 For disputes other than disputed amounts under this Agreement or
its Appendices, each Party shall appoint a designated representative as set
forth in Section 31.12.2, above, and if unable to resolve the dispute, proceed
as set forth in Section 31.12.3, above.
31.14 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/DTI 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.
<TABLE>
<CAPTION>
NOTICE CONTACT DTI CONTACT SWBT CONTACT
<S> <C> <C>
NAME/TITLE Richard Weinstein Jeffrey Fields
STREET ADDRESS 11111 Dorsett Rd. One Bell Plaza, 525.07
CITY, STATE, ZIP CODE St. Louis, MO 63043 Dallas, TX 75202
TELEPHONE NUMBER 314-253-6600 214-464-5676
FAX NUMBER 314-253-6699 214-464-1486
</TABLE>
<TABLE>
<CAPTION>
24-HOUR NETWORK MGMT CONTACT DTI CONTACT SWBT CONTACT
<S> <C> <C>
NAME/TITLE Alan Ducheck NSMC Control
TELEPHONE NUMBER 314-253-6600 1-800-792-2662
FAX NUMBER 314-253-6699 1-972-301-6702
</TABLE>
31.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
31.15.1 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.
<PAGE> 44
31.15.2 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.
31.16 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); 252(d)(1); and 271(c)(2)(B(i) of
the Act; or
(b) Exchange Access - Section 251(c)(2) and 271(c)(2)(B)(ii) of the Act;
or
(c) Unbundling - Section 251(c)(3) and 271(c)(2)(B)(ii) of the Act; or
(d) Resale - Section 251(c)(4) and 271(c)(2)(B)(xiv) of the Act; or
(e) Collocation - Section 251(c)(6) and 271(c)(2)(B)(i) of the Act; or
(f) Number Portability - Section 251(b)(2) and 271(c)(2)(B)(xi) 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) and 271(c)(2)(B)(iii) 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).
31.17 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.
31.18 INTERVENING LAW. This Agreement is entered into as a result of
both private negotiation between the Parties and the incorporation of some of
the results of arbitration by the Commission. If the actions of Oklahoma or
federal legislative bodies, courts, or regulatory agencies of competent
jurisdiction invalidate, modify, or stay the enforcement of laws or regulations
that were the basis for a provision of the contract which is reflective of the
<PAGE> 45
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 fail, disputes between the
Parties concerning the interpretation of the actions required or provisions
affected by such governmental actions shall be resolved pursuant to the dispute
resolution process provided for in this Agreement. The invalidation, stay, or
modification of the pricing provisions of the FCC's First Report and Order in
CC Docket No. 96-98 (August 8, 1996) and the FCC's Order on Reconsideration
(September 27, 1996) shall not be considered an invalidation, stay, or
modification requiring changes to provisions of the Agreement required by the
Commission Arbitration Award, in that the FCC's pricing provisions are not the
basis for the costing and pricing provisions of the Commission's Arbitration
Award.
31.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This Agreement
is for the sole benefit of the Parties and their permitted assigns, and nothing
herein express or implied shall create or be construed to create any
third-party beneficiary rights hereunder. Except for provisions herein
expressly authorizing a Party to act for another, nothing in this Agreement
shall constitute a Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the
name or on behalf of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party, whether
regulatory or contractual, or to assume any responsibility for the management
of the other Party's business.
31.20 NO LICENSE. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
31.21 SURVIVAL. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
31.23 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.
31.24 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
<PAGE> 46
communications. This Agreement may only be modified by a writing signed by an
officer of each Party.
<PAGE> 47
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 21 day of August , 1997 .
<TABLE>
<S> <C> <C> <C>
Digital Teleport, Inc. Southwestern Bell Telephone Company
Signature:/s/ J.W. Sheehy Signature:/s/ Larry B. Cooper
- ---------------------------------------- -------------------------------------------------
Name: J. W. SHEEHY Name: Larry B. Cooper
------------------------- -----------------------------
(Print or Type) (Print or Type)
Title: Vice President IC Support Title: General Manager - Competitive
------------------------- -----------------------------
(Print or Type) Provider Account Team
-----------------------------
(Print or Type)
</TABLE>
<PAGE> 48
APPENDIX 800
ACCESS TO THE TOLL FREE CALLING DATABASE
This Appendix sets forth the terms and conditions under which SWBT provides
Access to the Toll Free Calling Database.
I. DESCRIPTION
A. SWBT's 800 database, an ANSI SS7 call-related database
system, receives updates processed from the national Service
Management System (SMS). Customer records in the SMS are created or
modified by entities known as Responsible Organizations (RespOrg)
who obtain access to the SMS via the 800 Service Management System,
Tariff F.C.C. No. 1. 800 Service Providers must either become
their own RespOrg or use the services of an established RespOrg.
The services of a RespOrg includes creating and updating 800 records
in the SMS to download in the 800 database(s). SWBT does not,
either through a tariff or contract, provide RespOrg service.
B. After the 800 customer record is created in the SMS, the SMS
downloads the records to the appropriate databases, depending on the
area of service chosen by the 800 subscriber. An 800 customer
record is created in the SMS for each 800 number to be activated.
The SMS initiates all routing changes to update information on a
nationwide basis.
C. Access to the Toll Free Calling Database allows an LSP to
access SWBT's 800 database for the purpose of switch query and
database response. Access to the Toll Free Calling Database
supports the processing of toll free calls (e.g., 800 and 888) where
identification of the appropriate carrier (800 Service Provider) to
transport the call is dependent upon the full ten digits of the toll
free number (e.g., 1+800+NXX+XXXX). Access to the Toll Free Calling
Database includes all 800-type dialing plans (i.e., 800 and 888 [and
877, 866, 855, 844, 833, 822, when available]).
D. Access to the Toll Free Calling Database provides the carrier
identification function required to determine the appropriate
routing of an 800 number based on the geographic origination of the
call, from a specific or any combination of NPA/NXX, NPA or LATA.
E. There are three optional features available with 800 service:
Designated 10-Digit Translation, Call Validation and Call Handling
and Destination.
1. The Designated 10-Digit Translation feature
converts the 800 number into a designated 10-digit number. If
the 800 Service Provider provides the designated 10-digit
number associated with the 800 number and requests delivery of
the designated 10-digit number
<PAGE> 49
in place of the 800 number, SWBT will deliver the designated
10-digit number.
2. The Call Validation feature limits calls to an 800 number to
calls originating only from an 800 Subscriber's customized
service area. Calls originating outside the area will be
screened and an out of band recording will be returned to the
calling party.
3. The Call Handling and Destination feature allows routing of 800
calls based on one or any combination of the following: time of
day, day of week, percent allocation and specific 10 digit ANI.
II. TERMS AND CONDITIONS
A. Access to the Toll Free Calling Database provided under these
terms and conditions is only available for use in the provision of
telephone exchange and exchange access telecommunications services
as specified in the Telecommunications Act of 1996 and any effective
rules and regulations of the Federal Communications Commission and
the state Public Service Commission.
B. Access to the Toll Free Calling Database is offered separate
and apart from other unbundled network elements necessary for
operation of the network routing function addressed in these terms
and conditions, e.g., end office 800 SSP functionality and CCS/SS7
signaling. This appendix is separate from the prices, terms,
conditions and billing for such related elements, and in no way
shall this appendix be construed to circumvent the prices, terms,
conditions or billing as specified for such related elements.
C. LSP shall address its queries to SWBT's database to the alias
point code of the STP pair identified by SWBT. LSP's queries shall
use subsystem number 0 in the calling party address field and a
translations type of 254 with a routing indicator set to route on
global title. LSP acknowledges that such subsystem number and
translation type values are necessary for SWBT to properly process
queries to its 800 database.
D. Each Party warrants to the other that it shall send queries
and SS7 messages conforming to the ANSI approved standards for SS7
protocol and pursuant to the Specifications and Standards documents
attached and incorporated herein in Exhibit I. Both Parties
acknowledge that transmission in said protocol is necessary for each
Party to provision Access to the Toll Free Calling Database (or the
equivalent thereof). Each Party reserves the right to modify its
network pursuant to other specifications and standards, which may
include Bellcore Specifications defining specific service
applications, message types and formats, that may become necessary
to meet the prevailing demands within the U.S. telecommunications
industry. All such changes shall be announced in
<PAGE> 50
accordance with the then prevailing industry standard procedures.
Each party shall work cooperatively to coordinate any necessary
changes.
E. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of queries and/or other SS7 network messages
can and will have a detrimental effect on the performance of SWBT's
CCS/SS7 network and its 800 database. LSP further agrees that SWBT,
at its sole discretion, may employ certain automatic and/or manual
overload controls within SWBT's CCS/SS7 network to guard against
these detrimental effects. SWBT shall report to the LSP any
instances where overload controls are invoked due to the LSP's
CCS/SS7 network. LSP shall take immediate, corrective actions as are
necessary to cure the conditions causing the overload situation.
F. During periods of 800 database system congestion, SWBT shall utilize
an automatic code gapping procedure to control congestion that may
affect the service of all customers of SWBT's 800 database. The
automatic code gapping procedure used by SWBT shall tell LSP's switch
the gap (how long LSP's switch should wait before sending another
query) and the duration (how long the switch should continue to
perform gapping). For example, during an overload condition, the
automatic code gapping procedure shall tell SWBT's 800 database when
to begin to drop one out of three queries received. This code
gapping procedure shall be applied uniformly to all users of SWBT's
800 database. SWBT reserves the right to manually invoke the
automatic code gapping procedure to control congestion.
G. Prior to SWBT initiating service under this Appendix, LSP shall
provide an initial forecast of busy hour query volumes. LSP shall
update its busy hour forecast for each upcoming calendar year
(January - December) by October 1 of the preceding year. LSP shall
provide such updates each year for the first three (3) years of this
Appendix. If, prior to the establishment of a mutually agreeable
service effective date, in writing, SWB, at its discretion,
determines that it lacks adequate processing capability to provide
Access to the Toll Free Calling Database to LSP, SWBT shall notify
LSP of SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
H. LSP shall from time to time at SWBT's request, provide additional
forecasted information as deemed necessary by SWBT for network
planning in connection with this offering.
I. SWBT shall test the Access to the Toll Free Calling Database in
conjunction with CCS/SS7 Interconnection Service (e.g., SS7 Appendix)
as outlined in Bellcore Technical References TR-NWT-000533,
TR-NWT-000954, TR-TSV-000905, and TP 76638.
<PAGE> 51
J. LSP shall only use Access to the Toll Free Calling Database to
determine the routing requirements for originating 800 calls. Neither
the LSP nor carrier customers of the LSP if the LSP is acting on
behalf of other carriers, shall use the database information to copy,
store, maintain or create any table or database of any kind or for
any purpose. If the LSP acts on behalf of other carriers to access
SWBT's Toll Free Calling Database, LSP shall prohibit such carriers
from copying, storing, maintaining, or creating any table or database
of any kind from any response provided by SWBT after a query to
SWBT's Toll Free Calling Database. LSP shall only use this network
element in connection with the provision of telephone exchange and
exchange access services.
K. LSP shall ensure that it has sufficient link capacity and related
facilities to handle its signaling and toll free traffic without
adversely affecting other network subscribers.
L. SWBT shall provide Access to the Toll Free Calling Database as set
forth in this Appendix only as such elements are used for LSP's
activities on behalf of its Oklahoma local service customers where
SWBT is the incumbent local exchange carrier. LSP agrees that any
other use of SWBT's Toll Free Calling Database for the provision of
800 database service by LSP will be pursuant to the terms,
conditions, rates, and charges of SWBT's effective tariffs, as
revised, for 800 database services.
M. This Appendix shall become effective on_________ and shall continue
for one (1) year from the effective date of implementation of Access
to the Toll Free Calling Database. Thereafter, this Appendix shall
remain in effect unless terminated by either party upon written
notice given sixty (60) days in advance of the termination date.
N. Ordering and billing inquiries for the elements described herein
shall be directed to the Local Service Provider Service Center
(LSPSC). Ordering shall be done through the LSPSC using the standard
LSP order form and SWBT CCS7-2 Form, if applicable.
III. RATE REGULATIONS
A. LSP shall pay a Local Service Order Request Charge for each LSP
request for service order activity to establish Access to the Toll
Free Calling Database.
B. LSP shall pay the rates for Access to the Toll Free Calling Database,
as described in Section III D. These rates and charges will apply
for one (1) year from the service effective date for each exchange.
After one (1) year, SWBT may change the rates upon sixty (60) days'
notice. SWBT may first give such notice sixty days before the end of
the first year.
<PAGE> 52
C. LSP shall pay a nonrecurring charge when an LSP establishes
or changes a signaling point code. The rates and charges for
Signaling Point Code(s) are described in the SS7 Appendix. This
charge also applies to point code information provided by LSPs
allowing other telecommunications providers to use the LSP's SS7
signaling network.
D. Prices for the four rate elements associated with Access to
the Toll Free Calling Database are as follows:
<TABLE>
<S> <C> <C>
1. Toll Free Database Query Rate Element $0.000712
2. Designated 10-Digit Translation Rate Element NC
3. Call Validation Rate Element NC
4. Call Handling and Destination Rate Element $0.000119
</TABLE>
E. LSP shall pay the Toll Free Database query rate for each
query received and processed by SWB's database. When applicable,
the charge for the additional features (Designated 10-Digit
Translation, Call Validation and Call Handling and Destination) are
per query and in addition to the Toll Free Database query charge,
and will also be paid by LSP.
IV. MONTHLY BILLING
SWBT shall render monthly billing statements to the LSP, and remittance
in full will be due within thirty (30) days of receipt.
<PAGE> 53
APPENDIX 800
EXHIBIT I
SPECIFICATIONS AND STANDARDS
<TABLE>
<CAPTION>
Description of Subject Area
- --------------------------- Document Number
and Issuing Organization
- ------------------------
<S> <C>
Bellcore, SS7 Specifications TR-NWT-000246
TR-NWT-000271
TR-NWT-000533
Bellcore, CCS Network Interface Specifications TR-TSV-000905
TP 76638
TR-NWT-000954
</TABLE>
<PAGE> 54
APPENDIX 911 - OKLAHOMA
Terms and Conditions for Providing Connection
to E911 Universal Emergency Number Service
This appendix between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide LSP's connection to E911 Universal Emergency Number
Service.
DEFINITIONS
The following definition is in addition to those in the Oklahoma General
Exchange Tariffs referenced below:
Independent Exchange Company (IEC): A local exchange telephone
company, including Local Service Providers (LSPs) who are
certified by the state commission, other than Southwestern Bell
Telephone Company. An IEC may also be a customer for Universal
Emergency Number Service in order to provide that service or
elements of that service to legally authorized agencies within the
IEC's serving area.
TERMS AND CONDITIONS
The following is in addition to those terms and conditions in the Oklahoma
General Exchange Tariffs referenced below:
The Universal Emergency Number Service may be provided by
Southwestern Bell Telephone Company or jointly by Southwestern
Bell Telephone Company and an IEC.
SWBT shall provide LSP with a file containing the Master Street
Address Guide (MSAG) for the exchanges or communities specified in
Exhibit I, in accordance with the methods and procedures described
in the document "Operating Methods for Downloading and Maintaining
End User Records in SWBT's DBMS". SWBT shall provide LSP
additional files with the entire MSAG, including subsequent
additions or updates to the MSAG in accordance with the intervals
specified in Exhibit I. In addition, SWBT shall provide LSP with
a statistical report in a timely fashion and in accordance with
the methods and procedures described in the above mentioned
document, for each file downloaded by LSP to SWBT's DBMS, so that
LSP may ensure the accuracy of the end user records. LSP will
attest it has been provided a copy of the document referenced
above.
<PAGE> 55
At a reasonable time prior to the establishment of E911 Service,
LSP shall download and maintain thereafter all information
required to establish records necessary for furnishing connection
to E911 Service and shall promptly notify SWBT in writing of any
changes to be made to such records. LSP shall adopt and comply
with operating methods applicable to downloading and maintaining
LSP's end user records in SWBT's DBMS, as set forth in the
document referenced in the paragraph above.
LSP acknowledges that its end users in a single local calling
scope may be served by different PSAPs, and LSP shall be
responsible for providing facilities to route calls from its end
users to the proper E911 Control Office(s).
LSP shall connect its switches to the E911 Control Office by
one-way outgoing CAMA trunks dedicated for originating 911
emergency service calls.
The parties agree that the E911 service is provided for the use of
the E911 Customer, and recognizes the authority of the E911
Customer to establish service specifications and grant final
approval (or denial) of service configurations offered by SWBT and
the LSP. The terms and conditions of this appendix represent a
plan for providing E911 service, for which LSP must obtain
documentation of approval from the appropriate E911 Customer(s)
which have jurisdiction in the area(s) in which LSP's customers
are located. LSP shall provide such documentation to SWBT prior
to the use of LSP's E911 connection for actual emergency calls.
Both parties agree to designate a representative who shall have
the authority to execute additional exhibits to this Appendix when
necessary to accommodate expansion of the geographic area of LSP
into the jurisdiction of additional PSAPs or to increase the
number of CAMA trunks. The designated representative for SWBT is
Jeff Fields and for LSP is Richard Weinstein.
The terms and conditions of this appendix are subject to
renegotiation in the event that the E911 Customer orders changes
to the E911 service that necessitate revision of this appendix.
RATES, TERMS AND CONDITIONS
E911 Universal Emergency Number Service will be provided utilizing the rates,
terms and conditions set forth in the following Oklahoma tariff, in addition to
those terms and conditions described previously in this Appendix:
SWBT's General Exchange Tariff Section 36 - 911 Emergency Number Service
<PAGE> 56
EXHIBIT I to APPENDIX 9-1-1
LSP SERVING AREA DESCRIPTION AND E9-1-1 INTERCONNECTION DETAILS
LSP NAME LSP "OCN" LSP Switch Switch Type LSP NPA/NXX(s)
& CONTACTS Name & Addr. included
CLLI Code #9-1-1 Trunks
Requested
E9-1-1 LSP Telco ID
Manager
"Connect Signal" "Default" PSAP
Digits(4)
1 - 1
Database Estimated # of ETST Code
Administrator EAAs
LSP Service Area Definition:
Switch Site Contact
SWBT E9-1-1 SYSTEM CONFIGURATION ASSOCIATED WITH DESIGNATED
E9-1-1 CONTROL OFFICE
E9-1-1 CONTROL PSAPs INCLUDED IN COMMUNITY E9-1-1
OFFICE: CUSTOMER and
CLLI Code: 9-1-1 SERVICE PLAN for MSAG PULL(3) AGENCY TYPE
(see legend
below)
E9-1-1 Features
Required:
# of 9-1-1
Trunks from
LSP:
MSAG Update
Interval: Monthly
FOOTNOTES: (1)
(2)
(3) MSAG will only include addresses within SWBT exchanges,
unless specifically stated otherwise.
(4) Refer to network interface specifications in Exhibit III.
"TYPE of AGENCY" LEGEND:
HRC = Home Rule City
ECD = Emergency Communications District
COG = Council of Governments or Regional Planning
Commission
GLC = General Law City
Cnty = County with special provisions (only applies
to Dallas County)
Date Prepared
<PAGE> 57
APPENDIX AIN
AIN CALL RELATED DATABASE
AIN is a Network Architecture that uses distributed intelligence in centralized
databases to control call processing and manage network information, rather
than performing those functions at every switch.
SWBT will provide LSP access to the SWBT's Service Creation Environment (SCE)
to design, create, test and deploy AIN-based features, equivalent to the access
it provides to itself, providing that security arrangements can be made. LSP
requests to use the SWBT SCE will be subject to request and review procedures
to be agreed upon by the Parties.
When LSP utilizes SWBT's Local Switching network element and requests SWBT to
provision such network element with a technically feasible AIN trigger, SWBT
will provide access to the appropriate AIN Call Related Database for the
purpose of invoking either an SWBT AIN feature or a LSP developed AIN feature
as per previous section.
When LSP utilizes its own local switch, SWBT will provide access to the
appropriate AIN Call Related Database for the purpose of invoking either an
SWBT AIN feature or a LSP developed AIN feature as per previous section.
SWBT will provide access to AIN Call Related databases in a nondiscriminatory
and competitively neutral manner. Any mediation, static or dynamic, will only
provide network reliability, protection, security and network management
functions consistent with the access service provided. Any network management
controls found necessary to protect the AIN SCP from an overload condition will
be applied based on nondiscriminatory guidelines and procedures either (1)
resident in the SWBT STP that serves the appropriate AIN SCP or (2) via manual
controls that are initiated from SWBT Network Elements. Such management
controls will be applied to the specific problem source, where ever that source
is, including SWBT, and not to all services unless a problem source cannot be
identified.
As requested by LSP, SWBT will provide specifications and information
reasonably necessary for LSP to utilize SWBT SCE as provided above.
SWBT SCP will partition and take reasonable steps to protect LSP service logic
and data from unauthorized access, execution or other types of compromise,
where technically feasible.
<PAGE> 58
APPENDIX BCR
BILLING, COLLECTING AND REMITTING
This Appendix sets forth the terms and conditions that apply to those
telecommunications services for which charges are billed and collected by one
Local Exchange Carrier (LEC) or LSP but earned by another LEC; and to establish
procedures for the billing, collecting and remitting of such charges and for
compensation for the services performed in connection with the billing,
collecting and remitting of such charges.
I. DEFINITIONS
A. BellCore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - Nationwide system used to produce
information reports that are used in the settlement of LEC revenues
recorded by one BCC (or LEC) and billed to an end user of another
BCC (or LEC) as described in accordance with the BellCore Practice
BR 981-200-110.
B. Charges - the amount approved or allowed by the appropriate
regulatory authority to be billed to an end user for any of the
services described in Section II., rendered by a LEC to an end user.
C. Compensation - the amount to be paid by one Party to the
other Party for billing, collecting and remitting of charges as set
forth in Section IV.
D. IntraLATA - within a Local Access Transport Area (LATA) -
IntraLATA messages are those messages, either intrastate or
interstate, which originate and terminate within a LATA. The term
"IntraLATA messages," as used herein, shall only include those that
qualify for the BellCore Client Company BCC CATS process.
E. InterLATA - between Local Access and Transport Areas (LATAs)
as defined in the FCC's CC Docket No. 78-72. InterLATA messages
are those messages which originate in one LATA and terminate in a
different LATA. The term "InterLATA messages" as used herein, shall
only include those that qualify for the BellCore Client Company BCC
CATS process.
F. Local Exchange Carrier (LEC) - as used in this Appendix shall
mean those Local Exchange Carriers or Local Service Providers using
BCC CATS as a message tracking system.
G. Local Message - Local messages . are those messages which
originate and terminate within the area defined as the local service
area of the station from which the message originates.
H. Revenues - the sum of all or part of the charges as defined
above.
<PAGE> 59
II. SCOPE OF APPENDIX
This Appendix shall apply to procedures for the billing, collecting and
remitting of revenues (and compensation to either Party for billing,
collecting and remitting of such revenues) derived from the following
services:
A. LEC-carried (traffic transported by facilities belonging to a LEC)
local messages of the following types:
1. Local Message Service Charges Billed to a Calling Card or to a
Third Number.
2. Directory Assistance Calls Charged to a Calling Card or to a
Third Number.
3. Public Land Mobile Radiotelephone Transient-Unit Local Message
Service (Mobile Channel Usage Link Charge).
4. Maritime Mobile Radiotelephone Service and Aviation
Radiotelephone Service (Marine, Aircraft, High Speed Train Radio
Link Charges).
B. LEC-carried Interstate IntraLATA and Interstate InterLATA
telecommunications services that qualify for and flow through the
BCC CATS process as addressed in the BellCore Practice BR
981-200-110, of the following types:
1. Interstate IntraLATA Toll Service carried by an LEC and charged
to a Calling Card or a Third Number.
2. Interstate InterLATA Toll Service carried by an LEC and charged
to a Calling Card or a Third Number.
3. Radio Link Charges where service is provided by one LEC and
billed by another LEC.
III. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees to bill, collect and remit to SWBT the charges for
the services described in Section II. which charges are earned
by any LEC (including SWBT), but which are to be billed to end
users of the LSP.
B. In those cases in which the charges for the services listed in
Section II. are due any LEC other than SWBT, SWBT will arrange
to transfer these and charges to the appropriate company in
accordance with accepted industry standards.
<PAGE> 60
C. Charges for the services listed in Section II. to be billed,
collected and by LSP for SWBT's benefit, shall be remitted by
LSP to SWBT within 30 days of the date of SWBT's bill to LSP for
such services.
D. SWBT agrees to bill and collect (or to have another LEC bill and
collect, where the appropriate), and to remit to LSP, the
charges for the services described in Section II., which charges
are earned by LSP, but which are to be billed by another LEC
(including SWBT) to the end users of that LEC.
E. Charges for the services listed in Section II. to be billed,
collected and remitted by SWBT or another LEC for LSP's benefit,
shall be remitted by SWBT to LSP within 30 days of the date of
LSP's bill to SWBT for such services.
F. The full amount of the charges transmitted to either Party for
billing, collecting and remitting shall be remitted by the other
Party, without setoff, abatement or reduction for any purpose,
other than to deduct the compensation, as described in Section
IV, due the Party for performing the end user billing function.
The Party billing the end user shall be responsible for all
uncollectible amounts related to the services described remitted
in Section II. Notwithstanding this paragraph, SWBT may net
amounts due to LSP under this Appendix against amounts owed to
SWBT when SWBT renders a bill to LSP hereunder.
G. Each Party will furnish to the other such information as may be
required for monthly billing and remitting purposes.
IV. COMPENSATION
A Party performing the services described in Section II.A. will compensate
the other Party in the amount of $.08 for each charge billed for any
service described in Section II.A. and subsequently remitted pursuant to
this Appendix by such other Party to the Party performing the services
described in Section II.A. A Party performing the services described in
Section II.B. will compensate the other Party in the amount of $.05 for
each charge billed for any service described in Section II.B. and
subsequently remitted pursuant to this Appendix by such other Party to the
Party performing the services described in Section II.B. Such compensation
shall be paid (unless a Party has collected such compensation as described
in Section III.F. above) within 30 days of the date of a bill for such
compensation by the Party performing (or which has another LEC perform for
it), the billing, collecting and remitting functions described in Section
III.
V. SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS
OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD
PARTY.
<PAGE> 61
APPENDIX CLEARINGHOUSE (CH)
WHEREAS, SWBT operates a Clearinghouse (CH), as described below, for its own
behalf and that of participating LECs and LSPs, including LSP; and
WHEREAS, LSP wants to participate in the CH on the terms set forth herein;
The Parties agree to the following:
1. CLEARINGHOUSE DESCRIPTION
SWBT operates a CH for the purpose of facilitating the exchange of certain
alternatively billed intrastate intraLATA message toll call records and the
reporting of settlement revenues owed by and among participating LECs and
LSPs, including SWBT and LSP.
2. QUALIFYING MESSAGE CRITERIA
The only toll call messages that qualify for submission to SWBT for CH
processing are: (a) intrastate intraLATA sent collect (including calling
card, collect and third number) messages which are originated in one LEC or
LSP exchange, exclusively carried by a LEC or LSP over LEC or LSP
facilities and billed to a customer located in a second LEC's or LSP
exchange within the same state; or (b) intrastate intraLATA sent collect
(but limited to calling card and third number) messages originated in one
of SWBT's operating areas (located in parts of Texas, Arkansas, Kansas,
Missouri or Oklahoma), exclusively carried by a LEC or LSP over LEC or LSP
facilities, and billed to a customer located in a second LEC's or LSP
exchange and not in the originating State.
3. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees that it will provide SWBT with billing records for CH
processing that are in an industry standard format acceptable to SWBT and
at a minimum will display the telephone number of the end user to whom the
call is to be billed, and data about the call sufficient for a carrier to
comply with all applicable state regulatory requirements. For purposes of
this Attachment, these records ("CH Records") will detail intraLATA toll
calls which were originated by use of the single digit access code (i.e.,
O+ and 0-) in one LEC or LSP exchange but are to be billed to an end user
in a second LEC's or LSP exchange. Such records are referred to as
category 92 records for CH processing purposes. The term "CH Record" will
mean the call detail attributed to a single completed toll message.
LSP agrees that all CH Records it generates will display indicators
denoting whether category 92 Records should be forwarded to SWBT's CH. LSP
will retain its originating
<PAGE> 62
records for ninety (90) days such that the category 92 Records can be
retransmitted to SWBT for CH processing, if needed.
B. SWBT will provide and maintain such systems as it believes are required
to furnish the CH service described herein. SWBT, in its capacity as
operator of the CH, agrees to retain all CH Records processed through the
CH for two (2) years.
C. LSP will timely furnish to SWBT all CH Records required by SWBT to
provide the CH service in accordance with the Technical Exhibit Settlement
Procedures (TESP) dated DD/MM/YEAR, or as otherwise mutually agreed upon
by the Parties. SWBT will provide the CH service in accordance with the
TESP, and such modifications as are subsequently agreed upon.
D. Presently, in operating the CH, SWBT relies upon NXX codes to identify
messages for transmission to participating billing companies. To the
extent any subprocesses are required to settle CH messages due to the use
of ported numbers, such subprocessing will be the responsibility of the
porting entity.
4. PROCESSING CHARGE
LSP agrees to pay SWBT a processing charge in consideration of SWBT's
performance of CH services. This charge is $.02 per originated CH Record
processed on behalf of LSP.
5. BILLING CHARGE
LSP agrees to pay a $.05 per message charge to the LEC or LSP responsible
for billing the message, including SWBT, when SWBT bills the message.
6. SETTLEMENT REPORT
SWBT will issue monthly reports containing the results of the processing of
CH Records to each participating LEC and LSP. These reports list the (a)
amounts owed by LSP for billing messages originated by others; (b) amounts
due to LSP for LSP-originated messages billed by others; (c) applicable
billing charges; and (d) processing charges.
7. RETROACTIVE AND LOST MESSAGES
The Parties agree that processing of retroactive messages through the CH is
acceptable, if such messages utilize the industry standard format for call
records, pursuant to Section 3 of this Attachment. The Parties agree that
lost messages are the complete responsibility of the originating LEC or
LSP. If messages are lost by any Party, and cannot be recreated
<PAGE> 63
or retransmitted, the originating LEC or LSP will estimate messages,
minutes, and associated revenues based on the best available data. No
estimate will be made for messages which are more than two years old at the
time the estimate is made. The estimates will be off-line calculations
(i.e., not part of the routine CH processing) and will be included as a
supplement to the monthly settlement report.
8. LIMITATION OF LIABILITY
By agreeing to operate the CH, SWBT assumes no liability for any LEC's or
LSP's receipt of appropriate revenues due to it from any other entity. LSP
agrees that SWBT will not be liable to it for damages (including, but not
limited to, lost profits and exemplary damages) which may be owed to it as
a result of any inaccurate or insufficient information resulting from any
entity's actions, omissions, mistakes, or negligence and upon which SWBT
may have relied in preparing settlement reports or performing any other act
under this Attachment.
LSP agrees to indemnify and hold SWBT harmless against and with respect to
any and all third party claims, demands, liabilities or court actions
arising from any of its actions, omissions, mistakes or negligence
occurring during the course of SWBT's performance of CH processing pursuant
to this Attachment.
SWBT will not be liable for any losses or damages arising out of errors,
interruptions, defects, failures, or malfunction of the CH services
provided pursuant to this Attachment, including those arising from
associated equipment and data processing systems, except such losses or
damages caused by the sole negligence of SWBT. Any losses or damage for
which SWBT is held liable under this Attachment will in no event exceed the
amount of processing charges incurred by LSP for the CH services provided
hereunder during the period beginning at the time SWBT receives notice of
the error, interruption, defect, failure or malfunction, to the time
service is restored.
9. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS
OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD
PARTY.
<PAGE> 64
APPENDIX CNAM
This appendix contains the terms and conditions under which SWBT and LSP shall
provide CNAM Service Query service (or equivalent service):
1. Definitions
A. A-links mean a diverse pair of facilities connecting local end office
switching centers with Signaling Transfer Points.
B. Calling Name Delivery (CNAM) service enables the terminating end user
to identify the calling party by a displayed name before the call is answered.
The calling party's name, date and time of the call are retrieved from an SCP
database and delivered to the end user's premise between the first and second
ring for display on compatible customer premise equipment (CPE).
C. CNAM Service Query is SWBT's service that allows LSP to query SWBT's
Calling Name database for Calling Name information in order to deliver that
information to LSP's local subscribers.
D. Calling Name database means a Party's database containing current
Calling Name information of all working lines served or administered by that
Party, including the Calling Name information of any telecommunications company
participating in that Party's Calling Name database.
E. Calling Name information means telecommunications companies' records of
all their subscribers' names associated with one or more assigned ten-digit
telephone numbers.
F. Service Control Point (SCP) is a CCS network node where the Calling
Name database resides.
G. Service Point (SP) means a CCS network interface element capable of
initiating and/or terminating SS7 messages from an end office.
H. Service Switching Point (SSP) means the software capability within a
switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7 transmission/reception access
ability.
I. Signaling Transfer Point (STP) is the point where a Party interconnects
with a CCS/SS7 network. In order to connect to SWBT's SS7 network, LSP or a
third party initiating LSP's Calling Name Queries must connect with an SWBT STP
in order to connect to SWBT's SCP.
<PAGE> 65
J. Common Channel Signaling (CCS) Network is an out-of-band,
packet-switched, signaling network used to transport supervision signals,
control signals, and data messages. CNAM Queries and Response messages are
transported across the CCS network.
K. Signaling System 7 (SS7) is the signaling protocol used by the CCS
network.
L. CNAM Service Query Rate applies to each CNAM Query received at the SCP
where a Party's Calling Name database resides.
M. Query Transport Rate applies to each CNAM Query transported through a
Party's interconnecting STP and between the STP and the Calling Name database.
SWBT and LSP shall list their STP locations in the National Exchange Carrier
Association, Inc. Tariff FCC No. 4.
N. Query means a message in American National Standards Institute's (ANSI)
standard SS7 signaling protocol which represents a request to a Calling Name
database for Calling Name information.
O. Response means an SS7 message which when appropriately interpreted
represents an answer to a Query.
P. Name Record Administering Companies means telecommunications companies
that administer telephone number assignments to the public and which make their
Calling Name information available in a Party's Calling Name database.
2. Description of Service
A. SWBT shall provide LSP Calling Name information whenever LSP initiates
a Query from an SSP for such information associated with a call terminating to
a CNAM subscriber.
B. All Queries to SWBT's Calling Name database shall use a translation
type of 005 and a subsystem number in the calling party field mutually agreed
upon by the Parties. LSP acknowledges that such subsystem number and
translation type values are necessary for SWBT to properly process Queries to
its Calling Name database.
C. LSP warrants to SWBT that it shall send Queries conforming to the ANSI
approved standards for SS7 protocol and pursuant to the specification standards
documents identified in Exhibit A. Both Parties acknowledge that transmission
in said protocol is necessary for each party to provision CNAM Service Query.
(Or the equivalent thereof). Both Parties warrant that they shall send SS7
Messages that
<PAGE> 66
comply with ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A. Each party reserves
the right to modify its network pursuant to other specifications standards,
which may include Bellcore specifications defining specific service
applications, message types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications industry. All such
changes shall be announced a minimum of 180 days in advance of implementation
through industry standard procedures. Each party will work cooperatively to
coordinate any necessary changes.
D. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's CCS/SS7 network. LSP
further agrees that SWBT, in its sole discretion, shall employ certain
automatic and/or manual overload controls within its CCS/SS7 network to guard
against these detrimental effects. SWBT shall report to LSP any instances
where overload controls are invoked due to LSP's CCS/SS7 network and LSP agrees
in such cases to take immediate corrective actions as are necessary to cure the
conditions causing the overload situation.
E. Prior to initiating service under this Agreement, LSP shall provide to
SWBT an initial forecast of busy hour Query volumes. If, prior to the
establishment of a mutually agreeable service effective date, in writing, SWBT,
at its discretion, determines that it lacks adequate storage or processing
capability to provide CNAM Service Query to LSP, SWBT shall notify LSP of its
intent not to provide the services under this Appendix and this Appendix will
be void and have no further effect.
F. Upon request, LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the preceding year. LSP
shall provide such updates each year for the first three (3) years of this
Agreement.
G. SWBT provides CNAM Service Query as set forth in this Appendix only as
such service is used for LSP's activities as a local service provider in SWBT's
traditional serving areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas. SWBT provides CNAM Service Query for interexchange carriers,
operator service providers, and other telecommunications companies under
separate contract rates. LSP agrees that any use of SWBT's LIDB for the
provision of CNAM Service Query by LSP, including, but not limited to, when LSP
acts as an LSP outside of SWBT's traditional serving areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas, and/or acts as an operator
service provider to other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange carrier, will be
pursuant to the standard terms, conditions, rates and charges of SWBT's non-LSP
contracts, as revised, for CNAM Service Query.
<PAGE> 67
3. Price and Payment
A. LSP shall pay a CNAM Service Query Rate of $0.0115 and a Query
Transport Rate of $0.0045 for each Query initiated into SWBT's Calling Name
database. Additional nonrecurring charges for point code activation of $14.25
and service order activity of $256.70 shall be applicable for all such activity
after the initial service order and initial point code activation. The per
CNAM Service Query rate SWBT charges hereunder may be increased upon sixty (60)
days written notice to the LSP unless LSP acts as an agent on behalf of other
carriers in which case ninety (90) days written notice shall be given. Upon
such notice, the Party receiving notice may terminate this Appendix without any
termination liability as provided in Section 5(B) of this Appendix. All
tariffed rates associated with Services provided hereunder are subject to
change pursuant to revisions of such tariffs.
B. SWBT shall record usage information for LSP's CNAM Queries terminating
to SWBT's Calling Name database. SWBT shall use its SCPs as the source of
usage data. SWBT shall aggregate usage by the point code of the
Query-originating SSP.
C. Based upon the data identified in Subsection 3.B above, SWBT shall bill
the LSP for its CNAM Queries on a monthly basis. The bill will be issued by
the fifteenth day of each month, and LSP shall pay the Subsection 3.B bill
within thirty (30) days of the bill issue date.
D. Depending on LSP's choice of method for transporting its Queries and
responses, LSP may be required to purchase certain other services, especially
services that may be provided pursuant to effective tariffs. In this event the
prices, terms, conditions and billing for such services will be specified in
the applicable tariff(s), and this Appendix shall not be construed to
circumvent the prices, terms, conditions, or billing as specified in the
applicable tariff(s).
E. If there is a dispute associated with a monthly bill, the disputing
Party shall notify the other in writing within ninety (90) calendar days of the
date of said monthly bill or the dispute shall be waived. Each party agrees
that any amount of any monthly bill that the Party disputes will be paid by
that Party according to the terms of Subsection 3.C above. Any adjustments
relating to a disputed amount shall be reflected on the next monthly bill
issued after resolution. Any credit issued upon resolution of any dispute
shall bear interest at the rate specified in Subsection 3.C. above, payable on
and as of the date the credit is issued. Parties shall work cooperatively and
use their best efforts to resolve any disputes as quickly as possible.
F. If LSP acts as a telecommunications company other than a local service
provider, or if LSP acts as a local service provider in areas outside of SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and
<PAGE> 68
Texas, LSP will designate those point codes from which it originates CNAM
Service Queries as an LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri, Oklahoma
and Texas from those point codes which originate CNAM Service Queries for all
other aspects of its business. If LSP uses the same OPC to originate Queries
for its operations as an LSP within SWBT's traditional service areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does for any
other aspect of its business, then LSP will provide SWBT with a percentage of
use factor that SWBT can use to apportion LSP's traffic between SWBT's terms
and conditions, rates and charges under this Appendix and the standard terms,
conditions, rates and charges under SWBT's non-LSP contracts. LSP will provide
this factor in a whole number between one (1) and one hundred (100) to indicate
the percentage of CNAM Service Queries LSP originates as an LSP acting as a
local service provider within SWBT's traditional service area in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas. A percentage of use factor of
1 (one) indicates that one percent of LSP's CNAM Service Queries originate as
an LSP acting as a local service provider within SWBT's traditional service
areas in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of 100 indicates that one hundred percent of LSP's
traffic is from LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas.
G. Such percentage of use factors will be provided by LSP on the LIDB
Access Service Order Form used to establish the service. All updates to this
factor will be provided via a letter. If LSP does not furnish a percentage of
usage factor, LSP agrees that SWBT will apply a percentage of use factor of one
percent (1%).
H. LSP agrees to update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and October of each
year, LSP will forward to SWBT, to be received no later than fifteen (15)
business days after the first of each such month, a revised report showing the
percentage of use factors for the past three months ending the last day of
December, March, June, and September, respectively, for each OPC from which LSP
originates CNAM Service Query. Both parties agree that the revised report will
serve as the basis for the next three months billing. Both parties agree that
no prorating or backbilling will be done based on the report. SWBT will use
the revised report to apportion usage rate, monthly rates, and nonrecurring
charges until a revised report is received from LSP as set forth and agreed to
herein.
I. Both parties agree that SWBT may, upon written request by Certified
U.S. mail (return receipt requested), require LSP to provide call detail
records which will be audited to substantiate the projected percentage of use
factor provided by LSP. SWBT may request this detailed information annually.
If the audit results represent what SWBT considers to be a substantial
deviation from LSP's previously reported percentage of use for the period upon
which the audit is based, and that deviation is not due to seasonal changes or
other identifiable reasons, LSP agrees to allow SWBT to
<PAGE> 69
request such call detail records more than once annually. Both parties agree
that SWBT may make the call detail records available to an independent auditor
or to SWBT audit employees within thirty (30) days of the request at an agreed
upon location during normal business hours.
J. Both parties agree that if LSP fails to comply with SWBT's request for
auditable call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service for a period
of thirty (30) days. If at the conclusion of thirty (30) days, LSP still does
not comply with this request, both parties agree that SWBT may apply an assumed
percentage of use factor of one percent (1%).
4. Ownership of the Calling Name Information
A. Telecommunications companies depositing information in a Party's
Calling Name database retain full and complete ownership and control over such
Calling Names information in that Calling Name database. The querying Party
obtains no ownership interest by virtue of this Appendix.
B. LSP shall not copy, store, maintain or create any table or database of
any kind after initiation of, and based upon a response to, a CNAM Query to
SWBT's calling name database.
C. If LSP acts on behalf of other carriers, LSP shall prohibit its
Query-originating carrier customers from copying, storing, maintaining, or
creating any table or database of any kind from any Response provided by SWBT
after a CNAM Query to a Calling Name database.
5. Term and Termination
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Agreement and shall continue for two (2) years from the
date of implementation of CNAM Service Query (or the equivalent thereof).
Thereafter, this Appendix shall remain in effect unless terminated by either
party upon written notice given sixty (60) days in advance of the termination
date.
B. Should LSP terminate this Appendix within the first six (6) months of
this effective date, LSP agrees to pay SWBT an early termination sum equal to
two (2) times the average monthly volume of LSP's CNAM Queries times the rate
specified in Section 3(A) of this Appendix. The average monthly volume will be
calculated using the previous two (2) months' volume divided by two (2) or, if
less than two months, the monthly volume of the first month service was
provided.
<PAGE> 70
C. If at any time during the term of this Appendix a tariff for CNAM
Service Query (or the equivalent service thereof) becomes effective, the tariff
and all terms and conditions, including all rates, will supersede this
Appendix. Under these circumstances, no termination liability as provided in
Section 5(B) of this Appendix will apply.
D. If a party materially fails to perform its obligation under this
appendix, the other party, after notifying the non-performing party of the
failure to perform and allowing that party thirty (30) days after receipt of
the notice to cure such failure, may cancel this appendix immediately upon
written notice.
E. Notwithstanding anything to the contrary in this Appendix, if legal or
regulatory decisions or rules compel SWBT or LSP to terminate the Appendix,
SWBT and LSP shall have no liability to the other in connection with such
termination.
6. Limitation of Liability
A. LSP's sole and exclusive remedies against SWBT for injury, loss or
damage caused by or arising from anything said, omitted or done in connection
with this Appendix regardless of the form of action, whether in contract or in
tort (including negligence or strict liability) shall be the amount of actual
direct damages and in no event shall exceed the amount paid for CNAM Service
Queries.
B. The remedies in Section 6(A) of this Appendix shall be exclusive of all
other remedies against a Party, its affiliate, subsidiaries or parent
corporation, (including their directors, officers, employees or agents).
C. In no event shall SWBT have any liability for system outages or
inaccessibility, or for losses arising from the unauthorized use of the data by
CNAM Service Query purchasers.
D. CALLING NAME INFORMATION PROVIDED TO AN LSP HEREUNDER SHALL BE PROVIDED
"AS IS." SWBT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR
COMPLETENESS OF THE CALLING NAME INFORMATION REGARDLESS OF WHOSE CALLING NAME
INFORMATION IS PROVIDED. AND, SWBT SHALL NOT BE HELD LIABLE FOR ANY ACTIONS OR
OMISSIONS ARISING OUT OF OR IN CONJUNCTION WITH LSP'S USE OF THE CALLING NAME
INFORMATION. NOTWITHSTANDING THE FOREGOING, SWBT WARRANTS THAT LSP WILL BE
ACCESSING THE SAME CALLING NAME DATABASE FOR CUSTOMER'S CNAM QUERIES AS SWBT
ACCESSES FOR ITS OWN QUERIES.
E. SWBT is furnishing access to its Calling Name database in order to
facilitate the LSP's provision of Calling Name Delivery Service (CNDS) to its
end users
<PAGE> 71
or to the end users of its Query-originating carrier customers, but not to
insure against the risk of completion of a call to a CNDS subscriber without the
display of the name of the caller. While each Party agrees to make every
reasonable attempt to provide accurate and current Calling Name information, the
Parties acknowledge that Calling Name information is the product of routine
business service order activity. LSP acknowledges that SWBT can furnish Calling
Name information only as accurate and current as the information has been
provided to SWBT for inclusion in its CNAM database. Therefore, SWBT, in
addition to the limitations of liability set forth, is not liable for
inaccuracies in the Calling Name information name records provided to LSP or to
its Query-originating carrier customers, except such inaccuracies caused by
SWBT's willful or wanton misconduct or gross negligence.
The Parties acknowledge that each Calling Name database limits the Calling
Name information length to fifteen (15) characters. As a result, the Calling
Name Information provided in a response to a Query may not reflect a
subscriber's full name. Name records of residential local telephone subscribers
will generally be stored in the form of last name followed by first name
(separated by a comma or space) to a maximum of fifteen (15) characters. Name
records of business local telephone subscribers will generally be stored in the
form of the first fifteen (15) characters of the listed business name that in
some cases may include abbreviations. The Parties also acknowledge that certain
local telephone service subscribers of Name Record Administering Companies may
require their name information to be restricted, altered, or rendered
unavailable. Therefore, in addition to the limitations of liability set forth
in Section 6 of this Appendix, SWBT is not liable for any and all liability,
claims, damages or actions including attorney's fees, resulting directly or
indirectly from the content of any Name Record contained in a Calling Name
database and provided to LSP or its Query-originating carrier customers, except
for such content related claims, damages or actions resulting from SWBT's
willful or wanton misconduct or gross negligence.
F. The Parties acknowledge that certain federal and/or state regulations
require that local exchange telephone companies make available to their
subscribers the ability to block the delivery of their telephone number and/or
name information to the terminating telephone when the subscriber originates a
telephone call. This blocking can either be on a call-by-call basis or on an
every call basis. Similarly, a party utilizing blocking services can unblock on
a call-by-call basis or every call basis. LSP acknowledges its responsibility
to and warrant that it will abide by information received in SS7 protocol during
call set-up that the calling telephone service subscriber wishes to block or
unblock the delivery of telephone number and/or name information to a CNDS
subscriber. LSP agrees not to attempt to obtain the caller's name information
by originating a Query to SWBT's Calling Name database where the subscriber
attempted to block such information, nor will LSP block information a subscriber
attempted to unblock. Therefore, SWBT, in addition to the limitations of
liability set forth in this Section, is not liable for any failure by LSP or its
Query-originating carrier customers to
<PAGE> 72
abide by the caller's desire to block or unblock delivery of Calling Name
information, and LSP agrees to hold SWBT harmless from, and defend and
indemnify SWBT for, any and all liability, claims, damages or actions including
attorney's fees, resulting directly or indirectly from LSP or its
Query-originating carrier customers' failure to block or unblock delivery of
the Calling Name information when appropriate indication is provided, except
for such privacy related claims, damages or actions caused by SWBT's willful or
wanton misconduct or gross negligence.
G. In no event shall SWBT, its affiliates, subsidiaries or parent
corporation (including its directors, officers, employees or agents) have any
liability whatsoever to or through LSP for any indirect, special, or
consequential 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, even if SWBT has been advised of the
possibility of such damages.
7. Communication and Notices
A. Ordering and billing inquiries for the services described herein from
SWBT shall be directed to the Local Service Provider Service Center (LSPSC).
Ordering shall be done through the LSPSC using the form attached hereto as
Exhibit B.
8. Confidentiality
A. Identification. SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, it may disclose to the
other party proprietary or confidential customer, technical or business
information in written, graphic, oral or other tangible or intangible forms.
In order for such information to be considered "Proprietary Information" under
this Appendix, it must be marked "Confidential" or "Proprietary" or bear a
marking of similar import. Orally discussed information shall be considered
Proprietary Information only if contemporaneously identified as such and
reduced to writing and delivered to the other party with a statement or marking
of confidentiality within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall remain the
exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary Information to authorized
employees and other individuals who have a need to know the Proprietary
Information in order to perform its obligation under this Appendix.
<PAGE> 73
(3) To keep such Proprietary Information confidential and to use the same
level of care to prevent disclosure or unauthorized use of the received
Proprietary Information as it exercises in protecting its own Proprietary
Information of a similar nature.
(4) For a period of three (3) years following any disclosure, not to copy
or publish or disclose such Proprietary Information to others or authorize
anyone else to copy or publish or disclose such Proprietary Information to
others without the prior written approval of the Disclosing Party.
(5) To use such Proprietary Information only for purposes of performing
its obligations under this Appendix and for other purposes only upon such terms
as may be agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give notice to the
Disclosing Party of any demand to disclose or provide Proprietary Information
of the Disclosing Party to another person, under lawful process, prior to
disclosing or furnishing such Proprietary Information. Further, the Receiving
Party agrees to reasonably cooperate if the Disclosing Party deems it necessary
to seek protective arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the requirements of a
court, regulatory body or government agency having jurisdiction over the Party;
provided, however, that the Receiving Party shall notify the Disclosing Party
so as to give the Disclosing Party a reasonable opportunity to object to such
disclosure. The Disclosing Party may not unreasonably withhold approval of
protective arrangements provided by any such court, regulatory body or
government agency. Nothing herein requires either Party to support the
position of any person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained in this
Appendix, the Proprietary Information described herein shall not be deemed
confidential or proprietary and the Receiving Party shall have no obligation to
prevent disclosure of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication, inspection of the
product, or otherwise, and through no wrongful act of the Receiving Party;
(3) is received from a third party without similar restriction and without
breach of this Section 8;
(4) is independently developed, produced or generated by the Receiving
Party;
(5) is furnished to a third party by the Disclosing Party without a
similar restriction on the third party's rights; or
<PAGE> 74
(6) is approved for release by written authorization of the Disclosing
Party, but only to the extent of such authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary Information
obtained through recording the volume of Customer Queries for the purposes of:
(a) estimation of facilities usage for jurisdictional separations; (b)
engineering and network planning of facilities; and (c) measurement for billing
purposes.
F. Legal Requirements. Notwithstanding anything to the contrary contained
in this Agreement, a Party's ability to disclose Proprietary Information or use
disclosed Proprietary Information is subject to all applicable statutes,
decisions and regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate a different
handling of such information.
9. Mutuality
To the extent that LSP stores its own Calling Name information in a database,
LSP agrees that such Calling Name information shall be available to SWBT on
terms and conditions comparable to those contained in this Appendix. Such
terms and conditions shall include but not be limited to, making such Calling
Name information available on a platform technically similar to that employed
by SWBT, and at a rate comparable to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit A - Specifications and Standards
Exhibit B - LIDB Access Service Order Form [to be attached].
<PAGE> 75
EXHIBIT A
Page 1 of 1
Specifications and Standards
<TABLE>
<CAPTION>
Descriptions of Subject Area
and Issuing Organization Document Number
- ------------------------ ---------------
<S> <C>
A. Bellcore, SS7 Specifications TR-NPL-000246
B. ANSI, SS7 Specifications
- Message Transfer part T1.111
- Signaling Connection Control T1.112
Part
- Transaction Capabilities T1.114
Application Part
C. Bellcore, CLASS Calling Name Delivery TR-NWT-001188
Generic Requirements
D. Bellcore, CCS Network Interface TR-TSV-000905
Specifications
</TABLE>
<PAGE> 76
Exhibit B
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB ACCESS VALIDATION SERVICES ORDER FORM
------------------------------------------
CUSTOMER NAME _________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION _____________________________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS _______________________________________________________________
________________________________________________________________________________
CUSTOMER BILLING NAME __________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION ______________________________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS _______________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE __________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER _____________________________
___________________________________________________(____)_______________________
CREDIT INFORMATION: TYPE OF OWNERSHIP _____________________________
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED: STATE WHERE INCORP._______________ DATE INCORP. _______________
CHARTER NUMBER _________________________________________________________________
PRES. NAME ____________________________________ OFC. TEL. NO. (____)____________
V.P. NAME _____________________________________ OFC. TEL. NO. (____)____________
SECT. NAME ____________________________________ OFC. TEL. NO. (____)____________
TREA. NAME ____________________________________ OFC. TEL. NO. (____)____________
IF PARTNERSHIP:
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
LETTER OF AGENCY DATED_________________________ SIGNATURE ______________________
<PAGE> 77
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
SWBT ORDER NUMBER_________________
DESIRED DUE DATE__________________ FIRM DUE DATE_________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs______________________
TYPE OF ACTIVITY______(N-NEW OR ADD; C-CHANGE; D-DISCONNECT; S-SUPP)
BILLING ACCOUNT NUMBER (BAN)_____________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
_________________________________
_________________________________
( )
_________________________________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
( )
_________________________________________________________________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
( )
_________________________________________________________________________
*SWBT CKR:_______________________ *TWO SIX CODE:______________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1._________________________________
2._________________________________
3._________________________________
4._________________________________
* THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
<PAGE> 78
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING ____
<TABLE>
<CAPTION>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
</TABLE>
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 79
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING ____
<TABLE>
<CAPTION>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
</TABLE>
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 80
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY. THIS
INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN COORDINATED
WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER FORM TO THE
ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE TO
BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED WITH THE
NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 81
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE
ENTERED TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT
CODES FROM AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING
SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR
TO THE COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT
CODE(S), ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL ENTER
THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR LINKS FOR
ACCESS TO THE LIDB.
<PAGE> 82
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
INSTRUCTIONS FOR PAGES 3 & 4
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE.
THE LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR
THEIR POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO
ESTABLISH THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER
SHOULD ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE
BILLING ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN
FOR OLNS. IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR
THE LIDB VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER
WILL USE BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE
BILLING ACCOUNTS.
1. LIDB VALIDATION SERVICE ___ CALLING NAME SERVICE ___ ORIGINATING LINE
NUMBER SCREENING ___
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES
ARE REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE
LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE
"N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 83
Southwestern Bell Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
- -------------------------------------------------
ACTIVITY TYPES: N-ESTABLISHING OR ADDING NEW POINT CODE(S)
D-DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY
FROM PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1-ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
<TABLE> <CAPTION>
<S> <C> <C> <C>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
- - ----------- - -----------
EXAMPLE 2-ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE''
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
- - ----------- - -----------
EXAMPLE 3-ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
- - ----------- - -----------
</TABLE>
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT
ICSC IN ST. LOUIS, MISSOURI.
<PAGE> 84
APPENDIX DCO
EXCHANGE:
<TABLE>
<CAPTION>
NIP(4)
[Insert address and Interconnection
Direction(1) LSP Location(2) DCO(3) V&H below] Method
- ------------ --------------- ------ ------------------- ---------------
<S> <C> <C> <C> <C>
</TABLE>
(1) This column will be completed by indicating the direction of the terminating
traffic (e.g., either LSP to SWBT or SWBT to LSP.)
(2) LSP LOCATION - The address of the LSP Location that will house LSP's
interconnection equipment and through which SWBT will terminate traffic on the
LSP's network.
(3) DESIGNATED CONNECTING OFFICE (DCO) - The address of the SWBT end office or
tandem through which the LSP will terminate traffic on SWBT's network.
(4) NETWORK INTERCONNECTION POINT OR "NIP" - The NIP is the location where SWBT
and LSP facilities connect. The NIP will be identified by address and V&H
Coordinates. The NIP for traffic going from LSP to SWBT and going from SWBT to
LSP could be different. Where the physical interface occurs at a SWBT end
office or tandem, the NIP shall be located at the DCO. When SWBT and an LSP
agree to interconnect with a Mid-Span Fiber Interconnection (MSFI) the NIP is
the location where the fiber of SWBT and the fiber of the LSP is connected,
unless both Parties agree that the NIP is defined otherwise. Where the physical
interface occurs at the LSP location the NIP for that interconnection shall be
located at the LSP location.
<PAGE> 85
APPENDIX DA
DIRECTORY ASSISTANCE SERVICE
This Appendix sets forth the terms and conditions under which Southwestern
Bell Telephone Company ("SWBT") agrees to provide Directory Assistance Services
(DA Services) for LSP ("LSP").
I. SERVICES
SWBT will provide the following DA Services:
A. DIRECTORY ASSISTANCE (DA) - consists of providing subscriber
listing information (name, address, and published telephone number
or an indication of "non-published status") to LSP's end users who
dial 411 or NPA+555+1212 and whenever appropriate, performing
Non-Published and Non-List service according to current SWBT methods
and practices.
B. DIRECTORY ASSISTANCE CALL COMPLETION (DACC) - an optional
service in which SWBT completes a call to the requested number on
behalf of LSP's end user, utilizing an automated voice system or
with operator assistance. SWBT agrees to provide DA with DACC upon
request.
II. DEFINITIONS
The following terms are defined as set forth below:
A. Non-List Telephone Number - A telephone number that, at the
request of the telephone subscriber, is not published in a telephone
directory, but is available by calling a SWBT DA operator.
B. Non-Published Number - A telephone number that, at the
request of the telephone subscriber, is neither published in a
telephone directory nor provided by a SWBT DA operator.
C. Published Number - A telephone number that is published in a
telephone directory and is available upon request by calling a SWBT
DA operator.
D. Call Branding - the procedure of identifying a providers name
audibly and distinctly to the consumer at the beginning of each DA
Services call, and prior to completion of a DACC request.
<PAGE> 86
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Where SWBT provides LSPs OS and DA services
via the same trunk, both the OS and DA calls will be branded with
the same brand. Where SWBT is only providing DA service on behalf
of the LSP, specific DA branding can be provided upon request. Such
branding will be provided pursuant paragraph B. below.
B. CALL BRANDING - SWBT will brand DA in LSP's name based upon
the criteria outlined below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP specific
branding messages for its DA calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every DA call handled by SWBT on behalf of LSP when such
services are provided in conjunction with: i) the purchase of
SWBT's unbundled local switching; or ii) when multiple brands
are required on a single Operator Services trunk. Prices for
Call Branding are as outlined in Exhibit II, attached hereto
and incorporated herein.
C. DIRECTORY ASSISTANCE (DA) RATE/REFERENCE INFORMATION - SWBT
will provide LSP DA Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA Rate and Reference
Information in a mutually agreed to format or media thirty
(30) days in advance of the date when the DA Services are to
be undertaken.
2. LSP will inform SWBT, in writing, of any changes
to be made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date. LSP
acknowledges that it is responsible to provide SWBT updated
Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the applicable DA
rates as provided by LSP.
An initial non-recurring charge will apply per TOPS switch for loading of
LSP's Operator Services Rate/Reference Information as well as a charge per TOPS
switch for each subsequent change to either the LSP's DA Services Rate or
Reference Information.
<PAGE> 87
IV. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of DA Services LSP's local
serving area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with Automatic
Number Identification (ANI) to each SWBT operator switch. Should
LSP seek to provide interexchange DA Service under this agreement it
is responsible for ordering the necessary facilities. Nothing in
this agreement in any way changes the manner in which an
interexchange Carrier obtains access service for the purpose of
originating or terminating interexchange traffic.
C. Facilities necessary for the provision of DA Services shall
be provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of service
is met. Each party shall bear the costs for its own facilities.
LSP shall bear the costs of facilities necessary for signaling and
routing calls with Automatic Number Identification (ANI) to each
SWBT operator switch. SWBT shall bear the cost of facilities and
equipment necessary to provide DA Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the DA Services are to be undertaken, all
end user listing records and information required by SWBT to provide
the DA Services.
E. LSP will keep end user listing records current using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT, in writing, of any changes to be made
to such records. LSP will send the DA listing records to SWBT via a
local manual service order, T-TRAN, magnetic tape or by any other
mutually agreed to format or media.
F. SWBT will accumulate and provide LSP such data as necessary
for LSP to verify traffic volumes and bill its end users.
V. METHODS AND PRACTICES
SWBT will provide the DA Services to LSP's end users in accordance
with SWBT's DA methods and practices that are in effect at the time the
DA call is made, unless otherwise agreed in writing by both parties.
VI. PRICING
Pricing for DA Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached hereto and made part of this
Appendix. The prices will apply from the
<PAGE> 88
service effective date through the term of this agreement as specified in
paragraph X., A. below. Beyond the specified term of this Appendix, SWBT
may change the prices for the provision of DA Services upon one
hundred-twenty (120) days' notice to LSP.
VII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance
in full will be due within thirty (30) days of receipt.
VIII. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability including
attorneys fees that LSP may incur as a result of claims, demands,
wrongful death actions, or other suits brought by any party that
arise out of LSP's end users use of DA Services. LSP shall defend
against all end user claims just as if LSP had provided such service
to its end user with the LSP's own operators and shall assert its
tariff limitation of liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any person
or persons caused or claimed to be caused, directly, or indirectly,
by SWBT employees and equipment associated with provision of the DA
Services. This provision includes but is not limited to suits
arising from disclosure of the telephone number, address, or name
associated with the telephone called or the telephone used to call
the DA Services.
IX. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in
force for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one hundred-twenty
(120) days notice in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon
term of this Appendix, LSP shall pay SWBT, within thirty (30) days
of the issuance of a final bill by SWBT, all amounts due for actual
services provided under this Appendix, plus estimated monthly
charges for the remainder of the term. Estimated charges will be
based on an average of the actual monthly amounts billed by SWBT
pursuant to this Appendix prior to its termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit II.
<PAGE> 89
APPENDIX DA - EXHIBIT 1
DIRECTORY ASSISTANCE SERVICES EXCHANGE LIST
EFFECTIVE: _____________________
(mm/dd/yr)
The following table depicts the services and exchanges covered by this
Appendix:
<TABLE>
<S> <C> <C> <C> <C>
SWBT SERVING LSP'S
OFFICE(S) OFFICE(S) TOLL (555) LOCAL (411) DACC
</TABLE>
<PAGE> 90
APPENDIX DA
OKLAHOMA
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE: ______________________
(mm/dd/yr)
The following rates will apply for each service element:
<TABLE>
<S> <C>
A. DIRECTORY ASSISTANCE (DA)
This usage rate applies to each DA call.
Rate per call $0.425
B. DIRECTORY ASSISTANCE CALL COMPLETION
DACC
This usage rate applies to each DA call
that has been completed to the requested
number.
Rate per completed call $0.24
C. CALL BRANDING
An initial non-recurring charge applies
per TOPS switch, per brand for the
establishment of Call Branding.
Rate per initial load $2,700.00
Rate per load for Brand change $2,700.00
Per Call (1) $0.02
D. DA SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies
per TOPS switch for the initial load of
Carrier's DA Services Rate/Reference
Information. An additional non-recurring
charge applies for each subsequent change
to Rate/Reference Information.
Rate per initial load $4,100.00
Rate per subsequent rate change $2,900.00
Rate per subsequent reference change $2,900.00
</TABLE>
(1) A per call charge will apply when DA services are provided in conjunction
with i) unbundled local switching or ii) when multiple brands are required on a
single trunk.
<PAGE> 91
APPENDIX FGA
This Appendix to Attachment Compensation sets forth the terms and
conditions under which the Parties will distribute revenue from the joint
provision of Feature Group A (FGA) Switched Access Services.
These services will be provided within a Local Access and Transport Area
(LATA) and/or an Extended Area Service (EAS) arrangement. The Primary Company
will compensate the Secondary Company only to the extent that it has not
already been compensated under its interstate or intrastate access service
tariffs or other settlement/contract arrangements. This Appendix is subject to
applicable tariffs.
1.0 DEFINITIONS
1.1 Local Access and Transport Area (LATA) means a pre-established geographic
area encompassing one or more local exchange areas within which a Party
may provide telecommunications services.
1.2 The term Extended Area Service (EAS) as used in this Appendix means the
provision of message telephone exchange service between two or more local
exchange service areas without a toll charge.
1.3 Subscriber Access Lines will mean a communication facility provided under
a general and/or exchange service tariff extended from a customer premise
to a central office switch which may be used to make and receive exchange
service calls, intrastate toll service or interstate toll service calls.
1.4 Feature Group A Switched Access Service includes all facilities and
services rendered in furnishing FGA access service, both in EAS and
non-EAS (i.e., LATA wide terminations) areas, in accordance with the
schedule or charges, regulations, terms and conditions stated in the
interstate or intrastate access service tariffs of the Parties.
1.5 The Primary Company denotes the Party with the Primary office(s).
1.6 The Primary Office is an office which: (1) directly or jointly connects
to an interexchange carrier and/or end user: and (2) provides joint FGA
switched access service to that interexchange carrier and/or end user with
other end offices.
1.7 The Secondary Company denotes the Party with the secondary office(s).
1.8 The Secondary Office is any office involved in providing joint FGA
switched access to an Interexchange carrier and/or end user through the
switching facilities of the Primary office.
<PAGE> 92
1.9 Revenues under this Appendix are those FGA Switched Access amounts due
the Primary and Secondary Companies under their applicable tariffs, less
uncollectible revenues. Revenues for any other services are not included.
Uncollectible revenues are those revenues the Primary Company is unable
to collect, using its regular established collection procedures. The
Primary Company may offset uncollectibles against current revenue
distribution.
1.10 Access Minutes or Minutes of Use (MOUs) are those minutes of use as
described in Part 69 of the Federal Communications Commission s Rules, and
are limited to those FGA MOUs which originate and/or terminate in the
Secondary Office(s) covered by this Appendix.
1.11 Currently Effective Tariff Rate means the approved tariff rate effective
on the first day of the month for which compensation is being calculated.
2.0 UNDERTAKING OF THE PARTIES
2.1 The Secondary Company will notify the Primary Company of all tariff rate
revisions, affecting this Appendix which the FCC or other appropriate
regulatory authority allows to take effect, at least 30 days in advance of
their effective date. Revenue distribution will be based on the revised
rates 45 days after the effective date of the tariff revisions. However,
if the secondary Company fails to notify the Primary Company of a new rate
within 30 days of its effective date, the Primary company may delay
implementation of the new rate until the next month s revenue distribution
cycle, and will not be required to adjust the previous bills retroactive.
2.2 Each party will furnish to the other such information as may reasonably
be required for the administration, computation and distribution of
revenue, or otherwise to execute the provisions of this appendix.
3.0 ADMINISTRATION OF REVENUE DISTRIBUTION
The Primary Company will be responsible for the administration, computation
and distribution of the FGA access service revenues collected on behalf of
the Secondary Company.
4.0 MINUTES OF USE (MOUS) DEVELOPMENT
4.1 The Parties will calculate the amount of FGA revenues due each Party, by
determining the amount of FGA MOUs attributable to each Party as described
below. The Primary Company will then multiply the MOUs by the rates in
the
<PAGE> 93
Secondary Company's applicable tariff to determine the amounts tentatively
due to the Secondary Company.
4.2 TERMINATING MOUS DEVELOPMENT
4.2.1 Actual monthly premium (charged at equal access end office) and
non-premium (charged at non-equal access end offices) terminating FGA
access MOUs for each office in the LATA or a FGA access EAS area will be
measured by the Primary Company.
4.2.2 Where the Primary Company cannot measure or identify the terminating FGA
MOUs by end office, terminating MOUs will be total unmeasured MOUs
allocated to the LATA. In this event, those MOUs will be distributed
based upon the ratio of each Party's subscriber access lines, as
identified in Exhibit B, which is attached hereto and made a part hereof,
to the total subscriber access lines in the FGA access area as determined
by the Primary Company.
4.3 ORIGINATING MOUS DEVELOPMENT
4.3.1 The Primary Company will derive and distribute monthly originating FGA
access MOUs, billed by the Primary Company, to each Secondary Company s
end office in the EAS calling area, as identified in Exhibit A, which is
attached hereto and made a part hereof, based upon a ration of each Party
s subscriber access lines to the total subscriber access lines in the
appropriate EAS area as determined by the Primary Company.
4.3.2 The parties recognize that since originating non-EAS calls to the FGA
service area are rated and billed as intraLATA toll, such usage is assumed
to be minimal. Therefore, originating FGA access MOUs will not be
distributed to end offices outside an EAS calling area.
5.0 CALCULATION OF REVENUE DISTRIBUTION
5.1 The amount of premium or non-premium revenues due each party each month
will be equal to the sum of Originating and Terminating premium or
non-premium revenue for each end office. These revenues will be
calculated by the Primary Company by multiplying each of the Secondary
Company s effective interstate and/or intrastate FGA switched access
tariff rate elements (except the Local Transport element described below)
by the appropriate MOU calculation under Sections 4.2.1 and 4.2.2.
5.2 Local Transport (or its equivalent under the Secondary Company s tariff
and called Transport in this agreement) compensation will be determined
for each company by multiplying each of the Secondary Company s Transport
rates by the appropriate MOUs (as calculated under Sections 4.2.1 and
4.2.2) by the
<PAGE> 94
Secondary Company's percentage ownership of facilities agreed on by the
Parties and set out in Exhibit B, which is attached hereto and made a part
hereof.
6.0 REVENUE DISTRIBUTION AMOUNTS, MONTHLY STATEMENTS AND PAYMENTS
6.1 The Primary Company each month will calculate and prepare a monthly
compensation statement reflecting the revenue distribution amounts for
FGA, both EAS and non-EAS, access service due the Secondary Company.
6.2 The monthly compensation statement will show, for each Secondary Office,
separately:
6.2.1 The total number of non-premium or premium terminating MOUs and
revenue.
6.2.2 The total number on non-premium or premium originating MOUs and
revenues.
6.2.3 The total compensation due the Secondary Company, by rate element.
6.2.4 The number of terminating MOUs recorded by the Primary Company.
6.2.5 The number of originating MOUs estimated by the Primary Company pursuant
to Section 4.3 contained herein.
6.2.6 The number of access lines used to prorate originating usage pursuant to
Section 4.3 contained herein.
6.2.7 The percent ownership factor, if any, used to prorate Local Transport
revenues.
6.2.8 Adjustments for uncollectibles.
6.3 Within 60 Calendar days after the end of each billing period, the Primary
Company will remit the compensation amount due the Secondary Company.
Where more than one compensation amount is due, they may be combined into
a single payment.
7.0 MISCELLANEOUS PROVISIONS
7.1 This appendix will remain in effect until terminated by thirty (30)
calendar days notice by either Party to the other.
<PAGE> 95
EXHIBIT A
EAS Locations for Originating and Terminating
Feature Group A Access Service
<TABLE>
<S> <C> <C>
Primary Office Secondary Office
Company Company
CLLI CODE NPA-NXX
ACCESS LINE CLLI CODE NPA-NXX
</TABLE>
<PAGE> 96
EXHIBIT B
Location for LATA Wide Termination
of Feature Group A Access Service in
Non-EAS Calling Areas
SECONDARY OFFICE COMPANY
<TABLE>
<S> <C> <C> <C> <C>
CLLI CODE NPA-NXX Access Line % Ownership of LATA
Transport
Facilities
</TABLE>
<PAGE> 97
APPENDIX HOST
This Appendix sets forth the terms and conditions under which SWBT will
perform hosting responsibilities for LSP for (1) the provision of billable
message data and/or access usage data received from such LSP for distribution
to the appropriate billing and/or processing location via SWBT's in-region
network or via the nationwide Centralized Message Distribution System (CMDS) or
(2) billable message data and/or access usage data received from other Local
Exchange Carriers (LECs) or LSPs or from CMDS to be distributed to such LSP.
This Appendix covers hosting in region (i.e., Missouri, Arkansas, Kansas,
Oklahoma and Texas) and hosting out of region. Hosting out of region is only
available to an LSP that is a Full Status Revenue Accounting Office (RAO)
company.
I. DEFINITIONS
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group, duration
and time of day for a message which is subsequently used by a LEC to
bill access to an Interexchange Carrier (IXC).
B. Bellcore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - nationwide system used to produce
information reports that are used in the settlement of LEC or LSP
revenues recorded by one BCC (or LEC or LSP within the territory of
that BCC) and billed to a customer of another BCC (or LEC or LSP
within the territory of that BCC) as described in accordance with
the Bellcore Practice BR 981-200-110.
C. Billable Message Record - a message record containing details
of a completed call which has been carried by a LEC over its
facilities or by LSP over its facilities and such record is to be
used to bill an end user.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange Message
Record (EMR) formatted billing data between a company originating a
message and the company billing for a message.
E. Exchange Message Record (EMR) - industry standard message
format as described in accordance with the Bellcore Practice BR
010-200-010 which was developed to facilitate the exchange of
telecommunications message information.
F. Full Status Revenue Accounting Office (RAO) - an LSP or LEC
that is responsible for formatting EMR records, and for editing and
packing of such detail records into files for distribution.
<PAGE> 98
G. In-Region Hosting - includes the transport, using Hosting
Company network, of (1) billable message record data for LEC or LSP
transported messages and/or access usage record data that originate
in a region and are delivered by the LSP to SWBT at a mutually
agreed upon location within the territory of SWBT to be sent to
another LEC or LSP for billing; and (2) billable message record data
and/or access usage data received from CMDS or another LEC or LSP to
be delivered to the LSP for billing to its end user located within
the five state territory of SWBT.
H. Out-of-Region Hosting - includes the transport, using the
national CMDS network, of (1) billable message record data for LEC
or LSP transported messages and/or access usage record data that
originate out of region and are delivered by the LSP to SWBT and are
to be sent to another LEC or LSP for billing; and (2) billable
message record data and/or access usage data received from CMDS or
another LEC or LSP to be delivered to the LSP for billing to its end
user located outside SWBT's five state territory.
I. Non-Full Status Revenue Accounting Office (RAO) - An LSP or
LEC that has assigned responsibility to SWBT for editing, sorting
and placing billing message record detail and/or access usage record
detail into packs for distribution.
II. RESPONSIBILITIES OF THE PARTIES
A. All data forwarded from LSP must be in the industry standard
EMR format in accordance with Bellcore Practice BR 010-200-010. The
LSP is responsible to ensure all appropriate settlement plan
indicators are included in the message detail, i.e., the Bellcore
Client Company Calling Card and Third Number Settlement (BCC CATS)
System. The LSP acknowledges that the only message records subject
to this Hosting Appendix are those that arise from LEC or LSP
transported billable messages and/or access usage records to be used
by a LEC or LSP for the purpose of billing access to an IXC.
B. When LSP delivers billable message data and/or access usage
data to SWBT which must be forwarded to another location for billing
purposes, SWBT will accept data from the LSP, perform edits to make
message detail and access usage records consistent with CMDS
specifications, and use its in region data network to forward this
data to the appropriate billing company or to access the national
CMDS network in order to deliver this data to the appropriate
billing and/or processing company.
If LSP is not a Full Status RAO Company, SWBT will also sort billable
message detail and access usage record detail by Revenue Accounting
Office, Operating Company Number or Service Bureau and split data
into packs for invoicing prior to using its in region network to
forward this data to the appropriate billing company or to access the
national CMDS network in order to deliver such data to the
appropriate billing company.
<PAGE> 99
C. For billable message data and/or access usage data received
by SWBT for delivery to an LSP location, SWBT will use its in region
data network to receive this data from other LECs or LSPs or from
CMDS in order to deliver such billable message data and/or access
usage data to the agreed upon billing LSP location.
III. BASIS OF COMPENSATION
LSP agrees to pay SWBT a per record charge for billable message
records and/or access usage records that are received from LSP and
destined for delivery to another location for billing, at the rates
listed below:
<TABLE>
<S> <C>
Per Record Charge
Full Status RAO Company
Hosting Company Network $.002
National CMDS Network $.005
Non-Full Status RAO Company
Hosting Company Network $.007
National CMDS Network $.010
</TABLE>
As part of this per record charge, SWBT will provide Confirmation
and/or Error Reports and any Intercompany Settlement (ICS) Reports, such
as the Bellcore Client Company Calling Card and Third Number Settlement
System (BCC CATS), as needed.
LSP agrees to pay SWBT a per record charge for billable message
records and/or access usage records which are entered on a magnetic tape
or data file for delivery to the LSP, at the rate listed below:
<TABLE>
<S> <C> <C>
Per Record Charge $.003
</TABLE>
IV. LIABILITY
A. Any failure to populate accurate information in accordance
with Section II.A. will be the responsibility of the LSP.
B. SWBT will not be liable for any costs incurred by the LSP
when the LSP is transmitting data files via data lines and a
transmission failure results in the non-receipt of data by SWBT.
C. SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING
FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS APPENDIX.
D. SWBT shall not be liable for any losses or damages arising
out of errors, interruptions, defects, failures, or malfunction of
the services provided hereunder,
<PAGE> 100
including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole negligence
of SWBT. Any losses or damage for which SWBT is held liable under
this Appendix shall in no event exceed the amount of charges made for
the services provided hereunder during the period beginning at the
time SWBT receives notice of the error, interruption, defect, failure
or malfunction to the time service is restored.
E. The LSP agrees to release, defend, indemnify, and hold
harmless SWBT from any and all losses, damages, or other liability,
including attorney fees, that it may incur as a result of claims,
demands, or other suits brought by any party that arise out of the
use of this service by the LSP, its customers or end users. The LSP
shall defend SWBT against all end user claims just as if LSP had
provided such service to its end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or indirectly,
by SWBT employees and equipment associated with provision of this
service. This includes, but is not limited to suits arising from
disclosure of any customer specific information associated with
either the originating or terminating numbers used to provision this
service.
VI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 101
APPENDIX ITR
(TRUNKING REQUIREMENTS)
This Appendix provides descriptions of the trunking requirements for the
LSP and SWBT interconnection. The attached scenarios depict the recommended
trunk groups for local, intraLATA toll, interLATA "meet point", mass calling,
E911 and Operator Services interconnection. All references to incoming and
outgoing trunk groups are from the perspective of the LSP.
I. LOCAL TRAFFIC AND INTRALATA TOLL TRAFFIC
(a) The LSP Originating (The LSP to SWBT)
When SWBT has a combined local and access tandem in an
exchange, IntraLATA Toll Traffic may be combined with the Local
Traffic on the same trunk group. When SWBT has more than one
combined local and access tandem in an exchange, the LSP shall
provide a separate trunk group to each SWBT tandem. When there are
separate SWBT access and local tandems in an exchange, a separate
local trunk group shall be provided to the local tandem and a
separate IntraLATA toll trunk group shall be provided to the access
tandem. This trunk group(s) shall be one-way or two-way
directionalized outgoing only and will utilize Signaling System 7
(SS7) or multifrequency (MF) protocol signaling.
(b) The LSP Terminating (SWBT to LSP)
When SWBT has a combined local and access tandem, SWBT shall
normally combine the Local and IntraLATA Toll Traffic over a single
trunk group to the LSP. When SWBT has a separate access and local
tandem in an exchange, a trunk group shall be established from each
tandem to the LSP. This trunk group(s) shall be one-way or two-way
directionalized incoming only and will utilize SS7 or MF protocol
signaling.
(c) Direct End Office Trunking
The Parties shall establish direct end office primary high
usage trunk groups for Local Traffic and/or IntraLATA Toll Traffic
when end office traffic requires twelve or more trunks. If LSP has
established collocation to the end office, the trunks shall be
provisioned over the LSP collocation facility. If the LSP has no
collocation facilities, SWBT shall provision the trunks from the
NIP to the end office. IntraLATA Toll Traffic shall be provided
over a separate trunk group to the SWBT access tandem.
<PAGE> 102
II. ACCESS TOLL CONNECTING TRUNKS
InterLATA traffic shall be transported between the LSP Central
Office and the SWBT access tandem over a "meet point" trunk group
separate from local and intraLATA toll traffic. The access toll
connecting trunk group will be established for the transmission and
routing of Exchange Access traffic between the LSP's end users and
interexchange carriers via a SWBT access tandem. When SWBT has more than
one access tandem within an exchange, the LSP shall utilize a single
access toll connecting trunk group to one SWBT tandem within the
exchange. This trunk group may be set up as one-way or two-way (two-way
is preferred) and will utilize SS7 or MF protocol signaling. The traffic
use code and modifier for this trunk group should be MDJ (see Scenario 1,
2, 3, or 4).
III. 800 (888) TRAFFIC
If the LSP chooses SWBT to handle 800 (888) database queries from
its central office switches, all the LSP originating 800 (888) service
queries will be routed over the InterLATA Interexchange Carrier (MDJ)
trunk group. This traffic will include a combination of both InterLATA
Interexchange Carrier 800 (888) service and IntraLATA LEC 800 (888)
service that will be identified and segregated by carrier through the
database query handled through the SWBT tandem switch.
A separate trunk group from each Party to the other will be required
for IntraLATA 800 service if either Party chooses to handle the 800
database queries from its switch location. The purpose of the separate
trunk group is to provide for the segregation of originating 800
IntraLATA call volumes to ensure the proper billing of intercompany
settlement compensation.
The trunk group shall be set up as one-way outgoing only and will
utilize SS7 protocol signaling. The traffic use code and modifier for
this trunk group should be DD800J (see Scenario 1, 2, 3, or 4).
IV. E911
A segregated trunk group will be required to each appropriate E911
tandem within the exchange in which the LSP offers the Exchange Service.
This trunk group shall be set up as a one-way outgoing only and shall
utilize MF CAMA signaling. The traffic use code and modifier for this
trunk group shall be ESJ (see Scenario 1, 2, 3, or 4).
V. MASS CALLING (PUBLIC RESPONSE CHOKE NETWORK)
A segregated trunk group shall be required to the designated Public
Response Choke Network tandem in each serving area. This trunk group
shall be one-way outgoing only and shall utilize MF signaling. It is
recommended that this group be sized as follows:
<PAGE> 103
<TABLE>
<S> <C>
<15001 access lines (AC) 2 trunks (min)
15001 to 25000 AC 3 trunks
25001 to 50000 AC 4 trunks
50001 to 75000 AC 5 trunks
>75000 AC 6 trunks (max)
</TABLE>
The traffic use code and modifier for this trunk group shall be
TOCRJ (see Scenario 1, 2, 3, or 4).
VI. OPERATOR SERVICES
(a) No Operator Contract:
Inward Operator Assistance (Toll Center (TC) Code plus 121) -
The LSP may choose from two interconnection options for Inward
Operator Assistance as follows:
Option 1 - Interexchange Carrier (IXC) Carrier
The LSP may utilize the Interexchange Carrier Network (see
Scenario 6). The LSP operator will route its calls requiring
inward operator assistance through its designated IXC POP to SWBT's
TOPS tandem. SWBT shall route its calls requiring inward operator
assistance to the LSP's Designated Operator Switch (TTC) through
the designated IXC POP.
Option 2 - The LSP Operator Switch
The LSP reports its switch as the designated serving operator
switch (TTC) for its NPA-NXXs and requests SWBT to route its calls
requiring inward operator assistance to the LSP. This option
requires a segregated two-way (with MF signaling) trunk group from
SWBT's Access Tandem to the LSP switch. The traffic use code and
modifier for this trunk group should be OAJ (see Scenario 7). The
LSP's operator will route its calls requiring inward operator
assistance to SWBT's operator over an IXC network.
(b) Operator Contract with SWBT:
(i) Directory Assistance (DA):
The LSP may contract for DA services only. A segregated
trunk group for these services would be required to SWBT's
TOPS tandem. This trunk group is set up as one-way outgoing
only and utilizes MF and Operator Services signaling. The
traffic use code and modifier for this trunk group should be
DAJ (see Scenario 5).
<PAGE> 104
(ii) Directory Assistance Call Completion (DACC):
The LSP contracting for DA services may also contract
for DACC. This requires a segregated one-way trunk group to
SWBT's TOPS tandem. This trunk group is set up as one-way
outgoing only and utilizes MF signaling. The traffic use
code and modifier for this trunk group should be DACCJ (see
Scenario 5).
(iii) Busy Line Verification:
When SWBT's operator is under contract to verify the
LSP's end user loop, SWBT will utilize a segregated one-way
with MF signaling trunk group from SWBT's Access Tandem to
the LSP switch. The traffic use code and modifier for this
trunk group should be VRJ (see Scenario 5)
(iv) Operator Assistance (0+, 0-):
This service requires a one-way trunk group from the LSP
switch to SWBT's TOPS tandem. Two types of trunk groups may
be utilized. If the trunk group transports DA/DACC, the
trunk group will be designated as ETCMFJ (0-, 0+, DA, DACC)
(see Scenario 5). If DA is not required or is transported on
a segregated trunk group, then the group will be designated
as ETCM2J (see Scenario 5). MF and Operator Services
signaling will be required on the trunk group.
VII. Trunk Design Blocking Criteria
Trunk forecasting and servicing for the Local and IntraLATA Toll
trunk groups shall be based on the industry standard objective of 2%
overall time consistent average busy season busy hour loads (1% from the
End Office to the Tandem and 1% from the Tandem to the End Office based
on Neil Wilkinson B.01M [Medium Day-to-Day Variation] until traffic data
is available). Listed below are the trunk group types and their
objectives:
<TABLE>
<S> <C> <C>
Trunk Group Type Blocking Objective (Neil Wilkinson M)
---------------- -------------------------------------
Local Tandem 1%
Local Direct 2%
IntraLATA Interexchange 1%
911 1%
Operator Services (DA/DACC) 1%
Operator Services (0+, 0-) 0.5%
InterLATA Tandem 0.5%
</TABLE>
<PAGE> 105
VIII. FORECASTING/SERVICING RESPONSIBILITIES
Both Parties agree to provide an initial forecast for establishing
the initial interconnection facilities. Subsequent forecasts will be
provided on a semi-annual basis concurrent with the publication of the
SWBT General Trunk Forecast including yearly forecasted trunk quantities
for all trunk groups described in this Appendix for a minimum of three
years and the use of Common Language Location Identifier (CLLI-MSG) which
is described in Bellcore documents BR795-100-100 and BR795-400-100.
Trunk servicing will be performed on a monthly basis at a minimum.
SWBT shall be responsible for forecasting and servicing the trunk
groups terminating to the LSP. The LSP shall be responsible for
forecasting and servicing the trunk groups terminating to SWBT end users
and/or to be used for tandem transit to other provider's networks,
operator services and DA service, and InterLATA toll service. Standard
trunk traffic engineering methods will be used as described in Bell
Communications Research, Inc. (Bellcore) document SR-TAP-000191, Trunk
Traffic Engineering Concepts and Applications.
IX. TRUNK SERVICING
1. Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an Access Service
Request ("ASR").
2. All Parties shall jointly manage the capacity of local
Interconnection Trunk Groups. Either Party may send the other Party
an ASR to initiate changes to the Local Interconnection Trunk Groups
that the ordering Party desires based on the ordering Party's
capacity assessment. The receiving Party will issue a Firm Order
Confirmation ("FOC") and a Design Layout Record ("DLR") to the
ordering Party within five (5) business days after receipt of the
ASR.
3. Orders that comprise a major project (i.e., new switch
deployment) shall be submitted in a timely fashion, and their
implementation shall be jointly planned and coordinated.
4. SWBT will process trunk service requests submitted via a
properly completed ASR within twenty (20) business days of receipt
of such ASR. Facilities must also be in place before trunk orders
can be completed.
5. In the event that a Party requires trunk servicing within
shorter time intervals than those provided for in this Article XI
due to a bona fide end user demand, such Party may designate its ASR
as an "Expedite" and the other Party shall use best efforts to issue
its FOC and DLR and install service within the requested interval.
6. Each Party shall be responsible for engineering their
networks on their side of the NIP.
<PAGE> 106
X. SERVICING OBJECTIVE/DATA EXCHANGE
Each Party agrees to service trunk groups to the foregoing blocking
criteria in a timely manner when trunk groups exceed measured blocking
thresholds on an average time consistent busy hour for a 20 business day study
period. Upon request, each Party will make available to the other, trunk group
measurement reports for trunk groups terminating in the requesting Party's
network. These reports will contain offered load, measured in CCS (100 call
seconds), that has been adjusted to consider the effects of overflow, retrials
and day-to-day variation. They will also contain overflow CCS associated with
the offered load, day-to-day variation, peakedness factor, the date of the last
week in the four week study period and the number of valid days of measurement.
These reports shall be made available at a minimum on a semi-annual basis upon
request.
XI. SPECIFICATIONS
All DS-1 and DS-3 facilities utilized for trunking established or employed
by the Parties for purposes of this STC shall meet the specifications set forth
in SWBT's TP-76625 dated June, 1990 and TP-76839 dated January, 1996.
XII. TRUNK FACILITY UNDER UTILIZATION
At least once a year the Parties shall exchange trunk group measurement
reports as detailed above for trunk groups terminating to the other Party's
network. Each Party will determine the required trunks for each of the other
Party's trunk groups for the previous 12 months. Required trunks will be based
on the Blocking Objectives under "Trunk Design Blocking Criteria" above and time
consistent average busy hour usage measurements from the highest 4 consecutive
week (20 business day) study. Trunk groups with excess capacity will be
identified to the other Party as eligible for downsizing. Excess capacity
exists when a trunk group, on a modular trunk group design basis, has 48 trunks
(2 modular digroups) or 10%, whichever is larger, over the required number of
trunks.
The party with excess trunking capacity will assess the trunk capacity
based on forecasted requirements and agrees to disconnect trunks in excess of
forecasted requirements for the next 12 months. If after 12 months the trunk
group continues to have excess capacity the party agrees to take timely steps to
disconnect all excess capacity.
XIII. Where available and upon the request of the other Party, each Party
shall cooperate to ensure that its trunk groups are configured utilizing
the B8ZS ESF protocol for 64 kbps clear channel transmission to allow for
ISDN interoperability between the Parties' respective networks.
XIV. INSTALLATION, MAINTENANCE, TESTING AND REPAIR. SWBT's standard intervals
for Feature Group D Switched Exchange Access Services will be used for
Interconnection trunks as
<PAGE> 107
specified in the most current SWBT Accessible Letter, currently SWA96-036,
dated April 15, 1996. The LSP shall meet the same intervals for comparable
installations, maintenance, joint testing, and repair of its facilities and
services associated with or used in conjunction with Interconnection or shall
notify SWBT of its inability to do so and will negotiate such intervals in good
faith.
<PAGE> 108
SCENARIO 1
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WITHOUT DIRECT END OFFICE,
ILEC OR IXC TRUNKING
[graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
---------------------- -----------------------------------
<S> <C>
1. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
2. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7 SIGNALING) #
5. MDJ INTERLATA ONLY (MF SIGNALING) @
6. MDJ INTERLATA ONLY (SS7 SIGNALING)
7. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and
Feature Group B over D
# Required if SWBT does not perform the database query for the LSP
</TABLE>
Revised 6/17/96
LSP1.AF3
<PAGE> 109
SCENARIO 2
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WITH SOME DIRECT END
OFFICE, ILEC AND IXC TRUNKING
[graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
- -------------------- -----------
<S> <C>
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
4. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. MDJ INTERLATA ONLY (MF SIGNALING) @
8. MDJ INTERLATA ONLY (SS7 SIGNALING)
9. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut
through and Feature Group B over D
# Required if SWBT does not perform the database query for
the LSPp
</TABLE>
Revised 6/17/96
LSP2.AF3
<PAGE> 110
SCENARIO 3
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS TANDEMS WITHOUT DIRECT END
OFFICE, ILEC OR IXC TRUNKING
[Graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
- -------------------- -----------
<S> <C>
1. TOJ LOCAL ONLY (SS7 SIGNALING)
2. TGJ LOCAL ONLY (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
5. DDJ INTRALATA ONLY (SS7 SIGNALING)
6. TCJ INTRALATA ONLY (SS7 SIGNALING)
7. MDJ INTERLATA ONLY (SS7 SIGNALING)
8. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform the database query for
the LSP.
</TABLE>
Revised 12/30/96
LSP3.AF3
<PAGE> 111
SCENARIO 4
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS TANDEMS WITH SOME DIRECT END
OFFICE, ILEC AND IXC TRUNKING
[Graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
- -------------------- -----------
<S> <C>
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. TOJ LOCAL ONLY (SS7 SIGNALING)
4. TGJ LOCAL ONLY (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. DDJ INTRALATA ONLY (SS7 SIGNALING)
8. TCJ INTRALATA ONLY (SS7 SIGNALING)
9. MDJ INTERLATA ONLY (SS7 SIGNALING)
10. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform database query for
the LSP.
</TABLE>
Revised 12/30/96
LSP4.AF3
<PAGE> 112
SCENARIO 5
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDE WHERE SWBT IS THE OPERATOR
SERVICES PROVIDER FOR THE LSP
[Graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
-------------------- -----------
<S> <C>
1. VRJ BUSY LINE VERIFICATION (MF SIGNALING) #
2. DAJ or DACCJ DIRECTORY ASSISTANCE or DIRECTORY
ASSISTANCE CALL COMPLETION (MF SIGNALING,
OPERATOR SERVICES SIGNALING)
3. ETCM2J 0-, 0+ COMBINED COIN AND NONCOIN (MF
SIGNALING, OPERATOR SERVICES SIGNALING)
4. ETCMFJ 0-, 0+, DA, DACC COMBINED COIN AND NONCOIN
(MF SIGNALING, OPERATOR SERVICES SIGNALING)
</TABLE>
# Busy Line Verification is sometimes trunked out from the TOPS Tandem
rather than the Access Tandem.
Revised 1/7/97
LSP5.AF3
<PAGE> 113
SCENARIO 6
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDE WHERE SWBT IS NOT THE
OPERATOR SERVICES PROVIDER FOR THE LSP
121 INWARD OPERATOR ASSISTANCE
[Graphic]
Note: This scenario would use existing Interexchange Carrier Network.
Revised 6/17/96
LSP6.AF3
<PAGE> 114
SCENARIO 7
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WHERE SWBT IS NOT THE
OPERATOR SERVICES PROVIDER FOR THE LSP AND THE LSP'S SWITCH IS THE DESIGNATE
OPERATOR SWITCH (TTC) FOR 121 INWARD ASSISTANCE
[Graphic]
<TABLE>
<CAPTION>
TRAFFIC USE/MODIFIER DESCRIPTION
---------------------- -----------------------------------
<S> <C> <C>
1. OAJ ACCESS TO INWARD OPERATOR (121) (MF
SIGNALING)
</TABLE>
Revised 6/17/96
LSP7.AF3
<PAGE> 115
APPENDIX LIDB
AGREEMENT FOR THE PROVISION OF DATA BASE ADMINISTRATION
AND
LINE INFORMATION DATA BASE (LIDB) STORAGE
This Appendix, between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide data base administration to store LSP's line/billing
records in SWBT's Line Information Data Base (LIDB).
WHEREAS, SWBT owns and maintains a Line Validation Administration System (LVAS)
that provides facilities for adding, deleting, and changing information in
LIDB; and
WHEREAS, SWBT maintains LIDB for various purposes, including the validation of
alternately billed service (ABS) requests and the provision of other services;
and
WHEREAS, LSP desires to have SWBT use LVAS to administer LSP's line information
cords for the provision of services set forth in the exhibits attached to this
Appendix; and
WHEREAS, SWBT is willing to provide, where equipment, processing capability and
hardware configurations permit, such LVAS services and LIDB storage for LSP;
and
WHEREAS, SWBT owns and maintains a Sleuth System that provides facilities for
ABS fraud monitoring; and
WHEREAS, LSP desires SWBT to use its Sleuth System for ABS fraud monitoring of
its telecommunications traffic.
NOW, THEREFORE, in consideration of the mutual promises and undertakings made,
the parties agree as follows:
1. DEFINITIONS
As used herein and for the purpose of this Appendix, the following terms
shall have the meanings set forth below:
A. Alternate Billing Services (ABS) - A service that allows end
users to bill calls to accounts that may not be associated with the
originating line. There are three types of ABS calls: calling
card, collect and third number billed calls.
B. Billed Number Screening (BNS) - A process which utilizes a
database to determine specific characteristics and/or end user
preferences with respect to a billed number.
<PAGE> 116
C. Calling Card Service (CCS) - A service which enables a
calling customer to bill a telephone call to a calling card number
with or without the help of an operator.
D. Data Base - An integrated collection of related data. In the
case of the LIDB, the data base is the line number and related line
information.
E. Data Base Administration Center (DBAC) - The LIDB input
center where the LVAS facility and administrative personnel are
currently located.
F. Exchange - For the purpose of this Appendix, a specific
NPA-NXX combination.
G. Group Record - Information in LIDB or LVAS that is common to
all lines or billing records in an NPA-NXX or NPA-RAO.
H. LIDB Editor - A database editor located at the SCP where LIDB
resides. LIDB ditor provides emergency access to LIDB that bypasses
the service management system for LIDB.
I. Line Validation Administration System (LVAS) - An off-line
administrative system, used by SWBT to add, delete and change
information in LIDB.
J. Line Information Data Base (LIDB) - The line information
database, which is an ANSI SS7 database system, functions as a
centralized repository for data storage and retrieval. LIDB
supports validation and recording of ABS requests. LIDB also
supports storage, retrieval and recording capabilities for other
information that can be associated with an end user's line.
Examples of such information are, or are expected to be, originating
screening information, ZIP code data and calling name.
K. Line Record - Information in LIDB or LVAS that is specific to
a single telephone number or special billing number.
L. Personal Identification Number (PIN) - A confidential four
digit code number provided to a calling card customer to prevent
unauthorized use of his/her calling card number. The PIN is stored
in the LIDB for those line numbers that have an associated calling
card.
M. Response - A single response in a set of predefined expected
responses to a request for information contained in a query from a
computer processor.
<PAGE> 117
N. Toll Billing Exception (TBE) - A LIDB option that allows end
users to restrict third number billing or collect calls to their
lines.
O. Service Management System (SMS) - An off-line system used to
access, create, modify, or update information in LIDB. For the
purposes of this appendix, the SMS for LIDB is LVAS.
P. Sleuth - An off-line administration system that SWBT uses to
monitor suspected occurrences of ABS-related fraud. Sleuth uses a
systematic pattern analysis of query message data to identify
potential incidences requiring fraud investigation. Detection
parameters are based upon vendor recommendations and SWBT's analysis
of collected data and are subject to change from time to time.
Q. Special Billing Number (SBN) Account Groups - Line records in
LIDB that are based on an NPA-RAO numbering format. NPA-RAO
numbering formats are similar to NPA-NXX formats except that the
fourth digit of an NPA-RAO line record is either a zero (0) or a one
(1).
R. Tape Load Facility - A separate data entry point at the SCP
where LIDB resides. The Tape Load Facility provides direct access
to LIDB for data administration that bypasses the service management
system for SWBT's LIDB.
S. Translation Type - A code in the Signaling Connection Control
Point (SCCP) of the SS7 signaling message. Translation Types are
used for routing LIDB queries. Signal Transfer Points (STPs) use
Translation Types to identify the routing table used to route a LIDB
query. All LIDB queries against the same exchange and Translation
Type are routed to the same LIDB.
2. General Description
A. SWBT's LIDB is connected directly to a service management
system (i.e., LVAS), a database editor (i.e., LIDB Editor), and a
tape load facility. Each of these facilities, processes, or
systems, provide SWBT with the capability of creating, modifying,
changing, or deleting, line/billing records in LIDB. SWBT's LIDB is
also connected directly to an adjunct fraud monitoring system (i.e.,
Sleuth).
B. SWBT will provide LSP with access to LVAS, LIDB Editor, and
tape load facility as set forth in this Appendix and the Exhibit or
Exhibits attached hereto. SWBT warrants that the manner in which it
provides such access to LSP will be equivalent to the manner in
which SWBT provides such access to itself.
<PAGE> 118
C. SWBT will also provide LSP with fraud alerts from Sleuth as
set forth in this Appendix and in Exhibit IV (Sleuth). SWBT
warrants that it will provide fraud alerts to LSP using the same
fraud monitoring parameters as SWBT uses for itself.
D. From time-to-tome, SWBT enhances its LIDB to create new
services and/or LIDB functionalities. Such enhancements may involve
the creation of new line-level or group-level data elements in LIDB.
SWBT will coordinate with LSP to provide LSP with the opportunity
to update its data concurrent with SWBT's updates of SWBT's own
data. Both parties understand and agree that some LIDB enhancements
will require LSP to update its line/billing records with new or
different information.
E. Charges for the provisioning of Data Base Administration and
LIDB Storage are set forth in Exhibit II (Basis of Compensation).
3. Service Description
3.1 LVAS
LVAS provides LSP with the capability to access, create, modify or
update information in LIDB. LVAS has two electronic interfaces.
These interfaces are the Service Order Entry Interface and the
Interactive Interface.
3.1.1 Service Order Entry Interface
(A) The Service Order Entry Interface
provides LSP with unbundled access to SWBT's LVAS that
is equivalent to SWBT's own service order entry process
to LVAS. Service Order Entry Interface allows LSP to
electronically transmit properly formatted records from
LSP's service order process into LVAS.
(B) LSP's access to the Service Order
Entry Interface will be through a remote access facility
(RAF). The RAF will provide SWBT with a security
gateway for LSP access to the Service Order Entry
Interface. The RAF will verify the validity of LSP's
transmissions and limit LSP's access to SWBT's Service
Order Entry Interface to LVAS. LSP does not gain access
to any other SMS, interface, database, or operations
support system through this Appendix.
(C) SWBT will provide LSP with the file
transfer protocol specifications LSP will use to
administer LSP's data over the
<PAGE> 119
Service Order Entry Interface. LSP acknowledges that
transmission in such specified protocol is necessary for SWBT
to provide LSP with Data Base Administration and Storage.
(D) LSP can choose the Service Order Entry Interface as its
only interface to LVAS and LIDB or the LSP can choose to
use this interface in conjunction with any other
interface that SWBT provides under this Appendix except
the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific documentation
for properly formatting the records LSP will transmit
over the Service Order Entry Interface.
(F) LSP understands that its record access through the
Service Order Entry Interface will be limited to its own
line/billing records.
3.1.2 Interactive Interface
(A) The Interactive Interface provides LSP with unbundled
access to SWBT's LVAS that is equivalent to SWBT's access
at its LIDB DBAC. Interactive Interface provides LSP with
the ability to have its own personnel access LSP's
records via an application screen that is presented on a
computer monitor. Once LSP has accessed one of its
line/billing records, LSP can perform all of the data
administration tasks SWBT's LIDB DBAC personnel can
perform on SWBT line/billing records.
(B) SWBT will provide LSP with Interactive Interface through
a modem. LSP understands that its record access through
the Interactive Interface will be limited to its own
line/billing records.
(C) LSP will use hardware and software that is compatible
with LVAS hardware and software.
(D) LSP can choose to request the Interactive Interface as
its only interface to LVAS and LIDB or the LSP can choose
to use this interface in conjunction with any other
interface that SWBT provides under this Appendix except
the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific documentation in
the form of screen prints and prints of help screens.
<PAGE> 120
3.1.3 Manual Interface
(A) Manual Interface is available only if the LSP has 1,000
line/billing records or less. Manual Interface allows
LSP to fax updates to SWBT's LIDB DBAC. SWBT's LIDB DBAC
personnel will manually enter these faxed updates into
LVAS for LSP.
(B) Manual Interface is not available with any other
interface SWBT provides under this Appendix.
(C) LSP understands that its record access through the Manual
Interface will be limited to its own line/billing
records.
3.2 Tape Load Facility Interface
(A) Tape Load Facility Interface provides LSP with unbundled
access to SWBT's Tape Load Facility in the same manner
that SWBT accesses this facility. Tape Load Facility
Interface allows LSP to create and submit magnetic tapes
for input into LIDB.
(B) The Tape Load Facility Interface is not an interface to
LVAS. The Tape Load Facility Interface is an entry
point to LIDB at the SCP where LIDB resides.
(C) The Tape Load Facility Interface is available only when
the amount of information is too large for LVAS to
accommodate. Both parties agree that these situations
normally occur during the initial load of LSP's
information into LIDB or when LIDB is updated for a new
product. The Tape Load Facility Interface is not
available for ongoing updates of information. LSP may
request the Tape Load Facility Interface only when its
updates exceed 100,000 line/billing records over and
above the LSP's normal daily update processing.
(D) LSP will create its own tapes in formats specified in
GR-446-CORE, Issue 2, June 1994, as revised. Such tapes
will only include information associated with LSP's
line/billing records.
(E) LSP will deliver a separate set of tapes, each having
identical information to each SCP node on which LIDB
resides. SWBT will provide LSP with the name and
address of the SWBT employee designated to receive the
tapes at each location.
<PAGE> 121
(F) In addition to the tapes LSP will create and deliver to
the SCP node locations, LSP shall deliver an additional
set of tapes to the LVAS System Administrator so that
SWBT can load LSP's updates into LVAS. LSP understand
that these additional tapes must contain information
identical to the tapes delivered to the SCP nodes, but
that the format will differ. SWBT shall provide LSP
SWBT-specific documentation for record formations of
these additional tapes. SWBT shall use these tapes to
create LSP records in LVAS that correspond with the
records being loaded into LIDB using the Tape Load
Facility Interface. SWBT shall provide LSP with the name
and address of the SWBT System Administrator to whom the
LVAS update tapes should be sent.
(G) SWBT and LSP shall negotiate mutually agreed upon dates
and times for tape loads of LSP data when such loads are
the result of an LSP request.
(H) LSP understands and agrees that its record access through
the Tape Load Facility Interface is only for LSP's own
line/billing records. LSP warrants that it shall not use
the Tape Load Facility Interface to modify any group
record. LSP further warrants that it shall not use the
Tape Load Facility Interface to modify any line/billing
record not belonging to LSP.
3.3 LIDB Editor Interface
(A) LIDB Editor Interface provides LSP with unbundled access
to SWBT's LIDB Editor equivalent to SWBT's manner of
access. LIDB Editor provides LSP with emergency access
to LIDB only when LVAS is unable to access LIDB or is
otherwise inoperable.
(B) LIDB Editor Interface is not an interface to LVAS. LIDB
Editor is an SCP tool accessible only by authorized SWBT
employees. LSP shall have access to SWBT employees
authorized to access LIDB Editor during the same times
and under the same conditions that SWBT has access to
LIDB Editor.
(C) LSP understands that its record access through the LIDB
Editor Interface is limited to its own line/billing
records.
3.4 Audits
SWBT shall provide LSP with access equivalent to SWBT's own
access to LVAS audit functionalities.
<PAGE> 122
3.4.1 LIDB Audits
(A) This audit is between LVAS and LIDB. This audit
verifies that LVAS records match LIDB records. The LIDB
Audit is against all line records and group record
information in LVAS and LIDB, regardless of data
ownership.
(B) SWBT shall run the LIDB audit continuously throughout
each and every day.
(C) SWBT shall create a "variance file" of all LSP records
that fail the LIDB audit. LSP can access these files
through the Interactive Interface.
(D) LSP shall investigate accounts that fail the LIDB audit
and correct any discrepancies as set forth in paragraph
3(H). LSP shall correct all discrepancies using the
LVAS interface(s) LSP has requested under this Appendix.
3.4.2 Billing System Audit
(A) This type of audit is between LVAS and SWBT's billing
system(s). This audit verifies that LVAS records match
SWBT's billing system records.
(B) SWBT shall provide LSP with access equivalent to SWBT's
own access to the billing system audit functionality.
SWBT shall provide LSP with a file containing LSP
records in LIDB. LSP shall specify if the billing
system audit tape will be delivered by either magnetic
tape or electronically over the Service Order Entry
Interface.
(C) LSP shall audit its LIDB accounts against LSP's billing
system and correct any discrepancies as set forth in
paragraph 3(H). LSP shall correct all discrepancies
using the LVAS interface(s) LSP has requested under this
Appendix.
SWBT shall provide LSP scheduled and unscheduled billing
system audits as set forth below:
(1) Scheduled Audits
<PAGE> 123
SWBT shall provide LSP with a billing system
audit file twice per year. Such audit files will
represent LSP's entire data store in LVAS. The
Parties shall mutually agree upon the dates such
audit files will be provided.
(2) Unscheduled Audits
LSP can request additional audit files and SWBT
will work cooperatively to accommodate all
reasonable LSP requests for such additional audit
files. Charges for additional audit files shall
apply as set forth in Exhibit II (Basis for
Compensation).
3.5 Sleuth
(A) Sleuth notification provides LSP with
Sleuth alert messages. Sleuth alert messages indicate
potential incidences of ABS-related fraud for
investigation.
(B) Sleuth historical reports are
available to LSP as set forth in Exhibit IV (Sleuth).
3. Manner of Provisioning
(A) SWBT shall provide to LSP, on request, SWBT-specific
documentation regarding record formatting and associated hardware
requirements for LSP to access each of the interfaces SWBT provides
for LIDB data administration.
(B) LSP shall obtain, at its own expense, all necessary
documentation produced by non-SWBT entities such as Bellcore.
(C) Magnetic tapes submitted by LSP must conform to the hardware
specifications of each SCP node where LIDB resides. This includes
9-track and 8mm tapes as well as other site-specific limitations.
SWBT shall provide LSP with all magnetic tape hardware requirements
upon request. LSP shall create the magnetic tapes its submits for
input into LIDB and LVAS over the tape load interface.
(D) SWBT shall input information provided by LSP into LIDB for
the NPA-NXXs and/or NPA-RAOs set forth in Exhibit I, EXCHANGES TO BE
ADMINISTERED, attached hereto and made a part hereof. LSP shall
provide all information needed by SWBT to support the services being
requested. This information may include, but is not limited to,
Calling Card Service information, Toll Bill Exception information
(such as restrictions on collect
<PAGE> 124
and third number billing), class of service information, originating line
number screening information, ZIP code information, and calling name
information.
(E) LSP shall furnish, prior to the initial LVAS load, and as
requested by SWBT thereafter, the following forecast data:
- the number of working lines per account group
- the number of working line numbers to be established
- the average number of monthly changes to these records
- the number of busy hour queries, by query type
- the number of annual queries by query type
If SWBT, at its discretion, determines that it lacks adequate
storage, or processing capability, prior to the initial loading of
LSP information, SWBT shall notify LSP of its intent to not provide
to LSP the Services under this Appendix and this Appendix will be
void.
(F) LSP shall furnish all line records and group records in a
format required by SWBT to establish records in LIDB for all working
line numbers, not just line numbers associated with calling card PIN
or Toll Billing Exceptions (TBE).
(G) LSP acknowledges that SWBT's LIDB is accessible by many
telecommunications companies and that these telecommunications
companies expect a high degree of accuracy in the response
information provided to their queries. LSP shall administer its
data in such a manner that SWBT's accuracy of response information
is not adversely impacted.
(H) LSP shall verify to SWBT the line information data residing
in LVAS by reviewing the listing of line information data provided
by SWBT's billing system audit file. LSP shall provide to SWBT all
additions, deletions, and corrections resulting from its
verification on, or before, the fourteenth business day following
its receipt of line information verification reports produced by
SWBT for audit processes.
(I) SWBT shall provide the functionality needed to perform
certain query/response functions on a call-by-call basis for the
line/billing records of LSP that reside in SWBT's LIDB. Those
query/response functions SWBT will perform are set forth in the
Exhibits.
(J) With respect to all matters covered by this Appendix, each
Party shall adopt and comply with SWBT standard operating methods
and procedures and shall observe the rules and regulations which
cover the administration of LVAS service and the Sleuth System, as
set forth in SWBT practices. The Parties acknowledge that those
practices may be changed by SWBT from time to time.
<PAGE> 125
(K) Administration of the SCP on which LIDB resides, as well as
any system or query processing logic that applies to all data
resident on SWBT's LIDB is, and remains, the responsibility of SWBT.
LSP acknowledges that SWBT, in its role as system administrator,
may need to access any record in LIDB, including any such records of
LSP. SWBT shall limit such access to those actions necessary to
ensure the successful operation and administration of SWBT's SCP and
LIDB.
(L) LSP acknowledges that SWBT shall, in its sole discretion,
allow or negotiate any access to SWBT's LIDB. LSP does not gain any
ability, by virtue of this Appendix, to determine which
telecommunications companies are allowed to access information in
SWBT's LIDB. LSP acknowledges that when SWBT allows a query
originator to access SWBT data in SWBT's LIDB, such query
originators shall also have access to LSP's data that is also stored
in SWBT's LIDB.
(M) LSP acknowledges that SWBT does not have data screening
capability in LIDB. Data Screening is the ability of a LIDB owner
to deny complete or partial access to LIDB data or processes.
4. Billing
Compensation to SWBT for data storage and administration service and
Sleuth services shall be based upon the rates set forth in Exhibit II
(Basis of Compensation), attached hereto and made a part hereof. These
rates will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
seventy-five (75) days' notice. SWBT may first give such notice
seventy-five days before the end of the first year.
4.1 SWBT Responsibilities
(A) SWBT shall determine, for billing purposes, the
number of access lines that are administered for each NPA-NXX
or NPA-RAO for which SWBT performs the database administration
function on behalf of LSP. SWBT shall quantify access lines
monthly.
(B) SWBT shall provide, upon written request, such
data as is reasonably necessary to verify billing charges for
data base administration update functions. SWBT shall provide
this information in standard SWBT LVAS report formats.
(C) SWBT shall provide such data, as is reasonably
necessary, to enable the independent Billing Information
Systems (IBIS) billing statements to be
<PAGE> 126
substantiated for query volumes of LSP line/billing records that
reside in SWBT's LIDB. SWBT shall provide this data to LSP in
standard Exchange Message Record (EMR) format.
4.2 LSP Responsibilities
(A) LSP shall pay SWBT the amounts billed for the
services rendered.
(B) LSP shall bill the appropriate charges to end
users, on behalf of third parties who query LIDB and receive a
response verifying the end user's willingness to accept the
charges for the underlying call.
(C) LSP shall provide to third parties, that query
LIDB and receive a response verifying an end user's
willingness to accept charges of services supported by LIDB,
all necessary billing information needed by the third party to
bill for the services provided.
4.3 Compensation for Data Access
(A) Subject to the limitations in (B) below, SWBT
shall compensate LSP for queries against the data LSP stores
in SWBT's LIDB. Queries by SWBT and LSP against the data LSP
stores in SWBT's LIDB shall be included in the count of
queries for which LSP will be compensated. SWBT shall
compensate LSP by paying a percentage of the amounts SWBT
billed, or would have billed, for each query. LSP
acknowledges that the amount SWBT bills for LIDB queries
against LSP's data may differ by query type, by query
originator, and/or may change over time. The percentage SWBT
will use to calculate such credits is set forth in Exhibit II
(Basis of Compensation).
(B) LSP acknowledges that SWBT's ability to provide
such credit is based upon SWBT's ability to identify account
ownership in LIDB. LSP acknowledges that LIDB currently
identifies account ownership only at the level of the group
record (i.e., NPA-NXX or NPA-RAO). LSP further agrees that
SWBT will not provide such credit for LSP accounts that reside
in group records that also contain SWBT or other data owner
accounts. SWBT agrees to work with its LIDB and switch
vendors to attempt to develop the capabilities for SWBT to
identify, and record for billing, the service provider of
individual line/billing records. SWBT shall provide LSP
compensation if SWBT implements such capabilities in its
network.
5. Liability
<PAGE> 127
(A) SWBT shall not be liable for any losses or damages arising
out of errors, interruptions, defects, failures, or malfunction of
LVAS, including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole negligence
of SWBT. Any losses or damages for which SWBT is held liable under
this Appendix shall in no event exceed the amount of charges made
for LVAS during the period beginning at the time SWBT receives
notice of the error, interruption, defect, failure or malfunction to
the time service is restored.
(B) SWBT shall not be liable for any losses or damages arising
out of SWBT's administration of Sleuth.
(C) SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING
FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT.
(D) LSP agrees to release, indemnify, defend, and hold harmless
SWBT from any and all claims, demands, or suits brought by a third
party against SWBT, directly or indirectly, arising out of SWBT's
provision of service under this Appendix. This provision shall not
apply to any losses, damages or other liability for which SWBT is
found liable as a result of its sole negligence.
6. Disclaimer of Warranties
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO LVAS SERVICE,
LIDB OR THE SLEUTH SYSTEM. ADDITIONALLY, SOUTHWESTERN BELL ASSUMES NO
RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP
WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
<PAGE> 128
APPENDIX LIDB
EXHIBIT I
EXCHANGES TO BE ADMINISTERED
SWBT shall provide service management system and other interface service
capabilities to LSP as set forth in this Appendix and attached Exhibit or
Exhibits for the following LSP exchanges:
<TABLE>
<S> <C> <C>
EXCHANGE NAME NPA NXX NPA-RAO
</TABLE>
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
(Attach additional copies as needed)
<PAGE> 129
APPENDIX LIDB
EXHIBIT II
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. RATES AND CHARGES
<TABLE>
<CAPTION>
Manual Interface Rate Per Initial Load
---------------------
<S> <C>
(a) Initial Load
(1) per initial load $372.00
(2) per 100 line records
loaded $55.00
(b) Ongoing Updates Rate Per Month
--------------
(1) per month $51.00
(2) per 100 line records
stored in LIDB $ 3.75
</TABLE>
<PAGE> 130
APPENDIX LIDB
EXHIBIT III
CALLING CARD AND BILLED NUMBER SCREENING VALIDATION
(A) SWBT shall provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to:
1. Validate a 14-digit billing number where the
first 10 digits are a telephone number or a special billing
number assigned and the last four digits (PIN) are a security
code assignment.
2. Determine whether the billed line automatically
rejects, accepts, or requires verification of certain calls
billed as collect or third number.
3. Determine whether the billed line is a public
telephone number using the Class of Service information in the
LIDB.
B. LSP shall bill the appropriate charges to end users, on behalf of third
parties who query LIDB and receive a response validating the end user's
willingness to accept the charges for the underlying call.
Approved and executed the ________________________ day of ___________, 19__.
<TABLE>
<CAPTION>
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
<S> <C>
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
</TABLE>
<PAGE> 131
APPENDIX LIDB
EXHIBIT IV
SLEUTH
(A) SWBT shall provide LSP with an alert notification, by fax, or another
mutually agreed upon format, when SWBT's Sleuth system indicates the
probability of a fraud incidence. SWBT will use the same criteria to
determine fraud alerts for LSP as SWBT uses for its own accounts.
(B) Sleuth alert messages have four levels of priority. These levels are
low, medium, high and urgent. Sleuth delivers alert messages to a queue
in the Sleuth DBAC in priority order. Urgent alerts are prioritized
first, followed by high, medium and low alerts (in that order).
(C) SWBT's Sleuth investigators can access alerts only in the order the
alerts appear in the queue. Low alerts almost never see investigator
treatment. However, when Sleuth encounters a number of low priority
alerts on the same account, Sleuth may upgrade the alert's status to a
higher priority status.
(D) When a Sleuth investigator determines that an urgent, high, or medium
priority alert is for an LSP account, the Sleuth investigator will print
the alert for the queue and fax the alert to the LSP. Sleuth alerts only
identify potential occurrences of fraud. The LSP receiving Sleuth alerts
will need to perform its own investigations to determine whether a fraud
situation actually exists. The LSP will also need to determine what, it
any action should it take as a result of a Sleuth alert.
(E) SWBT's hours of operation for Sleuth are seven days a week, twenty-four
hours per day (7X24). LSP shall provide SWBT with a contact name and fax
number for SWBT to fax alerts from SWBT's Sleuth DBAC.
(F) SWBT shall provide LSP with a Sleuth contact name and number, including
fax number, for LSP to contact the Sleuth DBAC.
(G) For each alert notification SWBT provides to LSP, LSP may request a
corresponding 30-day historical report of ABS-related query processing.
LSP may request up to three reports per alert. The charge for each
historical report is set forth in Exhibit II (Basis of Compensation).
<PAGE> 132
Approved and executed the ______________________ day of _________, 19__.
<TABLE>
<CAPTION>
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
<S> <C>
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
</TABLE>
<PAGE> 133
APPENDIX LIDB
EXHIBIT V
CNAM SERVICE QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable
to SWBT, SWBT will provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the name associated with the line record.
Calling Name records are limited to fifteen characters. LSP is responsible for
providing all name truncations and/or abbreviations needed to limit a calling
name to 15 characters. LSP is also responsible for ensuring that its calling
name data does not contain obscenities in English or other languages. Upon
receipt of Calling Name data, in a format acceptable to SWBT, SWBT will provide
the query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to identify the name associated with the line
record.
CNAM Service Query is SWBT's service that allows customers to query SWBT's LIDB
for calling name information. Calling Name information means a
telecommunications company's records of all its subscribers' names associated
with one or more ten-digit telephone numbers assigned to the end user.
Approved and executed the _______________________ day of _________, 19__.
<TABLE>
<CAPTION>
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
<S> <C>
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
</TABLE>
<PAGE> 134
APPENDIX LIDB
EXHIBIT VI
SINGLE NUMBER SERVICE (SNS) QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable
to SWBT, SWBT shall provide the functionality needed to perform the
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the ZIP code associated with the line
record.
Approved and executed the ______________________ day of _________, 19__.
<TABLE>
<CAPTION>
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
<S> <C>
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
</TABLE>
<PAGE> 135
APPENDIX LIDB
EXHIBIT VII
ORIGINATING LINE NUMBER SCREENING (OLNS) QUERY
Upon receipt of the line/billing information for LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the originating line screening requirements of the line
record.
LSP shall ensure that its OLNS data complies with the definitions and record
formats set forth in GR-1149-CORE and GR-446-CORE.
Approved and executed the ________________________ day of __________, 19__.
<TABLE>
<CAPTION>
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
<S> <C>
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
</TABLE>
<PAGE> 136
APPENDIX LIDB-V
PAGE 2 OF 14
APPENDIX LIDB VALIDATION SERVICE
WHEREAS, the Parties are interested in purchasing each other's LIDB
Validation Service (or equivalent service);
In consideration of the mutual promises contained herein, SWBT and LSP
agree as follows.
I. DEFINITIONS
A. A-links means a diverse pair of facilities connecting local
end office switching centers with Signaling Transfer Points.
B. Alternate Billing Service (ABS) means a service that allows
end users to bill calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect, and third number billed calls.
C. Billed Number Screening (BNS) means a validation of toll
billing exception (TBE) data and performance of public
telephone checks i.e., determining if a billed line is a
public (including those classified as semi-public) telephone
number.
D. Calling Card Service (CCS) means a service that enables a
calling customer to bill a telephone call to a calling card
number with or without the help of an operator.
E. Common Channel Signaling (CCS) Network means an out-of-band,
packet-switched, signaling network used to transport
supervision signals, control signals, and data messages.
Validation Queries and Response messages are transported
across the CCS network.
F. Data Base means an integrated collection of related data. In
the case of the LIDB, the data base is the line number and
related line information.
G. Data Owner means telecommunications companies that administer
their own validation data in a party's LIDB or LIDB-like
database.
H. Line Information Data Base (LIDB) means an ANSI SS7
call-related database system. LIDB functions as a centralized
repository for data storage and retrieval. SWBT's LIDB
supports validation of ABS calls as well as certain other
services.
I. Line Record means information in LIDB that is specific to a
single telephone number or special billing number.
J. Nonrecurring charges are one-time charges that apply for a
specific work activity (i.e., installation or change to an
existing service). Nonrecurring charges are
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APPENDIX LIDB-V
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applicable for the establishment of LIDB Validation
Service, service rearrangements, and service order activity.
K. Originating Point Code (OPC) means a code assigned to identify
LSP's operator service system location(s).
L. Personal Identification Number (PIN) means a confidential
four-digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in LIDB for those line numbers that have an
associated calling card.
M. Query means a message in American National Standards
Institute's (ANSI) standard SS7 signaling protocol which
represents a request to a LIDB or LIDB-like database for
Validation information.
N. Query Rate applies to each Validation Query that is received
at SWBT's LIDB for the validation of calling card and toll
billing exception data and performance of public telephone
checks; i.e., determining if a billed line is a public
(including those classified as semi public) telephone number.
O. Query Transport Rate applies to each Validation Query
transported from SWBT's STP to the SCP where LIDB resides and
back. SWBT and LSP shall list their STP locations in the
National Exchange Carrier Association, Inc. Tariff FCC No. 4.
P. Response means an SS7 message which, when appropriately
interpreted, represents an answer to a Query.
Q. Service Order Charge is a nonrecurring charge that applies,
per service order form, that specifies the LSP's originating
point codes (OPCs) of the LSP's designated operator service
systems sending the Validation Query or Queries.
R. Service Control Point (SCP) is a CCS network node where
Validation information resides.
S. Service Point (SP) means a CCS network interface element
capable of initiating and/or terminating SS7 messages from
an end office.
T. Service Rearrangements are changes to existing services which
do not result in changes to previously established OPCs.
U. Service Switching Point (SSP) means the software capability
within a switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7
transmission/reception access ability.
V. Signaling System 7 (SS7) means the signaling protocol used by
the CCS network.
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APPENDIX LIDB-V
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W. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to
SWBT's SS7 network, LSP or a third party initiating LSP's
Validation Queries must connect with an SWBT STP in order to
connect to SWBT's SCP.
X. Special Billing Number means line records in LIDB that are
based on an NPA-RAO numbering format. NPA-RAO numbering
formats are similar to NPA-NXX formats except that the fourth
digit of an NPA-RAO line record is either a zero (0) or a one
(1).
Y. Toll Billing Exception (TBE) Service means a service that
allows end users to restrict third number billing or collect
calls to their lines.
Z. Validation information means Data Owners' records of all their
Calling Card Service and Toll Billing Exception Service.
II. DESCRIPTION OF SERVICE
A. SWBT shall provide LSP access to Validation information
whenever LSP initiates a query from an SSP for Validation
information available in SWBT's LIDB.
B. All LSP Queries to SWBT's LIDB shall use a translations type
of 253 and a subsystem number in the calling party address
field that is mutually agreed upon by the Parties. LSP
acknowledges that such subsystem number and translation type
values are necessary for SWBT to properly process Validation
Queries to its LIDB.
C. LSP warrants SWBT that LSP shall send Queries conforming to
the ANSI approved standards for SS7 protocol and pursuant to
the specification standards documents identified in Exhibit A
attached hereto and incorporated by reference. Both Parties
acknowledge that transmission in said protocol is necessary
for each party to provision Validation Service (or the
equivalent thereof). Both Parties warrant that they shall send
SS7 Messages that comply with ANSI approved standards for SS7
protocol and pursuant to the specification standards documents
identified in Exhibit A. Each Party reserves the right to
modify its network pursuant to other specifications standards,
which may include Bellcore Specifications defining specific
service applications, message types and formats, that may
become necessary to meet the prevailing demands within the
U.S. telecommunications industry. All such changes shall be
announced a minimum of one hundred eighty (180) days in
advance of implementation through industry standard
procedures. Each Party will work cooperatively to coordinate
any necessary changes.
D. LSP acknowledges that CCS/SS7 network overload due to
extraordinary volumes
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APPENDIX LIDB-V
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of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's CCS/SS7
network. LSP further agrees that SWBT, in its sole discretion,
shall employ certain automatic and/or manual overload controls
within SWBT's CCS/SS7 network to guard against these
detrimental effects. SWBT shall report to LSP any instances
where overload controls are invoked due to LSP's CCS/SS7
network and LSP agrees in such cases to take immediate
corrective actions as are necessary to cure the conditions
causing the overload situation.
E. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour Query volumes.
If, prior to the establishment of a mutually agreeable service
effective date, in writing, SWBT, at its sole discretion,
determines that it lacks adequate processing capability to
provide Validation Service to LSP, SWBT shall notify LSP of
SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
F. LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the
preceding year. LSP shall provide such updates each year for
the first three (3) years of this Appendix.
G. SWBT will perform testing of the LIDB Validation Service in
conjunction with CCS/SS7 Interconnection Service as outlined
in Bellcore Technical References TR-NWT-000954, TR-TSV-000905,
and TP 76638.
H. SWBT supports the performance standards as defined in Section
7 of TR- TSV-000905. The overall end-to-end CCS/SS7 network
objective is less than ten minutes unavailability per year
from any Signal Point (SP) to any other SP. The performance
objective for any single SP, including a Service Control Point
(SCP), is less than three minutes unavailability per year. The
combined link set from the SCP to the Signal Transfer Point
(STP) has a performance objective of less than two minutes
unavailability per year.
I. SWBT's LIDB Validation Service system downtime will be less
than twelve hours per year. The response time for a Query,
from switch transmission to reception, should not exceed one
second for ninety-nine (99) percent of all Queries.
J. SWBT shall administer its LIDB to provide acceptable service
levels to all customers of SWBT's LIDB Validation Service.
During periods of LIDB system congestion, SWBT will utilize an
automatic code gapping procedure to control such congestion.
The automatic code gapping procedure will tell LSP's switch
the gap (how long LSP's switch should wait before sending
another query) and the duration (how long the switch should
continue to perform gapping). For example, during an overload
condition, the automatic code gapping procedure
<PAGE> 140
APPENDIX LIDB-V
PAGE 6 OF 14
will tell SWBT's LIDB when to begin to drop one out of three
queries received. This code gapping procedure will be applied
uniformly to all users of SWBT's LIDB Validation Service. SWBT
maintains the right to invoke manual intervention of the
automatic code gapping procedure to preserve the integrity of
its network.
K. LSP agrees that network overload due to extraordinary volumes
of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's network and
its LIDB Validation Service. LSP further agrees to take
immediate, corrective actions as are necessary to cure the
conditions causing the overload situation.
L. All access by LSP to SWBT's LIDB shall occur through SWBT's
regional STP as designated by SWBT.
M. SWBT's LIDB shall contain a record for every SWBT working line
number and Special Billing Number served by SWBT. Other
telecommunications companies, including LSP, may also store
their data in SWBT's LIDB. SWBT shall request such
telecommunications companies to also provide this data as
well.
N. SWBT shall update the LIDB information; e.g., add, delete, and
modify customer accounts as customers move, become delinquent
on their account, or order new service, on a daily basis. SWBT
shall request other Data Owners to provide such updates in
like time.
O. SWBT has procedures in place to deactivate billing validation
data in the event that such data is being used fraudulently or
in the event end users exceed SWBT-defined limits on toll
charges. SWBT shall update SWBT-issued calling cards that
SWBT suspects of being fraudulently used or exceeding
SWBT-defined toll limits seven (7) days a week, 24 hours a
day.
P. SWBT's LIDB shall receive and respond to all Calling Card
Service and Billed Number Screening queries, including SWBT's
and LSP's queries, as defined in Bellcore publications
TR-NWT-000246, FR-NWT-000271, TR-TSV-000905, TR-NWT-000954 and
SWBT's publication TP 6638. These procedures shall be applied
uniformly to all users of SWBT's LIDB Validation Service.
Q. SWBT's LIDB Validation Service shall provide the following
functions on a per query basis:
- validation of a telecommunications calling card
account number stored in LIDB;
- determination of whether the billed line has decided
in advance to reject certain calls billed as collect
or to a third number; and
<PAGE> 141
APPENDIX LIDB-V
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- determination of billed line as a public (including
those classified as semi public) or nonworking
telephone number.
R. SWBT provides LIDB Validation Service as set forth in this
Appendix only as such service is used for LSP's activities as
a local service provider in SWBT's traditional serving areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and
Texas. SWBT provides a LIDB Validation Service for
interexchange carriers, operator service providers, and other
telecommunications companies under effective tariffs. LSP
agrees that any other use of SWBT's LIDB for the provision of
LIDB Validation Service by LSP, including, but not limited to,
when LSP acts as an LSP outside of SWBT's traditional serving
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas, and/or acts as an operator service provider to
other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange
carrier, will be pursuant to the terms, conditions, rates, and
charges of SWBT's effective tariffs, as revised, for LIDB
Validation Service.
III. PRICE AND PAYMENT
A. LSP shall pay SWBT a Validation Query rate and a Query
Transport Rate for each Query initiated into SWBT's LIDB.
These rates are set forth in Exhibit I (Basis of
Compensation), which is attached hereto and incorporated by
reference.
B. LSP shall pay a Nonrecurring Charge for each request for
establishment or change of existing LIDB Validation Service.
The LIDB Validation Service Establishment Charge applies per
originating point code per request and is set forth in Exhibit
I (Basis of Compensation).
C. LSP shall pay a Service Order Charge for each request for
service order activity. The Service Order Charge is set forth
in Exhibit I (Basis of Compensation).
D. Payment to SWBT for LIDB Validation Service shall be based
upon the rates set forth in Exhibit I (Basis of Compensation),
attached hereto and made a part thereof. These rates and
charges will apply for one (1) year from the service effective
date for each exchange. After one (1) year, SWBT may change
the rates upon sixty (60) days' notice. SWBT may first give
such notice sixty (60) days before the end of the first year.
E. SWBT shall record usage information for LSP's Validation
Queries terminating to SWBT's LIDB. SWBT shall use its SCPs as
the source of usage data. SWBT shall aggregate usage by the
point code of the Query-originating SSP.
F. Based upon the data identified in SubSection 3.E of this
Appendix, SWBT shall bill LSP for its Validation Queries on a
monthly basis. The bill will be issued by
<PAGE> 142
APPENDIX LIDB-V
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the fifteenth day of each month, and LSP shall pay the bill
within thirty (30) days of the bill issue date. LSP shall pay
late payment charges as applicable and as described in SWBT's
Tariff FCC No. 73.
G. SWBT shall provide sufficient information with the bill to
enable LSP to determine how the billed amount was calculated.
H. Depending on LSP's choice of method for transporting its
Queries and Responses, LSP may be required to purchase certain
other services, especially services that may be provided
pursuant to effective tariffs. In this event the prices,
terms, conditions, and billing for such services will be
specified in the applicable tariff(s) and this Appendix shall
not be construed to circumvent the prices, terms, conditions,
or billing as specified in the applicable tariff(s).
I. If there is a dispute associated with a monthly bill, the
disputing Party shall notify the other in writing within
ninety (90) calendar days of the date of said monthly bill or
the dispute shall be waived. Each Party agrees that any amount
of any monthly bill that that Party disputes will be paid by
that Party according to the terms of Subsection III.F. above.
Any adjustments relating to a disputed amount shall be
reflected on the next monthly bill issued after resolution.
Any credit issued upon resolution of any dispute shall bear
interest at the rate specified in Subsection III.F. above,
payable on and as of the date the credit is issued. Parties
shall work cooperatively and use their best efforts to resolve
any disputes as quickly as possible.
J. SWBT shall treat changes in previously established OPCs as a
discontinuance of the existing LIDB Validation Service and
establishment of a new LIDB Validation Service and all
applicable Nonrecurring Charges shall be paid by LSP.
K. If LSP acts as a telecommunications company other than a local
service provider, or if LSP acts as a local service provider
in areas outside of SWBT's traditional service areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas, LSP
shall designate those point codes from which it originates
LIDB Validation Service Queries as an LSP acting as a local
service provider within SWBT's traditional service areas in
the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas
from those point codes which originate LIDB Validation Service
Queries for all other aspects of its business. If LSP uses the
same OPC to originate Queries for its operations as an LSP
within SWBT's traditional service areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does for
any other aspect of its business, then LSP shall provide SWBT
with a percentage of use factor that SWBT can use to apportion
LSP's traffic between SWBT's terms, conditions, rates and
charges under this Appendix and the terms, conditions, rates
and charges under SWBT's appropriate and effective tariff. LSP
shall provide this factor in a whole number between one (1)
and one hundred (100) to indicate the percentage of LIDB
Validation Services LSP originates as an
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APPENDIX LIDB-V
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LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas. A percentage of use factor of 1
(one) indicates that one percent of LSP's LIDB Validation
Service Queries originate as an LSP acting as a local service
provider within SWBT's traditional service areas in the states
of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of one hundred (100) indicates that
one hundred percent of LSP's LIDB Validation Service Queries
is from LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas.
L. Such percentage of use factors will be provided by LSP on the
LIDB Access Service Order Form used to establish the service.
All updates to this factor will provided via a letter. If LSP
does not furnish a percentage of usage factor, LSP agrees that
SWBT will apply a percentage of usage factor of one percent
(1%).
M. LSP shall update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and
October of each year, LSP shall forward to SWBT, to be
received no later than fifteen (15) business days after the
first of each such month, a revised report showing the
percentage of use factors for the past three months ending the
last day of December, March, June, and September,
respectively, for each OPC from which LSP originates LIDB
Validation Service Queries. Both Parties agree that the
revised report will serve as the basis for the next three
months billing. Both Parties agree that no prorating or
backbilling will be done based on the report. SWBT shall use
the revised report to apportion usage rates, monthly rates,
and nonrecurring charges until a revised report is received
from LSP as set forth and agreed to herein.
N. SWBT may, upon written request by Certified U.S. mail (return
receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage
of use factor provided by LSP. SWBT may request this detailed
information annually. If the audit results represent what SWBT
considers to be a substantial deviation from LSP's previously
reported percentage of use for the period upon which the audit
was based, and that deviation is not due to seasonal changes
or other identifiable reasons, LSP agrees to allow SWBT to
request such call detail records more than once annually. Both
parties agree that SWBT may make the call detail records
available to an independent auditor or to SWBT audit employees
within thirty (30) days of the request at an agreed upon
location during normal business hours.
O. If LSP fails to comply with SWBT's request for auditable call
detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for
service for a period of thirty (30) days. If at the conclusion
of thirty (30) days, LSP still does not comply with this
request, SWBT may apply an assumed percentage of use factor of
one percent (1%).
<PAGE> 144
APPENDIX LIDB-V
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IV. OWNERSHIP OF VALIDATION INFORMATION
A. Telecommunications companies depositing information in SWBT's
LIDB may retain full and complete ownership and control over
such information. LSP obtains no ownership interest by virtue
of this Appendix.
B. Unless expressly authorized in writing by parties, LIDB
Validation Service is not to be used for purposes other than
those described in this Appendix. LSP may use LIDB Validation
Service for those functions only on a call-by-call basis. Data
accessed on LIDB may not be stored by LSP elsewhere for future
use.
C. Proprietary information residing in SWBT's LIDB is protected
from unauthorized access and LSP may not store such
information in any table or database for any reason. All
information related to alternate billing service is
proprietary. Examples of proprietary information are as
follows:
- Billed (Line/Regional Accounting Office (RAO)) Number
- PIN Number(s)
- Billed Number Screening (BNS) indicators
- Class of Service (also referred to as Service or
Equipment)
- Reports on LIDB usage
- Information related to billing for LIDB usage
- LIDB usage statistics.
D. LSP shall not copy, store, maintain, or create any table or
database of any kind after initiating, and based upon a
Response to, a Validation Query to SWBT's LIDB.
E. If LSP acts on behalf of other carriers, LSP shall prohibit
its Query- originating carrier customers from copying,
storing, maintaining, or creating any table or database of any
kind from any Response provided by SWBT after a Validation
Query to SWBT's LIDB.
F. SWBT will share end user information, pertinent to fraud
investigation, with LSP when validation queries for the
specific end user reaches SWBT's established fraud threshold
level. This fraud threshold level will be applied uniformly to
all end user information in SWBT's LIDB.
V. TERM AND TERMINATION
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Statement and shall continue for one
(1) year from the effective date of implementation of LIDB
Validation Service. Thereafter, this Appendix shall remain in
effect unless terminated by either party upon written notice
given sixty (60) days in advance of the termination date.
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APPENDIX LIDB-V
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B. If a Party materially fails to perform its obligations under
this Appendix, the other Party, after notifying the
non-performing Party of the failure to perform and allowing
that Party thirty (30) days after receipt of the notice to
cure such failure, may cancel this Appendix immediately upon
written notice.
C. Notwithstanding anything to the contrary in this Appendix, if
legal or regulatory decisions or rules compel SWBT or LSP to
terminate the Appendix, SWBT and LSP shall have no liability
to the other in connection with such termination.
VI. LIMITATION OF LIABILITY
A. A Party's sole and exclusive remedies against the other Party
for injury, loss or damage caused by or arising from anything
said, omitted or done in connection with this Appendix
regardless of the form of action, whither in contract or in
tort (including negligence or strict liability) shall be the
amount of actual direct damages and in no event shall exceed
the amount paid for LIDB Validation Service.
B. The remedies in Section VI.A. of this Appendix shall be
exclusive of all other remedies against a Party, its
affiliates, subsidiaries or parent corporation, (including
their directors, officers, employees or agents).
C. In no event shall a Party have any liability for system outage
or inaccessibility, or for losses arising from the
unauthorized use of the data by LIDB Validation Service Query
purchasers.
D. SWBT is furnishing access to its LIDB or LIDB-like database in
order to facilitate LSP's provision of Alternate Billing
Service to its end users, but not to insure against the risk
of completion of an ABS-related call. While SWBT agrees to
make every reasonable attempt to provide accurate Validation
information, the Parties acknowledge that Validation
information is the product of routine business service order
activity and fraud investigations. LSP acknowledges that SWBT
can furnish Validation information only as accurate and
current as the information has been provided to SWBT for
inclusion in its LIDB. Therefore, SWBT, in addition to the
limitations of liability set forth, is not liable for
inaccuracies in the Validation information records provided to
LSP except such inaccuracies caused by SWBT's willful or
wanton misconduct or gross negligence.
E. IN NO EVENT SHALL SWBT, ITS AFFILIATES, SUBSIDIARIES OR PARENT
CORPORATION, (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS) HAVE ANY LIABILITY WHATSOEVER TO OR THROUGH LSP FOR
ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR
OTHER ECONOMIC LOSS
<PAGE> 146
APPENDIX LIDB-V
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IN CONNECTION WITH OR ARISING FROM ANYTHING SAID, OMITTED OR
DONE HEREUNDER, EVEN IF LSP HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
VII. COMMUNICATION AND NOTICES
A. Ordering and billing inquiries for the services described
herein from SWBT shall be directed to the Local Service
Provider Service Center (LSPSC). Ordering shall be done
through the LSPSC using the form attached hereto as Exhibit
III.
VIII. CONFIDENTIALITY
A. Identification SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, either
may disclose to the other party proprietary or confidential
customer, technical or business information in written
graphic, oral or other tangible or intangible forms. In order
for such information to be considered "Proprietary
Information" under this Appendix, such information must be
marked "Confidential" or "Proprietary" or bear a marking of
similar import. Orally disclosed information shall be
considered Proprietary Information only if contemporaneously
identified as such and reduced to writing and delivered to the
other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party
(the___"Receiving Party") that receives Proprietary
Information from the other Party (the "Disclosing Party")
agrees:
(1) That all Proprietary Information shall be and shall
remain the exclusive property of the Disclosing
Party.
(2) To limit access to such Proprietary Information to
authorized employees and other individuals who have a
need to know the Proprietary Information in order to
perform its obligations under this Appendix.
(3) To keep such Proprietary Information confidential and
to use the same level of care to prevent disclosure
or unauthorized use of the received Proprietary
Information as it exercises in protecting its own
Proprietary Information of a similar nature.
(4) For a period of three (3) years following any
disclosure, not to copy or publish or disclose such
Proprietary Information to others or authorize anyone
else to copy or publish or disclose such Proprietary
Information to others without the prior written
approval of the Disclosing Party.
<PAGE> 147
APPENDIX LIDB-V
PAGE 13 OF 14
(5) To use such Proprietary Information only for purposes
of performing its obligations under this Appendix and
for other purposes only upon such terms as may be
agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give
notice to the Disclosing Party of any demand to disclose or
provide Proprietary Information of the Disclosing Party to
another person, under lawful process, prior to disclosing or
furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the
Disclosing Party deems it necessary to seek protective
arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the
requirements of a court, regulatory body or government agency
having jurisdiction over the Party; provided, however, that
the Receiving Party shall notify the Disclosing Party so as to
give the Disclosing Party a reasonable opportunity to object
to such disclosure. The Disclosing Party may not unreasonably
withhold approval of protective arrangements provided by any
such court, regulatory body or government agency. Nothing
herein requires either Party to support the position of any
person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this
Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained
in this Appendix, the Proprietary Information described herein
shall not be deemed confidential or proprietary and the
Receiving Party shall have no obligation to prevent disclosure
of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through
no wrongful act of the Receiving Party;
(3) is received from a third party without similar
restriction and without breach of this Section 8;
(4) is independently developed, produced or generated by
the Receiving Party;
(5) is furnished to a third party by the Disclosing Party
without a similar restriction on the third party's
rights; or
(6) is approved for release by written authorization of
the Disclosing Party, but only to the extent of such
authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of LSP
Queries for the purposes of: (a) estimation of facilities
usage for jurisdictional separations; (b) engineering and
<PAGE> 148
APPENDIX LIDB-V
PAGE 14 OF 14
network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the contrary
contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary
Information is subject all applicable statures, decisions, and
regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate
a different handling of such information.
9. Mutuality
To the extent that LSP stores its own Validation Information in a
database, LSP agrees that Validation Information shall be available to
SWBT on terms and conditions comparable to those contained in this
Appendix. Such terms and conditions shall include, but not be limited
to, making such Validation Information available on a platform
technically similar to that employed by SWBT, and at a rate comparable
to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit I - Basis of Compensation
Exhibit II - Specifications and Standards
Exhibit III - LIDB Access Service Order Form
<PAGE> 149
APPENDIX LIDB-V-EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB-V
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. Rates and Charges
A LIDB Query Rate Per Ouery
--------------
1. Per LIDB Query Transport $.0045
2. Per LIDB Validation Query $.026
- Billed Number Screening
- Calling Card Count
B. LIDB Nonrecurring Charge Nonrecurring Charge
-------------------
1. Per Originating Point Code (OPC) $14.25
2. Per LIDB Validation Service Form $256.70
<PAGE> 150
APPENDIX LIDB-V EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB-V
SPECIFICATIONS AND STANDARDS
<TABLE>
<CAPTION>
Issuing Organization Document Number
- -------------------- ----------------
<S> <C>
Bellcore TR-NWT-000246
Bellcore TR-NWT-000271
Bellcore TR-TSV-000905
Bellcore TR-NWT-000954
SWBT TP 76638
</TABLE>
<PAGE> 151
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 1
LIDB ACCESS VALIDATION SERVICES ORDER FORM
CUSTOMER NAME
----------------------------------------------------------------
CARRIER CUSTOMER NAME ABBREVIATION
(CCNA - THREE ALPHA CHARACTERS) --------------------------------------------
CUSTOMER ADDRESS
- ------------------------------------------------------------------------------
CUSTOMER BILLING NAME
--------------------------------------------------------
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION
---------------------------------------------
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
-----------------------------------------------------
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE
--------------------------------------------------------
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER
----------------------------
( )
- ------------------------------------------------------------------------------
CREDIT INFORMATION: TYPE OF OWNERSHIP
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP. DATE INCORP.
----------- ------------
CHARTER NUMBER
----------------------------------------------
PRES.NAME OFC. TEL. NO. ( )
----------------------------------- ------------------
V.P. NAME OFC. TEL. NO. ( )
---------------------------------- ------------------
SECT.NAME OFC. TEL. NO. ( )
---------------------------------- ------------------
TREA. NAME OFC. TEL. NO. ( )
--------------------------------- ------------------
IF PARTNERSHIP:
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ -----------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
LETTER OF AGENCY DATED SIGNATURE
--------------------- -----------------------
<PAGE> 152
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 2
SWBT ORDER NUMBER
-------------------
DESIRED DUE DATE FIRM DUE DATE
-------------------- -----------------------
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs
-----------------------
TYPE OF ACTIVITY (N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
---------
BILLING ACCOUNT NUMBER (BAN)
----------------------------------------------
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
- -------------------------------------
- -------------------------------------
( )
- ---------------------- --- ---------
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
( )
- ------------------------------------------------------------- ---- -------------
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
( )
- ------------------------------------------------------------- ---- -------------
*SWBT CKR: *TWO SIX CODE:
----------------------------------- --------------------
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1.
--------------------
2.
--------------------
3.
--------------------
4.
--------------------
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
<PAGE> 153
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 3
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
[S] [C] [C] [C]
------- ----------------- ---- -----------------
------- ----------------- ---- -----------------
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------- ----------------- ---- -----------------
REMARKS
----------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 154
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 4
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
------- ----------------- ---- -----------------
------- ----------------- ---- -----------------
------- ----------------- ---- -----------------
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------- ----------------- ---- -----------------
------- ----------------- ---- -----------------
REMARKS
-----------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
DATE AND TIME RECEIVED IN THE CPOC
<PAGE> 155
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 5
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY.
THIS INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN
COORDINATED WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER
FORM TO THE ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE
TO BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED
WITH THE NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
<PAGE> 156
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 6
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE ENTERED
TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM
AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO THE
COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S),
ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL
ENTER THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR
CCS/SS7 INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR
LINKS FOR ACCESS TO THE LIDB.
<PAGE> 157
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 7
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE. THE
LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR THEIR
POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO ESTABLISH
THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER SHOULD
ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN FOR OLNS.
IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR THE LIDB
VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER WILL USE
BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE BILLING
ACCOUNTS.
1. LIDB VALIDATION SERVICE ______CALLING NAME SERVICE ______
ORIGINATING LINE NUMBER SCREENING _____
ENTER A CHECK MARK OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE ORDER
FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES ARE REQUESTED
ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE LISTED ON
SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT NONRECURRING
CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED ACCOUNT,
THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE "N" SHOULD
BE USED TO INDICATE THE OPC CHANGING TO.
<PAGE> 158
Southwestern Bell Telephone Company EXHIBIT III
Customer Provided Factor Reports September 1996
Page 8
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY FROM
PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
<TABLE>
<CAPTION>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
N XXX-XXX-XXX N XXX-XXX-XXX
</TABLE>
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE
<TABLE>
<CAPTION>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
N XXX-XXX-XXX D XXX-XXX-XXX
</TABLE>
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
<TABLE>
<CAPTION>
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
<S> <C> <C> <C>
D XXX-XXX-XXX D XXX-XXX-XXX
</TABLE>
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT ICSC
IN ST. LOUIS, MISSOURI.
<PAGE> 159
APPENDIX OSS
PAGE 2
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems (OSS)
"functions" to LSP for pre-ordering, ordering, provisioning, maintenance /
repair, and billing. Such functions will be made available as described herein
for Resold Services, as provided in Appendix Resale, and for Unbundled Network
Elements (UNE), as provided in Appendix UNE.
1.2 The functions, for Resale and UNE, will be accessible via
electronic interface, as described herein, where such functions are available.
Manual access will be available to all preordering, ordering, provisioning, and
billing functions via the Local Service Provider Service Center (LSPSC). Repair
and maintenance functions are available via manual handling by the Local Service
Provider Center (LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT defines
in its requirements, only for the functions described herein for the purposes of
establishing and maintaining Resale services or UNE. LSP agrees that such use
will comply with the summary of SWBT's Operating Practice No. 113, Protection of
Electronic Information, titled Local Service Provider Security Policies and
Guidelines.
1.4 LSP acknowledges and agrees that access to OSS functions will only
be utilized to view an end-user's Customer Proprietary Network Information under
the conditions set forth and agreed to in Exhibit A of this Appendix.
1.5 By utilizing electronic interfaces to access OSS functions, LSP
acknowledges and agrees to perform accurate and correct billing functions that
occur during ordering per the terms of this Agreement. Further, LSP recognizes
that such billing functions for conversion orders require viewing CPNI as
described in 1.4 above. All exception handling must be requested manually from
LSPSC.
1.6 In areas where Resale and UNE service order transactions cannot be
provided via an electronic interface for the pre-order, ordering and
provisioning processes, SWBT and LSP will utilize manual processes until such
time as the transactions can be electronically transmitted.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
1.8 SWBT and LSP will jointly establish interface contingency and
disaster recovery plans for the pre-order, ordering and provisioning of Resale
services and UNE.
1.9 SWBT reserves the right to modify or discontinue the use of any
system or interface as it deems appropriate.
<PAGE> 160
APPENDIX OSS
PAGE 3
1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale or UNE, SWBT and LSP agree to work together in the Order
and Billing Forum (OBF) and the Telecommunications Industry Forum (TCIF) to
establish and conform to uniform industry standards for electronic interfaces
for pre-order, ordering, and provisioning. Neither Party waives its rights as
participants in such forums in the implementation of the standards. To achieve
industry standard system functionality as quickly as possible, the Parties
acknowledge that SWBT may deploy these interfaces with requirements developed in
advance of industry standards. Thus, subsequent modifications may be necessary
to comply with emerging standards. LSP and SWBT are individually responsible for
evaluating the risk of developing their respective systems in advance of
standards and agree to support their own system modifications to comply with new
requirements.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support LSP
ordering of Resale services and UNE via several electronic interfaces. The
Parties acknowledge that ordering requirements necessitate the use of current,
real time pre-order information to accurately build service orders. The
following lists represent pre-order information that will be available to LSP so
that LSP order requests may be created to comply with SWBT ordering
requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is provisioned;
2.2.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP and such request complies with
conditions of Exhibit A of this Appendix.)
2.2.3 a telephone number (if the customer does not have one
assigned) with the customer on-line.
2.2.4 service availability dates to the customer;
2.2.5 information regarding the dispatch / installation
schedule, if applicable;
2.2.6 PIC options for intraLATA toll (when available) and
interLATA toll;
2.2.7 address verification.
2.3 PRE-ORDERING FUNCTIONS FOR UNE WILL INCLUDE:
2.3.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is
<PAGE> 161
APPENDIX OSS
PAGE 4
provisioned;
2.3.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP, and such request complies with
conditions of Exhibit A of this Appendix.)
2.3.3 telephone number (if the customer does not have one
assigned) with the customer on-line;
2.3.4 PIC options for intraLATA toll (when available) and
interLATA toll;
2.3.5 address verification;
2.3.6 channel facility assignment (CFA), network channel (NC),
and network channel interface (NCI) data.
2.4. Electronic Access to Pre-Order Functions: Upon request by
LSP for electronic access to pre-ordering functions, SWBT will provide LSP
access to one or more of the following systems:
2.4.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.4.1.1 Residential Easy Access Sales Environment
(R-EASE): R-EASE is an ordering entry system through which SWBT will provide LSP
access for the functions of pre-ordering SWBT's Resale services so long as EASE
is utilized to order SWBT Residential Resale Services.
2.4.1.2 Business Easy Access Sales Environment
(EASE): B-EASE is an ordering entry system through which SWBT will provide LSP
access for the functions of preordering SWBT's Resale services so long as such
access is utilized to order SWBT's Business Resale Services.
2.4.2 RESALE AND UNE PRE-ORDER SYSTEM AVAILABILITY:
2.4.2.1 DataGate: DataGate is transaction-based data
query system through which SWBT will provide LSP access for the functions of
gathering pre-ordering information to support industry standardized ordering
processes for Residential and Business Resale services. When ordering Resale
services or UNE, LSP's representatives will have access to a pre-order
electronic gateway provided by SWBT for both consumer and business customers
that provides real-time access to SWBT's operations systems. This gateway shall
be a Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will
allow the LSP representatives to perform the pre-order functions for Resale
services and UNE, as described above. SWBT and LSP agree to work together to
develop and implement an electronic communication interface that will replace
this initial pre-order electronic interface consistent with industry standards
developed by the OBF and the TCIF.
2.4.2.2 VERIGATE is an Access Service Pre-order
system that will also provide access to the pre-ordering functions for Resale
Services and UNE. VERIGATE
<PAGE> 162
APPENDIX OSS
PAGE 5
may be used in connection with electronic or manual ordering. VERIGATE provides
the UNE pre-order capability of identifying CFA information, NC, and NCI codes
that are associated with order requirements for UNE.
2.5 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.5.1 Where due dates are not available electronically, SWBT will
provide LSP with due date interval for inclusion in the service order request.
2.5.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to construct
order requests only in exception handling.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services and UNE via one or more electronic interfaces.
Upon request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.2 B-EASE is available for the generation of Business Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.3 SWBT will provide LSP with an Electronic Data Interexchange
(EDI) Interface for transmission of industry-standardized Resale service order
requests in formats as defined by the Ordering and Billing Forum (OBF) and EDI
mapping as defined by TCIF. EDI ordering functionality will be made available as
negotiated and implemented in timeframes mutually acceptable to SWBT and LSP.
3.3 UNE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
3.3.1 In ordering and provisioning UNE, LSP and SWBT will utilize
mutually agreeable standard industry order formats and data elements developed
by OBF and TCIF EDI. Where industry standards do not currently exist for the
ordering and provisioning of UNE, LSP and SWBT agree to jointly develop a form
for ordering Common-Use UNE. Common-Use UNE, including, without limitation,
tandem switching, signaling and call-related databases, Operator Services and
DA, and Operations Support Systems, shall be ordered in a manner that is
consistent with OBF Access Service Request Process; in addition customized
routing will be ordered in the same manner. Customer Specific UNE, including,
Local Loop (which includes
<PAGE> 163
APPENDIX OSS
PAGE 6
NID), and unbundled Local Switching, and Interim Number Portability will be
ordered consistent with the OBF Local Service Request (LSR) process.
3.4 SWBT will provision Resale Services and UNE as prescribed in LSP
order requests. Access to status on such orders of Resale services and UNE will
be provided via the following electronic interfaces:
3.4.1 Customer Network Administration (CNA) will allow LSP to check
service order status via CNA.
3.4.2 In cases of industry-standardized EDI ordering, SWBT will
provide to LSP an EDI electronic interface for transferring and receiving
orders, Firm Order Confirmation (FOC), service completion, and, as available,
other provisioning data and information. SWBT will provide LSP with a FOC for
each Resale and UNE order. The FOC includes but is not necessarily limited to:
purchase order number, telephone number, Local Service Request number, due date,
Service Order number, and completion date. Upon work completion, SWBT will
provide LSP with an 855 EDI transaction-based Order Completion that states when
that order was completed. When available, SWBT will provide LSP an 865 EDI
transaction-based Order Completion.
3.4.3 A file transmission may be provided to confirm order
completions for R-EASE or B-EASE order processing. This file will provide
service order information of all distributed and completed orders for LSP,
regardless of order entry mechanism.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for both Resale and UNE. Upon request, LSP may access
these functions via the following methods:
4.1.1 CNA system access provides LSP with SWBT software that allows
LSP to submit trouble reports and subsequently check status on trouble reports
for LSP end-users. CNA will provide ability to review the maintenance history of
a converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an
industry-standardized interface that is available for trouble report submission
and status updates. This EBI will conform to ANSI standards T1:227:1995 and
T1.228:1995, Electronic Communications Implementation Committee (ECIC) Trouble
Report Format Definition (TFRD) Number 1 as defined in ECIC document
ECIC/TRA/95-003, and all standards referenced within those documents, as
mutually agreed upon by LSP and SWBT. Functions currently implemented will
include Enter Trouble, Request Trouble Report Status, Add Trouble Information,
Modify Trouble Report Attributes, Trouble Report Attribute Value Change
Notification, and Cancel Trouble Report, as explained in 6 and 9 of ANSI
T1.228:1995. LSP. SWBT will exchange requests over a mutually agreeable
X.25-based network.
5. BILLING
5.1 SWBT shall bill LSP for resold services and UNE. SWBT shall send
associated billing information to LSP as necessary to allow LSP to perform
billing functions. At minimum
<PAGE> 164
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PAGE 7
SWBT will provide LSP billing information in a paper format or via magnetic
tape, as agreed to between LSP and SWBT.
5.2 Upon request, electronic access to billing information for Resale
Services will also be available via the following interfaces:
5.2.1 LSP may receive Bill Plus(tm), an electronic version of their
electronic bill as described in and in accordance with SWBT's Local Exchange
Tariff.
5.2.2 LSP may receive a mechanized bill format via the industry
standards EDI.
5.2.3 LSP may also view billing information through the CNA system.
5.2.4 SWBT shall provide the Usage Billable Records for Resale
Services via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers change their local
service provider.
5.3 Upon request, electronic access to billing information for UNE will
also be available via the following interfaces:
5.3.1 SWBT will make available a mechanized bill data tape (local)
format by February 1997.
5.3.2 LSP may also view billing information through the CNA system.
5.3.3 SWBT shall provide the Usage/Toll Billable Records for UNE
via EMR industry standard format with a daily feed.
5.2.4 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers, utilizing SWBT
ports, change their local service provider.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following SWBT's OSS functions via a LSP Remote
Access Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, CNA, DATAGATE
and VERIGATE.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide its
own router, circuit, and two Channel Service Units/Data Service Units (CSU/DSU).
The demarcation point shall be the router interface at the LRAF. Switched Access
connections require LSP to provide its own modems and connection to the SWBT
LRAF. LSP shall pay the cost of the call if Switched Access is used.
6.3 LSP shall use TCP/IP to access SWBT OSS via the LRAF. In addition,
each LSP shall have a valid Internet Protocol (IP) network address. A user-id
/password unique to each
<PAGE> 165
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PAGE 8
individual accessing an OSS shall be maintained to access SWBT OSS's. LSP shall
provide estimates regarding its volume of transactions, number of concurrent
users, desired number of private line or dial-up (switched) connections, and
length of a typical session.
6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on an
ongoing basis in accessing any SWBT OSS over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
7.1 LSP must participate with SWBT in Operational Readiness Testing
(ORT), which will allow for the testing of the systems, interfaces, and
processes for the ordering and provisioning of Resale services. ORT will be
completed in conformance with agreed upon implementation dates.
8. RATES - OKLAHOMA
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $ 3,310.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $ 1,595.00 / month
Dial Up Per Port $ 320.00 / month
8.4 LPS requesting the Bill Plus, as described in 5.2.1, agrees to pay
applicable tariffed rate, less Resale discount.
8.3 LSP requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.4 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.4 Should unforeseen modifications and costs to provision OSS
functions become required by SWBT or industry standards, SWBT reserves the right
to modify its rate structure. In addition, should LSP request custom development
of an exclusive interface to support OSS functions, such development will be
considered by SWBT on an Individual Case Basis (ICB) and priced as such.
9. EFFECTIVE DATE, TERM
9.1 The Appendix OSS will be effective upon approval by the state
commission when
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APPENDIX OSS
PAGE 9
it determined that the entire Interconnection Agreement is in compliance with
Sections 251 and 252 of the Act.
9.2 The Term Appendix OSS will be the shorter of the Term of this
Interconnection Agreement or December 31, 1998. Continuation of Appendix OSS
follows the continuation rules of the Agreement. Should the Interconnection
Agreement establish a new term, the Term of Appendix OSS will be the shorter of
one year, or the new Term of the Interconnection Agreement. Should the term of
the Interconnection Agreement Expire without provision for continuance, the Term
of Appendix OSS expires as well.
<PAGE> 167
APPENDIX OSS - RESALE & UNE - EXHIBIT A
PAGE 1 OF 1
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE
OF CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent request or
in the course of ordering SWBT's network elements or services via manual and/or
mechanized interfaces, the undersigned must, at least, certify that "yes" (Y) it
has obtained Authorization for Release of CPNI and provide the name of the
individual authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of CPNI has
been opined from an end-user and that it includes the expressed content of the
language, "Minimum Scope." SWBT may then provide the CPNI referenced herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects
the following: "This document serves as instruction to all
holders of my local exchange telecommunications Customer
Proprietary Network Information (CPNI) to provide such
information to the undersigned. I understand that this CPNI
includes the following information: billing name, service
address, billing address, service and feature subscription,
directory listing information long distance carrier identity,
and all pending service order activity. This Authorization
remains in effect until such time that I revoke it directly or
appoint another individual/company with such capacity or
undersigned receives notice to disconnect my local exchange
service or notice that a service disconnect has been
performed. At and from such time, this Authorization is null
and void."
or
2) Authorization for change in local exchange service and
release of CPNI with documentation that adheres to all
requirements of state and federal law, as applicable.
-------------------------------
Signed
-------------------------------
Name (Typed/Printed)
-------------------------------
Title
-------------------------------
Company
-------------------------------
Date
<PAGE> 168
APPENDIX OSS - RESALE & UNE
SIGNATURE PAGE
PAGE 1 OF 1
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN BELL TELEPHONE COMPANY
By: By:
------------------------------- ---------------------------------
(name printed or typed) (name printed or typed)
Signature: Signature:
-------------------------- ---------------------------
Title: Title:
--------------------------- -----------------------------
(printed or typed) (printed or typed)
Date: Date:
------------------------------ ----------------------------
<PAGE> 169
APPENDIX OS
PAGE 2 OF 8
APPENDIX OS
OPERATOR SERVICES
This Appendix sets forth the terms and conditions under which Southwestern Bell
Telephone Company ("SWBT") agrees to provide Operator Services for LSP ("LSP").
I. SERVICES
SWBT will provide the following Operator Services:
A. FULLY AUTOMATED CALL PROCESSING - Allows the caller to
complete a call utilizing equipment without the assistance of a SWBT
operator, hereafter called "Operator."
This allows the caller the option of completing calls through an
automated alternate billing system (AABS). Automated functions can
only be activated from a touch-tone telephone. Use of a rotary
telephone and failure or low response by the caller to the audio
prompts will bridge the caller to an Operator for assistance. The
called party must also have Touch-tone service to automatically
accept calls that are billed collect or to a third number.
B. OPERATOR-ASSISTED CALL PROCESSING - Allows the caller to
complete a call by receiving assistance from an Operator.
II. DEFINITIONS
A. FULLY AUTOMATED CALL PROCESSING
SWBT will support the following fully automated call types for LSP:
1. FULLY AUTOMATED CALLING CARD STATION-TO-STATION - This service
is provided when the caller dials zero ("0"), plus the desired
telephone number and the telecommunications calling card
number to which the call is to be charged. The call is
completed without the assistance of an Operator. An authorized
telecommunications calling card for the purpose of this
Appendix, is one for which SWBT can perform billing
validation. Fully-Automated Calling Card Call Service may also
include the following situations:
a. When an individual with a disability
dials zero (0) and identifies himself or herself as
disabled, he or she will provide the Operator the
desired telephone number and the calling card number to
which the call is to be billed.
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APPENDIX OS
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b. When due to trouble on the network,
or lack of service components (facilities to the AABS
network), the automated call processing cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
2. FULLY AUTOMATED STATION-TO-STATION - This service is limited
to those calls placed collect or billed to a third number. The
caller dials zero (0) plus the telephone number desired, the
service selection codes and/or billing information as
instructed by the automated equipment. The call is completed
without the assistance of an Operator. Fully Automated
Station-to-Station service may also include the following
situations:
a. When an individual with a disability
identifies himself or herself as disabled and provides
the Operator the number to which the call is to be
billed (either collect or third number).
b. When due to trouble on the network or
lack of service components, the automated call cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
B. OPERATOR-ASSISTED CALL PROCESSING
SWBT will support the following operator-assisted call types for LSP:
1. SEMI-AUTOMATED STATION-TO-STATION - A service provided when
the caller dials zero (0) plus the telephone number desired
and the call is completed with the assistance of an Operator.
Semi-Automated Station-to-Station service may also include the
following situations:
a. Where the caller does not dial zero
(0) prior to calling the number desired from a public or
semi-public telephone, or from a telephone where the
call is routed directly to an Operator (excluding
calling card calls).
b. When an Operator re-establishes an
interrupted call that meets any of the situations
described in this call type.
2. SEMI-AUTOMATED PERSON-TO-PERSON - A service in which the
caller dials zero (0) plus the telephone number desired and
specifies to the
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APPENDIX OS
PAGE 4 OF 8
Operator the particular person to be reached or a particular
PBX station, department or office be reached through a PBX
attendant. This service applies even if the caller agrees,
after the connection is established, to speak to any party
other than the party previously specified. Semi-Automated
Person-to-Person service may also include:
a. Where the caller does not dial a zero
(0) prior to dialing the number from a public or
semi-public telephone, or where the call is routed
directly to an Operator.
b. When an operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
3. SEMI-AUTOMATED CALLING CARD STATION-TO-STATION - A service
provided when the caller dials zero (0) plus the desired
telephone number and provides the Operator the calling card
number to which the call is to be charged. Semi-Automated
Calling Card Station-to-Station service may also include the
following situations:
a. When the caller does not dial zero
(0) prior to dialing the number desired from a public or
semi-public telephone, or from a telephone that is
directly routed to an Operator, and the call is billed
to a calling card.
b. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
4. STATION-TO-STATION (OPERATOR HANDLED) - A service provided
when the caller dials zero (0) and places a sent paid,
collect, third number or calling card station-to-station call
using an Operator's assistance. These calls may originate from
a private, public or semi-public telephone. The service may
also include the situation when an Operator reestablishes an
interrupted call that meets any of the situations described in
this call type.
5. PERSON-TO-PERSON (OPERATOR HANDLED) - A service in which the
caller dials zero (0) and specifies to the Operator the number
desired and the person to be reached, or a particular PBX
station, department or office to be reached through a PBX
attendant, or a particular mobile service point to be reached
through a mobile telephone attendant. The call remains a
person-to-person call even if the caller agrees, after the
connection is established, to speak to any party other than
the party previously specified. The service may also include
situations when an Operator reestablishes an interrupted call
that meets any of the situations described in this call type.
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APPENDIX OS
PAGE 5 OF 8
6. LINE STATUS VERIFICATION - A service in which the caller asks
the Operator to determine the condition of a telephone line.
7. BUSY LINE INTERRUPT - A service in which the caller asks the
Operator to interrupt a conversation in progress, to determine
if one of the parties is willing to speak to the caller
requesting the interrupt. A Busy Line Interrupt charge will
apply even if no conversation is in progress at the time of
the interrupt attempt, or when the parties interrupted refuse
to terminate the conversation in progress.
8. 0PERATOR TRANSFER SERVICE - A service offered by SWBT in which
the local caller requires Operator Assistance for completion
of a call outside the originating LATA. The SWBT Operator
transfers the call to an interexchange carrier selected by the
caller from a list of IXCs provided to SWBT by the LSP. This
transfer service is similar to SWBT's "0perator Transfer"
service offering. LSP agrees to obtain all necessary
compensation arrangements between LSP and participating
carriers.
9. MISCELLANEOUS - Includes the following call types: General
Assistance and Rate Quotes, 800, 888 and connections to all
other Toll Free services, Repair Bureau and Business Office
requests, credit requests, NPA-NXX location requests, and all
other 0- No Attempt services.
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Pursuant to Section 226 (b) of The Telecommunications
Act of 1996, each provider of Operator Services is required to:
1. provide its brand at the beginning of each telephone call and
before the consumer incurs any charge for the call; and
2. disclose immediately to the consumer, upon request a quote of
its rates or charges for the call.
B. CALL BRANDING - In compliance with A. 1. above, SWBT will brand
Operator Services in LSP's name based upon the criteria outlined
below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP specific
branding messages for its OS calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every Operator Services call handled by SWBT on behalf of LSP
when such
<PAGE> 173
APPENDIX OS
PAGE 6 OF 8
services are provided in conjunction with: i) the purchase of
SWBT's unbundled local switching; or ii) when multiple brands
are required on a single Operator Services trunk. Prices for
Call Branding are as outlined in Exhibit II, attached hereto
and incorporated herein.
C. OPERATOR SERVICES (OS) RATE/REFERENCE INFORMATION - In compliance
with A. 2. above, SWBT will provide LSP Operator Services
Rate/Reference Information based upon the criteria outlined below:
1. LSP will furnish OS Rate and Reference Information in a
mutually agreed to format or media thirty (30) days in advance
of the date when the Operator Services are to be undertaken.
2. LSP will inform SWBT, in writing, of any changes to be made to
such Rate/Reference Information ten (10) working days prior to
the effective Rate/Reference change date. LSP acknowledges
that it is responsible to provide SWBT updated Rate/Reference
Information in advance of when the Rates/Reference Information
are to become effective.
3. In all cases when a SWBT Operator receives a rate request from
a LSP end user, SWBT will quote the applicable OS rates as
provided by LSP.
4. An initial non-recurring charge will apply per TOPS switch for
loading of LSP's Operator Services Rate/Reference Information
as well as a charge per TOPS switch, for each subsequent
change to either LSP's Operator Services Rate or Reference
Information.
IV. HANDLING OF EMERGENCY CALLS TO OPERATOR
To the extent LSP's NXX encompasses multiple emergency agencies, SWBT will
agree to query the caller on his/her community and to transfer the caller to
the appropriate emergency agency for the caller's area. LSP must provide
SWBT with the correct information to enable the transfer. When the
assistance of another Carrier's operator is required, SWBT will attempt to
reach the appropriate operator if the network facilities for inward
assistance exist. LSP agrees to indemnify SWBT for any misdirected calls.
V. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of Operator Services for LSP's local
service area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I. SWBT will provide Operator Services only where the
necessary physical facilities are available and in place and under
conditions previously stated in this Appendix.
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APPENDIX OS
PAGE 7 OF 8
B. LSP will be responsible for providing the equipment and facilities
necessary for signaling and routing calls with Automatic Number
Identification (ANI) to each SWBT operator switch. Should LSP seek to
provide interexchange Operator Services under this agreement, it is
responsible for ordering the necessary facilities through SWBT's
interstate or intrastate Access Service tariffs. Nothing in this
agreement in any way changes the manner in which an interexchange
Carrier obtains access service for the purpose of originating or
terminating interexchange traffic.
C. Facilities necessary for the provision of Operator Services shall be
provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of service
is met. Each party shall bear the costs for its own facilities. LSP
shall bear the costs of facilities necessary for signaling and
routing calls with Automatic Number Identification (ANI) to each SWBT
operator switch. SWBT shall bear the cost of facilities and equipment
necessary to provide Operator Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in advance of
the date when the Operator Services are to be undertaken, unless
otherwise agreed to by the SWBT, all records required by SWBT to
provide the Operator Services.
E. LSP will keep all records furnished to SWBT current by using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT in advance of any changes to be made in
such records. SWBT will specify the required interval for such
advance notice. LSP will provide all records and changes to records
to SWBT in writing or in any other mutually agreeable format.
F. SWBT will accumulate and provide the LSP such data as necessary for
the LSP to verify traffic volumes and bill its end users.
VI. METHODS AND PRACTICES
SWBT will provide the Operator Services to LSP's end users in accordance
with SWBT's OS methods and practices in effect for SWBT at the time the
OS call is made, unless otherwise agreed in writing by both parties.
VII. PRICING
Pricing for Operator Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached and made part of this Appendix.
The rates will apply from the service effective date through the term of
this agreement as specified in paragraph X., A. below. At any time
beyond the specified or the term of this Appendix, SWBt may change the
prices for the provision of OS upon one hundred-twenty (120) days' notice
to LSP.
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APPENDIX OS
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VIII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
IX. LIABILITY
A. In addition to the liability provisions contained in the Agreement,
LSP agrees to defend, indemnify, and hold harmless SWBT from any and
all losses, damages, or other liability including attorneys fees that
LSP may incur as a result of claims, demands, wrongful death actions,
or other suits brought by any party that arise out of LSP's end users
use of Operator Services. LSP shall defend against all end user
claims just as if LSP had provided such service to its end user with
the LSP's own operators and shall assert its tariff limitation of
liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold harmless SWBT
from any claim, demand or suit that asserts any infringement or
invasion of privacy or confidentiality of any person or persons
caused or claimed to be caused, directly, or indirectly, by SWBT
employees and equipment associated with provision of the Operator
Services. This provision includes but is not limited to suits arising
from disclosure of the telephone number, address, or name associated
with the telephone called or the telephone used to call the Operator
Services.
X. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force for a
period of one (l) year from the effective date of this agreement and
thereafter until terminated by one hundred-twenty (120) days notice
in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon term of
this Appendix, LSP shall pay, within thirty (30) days of the issuance
of a final bill by SWBT, all amounts due for actual services provided
under this Appendix, plus estimated monthly charges for the remainder
of the term. Estimated charges will be based on an average of the
actual monthly amounts billed by SWBT pursuant to this Appendix
prior to its termination.
C. The rates applicable for determining the amount(s) under the terms
outlined in this Section are those specified in Exhibit II.
<PAGE> 176
APPENDIX OS - EXHIBIT I
PAGE 1 OF 1
APPENDIX OS
LOCAL SERVICE AREA(S)
EFFECTIVE:
----------------------
(mm/dd/yr)
The following table depicts the service area(s) covered by this Appendix:
<TABLE>
<CAPTION>
LSP'S LOCAL SERVICE AREA(S) EFFECTIVE DATE
<S> <C>
- --------------------------- --------------
- --------------------------- --------------
- --------------------------- --------------
- --------------------------- --------------
- --------------------------- --------------
</TABLE>
<PAGE> 177
APPENDIX OS - EXHIBIT II
PAGE 1 OF 1
APPENDIX OS
OKLAHOMA
EXHIBIT II
PRICING - FCILITIES BASED
EFFECTIVE:______________________
(mm/dd/yr)
The following rates will apply for each service element:
<TABLE>
<S> <C>
A. FULLY AUTOMATED CALL PROCESSING
This usage rate applies to each call that has been completed
on a fully automated basis.
Rate per completed automated call $ 0.179
B. OPERATOR-ASSISTED CALL PROCESSING
This usage rate applies to each call that has been answered by
or forwarded to an operator.
Rate per actual work second $ 0.021
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch,
per brand for the establishment of LSP specified Call
Branding. An additional non-recurring charge applies
for each subsequent change to the branding
Rate per initial load group $2,700.00
Rate per load for Brand change $2,700.00
Per Call(1) $ 0.02
D. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch,
per rate schedule, for the initial load of LSP's Operator
Services Rate/Reference Information. An additional
non-recurring charge applies for each subsequent change
to Rate/Reference Information.
Rate per initial load $4,100.00
Rate per subsequent rate change $2,900.00
Rate per subsequent reference change $2,900.00
</TABLE>
__________________
(1) A per call charge will apply when OS are provided in conjunction with: i)
unbundled local switching or ii) when multiple brands are required on a single
operator services trunk
<PAGE> 178
APPENDIX NIM
PAGE 2 OF 5
APPENDIX NETWORK INTERCONNECTION METHODS (NIM)
This Appendix NIM designates Network Interconnection Methods (NIMs) to be
used by the Parties. These include, but are not limited to: MidSpan
Fiber Interconnection (MSFI); Virtual Collocation Interconnection; SONET
Based Interconnection; Physical Collocation Interconnection; leasing of
SWBT facilities; and other methods as mutually agreed to by the Parties.
1. MID-SPAN FIBER INTERCONNECTION (MSFI)
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.
MSFI may be used to provide interconnection trunking as defined in
Appendix ITR to Attachment 11: Network Interconnection Architecture.
A. There are two basic mid-span interconnection designs:
1. 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 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.
<PAGE> 179
APPENDIX NIM
PAGE 3 OF 5
2. 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.
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.
B. 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.
C. 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.
D. The fiber connection point may occur at several locations:
1. 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;
2. 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;
3. 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;
4. 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.
<PAGE> 180
APPENDIX NIM
PAGE 4 OF 5
E. 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.
F. 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.
2. AVOIDANCE OF OVER PROVISIONING
Underutilization is the 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.
3. JOINT FACILITY GROWTH PLANNING
The initial fiber optic 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:
1. Investment is to be minimized;
2. Facilities are to be deployed in a "just in time" fashion.
B. Processes
1. discussions to provide relief to existing facilities will be
triggered when either Party recognizes that the overall system facility
(DS1s) is at 90% capacity;
2. 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
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APPENDIX NIM
PAGE 5 OF 5
described in Appendix ITR will be used in determining trunk group
sizing requirements and forecasts;
3. 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;
4. 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;
5. 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;
6. the joint planning process/negotiations should be completed within
two months of identification of 90% fill.
4. VIRTUAL COLLOCATION INTERCONNECTION
The description of Virtual Collocation Interconnection is contained in
SWBT's Virtual Collocation tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
5. SONET-BASED INTERCONNECTION
The description of SONET-Based Interconnection is contained in SWBT's
Sonet-Based Interconnection tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
6. PHYSICAL COLLOCATION INTERCONNECTION
SWBT will provide Physical Collocation Interconnection on
nondiscriminatory terms and conditions at the time LSP requests such
interconnection.
7. LEASING OF SWBT'S FACILITIES
LSP's leasing of SWBT's facilities for purposes of Attachment 11: Network
Interconnection Architecture will be subject to the mutual agreement of
the Parties.
<PAGE> 182
PHYSICAL COLLOCATION AGREEMENT
BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
<PAGE> 183
TABLE OF ARTICLES
<TABLE>
<S> <C>
ARTICLE I - PREMISES .................................................. -1-
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL .................... -2-
ARTICLE III - TERM .................................................... -3-
ARTICLE IV - PREMISES CHARGES ......................................... -4-
ARTICLE V - INTERCONNECTION CHARGES ................................... -7-
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT .................. -7-
ARTICLE VII - USE OF PREMISES ......................................... -8-
ARTICLE VIII - STANDARDS .............................................. -10-
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR ................... -11-
ARTICLE X - QUIET ENJOYMENT ........................................... -13-
ARTICLE XI - ASSIGNMENT ............................................... -13-
ARTICLE XII - CASUALTY LOSS ........................................... -13-
ARTICLE XIII - RE-ENTRY .............................................. -14-
ARTICLE XIV - LIMITATION OF LIABILITY ................................. -15-
ARTICLE XV - INDEMNIFICATION OF SWBT .................................. -16-
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES ......... -17-
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION .............. -17-
ARTICLE XVIII - SUCCESSORS BOUND ...................................... -19-
ARTICLE XIX - CONFLICT OF INTEREST .................................... -19-
ARTICLE XX - NON-EXCLUSIVE REMEDIES ................................... -20-
ARTICLE XXI - NOTICES ................................................. -20-
ARTICLE XXII - COMPLIANCE WITH LAWS ................................... -20-
ARTICLE XXIII - OSHA STATEMENT ........................................ -21-
ARTICLE XXIV - INSURANCE .............................................. -21-
ARTICLE XXV - SWBT'S RIGHT OF ACCESS .................................. -24-
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT ......................... -24-
</TABLE>
<PAGE> 184
<TABLE>
<S> <C>
ARTICLE XXVII - MISCELLANEOUS ......................................... -25-
</TABLE>
<PAGE> 185
PHYSICAL COLLOCATION AGREEMENT
THIS PHYSICAL COLLOCATION AGREEMENT ("Agreement") is made this
_____________ day of ____________________, 19__ by and between SOUTHWESTERN
BELL TELEPHONE COMPANY, a Missouri corporation ("SWBT"), and Digital Teleport,
Inc., a [STATE OF INCORPORATION] corporation ("Interconnector").
WITNESSETH
WHEREAS, SWBT is an incumbent local exchange carrier having a statutory
duty to provide for "physical collocation" of "equipment necessary for
interconnection or access to unbundled network elements" at its premises, 47
U.S.C. 251(c)(6);
WHEREAS, the Interconnector wishes to physically locate certain of its
equipment within the Premises (as defined herein) and connect with SWBT;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SWBT and the Interconnector (the
"parties") agree as follows:
ARTICLE I - PREMISES
1.1 Right to Use. Subject to this Agreement, SWBT grants to
Interconnector the right to use the premises described on Exhibit __
("Premises"), attached and incorporated herein, within real property at
___________ in the City of ______________, County of _________________, State of
_________________.
1.2 Relocation. Notwithstanding Section 1.1, in the event that SWBT
determines it necessary for the Premises to be moved within the building in
which the Premises is located ("Building") or to another SWBT wire center, the
Interconnector is required to do so. In such an event, the Interconnector shall
be responsible for the preparation of the new premises at the new location if
such relocation arises from circumstances beyond the reasonable control of SWBT,
including condemnation
<PAGE> 186
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or government order or regulation that makes the continued occupancy of the
Premises or Building uneconomical in SWBT's sole judgment. Otherwise SWBT shall
be responsible for any such preparation.
In the event that the Interconnector requests that the Premises be moved
within the Building or to another SWBT wire center, SWBT shall permit the
Interconnector to relocate the Premises, subject to the availability of space
and associated requirements. The Interconnector shall be responsible for all
applicable charges associated with the move, including the reinstallation of
its equipment and facilities and the preparation of the new Premises and the
new wire center as applicable.
In either such event, the new premises shall be deemed the "Premises"
hereunder and the new wire center the "Building."
1.3 The Premises. SWBT agrees, at the Interconnector's sole cost and
expense as set forth herein, to prepare the Premises in accordance with working
drawings and specifications entitled ______________ and dated ______________,
which documents, marked Exhibit __, are attached and incorporated herein. The
preparation shall be arranged by SWBT in compliance with all applicable codes,
ordinances, resolutions, regulations and laws. After the Interconnector has
made the initial payments required by Section 4.4 and the state regulatory
approval is obtained in accordance with Section 2.1 hereof, SWBT agrees to
pursue diligently the preparation of the Premises for use by the
Interconnector.
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL
2.1 Submission to State Commission. The effectiveness of this Agreement
is conditioned upon the unqualified approval of this Agreement, whether as a
result of an approval process or by operation of law, under 47 U.S.C.
252(a)(1). After execution of this Agreement, the parties shall submit it to
the State commission for the State in which the Premises is located as thereby
required for approval, and shall defend the Agreement and support any
reasonable effort to have this Agreement so approved,
<PAGE> 187
-3-
including the supplying of witnesses and testimony if a hearing is to be held.
2.2 Failure to Receive Approval. In the event that this Agreement does
not receive such unqualified approval, this Agreement shall be void upon
written notice of either party to the other after such regulatory action
becomes final and unappealable. Thereafter Interconnector may request to begin
negotiations again under 47 U.S.C. 251. Alternatively, the parties may both
agree to modify this Agreement to receive such approval, but neither shall be
required to agree to any modification. Any agreement to modify shall not waive
the right of either party to pursue any appeal of the ruling made by any
reviewing regulatory commission.
2.3 Preparation Prior to Regulatory Approval. At the written election of
the Interconnector, SWBT shall begin preparing the Premises for the
Interconnector prior to receiving the approval required by Section 2.1 hereof.
The sole evidence of such election shall be the payment to SWBT of the initial
payments specified in Sections 4.4. Payment to SWBT of the remaining charges
under these Sections shall be due upon completion. Upon such an election, this
Agreement shall become effective but only insofar as to be applicable to the
Premises preparation. In the event that the Agreement does not become fully
effective as contemplated by this Article, the Interconnector shall not be
entitled to any refund or return of any such payments beyond any portion of the
charges paid but not attributable to costs incurred by SWBT. To the extent that
SWBT has incurred preparation costs not included within any payment made by the
Interconnector, the Interconnector shall pay those costs within thirty (30) days
of notice by SWBT.
ARTICLE III - TERM
3.1 Commencement Date. This Agreement shall be month-to-month, beginning
on the "Commencement Date." The "Commencement Date" shall be the first day
after this Agreement becomes effective in accordance with Article II hereof.
3.2 Occupancy. Unless there are unusual circumstances, SWBT will notify
the Interconnector
<PAGE> 188
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that the Premises is ready for occupancy within ____ days after receipt of the
payments due under Sections 4.4. The Interconnector must place operational
telecommunications equipment in the Premises and connect with SWBT's network
within sixty (60) days after receipt of such notice; provided, however, that
such 60-day period shall not begin until regulatory approval is obtained under
Article II. If the Interconnector fails to do so, this Agreement is terminated
except that the Interconnector shall be liable in an amount equal to the unpaid
balance of the charges due under and, further, shall continue to be bound by
Articles II, IV, XI, XIV, XV, XVII, XVIII, XX, XXI, XXVI and XXVII hereof. For
purposes of this Section, the Interconnector's telecommunications equipment is
considered to be operational and interconnected when connected to SWBT's network
for the purpose of providing service.
ARTICLE IV - PREMISES CHARGES
4.1 Monthly Charges. Beginning on the Commencement Date, Interconnector
shall pay to SWBT a charge of ______ Dollars ($___) per month for use of the
Premises. The monthly charge may be increased upon thirty (30) days' notice by
SWBT.
4.2 Billing. Billing shall occur on or about the 25th day of each month,
with payment due thirty (30) days from the bill date. SWBT may change its
billing date practices upon thirty (30) days notice to the Interconnector.
4.3 Preparation Charge. (a) The one-time charge for preparing the
Premises for use by the Interconnector is estimated to be ___________ Dollars
($XXX.XX) ("Preparation Charge"), which consists of two components: (i) the
charge to the Interconnector associated with modifying the Building to provide
physical collocation ("Common Charge"), and (ii) the charge associated with
preparing the Premises ("Premises Charge"). Of the Preparation Charge
___________ Dollars ($XXX.XX) is the estimate for subcontractor charges
("Subcontractor Charges").
(b) SWBT will contract for and perform the construction and preparation
activities underlying the
<PAGE> 189
-5-
Preparation Charge, including the Common Charge, the Premises Charge, and the
Subcontractor Charges, and any Custom Work charges, using same or consistent
practices that are used by SWBT for other construction and preparation work
performed in the Building. Subject to an appropriate nondisclosure agreement,
SWBT will permit the Interconnector to inspect supporting documents for the
Preparation Charge, including the Common Charge (if the Interconnector is the
initial physical collocator as used in Section 4.5(b)) and the Premises
Charge, and any Custom Work charge. Any dispute regarding such SWBT charges
will be subject to the dispute resolution provisions hereof.
4.4 Payment of Premises Charge. Prior to any obligation on SWBT to start
any preparation of the Premises, the Interconnector shall pay SWBT fifty
percent (50%) of the Premises Charge and eighty-five percent (85%) of any
custom work charge required to create or vacate any entrance facility for the
Interconnector ("Custom Work"), and shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Premises Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.5 Payment of Common Charge. (a) In addition and prior to any obligation
on SWBT to start any preparation of the Building for physical collocation, the
Interconnector shall pay SWBT fifty percent (50%) of the Common Charge. The
other fifty percent (50%) of the Common Charge is due upon completion and prior
to occupancy by the Interconnector.
(b) The first entity to which SWBT provides physical collocation in the
Building shall be responsible for all costs incurred by SWBT associated with
the preparation of the Building to provide physical collocation in the initial
space where physical collocation is to be located ("Initial Common Charge").
Thereafter the Initial Common Charge will be prorated and the prorated share
refunded to the previous physical collocator(s) as additional entities use
physical collocation in the Building within twelve (12) months of the first
billing date of the initial monthly charge for the first physical collocator in
the Building, using the following schedule:
<PAGE> 190
-6-
<TABLE>
<CAPTION>
Collocator Initial Common Charge Refund
-------------- --------------------- ---------
<S> <C> <C>
1st 100% NA
2nd 50% 50%
3rd 33 1/3% 16 2/3%
4th 25% 8 1/3%
5th and beyond 0% 0%
</TABLE>
To the extent that a physical collocator uses a space other than such initial
space, SWBT shall refund to the Interconnector the portion of the Initial
Common Charge applicable to such collocator based on the relative use of such
initial space in a manner consistent with the above methodology and other terms
of this Agreement.
(c) No interest will be paid on refunds. Refunds shall be based on the
Initial Common Charge actually paid by the first physical collocator.
(d) Notwithstanding the above, SWBT shall have no obligation to remit any
amount that would result in SWBT being unable to retain the full amount of the
Initial Common Charge or to remit any amount based upon charges not actually
collected.
4.6 Payment of Preparation Charge. SWBT is not obligated to start any
preparation of the Premises until the Interconnector pays SWBT fifty percent
(50%) of the Preparation Charge and eighty-five percent (85%) of the charges
for any Custom Work charge. Such charges shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Preparation Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.7 Occupancy Conditioned on Payment. SWBT shall not permit the
Interconnector to have access to the Premises for any purpose other than
inspection until SWBT is in receipt of complete payment of the Preparation
Charge and any Custom Work charges.
4.8 Subcontractor Charges. Within one hundred twenty (120) days of the
completion date of the Premises, SWBT shall perform a true-up of all
Subcontractor Charges using the actual amounts billed
<PAGE> 191
-7-
by subcontractors. Any amounts incurred above the Subcontractor Charges will be
billed to the Interconnector or, alternatively, any amount below such Charges
will be remitted to the Interconnector.
4.9 Breach Prior to Commencement Date. In the event that the
Interconnector materially breaches this Agreement by purporting to terminate
this Agreement after SWBT has begun preparation of the Premises but before SWBT
has been paid the entire amounts due under this Article, then in addition to
any other remedies that SWBT might have, the Interconnector shall be liable in
the amount equal to the non-recoverable costs less estimated net salvage.
Non-recoverable costs include the non-recoverable cost of equipment and
material ordered, provided or used; trued-up Subcontractor Charges, the
non-recoverable cost of installation and removal, including the costs of
equipment and material ordered, provided or used; labor; transportation and any
other associated costs.
4.10 Late Payment Charge. In the event that any charge is not paid when
due, the unpaid amounts shall bear interest in accordance with the terms and
conditions set forth in SWBT's intrastate tariff late payment provision(s)
applicable to access services for the State in which the Premises is located,
or the highest rate permitted by law, whichever is lower, from the due date
until paid.
ARTICLE V - INTERCONNECTION CHARGES
5.1 Charges for interconnection shall be as set forth in any
interconnection agreement between SWBT and the interconnector and any
applicable tariffs.
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT
6.1 Fiber Entrances. The Interconnector shall use a single mode
dielectric fiber optic cable as a transmission medium to the Premises. The
Interconnector shall be permitted no more than two (2) entrance routes into the
Building, if available.
6.2 Demarcation Point. SWBT shall designate the point(s) of termination
within the Building as the point(s) of physical demarcation between the
Interconnector's network and SWBT's network, with
<PAGE> 192
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each being responsible for maintenance and other ownership obligations and
responsibilities on its side of that demarcation point. SWBT anticipates that
the demarcation point will be within the point-of-termination frame.
ARTICLE VII - USE OF PREMISES
7.1 Nature of Use. The Premises are to be used by the Interconnector for
purposes of locating equipment and facilities within SWBT's central offices
connect with SWBT services only. Consistent with the nature of the Building
and the environment of the Premises, the Interconnector shall not use the
Premises for office, retail, or sales purposes. No signage or markings of any
kind by the Interconnector shall be permitted on the Building or on the grounds
surrounding the Building.
7.2 Equipment List. A list of all of the Interconnector's equipment and
facilities that will be placed within the Premises is set forth on Exhibit __,
attached and incorporated herein, with the associated power requirements, floor
loading, and heat release of each piece. The Interconnector warrants and
represents that Exhibit __ is a complete and accurate list, and acknowledges
that any incompleteness or inaccuracy would be a material breach of this
Agreement. The Interconnector shall not place or leave any equipment or
facilities within the Premises beyond those listed on Exhibit __ without the
express written consent of SWBT.
7.2.1 Subsequent Requests to Place Equipment. In the event that
subsequent to the execution of this Agreement the Interconnector desires to
place in the Premises any equipment or facilities not set forth on Exhibit __,
the Interconnector shall furnish to SWBT a written list and description thereof
substantially in the form of Attachment A, which is attached and incorporated.
Thereafter, in its sole discretion, SWBT may provide such written consent or
may condition any such consent on additional charges arising from the request,
including any engineering design charges and any additional requirements such
as power and environmental requirements for such listed and described equipment
and/or facilities. Upon the execution by both parties of a final list and
description, including any
<PAGE> 193
-9-
applicable charges, this Agreement shall be deemed to have been amended to
include the terms and conditions of the final list and description.
7.2.2 Limitations. The foregoing imposes no obligation upon SWBT to
purchase additional plant or equipment, relinquish used or forecasted space or
facilities, or to undertake the construction of new quarters or to construct
additions to existing quarters in order to satisfy a subsequent request for
additional space or the placement of additional equipment or facilities.
7.3 Administrative Uses. The Interconnector may use the Premises for
placement of equipment and facilities only. The Interconnector's employees,
agents and contractors shall be permitted access to the Premises at all
reasonable times, provided that the Interconnector's employees, agents and
contractors comply with SWBT's policies and practices pertaining to fire, safety
and security. The Interconnector agrees to comply promptly with all laws,
ordinances and regulations affecting the use of the Premises. Upon the
expiration of the Agreement, the Interconnector shall surrender the Premises to
SWBT, in the same condition as when first occupied by the Interconnector,
ordinary wear and tear excepted.
7.4 Threat to Network or Facilities. Interconnector equipment or
operating practices representing a significant demonstrable technical threat to
SWBT's network or facilities, including the Building, are strictly prohibited.
7.5 Interference or Impairment. Notwithstanding any other provision
hereof, the characteristics and methods of operation of any equipment or
facilities placed in the Premises shall not interfere with or impair service
over any facilities of SWBT or the facilities of any other person or entity
located in the Building; create hazards for or cause damage to those
facilities, the Premises, or the Building; impair the privacy of any
communications carried in, from, or through the Building; or create hazards or
cause physical harm to any individual or the public. Any of the foregoing
events would be a material breach of this Agreement.
<PAGE> 194
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7.6 Interconnection to Other Collocated Interconnectors Within the
Building To the extent that SWBT is required by law to permit such
interconnection, SWBT will provide the connection between physical collocation
arrangements on a time and materials basis whenever the collocated
interconnectors cannot for technical reasons provide the connection for
themselves by passing the facility through the cage wall(s). SWBT will provide
nothing more than the labor and physical structure(s) necessary for the
collocator(s) to pull facilities provided by one collocator from its cage to the
cage of another collocator. If the collocators are not located on the same floor
and cannot physically pull the cable themselves through the SWBT provided
structure(s), SWBT will perform the cable pull on an time and materials basis.
At no time will the collocators be allowed access to any portion of the central
office other than the collocation area. SWBT will not make the physical
connection within the collocator's cage, SWBT will not accept any liability for
the cable or the connections and SWBT will not maintain any records concerning
these connections.
7.7 Personality and its Removal. Subject to this Article, the
Interconnector may place or install in or on the Premises such fixtures and
equipment as it shall deem desirable for the conduct of business. Personal
property, fixtures and equipment placed by the Interconnector in the Premises
shall not become a part of the Premises, even if nailed, screwed or otherwise
fastened to the Premises, but shall retain their status as personality and may
be removed by Interconnector at any time. Any damage caused to the Premises by
the removal of such property shall be promptly repaired by Interconnector at
its expense.
7.8 Alterations. In no case shall the Interconnector or any person
purporting to be acting through or on behalf of the Interconnector make any
rearrangement, modification, improvement, addition, repair, or other alteration
to the Premises or the Building without the advance written permission and
direction of SWBT. SWBT shall consider a modification, improvement, addition,
repair, or other alteration requested by the Interconnector, provided that SWBT
shall have the right to reject or modify
<PAGE> 195
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any such request. The cost of any such construction shall be paid by
Interconnector in accordance with SWBT's then-standard custom work order
process.
ARTICLE VIII - STANDARDS
8.1 Minimum Standards. This Agreement and the physical collocation
provided hereunder is made available subject to and in accordance with the (i)
Bellcore Network Equipment Building System (NEBS) Generic Requirements
(GR-63-CORE and GR-1089-CORE), as may be amended at any time and from time to
time, and any successor documents; (ii) SWBT's Technical Publication for
Physical Collocation dated _____, 1996, as may be amended from time to time;
(iii) SWBT's Technical Publication 76300, Installation Guide, followed in
installing network equipment and facilities within SWBT central offices, as may
be amended from time to time; (iv) SWBT's Emergency Operating Procedures, as may
be amended from time to time; and (v) any statutory and/or regulatory
requirements in effect at the execution of this Agreement or that subsequently
become effective and then when effective. The Interconnector shall strictly
observe and abide by each.
8.2 Revisions. Any revision to SWBT's Technical Publication for Physical
Collocation, its Technical Publication 76300, or its Emergency Operating
Procedures shall become effective and thereafter applicable under this
Agreement thirty (30) days after such revision is released by SWBT; provided,
however, that any revision made to address situations potentially harmful to
SWBT's network or the Premises, or to comply with statutory and/or regulatory
requirements shall become effective immediately.
8.3 Compliance Certification. The Interconnector warrants and represents
compliance with the Bellcore Network Equipment Building System (NEBS) Generic
Requirements (GR-63-CORE and GR-1089-CORE) for each item set forth on Exhibit
___. The Interconnector also warrants and represents that any equipment or
facilities that may be placed in the Premises pursuant to Section 7.2.1 or
otherwise shall be so compliant. DISCLOSURE OF ANY NON-COMPLIANT ITEM ON
<PAGE> 196
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EXHIBIT __, PURSUANT TO SECTION 7.2.1, OR OTHERWISE SHALL NOT QUALIFY THIS
ABSOLUTE CERTIFICATION IN ANY MANNER.
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR
9.1 Contact Number. The Interconnector is responsible for providing to
SWBT personnel a contact number for Interconnector technical personnel who are
readily accessible 24 hours a day, 7 days a week.
9.2 Trouble Status Reports. The Interconnector is responsible for
providing trouble report status when requested by SWBT.
9.3 Optical Fiber Extension. The Interconnector is responsible for
bringing its fiber optic cable to the wire center entrance manhole(s)
designated by SWBT, and for leaving sufficient cable length in order for SWBT
to fully extend the Interconnector-provided cable through the cable vault to
the Premises.
9.4 Regeneration. Regeneration of either DS1 or DS3 signal levels may be
provided by the Interconnector, or SWBT under its then-standard custom work
order process, including payment requirements prior to the installation of the
regeneration equipment.
9.5 Removal. The Interconnector is responsible for removing any
equipment, property or other items that it brings into the Premises or any other
part of the Building. If the Interconnector fails to remove any equipment,
property, or other items from the Premises within thirty (30) days after
discontinuance of use, SWBT may perform the removal and shall charge the
Interconnector for any materials used in any such removal, and the time spent on
such removal at the then-applicable hourly rate for custom work. Further, in
addition to the other provisions herein, the Interconnector shall indemnify and
hold SWBT harmless from any and all claims, expenses, fees, or other costs
associated with any such removal by SWBT.
<PAGE> 197
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9.6 Interconnector's Equipment and Facilities. The Interconnector is
solely responsible for the design, engineering, testing, performance, and
maintenance of the equipment and facilities used by the Interconnector in the
Premises. The Interconnector will be responsible for servicing, supplying,
repairing, installing and maintaining the following facilities within the
Premises:
(a) its fiber optic cable(s);
(b) its equipment;
(c) required point of termination cross connects;
(d) point of termination maintenance, including replacement of fuses and
circuit breaker restoration, if and as required; and
(e) the connection cable and associated equipment which may be required
within the Premises to the point(s) of termination.
SWBT NEITHER ACCEPTS NOR ASSUMES ANY RESPONSIBILITY WHATSOEVER IN ANY OF THESE
AREAS.
9.7 Verbal Notifications Required. The Interconnector is responsible for
immediate verbal notification to SWBT of significant outages or operations
problems which could impact or degrade SWBT's network, switches, or services,
and for providing an estimated clearing time for restoral. In addition,
written notification must be provided within twenty-four (24) hours.
9.8 Service Coordination. The Interconnector is responsible for
coordinating with SWBT to ensure that services are installed in accordance with
the service request.
9.9 Testing. The Interconnector is responsible for testing, to identify
and clear a trouble when the trouble has been isolated to an
Interconnector-provided facility or piece of equipment. If SWBT testing is
also required, it will be provided at charges specified in SWBT's F.C.C. No.
73, Section 13.
ARTICLE X- QUIET ENJOYMENT
Subject to the other provisions hereof, SWBT covenants that it has full
right and authority to
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permit the use of the Premises by the Interconnector and that, so long as the
Interconnector performs all of its obligations herein, the Interconnector may
peaceably and quietly enjoy the Premises during the term hereof.
ARTICLE XI - ASSIGNMENT
The Interconnector shall not assign or otherwise transfer this Agreement,
neither in whole nor in part, or permit the use of any part of the Premises by
any other person or entity, without the prior written consent of SWBT. Any
purported assignment or transfer made without such consent shall be voidable at
the option of SWBT. The Interconnector shall not permit any third party to
jointly occupy the Premises.
ARTICLE XII - CASUALTY LOSS
12.1 Damage to Premises. If the Premises are damaged by fire or other
casualty, and
(i) The Premises are not rendered untenantable in whole or in
part, SWBT shall repair the same at its expense (as hereafter
limited) and the rent shall not be abated, or
(ii) The Premises are rendered untenantable in whole or in part
and such damage or destruction can be repaired within ninety (90)
days, SWBT has the option to repair the Premises at its expense (as
hereafter limited) and rent shall be proportionately abated while
Interconnector was deprived of the use. If the Premises cannot be
repaired within ninety (90) days, or SWBT opts not to rebuild, then
this Agreement shall (upon notice to the Interconnector within
thirty (30) days following such occurrence) terminate as of the date
of such damage.
Any obligation on the part of SWBT to repair the Premises shall be limited to
repairing, restoring and rebuilding the Premises as originally prepared for the
Interconnector and shall not include any obligation to repair, restore, rebuild
or replace any alterations or improvements made by the
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Interconnector or by SWBT on request of the Interconnector; or any fixture or
other equipment installed in the Premises by the Interconnector or by SWBT on
request of the Interconnector.
12.2. Damage to Building. In the event that the Building shall be so
damaged by fire or other casualty that closing, demolition or substantial
alteration or reconstruction thereof shall, in SWBT's opinion, be advisable,
then, notwithstanding that the Premises may be unaffected thereby, SWBT, at its
option, may terminate this Agreement by giving the Interconnector ten (10) days
prior written notice within thirty (30) days following the date of such
occurrence, if at all possible.
ARTICLE XIII - RE-ENTRY
If the Interconnector shall default in performance of any agreement
herein, and the default shall continue for thirty (30) days after receipt of
written notice, or if the Interconnector is declared bankrupt or insolvent or
makes an assignment for the benefit of creditors, SWBT may, immediately or at
any time thereafter, without notice or demand, enter and repossess the
Premises, expel the Interconnector and any claiming under the Interconnector,
remove the Interconnector's property, forcibly if necessary, and thereupon this
Agreement shall terminate, without prejudice to any other remedies SWBT might
have.
SWBT may also refuse additional applications for service and/or refuse to
complete any pending orders for additional space or service by the
Interconnector at any time thereafter.
ARTICLE XIV - LIMITATION OF LIABILITY
14.1 Limitation. With respect to any claim or suit for damages arising in
connection with the mistakes, omissions, interruptions, delays or errors, or
defects in transmission occurring in the course of furnishing service hereunder,
the liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly charge to the Interconnector for the period during which
such mistake, omission, interruption, delay, error, or defect in transmission or
service occurs and continues.
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However, any such mistakes, omissions, interruptions, delays, errors, or
defects in transmission or service which are caused or contributed to by the
negligence or willful act of the Interconnector or which arise in connection
with the use of the Interconnector-provided facilities or equipment shall not
result in the imposition of any liability whatsoever upon SWBT.
Neither party shall be responsible to the other for any indirect, special,
consequential, lost profit, or punitive damages, whether in contract or tort.
Each party shall be indemnified and held harmless by the other against
claims and damages by any third party arising from provision of the other
party's services or equipment except those claims and damages directly
associated with the provision of services to the other party which are governed
by the provisioning party's applicable tariffs.
Neither party shall have any liability whatsoever to the customers of the
other party for claims arising from the provision of the other party's service
to its customers, including claims for interruption of service, quality of
service or billing disputes.
The liability of either party for its willful misconduct, if any, is not
limited by this Agreement. With respect to any other claim or suit, by a
customer or by any others, for damages associated with the installation,
provision, preemption, termination, maintenance, repair or restoration of
service, SWBT's liability, if any, shall not exceed an amount equal to the
proportionate monthly charge for the affected period.
SWBT shall not be liable for any act or omission of any other carrier or
customer providing a portion of a service, nor shall SWBT for its own act or
omission hold liable any other carrier or customer providing a portion of a
service.
When the Interconnector is provided service under this Agreement, SWBT
shall be indemnified, defended and held harmless by the Interconnector against
any claim, loss or damage arising from the customer's use of services offered
under this Agreement, involving:
(1) Claims for libel, slander, invasion of privacy, or
infringement of copyright arising from the
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(j) Applicant and persons acting on Applicant's behalf are encouraged
to report unsafe conditions on, within, or in the vicinity of
SWBT's poles or conduit system to SWBT.
(k) Applicant shall establish sufficient controls and safeguards to
assure compliance with all provisions of this section.
6.10 Specific Requirements Relating to Personnel, Equipment, Materials, and
Construction Practices Within or in the Vicinity of SWBT's Conduit Systems. When
Applicant, its contractors, and other persons acting on Applicant's behalf
perform work for Applicant within or in the vicinity of SWBT's ducts, conduits,
and rights-of-way where such ducts or conduits are located, they will be guided
by the following:
(a) Except as may be mutually agreed upon by the parties in writing,
Applicant shall not "rod" or clear any duct or inner duct in
SWBT's conduit system other than a duct or inner duct assigned to
Applicant. Following the assignment of a specific duct or inner
duct to Applicant, Applicant may request that SWBT rod or clear
the duct or inner duct. If the duct or inner duct cannot be
cleared, SWBT will assign the next available duct or inner duct
to Applicant. Applicant's request for assignment of the next
available duct shall be in writing, may be transmitted to SWBT
via fax or other transmission media mutually agreed upon by the
parties, and shall be processed within the same intervals
applicable to the processing of similar requests by SWBT's own
personnel.
(b) Personnel performing work within SWBT's conduit system on either
party's behalf shall not climb on, step on, or otherwise disturb
the cables, air pipes, equipment, or other facilities located in
any manhole or other part of SWBT's conduit system.
(c) Personnel performing work within or in the vicinity of SWBT's
conduit system (including any manhole) on either party's behalf
shall, upon completing their work, make reasonable efforts to
remove all tools, unused materials, wire clippings, cable
sheathing and other materials brought by them to the work site.
(d) All of Applicant's facilities shall be firmly secured and
supported in accordance with Bellcore and industry standards and
any applicable construction standards adopted by SWBT and
applicable to SWBT's own facilities.
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(e) Applicant's facilities shall be plainly identified with
Applicant's name in each manhole with a firmly affixed permanent
tag that meets the identification standards set by SWBT for its
own facilities.
(f) Manhole pumping and purging required in order to allow
Applicant's work operations to proceed shall be performed by
Applicant or its contractor in accordance with the requirements
of Sections 6.14 and 6.15 of this Agreement.
(g) Planks or other types of platforms shall be supported only by
cable racks.
(h) Any leak detection liquid or device used by Applicant or
personnel performing work on Applicant's behalf within or in the
vicinity of SWBT's conduit system shall be of a type approved by
SWBT and included on SWBT's then-current list of approved types
of leak-detection liquids and devices; provided, however, that
Applicant may use any type of leak detection liquid or device
which meets Bellcore's published standards if SWBT has not
provided Applicant SWBT's list of approved types of leak
detection liquids or devices at least 60 days in advance of
Applicant's work.
(i) Applicant and its contractors shall be responsible for providing
proper ventilation while work is being performed in SWBT's
conduit system on Applicant's behalf. Except for protective
screens, no temporary cover shall be placed over an open manhole
unless it is at least four feet above the surface level of the
manhole opening.
(j) Smoking or the use of any open flame is prohibited in manholes,
in any other portion of the conduit system, or within 10 feet of
any open manhole entrance.
(k) Artificial lighting, when required by Applicant, will be provided
by Applicant. Only explosion-proof lighting fixtures shall be
used.
(l) Neither Applicant nor personnel performing work on Applicant's
behalf shall allow any combustible gas, vapor, liquid, or
material to accumulate in SWBT's conduit system (including any
manhole) during work operations performed within or in the
vicinity of SWBT's conduit system.
(m) Applicant shall comply with the standards set by SWBT for its own
personnel restricting the use of spark producing tools,
equipment, and devices (including but not limited to such tools
as electric drills and hammers, meggers, breakdown sets,
induction sets, and the like) in
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manholes and other portions of SWBT's conduit system, provided
that such standards have been communicated in writing to
Applicant at least 60 days in advance of the construction,
installation, or placement of Applicant's facilities within
SWBT's conduit system.
(n) Cable lubricants used in conduit systems shall be of a type or
types approved by SWBT and included on SWBT's then-current list
of approved types of cable lubricants; provided, however, that
Applicant may use any type of cable lubricant which meets
Bellcore's published standards if SWBT has not provided Applicant
SWBT's list of approved types of cable lubricants at least 60
days in advance of Applicant's work.
6.11 Opening of Manholes and Access to Conduit. The following requirements
apply to the opening of SWBT's manholes and access to SWBT's conduit system.
(a) Applicant will notify SWBT not less than 48 hours in advance
before entering SWBT's conduit system to perform non-emergency
work operations. Such operations shall be conducted during normal
business hours except as otherwise agreed by the parties. The
notice shall state the general nature of the work to be
performed. As a courtesy, Applicant shall, when feasible, provide
SWBT with 10 working days advance notice before entering SWBT's
conduit system. SWBT shall, within 10 working days after the
effective date of this Agreement, advise Applicant of the manner
in which notices required by this section shall be given.
(b) An authorized employee or representative of SWBT may be present
as a construction inspector at any time when Applicant or
personnel acting on Applicant's behalf enter or perform work
within SWBT's conduit system. Such inspectors may inspect the
performance and quality of the work and monitor the work for
compliance with the terms, conditions, and specifications of this
Agreement or, in the case of facilities modification, capacity
expansion or make-ready work, the plans and specifications of the
facilities modification, capacity expansion, or make-ready
project. When SWBT inspectors are present, Applicant and its
contractors shall have sole authority, responsibility, and
control over the method or manner by which the work is to be
performed. SWBT's inspectors may call violations to Applicant's
attention but shall have no authority to direct or advise
Applicant or personnel acting on Applicant's behalf concerning
the method or manner by which the work is to be performed;
provided, however, that nothing contained in this subsection
shall relieve Applicant from complying with any requirements of
this Agreement.
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(c) The parties contemplate that Applicant may need to perform
operations in SWBT's conduit system other than during normal
business hours and may on occasion require access to manholes on
shorter notice than contemplated in subsection (a) above. Under
these circumstances, Applicant shall notify SWBT as soon as is
reasonably possible of its intent to enter and perform work in
the conduit system and SWBT shall not, without due cause and
justification, insist on literal compliance with scheduling
requirements of subsection (a). SWBT will establish procedures
enabling SWBT to receive notices from Applicant under this
subsection 24 hours a day, seven days a week.
(d) Each party must obtain any necessary authorization from
appropriate authorities to open manholes for such party's own
conduit work and operations therein.
(e) Applicant shall reimburse SWBT for costs associated with the
presence of construction inspectors only as specified in APPENDIX
I and only as permitted by applicable laws, rules, regulations,
and commission orders. SWBT shall not charge Applicant for more
than one such construction inspector per site at any given time.
(f) If the presence of SWBT personnel at the site is requested by
Applicant or, in Applicant's opinion, is integral to successful
completion of the work, Applicant shall pay the costs of having
such personnel present.
6.12 OSHA Compliance. The parties agree that:
(a) facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the
Occupational Safety and Health Act (OSHA) and all rules and
regulations promulgated thereunder;
(b) all persons acting on such party's behalf shall, when working on,
within, or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way, comply with OSHA and all rules and regulations
thereunder; and
(c) Applicant shall establish appropriate procedures and controls to
assure compliance with all requirements of this section.
6.13 Hazardous Substances. Applicant acknowledges that, from time to time,
hazardous substances (as defined in Section 3.19 of this Agreement) may enter
SWBT's conduit system and accumulate in manholes or other conduit facilities and
that hazardous substances may be present at other sites where SWBT's poles,
ducts, conduits, or rights-of-way are located.
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(a) Applicant may, at its expense, perform such inspections and tests
at the site of any pole, duct, conduit, or right-of-way occupied
by or assigned to Applicant as Applicant may deem necessary to
determine the presence at such sites of hazardous substances.
SWBT will assist Applicant, at Applicant's request and expense,
in the performance of such inspections and tests.
(b) SWBT makes no representations to Applicant or personnel
performing work on Applicant's behalf that SWBT's poles, ducts,
conduits, or rights-of-way will be free from hazardous substances
at any particular time. Before entering a manhole or performing
any work within or in the vicinity of SWBT's conduit system or
any other site subject to access under this Agreement, Applicant
or personnel acting on Applicant's behalf shall independently
determine, to their satisfaction, whether such hazardous
substances are present and conduct their work operations
accordingly.
(c) Each party shall promptly notify the other of hazardous
substances known by such party to be present within or in the
vicinity of poles, ducts, conduits, or rights-of-way occupied by
or assigned to Applicant pursuant to this Agreement if, in the
sole judgment of such party, such hazardous substances create a
serious danger to (1) the health or safety of personnel working
within or in the vicinity of the conduit or (2) the physical
condition of the other party's facilities placed or to be placed
within the conduit.
(d) Nothing contained in this Agreement (including but not limited to
the acknowledgments and representations set forth in this
section) shall relieve either party from its responsibility to
comply with all applicable environmental laws or its
responsibility for any liability arising out of such party's
failure to comply with such laws. Nothing contained in this
Agreement shall be construed as relieving SWBT of liability for
hazardous substances present at any site subject to this
Agreement or as relieving either party of liability for
introducing hazardous substances to the site or causing or
contributing to the release of any such substances. Failure to
comply with the requirements of this section may, however, be
considered in determining issues relating to negligence,
causation of injury, and comparative responsibility for injuries
to persons, property, and the environment.
6.14 Compliance with Environmental Laws and Regulations. Applicant and SWBT
agree to comply with the following provisions relating to compliance with
environmental laws and regulations.
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(a) Facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, and rights-of-way following the effective date of this
Agreement shall be constructed, placed, maintained, repaired, and
removed in accordance with all applicable federal, state, and
local environmental statutes, ordinances, rules, regulations, and
other laws.
(b) All persons acting on Applicant's or SWBT's behalf, including but
not limited to the parties' employees, agents, contractors, and
subcontractors, shall, when working on, within or in the vicinity
of SWBT's poles, ducts, conduits, or rights-of-way, comply with
all applicable federal, state, and local environmental laws,
including but not limited to all environmental statutes,
ordinances, rules, and regulations. Applicant and personnel
acting on Applicant's behalf are expected to be familiar with
their obligations under environmental laws such as the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. ss. 9601 et seq.), the Toxic Substance Control Act
(15 U.S.C. ss. 2601-2629), the Clean Water Act (33 U.S.C. ss.
1251 et seq.), and the Safe Drinking Water Act (42 U.S.C. ss.
300f-300j).
(c) The parties shall each establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
(d) From and after the effective date of this Agreement, neither
party nor personnel acting on either party's behalf shall
discharge or release hazardous substances onto or from the site
of any SWBT pole, duct, conduit, or right-of-way. Neither
Applicant nor SWBT nor personnel acting on either party's behalf
shall discharge water or any other substance from any SWBT
manhole or other conduit facility onto public or private
property, including but not limited to any storm water drainage
system, without first determining that such discharge would not
violate any environmental law, create any environmental risk or
hazard, or damage the property of any person. Applicant will be
expected to test such water or substance for hazardous substances
in accordance with then-applicable SWBT standards and practices.
(e) Applicant and SWBT and all personnel performing work on
Applicant's or SWBT's behalf shall, when working on, within, or
in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, comply with such additional standards, practices,
and requirements as SWBT may from time to time adopt to comply
with environmental laws, provided that such standards are
communicated in writing to Applicant at least 60 days in advance
of Applicant's work.
6.15 Compliance with Other Governmental Requirements (Including
Aeronautical Navigation Safeguards). Facilities attached to SWBT's poles or
placed in
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SWBT's ducts, conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the ordinances, rules, and
regulations of any governing body having jurisdiction of the subject matter
(including but not limited to any valid ordinances, rules, and regulations
requiring permits, certificates, licenses or the like). Applicant and SWBT shall
comply with all statutes, ordinances, rules, regulations, and other laws
requiring the marking and lighting of aerial wires, cables, and other structures
to ensure that such wires, cables, and structures are not a hazard to
aeronautical navigation.
6.16 Differences in Specifications. To the extent that there may be
differences in the specifications, the most stringent specification will apply
except as otherwise specifically provided by SWBT in writing. Applicant will
consult with SWBT when Applicant is uncertain as to which specification is to be
followed.
6.17 Responsibility for the Condition of Facilities. Each party will be
responsible at all times for the condition of its facilities (including but not
limited to those extending from SWBT's poles, ducts, conduits, or rights-of-way
directly to any other location) and for its compliance with the requirements and
specifications of this article and all applicable laws, rules, regulations, and
ordinances.
ARTICLE 7: PRIMARY POINTS OF CONTACT, ACCESS TO RECORDS,
AND PRE-OCCUPANCY INSPECTIONS
7.01 Designation of Primary Points of Contact. Each party will, at the
request of the other party, designate a primary point of contact to facilitate
communications between the parties and the timely processing of Applicant's
applications for access to SWBT's poles, ducts, conduits, and rights-of-way
located within this State. Designations of primary points of contact will be
made by written notices including the name, title, address, phone number, and
fax number of the person designated as the primary point of contact; provided,
however, that unless and until a different designation is made, SWBT's primary
point of contact shall be the Utility Liaison Supervisor identified in APPENDIX
VIII. Designation of primary points of contact pursuant to this section will not
affect notice requirements or other legal requirements set forth in other
provisions of this Agreement.
7.02 Determinations by Applicant of Suitability and Availability. Applicant
shall make its own, independent assessment of the suitability of SWBT's poles,
ducts, conduits, and rights-of-way for Applicant's intended purposes.
7.03 Access to Records Relating to SWBT's Poles, Ducts, Conduits, and
Rights-of-Way. This section establishes procedures through which certain records
and information relating to SWBT's poles, ducts, conduits, and rights-of-way
will be made available to Applicant for planning and other purposes. Access to
such records and information will be conditioned on Applicant's execution of a
nondisclosure agreement equivalent in substance to the Nondisclosure Agreement
attached to this Agreement as
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APPENDIX V or such other nondisclosure agreement as shall be mutually acceptable
to the parties, and no person acting on Applicant's behalf will be granted
access to such records and information without first signing such a
nondisclosure agreement. Applicant will reimburse SWBT for all reasonable costs
incurred by SWBT in granting Applicant's requests for access to records and
information under this section.
(a) Applicant may, at any time after the effective date of this
Agreement, request permission to inspect SWBT's pole and conduit
maps and records, cable plat maps, and other plant location
records, if any, recording or logging assignments of pole, duct,
and conduit space. Applicant will be permitted to examine these
records during regular business hours at a location where copies
of such records are maintained or at such other location as may
be mutually agreed upon by the parties. Access to such maps and
records will be by appointment only, and SWBT will make such maps
and records available for inspection by Applicant on two business
days advance notice; provided, however, that Applicant will, as a
courtesy, when feasible, provide SWBT with 10 business days
advance notice of its intent to examine such records.
(b) The access described in subsection (a) shall include the right to
make copies, at Applicant's expense, except for cable plat maps,
which shall be made available for inspection only. In all
instances, such access shall include the ability to take notes
and make drawings with references to those maps and records. No
references to cable counts or circuit information may be included
in any such copies, notes, or drawings. With respect to other
cable-specific or customer-specific information, Applicant's
copies, notes, or drawings may include only such information as
needed for bona fide engineering and construction purposes (e.g.,
proposing cable consolidations and identifying plant
discrepancies) and not for sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and
similar activities. Applicant's copies, notes, and drawings may
include estimates regarding the physical characteristics (such as
size and weight) of cables when necessary to make engineering
determinations regarding the capacity, safety, reliability, or
suitability of SWBT's poles, ducts, conduits, and rights-of-way
for Applicant's intended uses.
(c) SWBT will provide Applicant the best information available from
SWBT's current pole and conduit maps and records, cable plat
maps, and other outside plant and construction records. SWBT
represents that such records reflect approximate geographical
locations of the facilities depicted and may not accurately
reflect information such as:
(1) the exact location of the facilities depicted;
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(2) the physical size, characteristics, or condition of the
facilities depicted;
(3) the ducts or inner ducts presently occupied, assigned, or
available within any particular conduit segment or manhole;
(4) the arrangement of facilities attached to a pole, the
position of facilities suspended between poles or their
relationship to each other and to the ground, or the
positioning of cables and other facilities housed within
ducts, conduits, manholes or other portions of SWBT's conduit
system; and
(5) other information which must be assessed before it can be
determined that space is available on or in a pole, duct, or
conduit for the attachment or occupancy of Applicant's
facilities or that the poles, ducts, or conduits depicted are
suitable for Applicant's intended use.
7.04 Pre-occupancy Inspection of Poles, Ducts, Conduits, and Rights-of-Way.
Applicant shall be permitted to view and inspect specified poles, ducts,
conduits, and rights-of-way on a pre-occupancy basis as provided in this
section.
(a) After the effective date of this Agreement, Applicant may view
specified poles, ducts, conduits, and rights-of-way on a
pre-occupancy basis. Nothing contained in this section shall
preclude Applicant from visually inspecting SWBT's poles, ducts,
conduits, or rights-of-way from any vantage point lawfully
accessible to Applicant without SWBT's permission.
(b) Applicant shall not enter any SWBT manhole for the purpose of
performing a pre-occupancy inspection without complying with all
applicable requirements set forth in Article 6 of this Agreement,
including but not limited to the provisions of Section 6.11
relating to the opening of manholes.
ARTICLE 8: POLE, DUCT, AND CONDUIT SPACE ASSIGNMENTS
8.01 Selection of Space. Applicant will select the space Applicant will
occupy on SWBT's poles or in SWBT's conduit systems. Applicant's selections will
be based on the same criteria SWBT applies to itself. To enable Applicant to
make such selections in accordance with SWBT's criteria, SWBT will provide
Applicant information about the network guidelines and engineering protocols
used by SWBT in determining the placement of facilities on SWBT's poles and in
SWBT's conduit systems. In conduit systems owned or controlled by SWBT,
maintenance ducts (as defined in Section 3.25) shall not be considered available
for Applicant's use except as specifically provided
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elsewhere in this Agreement. All other ducts, inner ducts, sub-ducts, and
partitioned conduits which are not assigned or occupied shall be deemed
available for use by SWBT, Applicant, and third parties entitled to access under
the Pole Attachment Act.
8.02 Pole, Duct, and Conduit Space Assignments. Pole, duct, and conduit
space selected by Applicant will be assigned to Applicant as provided in this
section. Information received by SWBT in connection with this section shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
(a) After Applicant's application for a pole attachment or conduit
occupancy license has been received by SWBT, the pole, duct, and
conduit space selected by Applicant in such application will be
assigned to Applicant for a pre-occupancy period not to exceed 12
months. The assignment (and date and time of assignment) will be
logged and recorded in the appropriate SWBT records. If such
space has been provisionally assigned to Applicant as authorized
below in subsection (b), the 12-month pre-occupancy assignment
period will begin on the date the provisional assignment is
recorded in SWBT's records or the date of SWBT's receipt of
Applicant's notice of intent to occupy under subsection (b),
whichever date first occurs.
(b) SWBT shall, within 60 days after the effective date of this
Agreement, adopt interim procedures which will enable pole, duct,
and conduit space to be provisionally assigned to Applicant and
other applicants prior to the submission of formal applications
required pursuant to Section 9.02 of this Agreement. Where
indicated below, the interim procedures will apply to the
assignment of space to SWBT as well as to Applicant and other
applicants. SWBT may, on 60 days advance notice to Applicant,
revise such interim procedures if such procedures prove to be
unworkable, in which event Applicant may challenge SWBT's
decision in accordance with procedures available to Applicant
under applicable federal and state laws and regulations. The
procedures will enable Applicant and other applicants, by written
notice, to advise SWBT of their intent to occupy unassigned space
which appears, from SWBT's records, to be available for
assignment. Upon receipt of such notice, SWBT shall date-and-time
stamp the notice and provisionally assign the space selected by
Applicant or such other applicant by logging and recording the
assignment (and date and time of assignment) in the appropriate
SWBT records, which records will be available for inspection as
provided in Section 7.03 of this Agreement. Space provisionally
assigned to Applicant or such other applicant will not be
available for assignment to any other person or entity, including
SWBT. Notwithstanding such provisional assignment, Applicant
shall not occupy such space without first obtaining a license,
except as provided in Section 8.03. The following additional
requirements shall apply.
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(1) Before giving SWBT notice of its intent to occupy unassigned
space, Applicant shall make a good faith determination that
it actually plans to occupy such space. The assignment
process shall not be used by either party for the purpose of
holding or reserving space which such party does not plan to
use or for the purpose of precluding SWBT or any other person
or entity from utilizing or having access to SWBT's poles,
ducts, conduits, or rights-of-way.
(2) With respect to unassigned conduit occupancy space, the
notice must include all information required to enable SWBT
and joint users, including other persons or entities which
may from time to time seek space in the same ducts and
conduits, to determine the specific space which Applicant
desires to occupy. The notice must, therefore, include, at a
minimum, the following information:
(i) the specific conduit sections, and each manhole, to be
occupied;
(ii) the number of ducts, and number of inner ducts, to be
occupied by Applicant within each conduit section;
(iii) the physical size (diameter) of the cables to be placed
in such duct, if known, or the maximum and minimum
sizes of the cables which may be placed if more than
one size cable is being considered for the space to be
occupied;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or unusual
expenditures;
(v) Applicant's best estimates of the dates when Applicant
plans to begin and complete construction at the sites
specified in the notice;
(vi) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement;
and
(vii) if applicable, a conspicuous statement, as required by
Section 5.06 of this Agreement, that the notice
pertains to a building entrance or building
distribution duct or conduit or other space within a
building.
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(3) With respect to unassigned pole space, such notice must
include all information required to enable SWBT and other
joint users, including other persons or entities seeking
space on the same poles, to determine the specific space
which Applicant desires to occupy. The notice must,
therefore, include, at a minimum, the following information:
(i) the specific poles to be occupied;
(ii) the specific space on each pole to be occupied,
including the height (distance from the ground) of the
attachment and the side (road or field) where the
attachment is to be made;
(iii) the anticipated number and types of cables to be
attached, together with the anticipated physical size
(diameter) and weight (weight per foot) of such cables,
and the anticipated number and types of strands, if
any, to be used to support the cables, such information
to be sufficient to give notice to SWBT and other joint
users of the remaining space on the pole available and
what facilities modification, capacity expansion, or
make-ready work may be required of subsequent
applicants as a result of the provisional assignment of
space to Applicant;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or unusual
expenditures;
(v) Applicant's best estimates of the dates when Applicant
plans to begin and complete construction at the sites
specified in the notice; and
(vi) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement.
(4) No later than 30 days after giving such notice, Applicant
shall file an application under Section 9.02 or the
provisional assignment will lapse.
(5) As stated in Section 7.03(c), SWBT does not represent that
its records accurately reflect the information necessary to
enable Applicant to rely upon a records-based assignment
process. SWBT shall have no duty to verify that space
provisionally assigned pursuant to this subsection is
actually available.
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(c) Assignments made prior to the issuance of a license will be
provisional assignments and will be subject to modification
if it is subsequently determined that the space selected by
or assigned to Applicant is already occupied or that a
different assignment is required to comply with SWBT's
standards for assigning pole, duct, and conduit occupancy
space.
(d) Applicant's obligation to pay semiannual pole attachment or
conduit occupancy fees will commence from the date of
assignment or provisional assignment, as logged and recorded
in the appropriate SWBT records.
(e) During the 12-month assignment period following the date
space is assigned to Applicant and entered into the
appropriate SWBT record, SWBT shall not occupy or use such
space without Applicant's permission, shall not assign such
space to any party other than Applicant, and shall not
knowingly permit any party other than Applicant to occupy or
use such space without Applicant's permission except as
otherwise specifically provided in this Agreement. The
assignment to Applicant will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if Applicant has not occupied such
assigned space within such 12-month period; provided,
however, that if Applicant's failure to occupy the space
within such 12-month period results from SWBT's failure to
perform make-ready work on schedule, the parties shall
negotiate a single extension of the assignment period, which
extension shall not extend the assignment period beyond three
months from the date of completion of SWBT's make-ready work;
and, provided further, that if Applicant can demonstrate that
its failure to occupy the space within such 12-month period
results from the actions of SWBT or third parties other than
persons acting on Applicant's behalf, or from acts of God,
the assignment may be extended for a period no longer than
three months from the date Applicant is first able to
commence construction activities at the site involved.
Assignments to third parties shall be subject to the same
rules applicable to Applicant under this subsection.
Extensions permitted under this subsection must be requested
in writing before expiration of the original 12-month period
and shall be recorded on the appropriate SWBT records
available for inspection under Section 7.03.
(f) SWBT may assign space to itself by making appropriate entries
in the same records used to log assignments to Applicant and
third parties. If SWBT assigns pole, duct, or conduit space
to itself, such assignment will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if SWBT has not occupied such
assigned space within such 12-month period; provided,
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however, that if SWBT's failure to occupy the space within
such 12-month period results from the actions of Applicant or
third parties other than persons acting on SWBT's behalf, or
from acts of God, SWBT's assignment may be extended for a
period no longer than three months from the date SWBT is able
to commence construction at the site involved. Extensions
permitted under this subsection must be recorded before
expiration of the original 12-month period on the appropriate
SWBT records available for inspection under Section 7.03.
(g) If facilities modifications, capacity expansions, or other
make-ready work are required due to the assignment of space
to either party under this section, the party to whom such
space has been assigned will reimburse the person or entity
incurring the costs for such facilities modifications,
capacity expansions, or make-ready work if the party to whom
such space has been assigned fails to occupy the assigned
space within the 12-month assignment period or any extension
thereof.
(h) Except as provided in subsections (e)-(f) above, assignments
shall not be extended, renewed, or sequentially repeated in
any manner (other than by actual occupancy) that enables
Applicant, SWBT, or any joint user to preclude access by
others to unused pole attachment or conduit occupancy space
for any period greater than 12 months after the date of
initial assignment.
(i) At Applicant's election, Applicant may file an application
for access which specifically requests that the space sought
by Applicant not be assigned to Applicant immediately and not
be recorded immediately in the SWBT records available for
inspection by other telecommunications carriers, cable
television systems, or other providers of telecommunications
services under Section 7.03 of this Agreement. In that event,
the space sought by Applicant will not be assigned to
Applicant and will remain available for assignment to others
without restriction until such time as such space is formally
assigned to Applicant in accordance with Applicant's written
instructions and the assignment is recorded in the records
available for inspection under Section 7.03. The assignment
shall be made no later than the date of issuance to Applicant
of a license confirming that Applicant has the right to
occupy the space described in the license. In the event that
Applicant elects to proceed under this subsection,
Applicant's obligation to pay pole attachment and conduit
occupancy fees shall not commence until the date the
assignment is recorded in the appropriate SWBT records and
Applicant shall bear the risks that (1) the space sought by
Applicant will be assigned to and occupied by another person
or entity or (2) circumstances will occur which may require
that SWBT reevaluate
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Applicant's application and repeat the field inspection
portion of the pre-license survey at Applicant's expense.
(j) Notices and applications including assignment requests will
be date- and time-stamped on receipt. Because space will be
selected and further assignments made based on entries logged
and recorded in the appropriate SWBT records, the date and
time of assignment will be the date and time when the
assignment is recorded rather than the date and time of
receipt of the application or notice requesting such
assignment. Although SWBT's clerical personnel will promptly
process assignment requests included in applications and
notices transmitted to SWBT by mail, courier, fax, or other
transmission media, SWBT shall not be liable for any failure
by Applicant to obtain the space desired by Applicant due to
delay in logging assignment requests. Applicant acknowledges
that, to maximize the probability that Applicant will be
assigned the space Applicant desires, Applicant should, when
possible, submit applications and notices including
assignment requests in person to SWBT at the site where the
applicable records are maintained and should countersign the
entry reflecting the assignment and time of assignment.
8.03 Immediate Occupancy. SWBT shall, within 60 days after the effective
date of this Agreement, adopt interim procedures which will provide Applicant
the ability to attach or place facilities on or in SWBT's poles, ducts,
conduits, and rights-of-way on an immediate basis when such space is available
for Applicant's use and no make-ready work or infrequent construction techniques
or connectivity solutions are required. SWBT may, on 60 days advance notice to
Applicant, revise or terminate such interim procedures if they prove to be
unworkable, in which event Applicant may seek renegotiation of this Agreement or
challenge SWBT's decision in accordance with procedures available to Applicant
under applicable federal and state laws, regulations, and commission orders. The
special procedures established under this section shall supplement, rather than
replace, the regular assignment and licensing procedures set forth in Articles
8-10 of this Agreement, are intended to be used only under special circumstances
(e.g., when the regular procedures allow insufficient time to meet customer
service commitments or resolve non-routine construction or network
contingencies), shall not be used on a routine basis, and shall be consistent
with subsections (a)-(f) below.
(a) Upon giving SWBT the notice required by this subsection,
Applicant may immediately occupy space assigned or
provisionally assigned to Applicant pursuant to Section 8.02
of this Agreement. The notice shall be contained in either a
notice of intent to occupy as provided in Section 8.02(b) or
a license application under Section 9.02. Applicant shall not
give such notice or occupy such space without first reviewing
SWBT's records and determining that the records reflect that
the space sought is available.
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(b) Applicant shall not occupy space which has not been assigned
or provisionally assigned to Applicant. The assignment must
be recorded on the appropriate SWBT records, as provided in
Section 8.02, prior to Applicant's occupancy. If Applicant
subsequently determines that the records are inaccurate and
that the space assigned to Applicant is not available, or
that the space assigned is not suitable for Applicant's
intended use, Applicant shall, within one business day,
notify SWBT in writing that it no longer intends to occupy
the space earlier assigned and is releasing the assignment.
Except as otherwise provided in this subsection, Applicant
shall not occupy other space on the pole or in the duct or
conduit without first obtaining an assignment or provisional
assignment of the space which Applicant will occupy. To avoid
high or unusual expenditures resulting from unanticipated
conditions at the site, Applicant may occupy space not
assigned to Applicant subject to the following terms and
conditions.
(1) Applicant may occupy the next available space shown on
SWBT's records as available at the time of Applicant's
last review of the records. Applicant shall not
knowingly occupy space occupied by or assigned to SWBT
or any third party without consent of the party to whom
the space has been assigned.
(2) Within one business day after occupying such space,
Applicant shall submit to SWBT a written notice of
intent to occupy or an application for the space
occupied showing the reason for Applicant's use of the
space occupied.
(3) Applicant shall bear the risk that space occupied by
Applicant pursuant to this section was assigned to SWBT
or a third party during the period between Applicant's
last review of the records and Applicant's occupancy of
such space. After occupying space not previously
assigned to Applicant, Applicant shall review the
records and promptly notify the affected party if
Applicant determines that it has occupied space
assigned to such party. At the request of the party to
whom such space has been assigned, Applicant shall,
within 24 hours, or within such other period of time
mutually agreed to by the parties affected, remove its
facilities from the space in question if the parties
affected cannot reach an acceptable alternative
solution. SWBT and Applicant anticipate that all
parties affected will act in good faith to work out
acceptable solutions and that the parties affected will
not insist on strict adherence to the 24-hour removal
requirement unless there is a legitimate business need
for compelling removal within such time period.
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(4) SWBT shall be entitled to recover from Applicant actual
costs, if any, directly incurred by SWBT as a result of
Applicant's decision under this subsection to occupy
space subject to a valid prior assignment to SWBT.
Applicant shall indemnify, on request defend, and save
SWBT harmless from any injury, loss, damage, liability,
or claim asserted against SWBT by any third party
resulting from Applicant's decision under this
subsection to occupy space assigned to such third
party.
(c) Nothing in this section authorizes Applicant to place its
facilities on or in any pole, duct, or conduit space already
occupied by the facilities of SWBT or a third party, even if
the presence of such facilities is not reflected on SWBT's
records.
(d) Nothing in this section authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires make-ready work (other than third-party make-ready
work arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity solution
described in Section 6.03.
(e) If Applicant has not done so already, within 24 hours after
occupying space pursuant to this section, Applicant will
submit to SWBT an application for the space occupied as
provided in Section 9.02 of this Agreement. The application
may be submitted by fax.
(f) Applicant will bear all risks resulting from the possibility
that assigned space which appears from the records to be
available is not available or in suitable condition to be
used by Applicant and shall indemnify, on request defend, and
hold SWBT harmless from any injury, loss, damage, claim, or
liability (including but not limited to third-party claims)
resulting from Applicant's occupancy of space in violation of
this section.
ARTICLE 9: APPLICATIONS AND PRE-LICENSE SURVEYS
9.01 Licenses Required. Except as otherwise specifically permitted in this
Agreement, Applicant shall apply in writing for and receive a license before
attaching facilities to specified SWBT poles or placing facilities within
specified SWBT ducts, conduits, manholes, or handholes. License applications and
information received by SWBT in connection with such applications shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
9.02 Application Form. To apply for a pole attachment or conduit occupancy
license under this Agreement, Applicant shall submit to SWBT two signed copies
of the
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appropriate application forms. SWBT represents that the forms specified in
subsections (a)-(b) are forms in use prior to the effective date of this
Agreement and that SWBT is in the process of revising such forms to conform to
the provisions of this Agreement and to streamline the application process. The
parties therefore agree that the forms specified in subsections (a) and (b) will
be interim forms only. SWBT reserves the right to change the format and content
of these forms upon 60 days written notice to Applicant.
(a) To apply for a pole attachment license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization")
together with completed Form SW-9433 ("Pole
Attachments"). An application for a pole attachment
license will not be complete or subject to processing
by SWBT until these forms have been submitted to SWBT;
provided, however, that such forms will be deemed to be
substantially complete if they contain the information
specified in subsections (c)-(h) below, as applicable.
Copies of Forms SW-9433 and SW-9434 are attached to
this Agreement as parts of APPENDIX III.
(b) To apply for a conduit occupancy license, Applicant
shall submit to SWBT two signed copies of SWBT's Form
SW-9434 ("Access Application and Make-Ready
Authorization") together with completed Form SW-9435
("Conduit Occupancy"). An application for a conduit
occupancy license will not be complete or subject to
processing by SWBT until these forms have been
submitted to SWBT; provided, however, that such forms
will be deemed to be substantially complete if they
contain the information specified in subsections
(c)-(h) below, as applicable. Copies of Forms SW-9434
and SW-9435 are attached to this Agreement as parts of
APPENDIX III.
(c) Each application for a license under this Agreement
shall include, at a minimum, the following information:
(1) the poles, ducts, and conduits (including all
manholes) along Applicant's proposed route to or
within which Applicant desires to attach or place
its facilities;
(2) a description of the facilities to be attached to
SWBT's poles and a description of the facilities
to be placed within each component of SWBT's
conduit system (including but not limited to
ducts, conduits, manholes, and handholes) along
the proposed route;
(3) for poles, the proposed points of attachment;
(4) for building entrance or building distribution
ducts or conduits or other space within a
building, a conspicuous statement, as required
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by Section 5.06 of this Agreement, that the
application pertains to a building entrance or
building distribution duct or conduit or other
space within a building;
(5) if applicable, a conspicuous notation that the
space requested is not to be assigned (or billed)
to Applicant until SWBT has received Applicant's
written instruction to make such assignment or
issued a license authorizing Applicant to occupy
the space requested; and
(6) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section 8.03
of this Agreement.
(d) Facilities descriptions which apply to multiple pole
attachments or conduit occupancies need only be
described once on any form. Facilities descriptions
shall include, at a minimum, the following information:
(1) the number and types of cables, including the
physical size (diameter) and weight (weight per
foot);
(2) the number and types of strands, if any, which
will be used to support the cables, including the
rated holding capacity expressed in thousand pound
increments (e.g., 2.2M) of such strands; and
(3) sufficient information to identify and describe
the physical characteristics (size, dimensions,
and weight) of apparatus enclosures and other
facilities to be attached to SWBT's poles or
placed in SWBT's conduit system.
(e) When it appears to Applicant that facilities
modification, capacity expansion, or make-ready work
may be required to accommodate Applicant's access
requests, Applicant shall describe the facilities
modification, capacity expansion, or make-ready work
which Applicant proposes. Applicant shall also describe
its plans, if any, to use any infrequent construction
technique or connectivity solution authorized under
Section 6.03 to avoid high or unusual expenditures and
state its reasons for the use of such technique or
solution.
(f) Applicant acknowledges that the poles along a
particular pole line or route may include poles owned
by firms (such as electric utilities) other than SWBT,
that it may be necessary for SWBT to rearrange its
facilities or perform other make-ready work on poles
other than poles it owns or controls in order to
accommodate Applicant's request for access to SWBT's
poles and that, at the time an application is
submitted, it may be difficult for Applicant to
determine with certainty whether a particular
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pole is owned or controlled by SWBT or by another
entity. Accordingly, the application shall, to the
extent feasible, identify all poles utilized by SWBT
(without regard to ownership) along Applicant's
proposed route.
(g) Each application for a license under this Agreement
shall be accompanied by a construction schedule showing
Applicant's projected dates for beginning and
completing construction at the sites specified in the
application. Information on this schedule may be used
by SWBT's engineering and outside plant construction
personnel in scheduling work required to process
Applicant's applications and scheduling such capacity
expansions, make-ready work, and facilities
modifications, if any, as may be necessary to
accommodate Applicant's facilities.
(h) Applicant may include multiple cables in a single
license application and may provide multiple services
(e.g., CATV and non-CATV services) under the same cable
sheath or jacket. When both CATV and non-CATV services
are provided under the same cable sheath or jacket, or
CATV and non-CATV services are provided using different
cables attached or lashed to the same strand or
otherwise occupying the same space on a pole or the
same duct or inner duct within a conduit, Applicant
will so advise SWBT and SWBT shall, if permitted by
law, adjust its charges to enable SWBT to charge
Applicant the rate applicable to telecommunications
carriers rather than the rate applicable to cable
television systems solely to provide cable service.
9.03 Cooperation in the Application Process. The orderly processing of
applications submitted by Applicant and other firms seeking access to SWBT's
poles, ducts, conduits, and rights-of-way requires good faith cooperation and
coordination between SWBT's personnel and personnel acting on behalf of
Applicant and other firms seeking access. The parties therefore agree to the
following transitional procedures which will remain in effect during the term of
this Agreement unless earlier modified by mutual agreement of the parties.
(a) Before submitting a formal written application for
access to SWBT's poles, ducts, conduits, and
rights-of-way, the firm submitting the application
shall make a good faith determination that it actually
plans to attach facilities to or place facilities
within the poles, ducts, conduits, or rights-of-way
specified in the application. Applications shall not be
submitted for the purpose of holding or reserving space
which the applicant does not plan to use or for the
purpose of precluding SWBT or any other provider of
telecommunications or cable television services from
using such poles, ducts, conduits, or rights-of-way.
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(b) Applicant shall only submit applications for access to
poles, ducts, conduits, and rights-of-way which it
plans to use within one year following the date access
is granted and shall use its best efforts to submit
applications in an orderly manner in accordance with
Applicant's needs. If Applicant contemplates the need
to submit more than 10 applications within any 45-day
period with respect to poles, ducts, conduits, and
rights-of-way within the territory of any single SWBT
construction district, Applicant shall give SWBT
advance notice as promptly as is reasonably
practicable.
(c) No more than 300 poles shall be the subject of any
single pole attachment license application.
(d) No more than 20 manholes shall be the subject of any
single conduit occupancy license application.
9.04 Applicant's Priorities. When Applicant has multiple applications on
file within a single SWBT construction district, Applicant shall, at SWBT's
request, designate its desired priority of completion of pre-license surveys,
facilities modifications, capacity expansions, and make-ready work with respect
to all such applications.
9.05 Pre-license Survey. A pre-license survey (including a review of
records and field inspection, if necessary) will be completed by SWBT after
Applicant has submitted its written license application as specified in Section
9.02 of this Agreement. SWBT shall not, without due cause and justification,
repeat pre-occupancy survey work performed by Applicant.
(a) The field inspection portion of the pre-license survey,
which includes the visual inspection of existing pole
and conduit facilities, shall be performed by SWBT or
its authorized representative. Primary purposes of the
field inspection will be to enable SWBT to (1) confirm
or determine the facilities modification, capacity
expansion, and make-ready work, if any, necessary to
accommodate Applicant's facilities; (2) plan and
engineer the facilities modification, capacity
expansion, and make-ready work, if any, required to
prepare SWBT's poles, ducts, conduits, rights-of-way,
and associated facilities for Applicant's proposed
attachments or occupancy; and (3) estimate the costs
associated with such facilities modification, capacity
expansion, or make-ready work. SWBT may dispense with
the field inspection if it appears that the information
necessary to process Applicant's license application is
already available from existing sources, including the
application forms and such other information as may be
available to SWBT. If Applicant has occupied the space
requested before the issuance of a license, a
post-installation inspection of Applicant's
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facilities may be performed, in place of the field
inspection portion of the pre-license survey, to
determine whether such facilities are in compliance
with the specifications of Article 6 and other
provisions of this Agreement. In performing such
inspection, SWBT will not, without due cause and
justification, repeat pre-occupancy survey work
performed by Applicant.
(b) The administrative processing portion of the
pre-license survey (which includes processing the
application and reviewing records) will be performed by
SWBT.
(c) Before performing any portion of the pre-license
survey, SWBT shall obtain Applicant's written
authorization to perform such work. Authorization may
be given, when possible, when the application is
submitted. No authorization shall be required for
post-installation inspections of Applicant's facilities
when installation has occurred before the issuance of a
license.
ARTICLE 10: ISSUANCE AND DENIAL OF LICENSES
(INCLUDING FACILITIES MODIFICATIONS,
CAPACITY EXPANSIONS, AND MAKE-READY WORK
10.01 Response Within 45 Days. Within 45 days of Applicant's submission of
a license application pursuant to Section 9.02 of this Agreement, or within such
other period of time as may be mutually agreed upon in writing by the parties,
SWBT shall respond to the application. The response shall state whether the
application is being granted or denied. If denial is anticipated, or if SWBT
personnel involved in the processing of Applicant's request for access become
aware of hazardous substances at the site requested by Applicant, SWBT shall
promptly advise Applicant and shall, at Applicant's request, discuss
alternatives to denial and issues associated with the presence of such hazardous
substances. Additional state-specific response and notice requirements, if any,
shall be addressed by an addendum to this Agreement.
(a) If access is granted, SWBT shall, no later than 45 days
after Applicant's submission of the license
application, further advise Applicant in writing (1)
what facilities modifications, capacity expansions, or
make-ready work, if any, will be required to prepare
SWBT's pole or conduit facilities, (2) provide
Applicant an estimate of charges for such facilities
modifications, capacity expansions, or make-ready work
and (3) disclose to Applicant any hazardous substances
known by SWBT to be present at the site.
(b) SWBT may take into account issues of capacity, safety,
reliability, and engineering when considering requests
for access, provided the assessment of such factors is
done in a nondiscriminatory manner. If
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access is denied, SWBT shall confirm the denial in
writing by the 45th day after the receipt by SWBT of
Applicant's completed application. A denial of access
shall be specific, shall include all relevant evidence
and information supporting the denial, and shall
explain how such evidence and information relates to a
denial of access for reasons of lack of capacity,
safety, reliability, or generally applicable
engineering purposes. If Applicant in its completed
application sets forth in writing specific proposals
for expanding capacity, the denial statement shall
specifically address such proposals.
(c) Applicant agrees that if, at any time prior to the 45th
day, it has determined that it no longer seeks access
to specific poles, ducts, or conduit facilities,
Applicant shall promptly withdraw or amend its
application, thereby minimizing the administrative
burdens on SWBT of processing and responding to the
application.
(d) Notwithstanding the 45-day deadline, SWBT will,
pursuant to Section 8.03 of this Agreement, make
available to Applicant for immediate occupancy any
pole, duct, or conduit space which is not currently
assigned, not designated as a maintenance duct, and not
subject to applicable make-ready requirements.
(e) If SWBT fails to respond in writing within 30 days of
SWBT's documented receipt of a license application
pursuant to Section 9.02 of this Agreement, or within
such other period of time as may be mutually agreed
upon in writing by the parties, Applicant may by
written notice inquire whether SWBT intends to deny
Applicant's request for access. After such notice has
been given and receipt by SWBT of a properly submitted
license application has been confirmed, SWBT's failure
to respond in writing within 15 days after receipt of
the notice shall be deemed to constitute approval of
the request for access. In such event, Applicant shall
be entitled to occupy the space requested without the
formality of a license; provided, however, that nothing
contained in this subsection shall authorize Applicant
to occupy space already occupied or subject to a prior
valid space assignment to SWBT or any third-party; and
provided further that nothing in this subsection
authorizes Applicant, without first obtaining SWBT's
written authorization, to (1) place its facilities on
any pole or in any duct or conduit that requires
make-ready work (other than third-party make-ready work
arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity
solution described in Section 6.03.
10.02 Obligation to Construct or Modify Facilities; Capacity Expansions.
SWBT may grant access subject to Applicant's approval of such make-ready work
(including facilities modifications) as may be required to expand capacity to
accommodate
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Applicant's request, in which event Applicant shall either accept such
conditions, initiate good faith negotiations to explore other potential
accommodations, or withdraw its request for access. If SWBT does not offer to
expand capacity and denies Applicant's request for access, SWBT shall promptly
notify Applicant of such determination. SWBT shall not deny Applicant's request
for access on lack of capacity grounds when capacity can be expanded as provided
in this section and in Section 6.03 (infrequent construction techniques and
connectivity solutions).
(a) At Applicant's request, SWBT will replace, expand, or
modify its poles and conduit system, or otherwise
expand the capacity of such facilities to accommodate
the placement of Applicant's facilities; provided,
however, that such modifications shall be consistent
with the capacity, safety, reliability, and engineering
considerations which SWBT would apply to itself if the
work were performed for SWBT's own benefit. Outside
plant facilities modifications and capacity expansions
contemplated by this subsection include, but are not
limited to, installation of inner duct, cable
consolidations and the removal of cables that are
retired or inactive (dead). Except as otherwise
specifically provided in this section, SWBT may recover
from Applicant the costs of facilities modifications
and capacity expansions to make space available for
Applicant's facilities and charges for such
modifications and expansions shall be determined and
billed as provided in APPENDIX I of this Agreement.
(b) SWBT will, at its own expense, install inner duct in
SWBT's conduit system as necessary to make space
available for Applicant's facilities. Inner duct
installations to accommodate Applicant's facilities
will be performed by SWBT within the same time
intervals which would apply if SWBT were performing
such installations for itself. If SWBT's intervals for
beginning or completing inner duct installation do not
meet Applicant's needs, Applicant may arrange for the
inner duct installation to be performed by an
authorized contractor selected by Applicant from a
list, jointly developed and maintained by the parties,
of contractors mutually approved as qualified to
perform inner duct installations. Applicant may install
the inner duct itself if Applicant is on the list of
mutually approved contractors at the time the work is
performed. When inner duct is installed in SWBT's
conduit system by Applicant or an authorized contractor
selected by Applicant, SWBT will provide the
inner-ducting materials to be installed and Applicant
shall bear all other installation expenses. Applicant
shall give SWBT sufficient advance notice of the
materials needed to enable SWBT to provide such
materials to Applicant on a timely basis. Applicant
shall return all unused materials, including unused
inner duct and reels, to SWBT or purchase them from
SWBT. Inner duct installed by Applicant or an
authorized contractor selected by Applicant shall be
installed in accordance with
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SWBT's specifications and in accordance with the same
standards and practices which would be followed if the
inner duct were being installed by SWBT or SWBT's
contractors. Applicant shall indemnify, on request
defend, and hold SWBT harmless for any injuries,
losses, damages, claims, or liabilities directly
resulting from the installation of inner duct by
Applicant or any authorized contractor selected by
Applicant under this subsection. Applicant shall not,
without SWBT's prior written approval, arrange for
inner duct installation to be performed by
subcontractors who are not authorized contractors.
(c) SWBT shall, at its expense, remove cables that are
retired or inactive (dead) to free-up requested duct
and pole space, provided that such removal is
reasonably feasible (i.e., cable pulls easily without
incident). If a section of cable is "frozen" in a duct
and would require excavation to remove, Applicant may,
at its option, request that SWBT excavate the
obstruction or, in the alternative, arrange for
excavation of the obstruction to be performed by an
authorized contractor selected by Applicant from a
list, jointly developed and maintained by the parties,
of contractors mutually approved as qualified to
perform such excavations. Applicant may excavate the
obstruction itself if Applicant is on the list of
mutually approved contractors at the time the work is
performed. Such excavations will be at Applicant's
expense. Removal of the remainder of the cable will be
at SWBT's expense. Excavation work performed by
Applicant or an authorized contractor selected by
Applicant shall be performed in accordance with SWBT's
specifications and in accordance with the same
standards and practices which would be followed if such
excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor any authorized
contractor selected by Applicant to perform excavation
work under this subsection shall conduct facility
excavation activities in any manner which jeopardizes
or degrades the integrity of SWBT's structures or
interferes with any existing use of the facilities.
Applicant shall indemnify, on request defend, and hold
SWBT harmless for any injuries, losses, darnages,
claims, or liabilities directly resulting from the
performance of excavation work by Applicant or any
authorized contractor selected by Applicant under this
subsection. Applicant shall not, without SWBT's prior
written approval, arrange for excavation work to be
performed under this subsection by subcontractors who
are not qualified contractors.
10.03 Issuance of Licenses and Immediate Access When No Make-ready Work is
Required. If, on the basis of Applicant's representations or SWBT's field
inspection, if any, SWBT determines that no make-ready work is necessary to
accommodate Applicant's facilities, SWBT will issue a license without performing
make-ready work and pole attachment or conduit occupancy space will be made
available to Applicant for
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immediate occupancy. Immediate occupancy prior to the issuance of a license
shall be governed by Section 8.03.
10.04 Make-ready Work. If SWBT determines that make-ready work will be
necessary to accommodate Applicant's facilities, SWBT shall promptly notify
Applicant of the make-ready work proposed to enable the accommodation of
Applicant's facilities.
(a) The notice shall be given in writing no later than 45
days after the receipt by SWBT of Applicant's completed
application pursuant to Section 9.02 of this Agreement
or within such other period of time as may be mutually
agreed upon in writing by the parties.
(b) The notice will include SWBT's estimate of make-ready
charges, which estimate shall be stated on SWBT Form
SW-9434 ("Access Application and Make-Ready
Authorization"), a copy of which is attached hereto as
part of APPENDIX III.
(c) Applicant shall have 20 days (the "acceptance period")
after receiving SWBT's estimate of make-ready charges
to authorize completion of the make-ready work proposed
by SWBT or to advise SWBT of its willingness to perform
the proposed make-ready work itself. If Applicant
advises SWBT that it is willing to perform the
make-ready work proposed by SWBT in accordance with
SWBT's plans and specifications, SWBT will not, without
due cause and justification, refuse to accept
Applicant's offer to perform the work. Authorization
shall be accomplished by Applicant's signing the
estimate and returning it to SWBT within the 20-day
acceptance period.
(d) Within the 20-day acceptance period, the parties may
negotiate modifications of the make-ready work to be
performed. If the parties reach agreement through
negotiation, a new estimate shall be prepared and
authorization shall be accomplished by Applicant's
signing the revised estimate and returning it to SWBT
within the original 20-day acceptance period, or within
such period of time as may be mutually agreed upon by
the parties.
(e) If Applicant does not sign and return the estimate
within the 20-day acceptance period, or within such
other period of time as may be mutually agreed upon in
writing by the parties, Applicant shall notify SWBT in
writing by the 20th day whether Applicant is
withdrawing its application, electing to perform the
make-ready work itself as provided in subsection (c) or
electing to treat SWBT's make-ready requirements as a
denial of access.
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(1) If no such notice is given by the 20th day, or such
later date as may be mutually agreed upon by the
parties, SWBT shall contact Applicant to determine
whether Applicant intends to withdraw its application.
Applicant shall be deemed to have withdrawn its
application if, in response to SWBT's inquiry,
Applicant does not immediately sign and return the
estimate to SWBT.
(2) If Applicant timely notifies SWBT that it is electing
to treat SWBT's make-ready requirements as a denial of
access, SWBT shall, within 20 days after receiving the
notice, provide Applicant with a written statement
explaining its decision to grant access only if the
specified make-ready work is performed. The statement
shall be specific, shall include all relevant evidence
and information supporting SWBT's decision to grant
access only if the specified make-ready work is
performed, and shall explain how such evidence and
information relates to SWBT's decision for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. The statement shall
also set forth the basis for SWBT's make-ready
proposals and specifically address SWBT's rationale for
rejecting Applicant's alternative written proposals, if
any.
10.05 Performance of Make-ready Work. Except as otherwise specifically
provided in Section 10.02 and in this section, make-ready work shall be
performed by SWBT or by contractors, subcontractors, or other persons acting on
SWBT's behalf and shall be performed by SWBT in accordance with the same time
intervals which would be applicable if SWBT were performing the work for itself.
(a) Applicant and SWBT will mutually establish and maintain for
each SWBT construction district lists of authorized
contractors which may be selected by Applicant to perform
make-ready work when SWBT's interval for beginning or
completing such make-ready work does not meet Applicant's
needs. At Applicant's request, Applicant will be included on
such lists upon Applicant's demonstrating that (1) its
personnel are qualified to perform such work in accordance
with SWBT's specifications and (2) Applicant meets the
financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and other vendors performing the same or
similar work on SWBT's behalf or the self-insurance
requirements of Section 23.02.
(b) If SWBT's interval for beginning or completing make-ready
work does not meet Applicant's needs, Applicant may (1)
perform the make-ready work itself, if Applicant is on the
applicable list of authorized contractors at the time the
work is to be performed or (2) arrange for the work to be
performed by an authorized contractor selected by Applicant
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from the applicable list of authorized contractors. Subject
to the availability of personnel, Applicant may also request
that SWBT perform the work on an expedited basis; provided,
however, that make-ready work will not be performed on an
expedited basis unless Applicant first approves any overtime
or premium rates or charges associated with performance of
the work on an expedited basis.
(c) From time to time, additional contractors, subcontractors or
other vendors may be jointly approved by Applicant and SWBT
to perform specific make-ready work in the event that the
work load exceeds the capacity of the authorized contractors
on the approved list to perform the make-ready work in a
timely manner.
(d) Make-ready work performed by Applicant, by an authorized
contractor selected by Applicant, or by a contractor,
subcontractor, or other vendor jointly approved by the
parties under subsection (c) shall be performed in
accordance with SWBT's specifications and in accordance with
the same standards and practices which would be followed if
such excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor authorized contractors
selected by Applicant to perform make-ready work under this
section shall conduct such work in any manner which
jeopardizes or degrades the integrity of SWBT's structures
or interferes with any existing use of SWBT's facilities.
Applicant and any authorized contractor selected by
Applicant to perform make-ready work shall indemnify, on
request defend, and hold SWBT harmless from any and all
injuries, losses, damages, claims, or liabilities directly
resulting from their activities under this section.
(e) Nothing contained in this section authorizes Applicant, any
authorized contractor selected by Applicant, or any other
person acting on Applicant's behalf to consolidate SWBT's
cables.
10.06 Multiple Applications. Applications shall be processed on a
first-come, first-served basis. Applications filed on the same date shall be
treated as having been filed simultaneously and shall be processed accordingly.
10.07 Payments to Others for Expenses Incurred in Transferring or Arranging
Their Facilities. Applicant shall make arrangements with the owners of other
facilities attached to SWBT's poles or occupying space in SWBT's conduit system
regarding reimbursement for any expenses incurred by them in transferring or
rearranging their facilities to accommodate the attachment or placement of
Applicant's facilities to or in SWBT's poles, ducts, and conduits.
10.08 Reimbursement for the Creation or Use of Additional Capacity. As a
result of facilities modification, capacity expansion, or other make-ready work
performed to
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accommodate Applicant's facilities, additional capacity may become available on
SWBT's poles or in its conduit system. In such event, Applicant shall not have a
preferential right to utilize such additional capacity in the future and shall
not be entitled to any pole attachment or conduit occupancy fees subsequently
paid to SWBT for the use of such additional capacity. SWBT shall, however,
establish procedures for giving Applicant notice of the subsequent use by SWBT
or third parties of additional space or capacity created at Applicant's expense.
If SWBT utilizes additional space or capacity created at Applicant's expense,
SWBT will reimburse Applicant on a pro-rata basis for SWBT's share, if any, of
Applicant's capacity expansion costs, to the extent reimbursement is required by
the Pole Attachment Act and applicable rules, regulations, and commission
orders. If any third party later utilizes any such additional space or capacity,
SWBT shall, at the request of Applicant or such third party, provide such
information as may be available to SWBT to assist Applicant and such third party
in determining the amount, if any, which such third party may owe Applicant as
its pro-rata share of Applicant's capacity expansion costs. Nothing contained in
this section shall be construed as conferring or imposing on SWBT any right or
duty to determine the amounts owing by a third party to Applicant, to collect or
remit any such amounts to Applicant, to resolve or adjudicate disputes over
reimbursement between Applicant and third parties, to deny a third party access
to SWBT's poles, ducts, conduits, or rights-of-way due to such third party's
failure to satisfy Applicant's reimbursement demands, or to take any other
action to enforce Applicant's reimbursement rights against any third party. In
like manner, for additional capacity created by SWBT from and after the date of
enactment of the Telecommunications Act of 1996, SWBT shall be entitled to
recover from Applicant and third parties, to the full extent permitted by law,
their pro-rata shares of such capacity expansion costs incurred by SWBT. To the
extent that either party seeks to avail itself of this cost-saving mechanism,
such party shall be responsible for maintaining adequate records documenting the
costs subject to reimbursement, including but not limited to costs incurred for
facilities modification and capacity expansion work performed directly by such
party or contractors performing work on such party's behalf.
10.09 License and Attachment. After all required make-ready work is
completed, SWBT will issue a license confirming that Applicant may attach
specified facilities to SWBT's poles or place specified facilities in SWBT's
conduit system. Applicant shall have access to attach or place only those
facilities specifically described in licenses subject to this Agreement, and no
others, except as otherwise specifically provided in (a) Sections 8.03 and 12.03
or other provisions of this Agreement, (b) any other written agreement between
the parties providing for such access, or (c) the provisions of any applicable
tariffs or commission orders.
ARTICLE 11: CONSTRUCTION OF APPLICANT'S FACILITIES
11.01 Responsibility for Attaching and Placing Facilities. Each party shall
be responsible for the actual attachment of its own facilities to SWBT's poles
and the placement of such facilities in SWBT's ducts, conduits, and
rights-of-way and shall be solely responsible for all costs and expenses
incurred by it or on its behalf in connection
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with such activities. In this regard, each party and its contractors shall be
solely responsible for (a) paying all persons and entities who provide
materials, labor, access to real or personal property, or other goods or
services in connection with the construction and attachment of its facilities
and (b) directing the activities of all personnel acting on such party's behalf
while they are physically present on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way.
11.02 Construction Schedule. After the issuance of a license, Applicant
shall provide SWBT with an updated construction schedule and thereafter keep
SWBT informed of anticipated changes in the construction schedule. Construction
schedules received by SWBT shall be subject to the provisions of Article 28 of
this Agreement (Confidentiality of Information). Construction schedules required
by this section shall include, at a minimum, the following information:
(a) the name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
(b) the names of each contractor and subcontractor which will be
involved in the construction activities;
(c) the estimated dates when construction will begin and end;
and
(d) the approximate dates when Applicant or personnel working on
Applicant's behalf will be performing construction work in
connection with the attachment of Applicant's facilities to
SWBT's poles or the placement of Applicant's facilities in
any part of SWBT's conduit system.
ARTICLE 12: USE AND ROUTINE MAINTENANCE
OF APPLICANT'S FACILITIES
12.01 Use of Applicant's Facilities. Each license subject to this Agreement
authorizes Applicant to have access to Applicant's facilities on or within
SWBT's poles, ducts, and conduits as needed for the purpose of serving
Applicant's customers.
12.02 Routine Maintenance of Applicant's Facilities. Each license subject
to this Agreement authorizes Applicant to engage in routine maintenance of
facilities located on or within SWBT's poles, ducts, and conduits. Routine
maintenance does not include the replacement or modification of Applicant's
facilities in any manner which results in Applicant's facilities differing
substantially in size, weight, or physical characteristics from the facilities
described in Applicant's license.
12.03 Installation of Drive Rings and J-Hooks. Applicant may install drive
rings and J-hooks on SWBT's poles for the attachment of drop wires as specified
in this section.
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(a) Drive rings and J-hooks may be installed as specified in
pole attachment licenses issued to Applicant.
(b) If attachment space has already been licensed to Applicant
on a given SWBT pole, Applicant may install drive rings and
J-hooks within the space assigned to Applicant (typically
six inches above and six inches below Applicant's point of
attachment on the pole if the point of attachment is in the
center of the space assigned to Applicant) without applying
for or obtaining a new or amended license. No additional
attachment charges shall apply with respect to drive rings
and J-hooks installed in Applicant's licensed attachment
space.
(c) Applicant's first choice for placement of drive rings and
J-hooks shall be the licensed attachment space assigned to
Applicant as provided in subsection (b) above; provided,
however, that if attachment space already licensed to
Applicant on a given SWBT pole is not adequate for
Applicant's drive rings or J-hooks, Applicant may, when
necessary, and without applying for or obtaining a new or
amended license, install such drive rings and J-hooks above
or below Applicant's licensed attachment space as described
in subsection (b) above. No additional attachment charges
shall apply with respect to drive rings and J-hooks
installed outside Applicant's licensed attachment space as
permitted in this subsection.
(d) If Applicant has not already been licensed attachment space
on a given SWBT pole, Applicant may, when necessary, install
drive rings and J-hooks to unassigned space on such pole
without first obtaining a license for such attachment and
shall, promptly following such installation, notify SWBT of
the attachment. Such notification shall be made on a form to
be developed by SWBT for this purpose and shall constitute
an application for a license. Such application may be
conditionally granted without a pre-license survey or other
inquiry by SWBT, and SWBT shall not be required to process
the application, log the attachment as an assignment in its
outside plant records, or issue a permanent license for the
attachment unless specifically requested by Applicant to do
so; provided, however, that a conditionally granted
application under this subsection shall be subject to
revocation if it is subsequently determined that such
attachment has been made in violation of subsection (e) of
this section or other provisions of this Agreement.
Drive-rings and J-hooks installed pursuant to this
subsection are pole attachments and charges for such
attachments shall be determined in accordance with the Pole
Attachment Act and applicable rules, regulations, and
commission orders.
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(e) Notwithstanding the provisions of subsections (c)-(d) above,
Applicant may not install drive rings and J-hooks in space
assigned to SWBT or another joint user without the approval
of SWBT or such other joint user and may not install drive
rings and J-hooks in unassigned space in any manner which
will block or preclude the subsequent occupancy or use of
space by SWBT or other joint users. If the presence of
Applicant's facilities in space not assigned to Applicant
will block or preclude the use of assigned or otherwise
assignable space by SWBT or other joint users, Applicant
shall, on SWBT's request, promptly relocate the facilities
in order to accommodate the facilities of other users and
shall bear all expenses associated with such relocation.
(f) SWBT may not install drive rings or J-hooks in space
assigned to Applicant without Applicant's approval and
shall, at Applicant's request, and at SWBT's expense,
promptly relocate or, if necessary, remove, any drive rings
or J-hooks installed in violation of this subsection. If
SWBT drive rings or J-hooks have been installed in space
subsequently assigned to Applicant, or if the presence of
SWBT drive rings or J-hooks blocks or precludes the use of
otherwise assignable space on SWBT's poles, SWBT shall, at
Applicant's request, relocate such facilities, if it is
feasible to do so, as make-ready work.
(g) Applicant shall, at the request of SWBT or another joint
user, at Applicant's expense, promptly relocate or, if
necessary, remove any drive rings and J-hooks placed on
SWBT's poles other than as permitted in this section.
12.04 Short-term Use of Maintenance Ducts for Repair and Maintenance
Activities. Maintenance ducts shall be available, on a nondiscriminatory basis,
for short-term (not to exceed 30 days) non-emergency maintenance or repair
activities by any person or entity (including but not limited to SWBT,
Applicant, other local service providers, and other joint users) with facilities
in the conduit section in which the maintenance duct is located; provided,
however, that use of the maintenance duct for non-emergency maintenance and
repair activities must be scheduled by SWBT. A person or entity using the
maintenance duct for non-emergency maintenance or repair activities shall
immediately notify SWBT of such use and must either vacate the maintenance duct
within 30 days or, with SWBT's consent, which consent shall not be unreasonably
withheld, rearrange its facilities to ensure that at least one full-sized
replacement maintenance duct (or, if the designated maintenance duct was an
inner duct, a suitable replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such person or entity
occupies the maintenance duct. Cables temporarily placed in the maintenance duct
on a non-emergency basis shall be subject to such accommodations as may be
necessary to rectify emergencies which may occur while the maintenance duct is
occupied.
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12.05 Responsibility for Maintenance of Facilities. Each party shall be
solely responsible for maintaining its own facilities and (a) paying all persons
and entities who provide materials, labor, access to real or personal property,
or other goods or services in connection with the maintenance of such party's
facilities and (b) directing the activities of all such personnel while they are
physically present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
12.06 Information Concerning the Maintenance of Applicant's Facilities.
Promptly after the issuance of a license, Applicant shall provide SWBT with the
name, title, business address, and business telephone number of the manager
responsible for routine maintenance of Applicant's facilities and shall
thereafter notify SWBT of changes to such information. The manager responsible
for routine maintenance of Applicant's facilities shall, on SWBT's request,
identify any contractor, subcontractor, or other person performing maintenance
activities on Applicant's behalf at a specified site.
ARTICLE 13: MODIFICATION OF APPLICANT'S FACILITIES
13.01 Notification of Planned Modifications. Applicant shall notify SWBT in
writing at least 30 days before adding to, relocating, replacing or otherwise
modifying its facilities already attached to a SWBT pole or located in any SWBT
duct or conduit. The notice shall contain sufficient information to enable SWBT
to determine whether the proposed addition, relocation, replacement, or
modification is within the scope of Applicant's present license or requires a
new or amended license. No notice shall be required for such routine
modifications as the installation or placement of drive rings or J-hooks,
terminals, and other ancillary apparatus routinely used in providing service to
customers, having no effect on the structural integrity of SWBT's poles, ducts,
or conduits, and having no effect on the ability of SWBT or joint users to use
or have access to SWBT's poles, ducts, conduits, or rights-of-way.
13.02 New or Amended License Required. A new or amended license will be
required if the proposed addition, relocation, replacement, or modification:
(a) requires that Applicant occupy additional space on SWBT's
poles (except on a temporary basis in the event of an
emergency);
(b) requires that Applicant occupy additional space (other than
space in the maintenance duct in accordance with Sections
12.04, 13.03, and 15.02 of this Agreement) in any SWBT duct
or conduit except on a temporary basis in the event of an
emergency;
(c) results in the facilities attached to SWBT's poles or placed
in SWBT's ducts or conduits being different from those
described in Applicant's current license (e.g., different
duct or size increase causing a need to recalculate storm
loadings, guying, or pole class); or
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(d) requires additional holding capacity on a permanent basis.
13.03 Use of Maintenance Duct in Connection with Facility Modifications and
Replacements. Non-emergency access to the maintenance duct in connection with
facilities modifications and replacements shall be subject to the provisions of
Section 12.04 of this Agreement.
13.04 Replacement of Facilities and Spinning/Overloading Additional Cables.
Applicant may replace existing facilities with new facilities occupying the same
pole, duct, or conduit space, and may spin or overlash additional cables to its
own existing facilities; provided, however, that such activities shall not be
considered to be routine maintenance and shall be subject to the requirements of
this article.
13.05 Streamlined Procedures for the Issuance of Amended Licenses. SWBT may
streamline procedures for the issuance of amended licenses with respect to
proposed additions, relocations, replacements, or modifications of Applicant's
facilities when it appears to SWBT that the proposed additions, relocations,
replacements, or modifications will not require make-ready work by SWBT, will
not interfere with SWBT's use of its poles, conduit systems, or facilities
attached or connected thereto or contained therein, and will not interfere with
the use of existing facilities attached or connected thereto or contained
therein by joint users.
ARTICLE 14: REQUIRED REARRANGEMENTS
OF APPLICANT'S FACILITIES
14.01 Notice of Planned Modifications. The parties acknowledge that the
Pole Attachment Act recites in part that "Whenever the owner of a pole, duct,
conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or
right-of-way, the owner shall provide written notification of such action to any
entity that has obtained an attachment to such conduit or right-of-way so that
such entity may have a reasonable opportunity to add to or modify its existing
attachment." The parties further acknowledge that the FCC, in the First
Interconnection Order in CC Docket No. 96-98, recites that "... absent a private
agreement establishing notification procedures, written notification of a
modification must be provided to parties holding attachments on the facility to
be modified at least 60 days prior to the commencement of the physical
modification itself." This article is intended by the parties to alter the
above-described notification requirements only as provided in Section 14.02(b)
below.
14.02 Required Rearrangement of Applicant's Facilities. Applicant
acknowledges that, from time to time, it may be necessary or desirable for SWBT
to rearrange facilities on or within its poles or conduit systems, change out
poles, add poles to a pole line, relocate or reconstruct poles, pole lines,
conduit segments, or conduit runs, enlarge manholes, reinforce conduit, or
otherwise modify poles, pole lines, or portions of its conduit system and that
such changes may be necessitated by SWBT's own business needs or by factors
outside of SWBT's control, such as the decision by a municipality to
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widen streets or the decision by a third party to seek access to SWBT's poles,
ducts, conduits, or rights-of-way.
(a) Applicant agrees that Applicant will cooperate with SWBT and
joint users in making such rearrangements as may be
necessary to enable such changes to be made and that costs
incurred by Applicant in making such rearrangements shall,
in the absence of a specific agreement to the contrary, be
borne by the parties in accordance with then applicable
statutes, rules, regulations, and commission orders,
including the Pole Attachment Act, rules, regulations, and
commission orders thereunder.
(b) Whenever feasible, SWBT shall give Applicant not less than
60 days prior written notice of the need for Applicant to
rearrange its facilities pursuant to this section. The
notice shall state the date by which such rearrangements are
to be completed. Applicant shall complete such
rearrangements within the time prescribed in the notice.
SWBT may request that such modification be made within a
shorter period of time, in which event Applicant shall not
refuse to comply such request without due cause and
justification. In determining due cause and justification,
the following factors, among others, may be considered:
(1) the circumstances under which the rearrangements are
sought (e.g., street-widening project, request by a
competing provider for access);
(2) the timeliness of SWBT's request to Applicant;
(3) the nature and number of rearrangements sought;
(4) the impact on the ability of the parties and joint
users to meet customer service needs; and
(5) risks of service interruption to customers of the
parties and joint users.
(c) Nothing contained in this article shall preclude Applicant
from advising SWBT, within 60 days from the date of the
notice, of its desire to add to or modify its existing
attachment.
ARTICLE 15: EMERGENCY REPAIRS AND POLE REPLACEMENTS
15.01 Applicability. The parties acknowledge that in the event of an
emergency, services provided by the parties and joint users to their respective
customers may be interrupted, that it may not be possible for all service
providers with facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, or rights-of-way to restore service to all customers at the same time,
that disputes may arise between the parties concerning the
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manner in which emergency repairs shall be made, that it is essential that
decisions be made quickly, and that it is highly desirable that all service
providers utilizing SWBT's poles, ducts, conduits, and rights-of-way enter into
appropriate arrangements relating to emergency repairs and service restoration.
In the absence of prearranged agreements, it is expected that disputes will be
immediately resolved at the site by the affected parties present based upon the
criteria set forth in Section 15.05 of this Agreement. The provisions of this
article shall apply in the absence of more comprehensive agreements relating to
emergency repairs.
15.02 Responsibility for Emergency Repairs; Access to Maintenance Duct. In
general, each party shall be responsible for making emergency repairs to its own
facilities and for formulating appropriate plans and practices enabling such
party to make such repairs.
(a) Nothing contained in this Agreement shall be construed as
requiring either party to perform any repair or service
restoration work of any kind with respect to the other
party's facilities or the facilities of joint users.
(b) Maintenance ducts shall be available, on a nondiscriminatory
basis, for emergency repair activities by any person or
entity (including but not limited to SWBT, Applicant, other
local service providers, and other joint users) with
facilities in the conduit section in which the maintenance
duct is located; provided, however, that a person or entity
using the maintenance duct for emergency repair activities
shall immediately notify SWBT of such use and must either
vacate the maintenance duct within 30 days or, with SWBT's
consent, which consent shall not be unreasonably withheld,
rearrange its facilities to ensure that at least one
full-sized replacement maintenance duct (or, if the
designated maintenance duct was an inner duct, a suitable
replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such
person or entity occupies the maintenance duct. The parties
agree not to exceed 30 days' use except in unusual
emergencies that may require longer than 30 days to rectify.
(c) If necessary, other unoccupied ducts or inner ducts may be
used on a short-term basis when the maintenance duct is
unavailable. Any such use shall be subject to the same rules
applicable to the maintenance duct and shall be subject to
the rights of any party or joint user to whom such duct or
inner duct has been assigned.
15.03 Designation of Emergency Repair Coordinators and Other Information.
For each SWBT construction district, Applicant shall provide SWBT with the
emergency contact number of Applicant's designated point of contact for
coordinating the handling of emergency repairs of Applicant's facilities and
shall thereafter notify SWBT of changes to such information.
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15.04 Reporting of Conditions Requiring Emergency Repairs. As a courtesy,
each party shall endeavor to notify the other party at the earliest practicable
opportunity after discovering any condition on or in any of SWBT's poles, ducts,
conduits, or rights-of-way requiring emergency repairs to the other party's
facilities.
15.05 Order of Precedence of Work Operations; Access to Maintenance Duct
and Other Unoccupied Ducts in Emergency Situations. When notice and coordination
are practicable, SWBT, Applicant, and other affected parties shall coordinate
repair and other work operations in emergency situations involving service
disruptions. Disputes will be immediately resolved at the site by the affected
parties present in accordance with the following principles.
(a) Emergency service restoration work requirements shall take
precedence over other work operations.
(b) Except as otherwise agreed upon by the parties, restoration
of lines for emergency services providers (e.g., 911, fire,
police, and hospital lines) shall be given the highest
priority and temporary occupancy of the maintenance duct
(and, if necessary, other unoccupied ducts) shall be
assigned in a manner consistent with this priority.
Secondary priority shall be given to restoring services to
the local service providers with the greatest numbers of
local lines out of service due to the emergency being
rectified. The parties shall exercise good faith in
assigning priorities, shall base their decisions on the best
information then available to them at the site in question,
and may, by mutual agreement at the site, take other factors
into consideration in assigning priorities and sequencing
service restoration activities.
(c) SWBT shall determine the order of precedence of work
operations and assignment of duct space in the maintenance
duct (and other unoccupied ducts) only if the affected
parties present are unable to reach prompt agreement;
provided, however, that these decisions shall be made by
SWBT on a nondiscriminatory basis in accordance with the
principles set forth in this section.
15.06 Unilateral Corrective Action. When either party reasonably believes
that, due to the condition of the other party's facilities placed on, within, or
in the vicinity of SWBT's poles, ducts, conduits, or rights-of-way, there is an
immediate or imminent threat to the safety or health of employees or any other
person, to the physical integrity or functioning of either party, or either
party's ability to meet its service obligations, either party may unilaterally
perform such limited corrective work as may be necessary to prevent or mitigate
against the injury threatened. For example, if facilities of the other party
have become detached or partially detached from a pole, or detached or
partially detached
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from supporting racks or wall supports within a manhole, either party
may reattach them as provided in this section but shall not be obligated to do
so.
(a) Before performing any corrective work involving facilities
of the other party, SWBT or Applicant shall first attempt to
notify the other party. After such notice has been given,
the parties shall coordinate corrective work.
(b) When an emergency situation exists such that advance notice
and coordination are not practicable, either party may
perform corrective work without first giving notice to the
other party and shall promptly notify the other party of the
corrective work performed and the reason why notice was not
given.
15.07 Emergency Pole Replacements. Applicant will cooperate fully with SWBT
when emergency pole replacements are required.
(a) When emergency pole replacements are required, SWBT shall
promptly make a good faith effort to contact Applicant to
notify Applicant of the emergency and to determine whether
Applicant will respond to the emergency in a timely manner.
(b) If notified by SWBT that an emergency exists which will
require the replacement of a pole, Applicant shall transfer
its facilities immediately, provided such transfer is
necessary to rectify the emergency. If the transfer is to a
SWBT replacement pole, the transfer shall be in accordance
with SWBT's placement instructions.
(c) If Applicant is unable to respond to the emergency situation
immediately, Applicant shall so advise SWBT and thereby
authorize SWBT (or any joint user sharing the pole with
SWBT) to perform such emergency-necessitated transfers (and
associated facilities rearrangements) on Applicant's behalf.
15.08 Expenses Associated with Emergency Repairs. Each party shall bear all
reasonable expenses arising out of or in connection with emergency repairs of
its own facilities and transfers or rearrangements of such facilities associated
with emergency pole replacements made in accordance with the provisions of this
article.
(a) Each party shall be solely responsible for paying all
persons and entities who provide materials, labor, access to
real or personal property, or other goods or services in
connection with any such repair, transfer, or rearrangement
of such party's facilities.
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(b) Applicant shall reimburse SWBT for the costs incurred by
SWBT for work performed by SWBT on Applicant's behalf in
accordance with the provisions of this article; provided,
however, that when the costs incurred by SWBT are for work
performed in part for Applicant and in part for SWBT and
third parties, Applicant shall only reimburse SWBT for
Applicant's pro-rata share of the costs.
ARTICLE 16: INSPECTION BY SWBT OF APPLICANT'S FACILITIES
16.01 SWBT's Right to Make Periodic or Spot Inspections. SWBT shall have
the right, but not the duty, to make periodic or spot inspections at any time of
any or all facilities attached to SWBT's poles or placed within SWBT's poles,
ducts, conduits, or rights-of-way. Inspections of Applicant's facilities may be
conducted for the purpose of determining whether facilities attached to SWBT's
poles or placed in SWBT's conduit system are in compliance with the terms of
this Agreement and conform to licenses subject to this Agreement. Charges for
inspections shall be allocated among all parties benefiting from the inspection
in accordance with the Pole Attachment Act and applicable rules, regulations,
and commission orders. When an inspection is conducted for the specific purpose
of auditing or investigating Applicant's compliance with this Agreement, SWBT
may charge Applicant for inspection expenses only if the inspection reflects
that Applicant is in substantial noncompliance with the terms of this Agreement.
If the inspection reflects that Applicant's facilities are not in compliance
with the terms of this Agreement, Applicant shall bring its facilities into
compliance promptly after being notified of such noncompliance and shall notify
SWBT in writing when the facilities have been brought into compliance.
16.02 Report of Inspection Results. SWBT will provide Applicant the results
of any inspection of Applicant's facilities performed under Section 16.01 of
this Agreement.
16.03 Post-installation Inspections. This article does not apply to
post-installation inspections performed as part of a pre-license survey in those
cases when Applicant has occupied space on or in SWBT's poles, ducts, conduits,
or rights-of-way prior to the issuance of a license pursuant to Section 8.03 of
this Agreement.
ARTICLE 17: TAGGING OF FACILITIES AND
UNAUTHORIZED ATTACHMENTS
17.01 Facilities to Be Marked. Applicant shall tag or otherwise mark all of
Applicant's facilities placed on or in SWBT's poles, ducts, conduits, and
rights-of-way in a manner sufficient to identify the facilities as Applicant's
facilities.
17.02 Removal of Untagged Facilities. Subject to the provisions of
subsections (a)-(d) of this section, SWBT may, without notice to any person or
entity, remove from SWBT's poles or any part of SWBT's conduit system any
untagged or unmarked facilities, including any such facilities owned or used by
Applicant, if SWBT determines
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that such facilities are not the subject of a current license authorizing their
continued attachment to SWBT's poles or occupancy of SWBT's conduit system and
are not otherwise lawfully present on SWBT's poles or in SWBT's conduit system.
(a) Before removing any such untagged or unmarked facilities,
SWBT shall first attempt to determine whether the facilities
are being used by Applicant or any other firm, are
authorized by any license subject to this Agreement, or are
otherwise lawfully present on SWBT's poles or in SWBT's
conduit system.
(b) SWBT shall not remove untagged or unmarked facilities which
are thought to be operational without first making
reasonable efforts to (1) determine the identity of the
owner or other person or entity thought to be responsible
for the facilities and (2) give advance written notice to
such person or entity.
(c) If the facilities appear to be facilities of Applicant
described in a current license or application subject to
this Agreement, SWBT shall give written notice to Applicant
requesting Applicant to tag or mark the facilities within 60
days and Applicant shall either tag the facilities within
the 60-day period, advise SWBT in writing of its schedule
for tagging the facilities, or notify SWBT in writing that
it disclaims ownership of or responsibility for the
facilities. If Applicant disclaims ownership of or
responsibility for the facilities, Applicant shall disclose
to SWBT the identity of the owner or other person or entity,
if any, thought by Applicant to be responsible for the
facilities.
(d) If the facilities appear to be facilities used by Applicant
but not subject to a current license granted under this
Agreement, the provisions of Sections 17.05-17.12 shall
apply.
17.03 Verification That Presently Attached Facilities Are Subject to
Existing Licenses. Applicant warrants and represents that, to the best of its
information and belief, all facilities presently owned or used by Applicant and
attached to SWBT's poles or occupying space within any part of SWBT's conduit
system in this State have been disclosed to SWBT and are subject to current
licenses or are otherwise lawfully present on or in SWBT's poles, ducts, and
conduits. If Applicant determines that any such facilities are not the subject
of current licenses, Applicant shall so advise SWBT and promptly apply for
licenses for such facilities or remove the facilities from SWBT's poles or
conduits. Nothing contained in this section shall be construed as requiring
Applicant to make a field audit of its existing facilities to confirm the
licensing status of its facilities as a prerequisite to entering into this
Agreement.
17.04 Updating of Plant Location Records. Applicant shall furnish SWBT,
upon request, with such information as may from time to time be necessary for
SWBT to
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correct and update SWBT's pole and conduit maps and records, cable plat maps,
and other plant location records recording or logging assignments of pole, duct,
and conduit space.
17.05 Notice to Applicant. If any of Applicant's facilities for which no
license is presently in effect are found attached to SWBT's poles or anchors or
within any part of SWBT's conduit system, SWBT, without prejudice to other
rights or remedies available to SWBT under this Agreement, and without prejudice
to any rights or remedies which may exist independent of this Agreement, shall
send a written notice to Applicant advising Applicant that no license is
presently in effect with respect to the facilities and that Applicant must,
within 60 days, respond to the notice as provided in Section 17.06 of this
Agreement.
17.06 Applicant's Response. Within 60 days after receiving a notice under
Section 17.05 of this Agreement, Applicant shall acknowledge receipt of the
notice and submit to SWBT, in writing, either:
(a) a denial or disclaimer of ownership or other interest in the
facilities, together with an explanation of the factual and
claimed legal basis for such denial or disclaimer;
(b) a statement that the facilities are the subject of a current
license, together with an explanation of the factual and
claimed legal basis for Applicant's assertion that the
facilities are currently licensed, or a statement that no
license is required, and an explanation of the factual and
claimed legal basis for that assertion; or
(c) an application for a new or amended license with respect to
such facilities, together with a full and complete
explanation of the circumstances under which such facilities
were attached to, placed within, or allowed to remain on or
in SWBT's poles or any part of SWBT's conduit system. Such
explanation shall include, at a minimum, the following:
(1) the date (or estimated date) when such facilities were
attached to SWBT's poles or placed in SWBT's conduit
system, and the factual basis supporting Applicant's
selection of such date (or estimated date); and
(2) the factual basis for Applicant's assertion, if any,
that decisions to attach, place or allow the facilities
to remain on or in SWBT's poles or conduit system were
made in good faith and without intent to circumvent
SWBT's pole attachment or conduit occupancy licensing
requirements.
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17.07 Denial or Disclaimer of Ownership or Other Interest. Applicant's
submission to SWBT of a denial or disclaimer of ownership or other interest in
the facilities shall constitute Applicant's waiver of any objection Applicant
may have to SWBT's removal of the facilities. Submission of such a denial or
disclaimer shall not be construed as an agreement by Applicant to pay any
charges associated with removal of the facilities and shall be deemed to be a
denial of any such responsibility; provided, however, that nothing contained in
this section shall prohibit SWBT from invoking the dispute resolution process
or filing suit, in a court of competent jurisdiction, to establish that
Applicant is liable to SWBT for the costs of removal notwithstanding its denial
or disclaimer.
17.08 Review by SWBT of Licensing Status. Within 15 business days after
receiving Applicant's statement that the facilities are the subject of a
current license or that no license is required, SWBT shall review Applicant's
explanation of the factual and claimed legal basis for Applicant's assertions
and shall advise Applicant, in writing, whether it agrees or disagrees with
Applicant's assertions. If SWBT agrees with Applicant's assertions, the
parties may amend the applicable license and no further action shall be
required of Applicant. If SWBT does not accept Applicant's position, Applicant
shall, within 15 business days, apply for a new or amended license as provided
by Section 17.06(c) of this Agreement.
17.09 Approval of License and Retroactive Charges. If SWBT approves
Applicant's application for a new or amended license, Applicant shall be liable
to SWBT for all fees and charges associated with the unauthorized attachments
as specified in Section 17.10 of this Agreement. The issuance of a new or
amended license as provided by this article shall not operate retroactively or
constitute a waiver by SWBT of any of its rights or privileges under this
Agreement or otherwise.
17.10 Fees and Charges. This section applies to fees and charges with
respect to Applicant's facilities placed on or in SWBT pole, duct, or conduit
space which has not been assigned to Applicant. Applicant shall be liable to
SWBT for all fees and charges associated with any such unauthorized pole
attachments or conduit occupancy for which it is responsible. Attachment and
occupancy fees and charges shall continue to accrue until the unauthorized
facilities are removed from SWBT's poles or conduit system and shall include,
but not be limited to, all fees and charges which would have been due and
payable if Applicant and its predecessors had continuously complied with all
applicable SWBT licensing requirements. Such fees and charges shall be due and
payable 30 days after the date of the bill or invoice stating such fees and
charges. The parties shall engage in good faith discussions to reach a
mutually agreed determination as to the amount due and owing. In some cases,
it may be impractical, unduly difficult, or uneconomical to determine the
actual amount of fees which would have been due and payable if all licensing
requirements had been met. Therefore, if the parties, through good faith
discussions fail to reach agreement on the amount due and owing, and if the
amount due and owing cannot be determined due to Applicant's inability to
provide the information required to determine the correct amount, the amount
owing with respect to each
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unauthorized attachment or occupancy shall be equal to three times the annual
attachment and occupancy fees in effect on the date Applicant is notified by
SWBT of the unauthorized attachment or occupancy. Payment of such fees shall be
deemed liquidated damages and not a penalty. In addition, Applicant shall
rearrange or remove its unauthorized facilities at SWBT's request to comply with
applicable placement standards, shall remove its facilities from any space
occupied by or assigned to SWBT or another joint user, and shall pay SWBT for
all costs incurred by SWBT in connection with any facilities rearrangements,
modifications, or replacements necessitated as a result of the presence of
Applicant's unauthorized facilities.
17.11 Removal of Unauthorized Attachments. If Applicant does not apply
for a new or amended pole attachment license with respect to unauthorized
facilities within the specified period of time, or if such application is
received and specifically disapproved, SWBT shall by written notice request to
Applicant to remove its unauthorized facilities not less than 60 days from the
date of notice and Applicant shall remove the facilities within the time
specified in the notice; provided, however, that SWBT may request Applicant to
remove such facilities at an earlier date if such earlier removal is necessary
for reasons beyond SWBT's control. If the facilities have not been removed
within the time specified in the notice, SWBT may, at SWBT's option, remove
Applicant's facilities at Applicant's expense.
17.12 No Ratification of Unlicensed Attachments or Unauthorized Use of
SWBT's Facilities. No act or failure to act by SWBT with regard to any
unlicensed attachment or occupancy or unauthorized use of SWBT's facilities
shall be deemed to constitute a ratification by SWBT of the unlicensed
attachment or occupancy or unauthorized use, nor shall the payment by Applicant
of fees and charges for unauthorized pole attachments or conduit occupancy
exonerate Applicant from civil or criminal liability for any deliberate trespass
or other illegal or wrongful conduct in connection with the placement or use of
such unauthorized facilities.
ARTICLE 18: REMOVAL OF APPLICANT'S FACILITIES
18.01 Responsibility for Removing Facilities. Applicant shall be
responsible for and shall bear all expenses arising out of or in connection
with the removal of its facilities from SWBT's poles, ducts, conduits, and
rights-of-way. Such removals shall be performed in accordance with the
provisions of this article.
(a) When practicable, Applicant shall give SWBT at least 30 days'
advance notice in writing of its intent to remove facilities
from any part of SWBT's conduit system and the proposed method
of removal. The notice shall include the locations of the
facilities to be removed, the name and telephone number of the
manager responsible for removal of the facilities, and the
estimated dates when removal of the facilities will begin and
end.
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(b) Applicant shall, if requested by SWBT to do so, place a pull
mandrel (slug) through all or any specified part of the
duct which was occupied by Applicant.
(c) Except as otherwise agreed upon in writing by the parties,
Applicant must, after removing its facilities, plug all
previously occupied ducts at the entrances to SWBT's manholes
(if SWBT would itself plug the ducts under the same
circumstances) in accordance with the standards set by
SWBT for its own operations, provided that such standards have
been communicated in writing to Applicant at least 60 days in
advance of the removal of Applicant's facilities.
(d) Applicant shall be solely responsible for the removal of its
own facilities from SWBT's poles, ducts, conduits, and
rights-of-way and for (1) paying all persons and
entities which provide materials, labor, access to real or
personal property, or other goods or services in connection
with the removal of Applicant's facilities from SWBT's poles,
ducts, conduits, or rights-of-way and (2) directing the
activities of all such personnel while they are physically
present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way.
(e) When Applicant no longer intends to occupy space on a SWBT pole
or in a SWBT duct or conduit, Applicant will provide written
notification to SWBT that it wishes to terminate the license
with respect to such space and will remove its facilities from
the space described in the notice. Upon removal of Applicant's
facilities, the license shall terminate and the space shall be
available for reassignment.
18.02 Removal of Facilities Not in Active Use. At SWBT's request,
Applicant shall remove from SWBT's poles, ducts, conduits, and rights-of-way
any of Applicant's facilities which are no longer in active use; provided,
however, that Applicant shall not be required to remove such facilities when
due cause and justification exists for allowing them to remain in place.
Applicant shall not be required to remove retired or inactive (dead) cables
that have been overlashed by other facilities which remain in active use unless
removal expenses are paid by the person or entity requesting removal of such
facilities. Applicant shall not be required to remove cables that would
require excavation to remove unless the person or entity requesting removal of
such cables bears the expenses of such excavation in a manner analogous to the
provisions of Section 10.02(c) of this Agreement. Applicant shall not abandon
any of its facilities by leaving them on SWBT's poles, in SWBT's ducts,
conduits, or rights-of-way, at any location where they may block or obstruct
access to SWBT's poles or any part of SWBT's conduit system, or on any public
or private property (other than property owned or controlled by Applicant) in
the vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
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18.03 Removal Following Termination of License. Applicant shall remove
its facilities from SWBT's poles, ducts, conduits, or rights-of-way within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after termination of the license authorizing the attachment of such
facilities to SWBT's poles or the placement of such facilities in SWBT's ducts,
conduits, or rights-of-way.
18.04 Removal Following Replacement of Facilities. Applicant shall remove
facilities no longer in service from SWBT's poles or conduit system within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after the date Applicant replaces existing facilities on a pole or in
a conduit with substitute facilities on the same pole or in the same conduit;
provided, however, that removal of facilities from the maintenance duct shall
be governed by Sections 12.04, 13.03, and 15.02 of this Agreement and not by
this section.
18.05 Removal to Avoid Forfeiture. If the presence of Applicant's
facilities on SWBT's poles or in SWBT's ducts, conduits, or rights-of-way would
cause a forfeiture of the rights of SWBT to occupy the property where such
pole, duct, conduit, or right-of-way is located, SWBT will promptly notify
Applicant in writing and Applicant shall not, without due cause and
justification, refuse to remove its facilities within such time as may be
required to prevent such forfeiture. SWBT will give Applicant not less than 60
days from the date of notice to remove Applicant's facilities unless prior
removal is required to prevent the forfeiture of SWBT's rights. At Applicant's
request, the parties will engage in good faith negotiations with each other,
with joint users, and with third-party property owners and cooperatively take
such other steps as may be necessary to avoid the unnecessary removal of
Applicant's facilities in the face of a threatened forfeiture.
18.06 Notice of Completion of Removal Activities. Applicant shall give
written notice to SWBT stating the date on which the removal of its facilities
from SWBT's poles, ducts, conduits, and rights-of-way has been completed.
Charges shall continue to accrue with respect to such facilities until
Applicant's facilities have been removed, pull mandrels (slugs) have been
pulled if required by Section 18.01(b) of this Agreement, Applicant has plugged
all previously occupied ducts at the entrances to SWBT's manholes as required
by Section 18.01(c) of this Agreement, and the notice required by this section
has been given.
18.07 Removal of Facilities by SWBT; Notice of Intent to Remove. If
Applicant fails to remove its facilities from SWBT's poles, ducts, or conduits
in accordance with the provisions of Sections 18.01-18.06 of this Agreement,
SWBT may remove such facilities and store them at Applicant's expense in a
public warehouse or elsewhere without being deemed guilty of trespass or
conversion and without becoming liable to Applicant for any injury, loss, or
damage resulting from such actions. SWBT shall give Applicant not less than 60
days prior written notice of its intent to remove Applicant's facilities
pursuant to this section. The notice shall state:
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(a) the date when SWBT plans to commence removal of Applicant's
facilities, and that Applicant may remove the facilities at
Applicant's sole cost and expense at any time before the date
specified;
(b) SWBT's plans with respect to disposition of the facilities
removed; and
(c) that Applicant's failure to remove the facilities or make
alternative arrangements with SWBT for removal and disposition
of the facilities shall constitute an abandonment of the
facilities and of any interest therein.
18.08 Removal of Facilities by SWBT. If SWBT removes any of Applicant's
facilities pursuant to this article, Applicant shall reimburse SWBT for SWBT's
costs in connection with the removal, storage, delivery, or other disposition
of the removed facilities.
18.09 Reattachment or Subsequent Attachment Following Removal. After
Applicant's facilities have been properly removed pursuant to the provisions of
this article, neither the removed facilities nor replacement facilities shall
be attached to SWBT's poles or placed in SWBT's conduit system until Applicant
has first submitted new applications for the facilities and complied with the
provisions of this Agreement.
ARTICLE 19: RATES, FEES, CHARGES, AND BILLING
19.01 Rates, Charges and Fees Subject to Applicable Laws, Regulations,
Rules, and Commission Orders. All rates, charges and fees set forth in this
Agreement, including rates, charges and fees set forth in APPENDIX I (Schedule
of Rates, Fees, and Charges), shall be subject to all applicable federal and
state laws, rules, regulations, and commission orders, including but not limited
to (a) the Pole Attachment Act and rules, regulations, and commission orders
issued thereunder and (b) applicable orders of the State Commission in
interconnection arbitration proceedings.
19.02 Schedule of Rates, Fees, and Charges. SWBT's current schedule of
rates, fees, and charges is attached to this Agreement as APPENDIX I and
incorporated herein as an integral part of this Agreement.
19.03 Pole Attachment and Conduit Occupancy Fees. Until such time as the
FCC authorizes the charging of different rates to cable television systems and
telecommunications carriers, SWBT's annual rates for access to poles, ducts,
conduits, and rights-of-way shall be the same for cable television systems and
telecommunications carriers. For all attachments to SWBT's poles and occupancy
of SWBT's ducts and conduits, Applicant will pay SWBT's semiannual pole
attachment and conduit occupancy fees as specified in APPENDIX I. Pole
attachment and conduit occupancy fees shall be assessed and billed with respect
to (a) occupied space whether or not subject to a current license and (b)
assigned space as well as occupied space. Fees for pole attachments shall
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be based on the number of Applicant's pole attachments as of the date of billing
by SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders. Fees for conduit occupancy shall be based on the
number of duct feet occupied by or assigned to Applicant as of the date of
billing by SWBT and shall be calculated in accordance with applicable FCC
rules, regulations, and orders.
19.04 Billing for and Payment of Pole Attachment and Conduit Occupancy
Fees. Pole Attachment and conduit occupancy fees under this Agreement and
licenses subject to this Agreement shall be payable semiannually in advance.
(a) Bills shall be submitted to Applicant for two semiannual
billing periods, the first period including charges for the
months of January through June and the second including
charges for the months of July through December.
(b) Charges associated with newly licensed pole attachments and
conduit occupancy shall be prorated on a daily basis and billed
with the next semiannual bill.
(c) Charges shall be adjusted and retroactively prorated on a daily
basis following the removal of Applicant's facilities and shall
be retroactively adjusted as a credit on the next semiannual
bill.
19.05 Application Fees. SWBT does not currently charge application fees
in connection with requests for access to poles, ducts, conduits, and
rights-of-way. SWBT does, however, impose charges, on a case-by case basis,
for work performed in processing applications for access and preparing SWBT's
poles, ducts, conduits, and rights-of-way to accommodate the facilities of
parties seeking access.
19.06 Charges for Pre-license Survey Work. Subject to applicable
commission orders, Applicant will pay SWBT's charges for pre-license survey
work associated with the processing of Applicant's request for access. SWBT's
pre-license survey charges are not set on a fixed fee basis and will vary from
case-to-case depending on such factors as the number and location of the poles,
ducts, conduits, and rights-of-way subject to Applicant's access request, the
completeness and quality of information submitted by the Applicant in its
application, the nature of the facilities to be placed by Applicant, and the
nature and extent of facilities modification, capacity expansion, and
make-ready work proposed by Applicant.
19.07 Charges for Facilities Modifications, Capacity Expansions, and
Make-ready Work. Subject to applicable commission orders, Applicant will pay
SWBT's charges for facilities modification, capacity expansion, and make-ready
work performed by SWBT, or by persons acting on SWBT's behalf, as provided in
other provisions of this Agreement and APPENDIX I.
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19.08 Contract Administration Fee. Subject to applicable commission
orders, SWBT may charge Applicant a one-time contract administration as
provided in APPENDIX I. This fee, if applicable, shall be assessed for work
performed in the initial processing of this Agreement and shall be
non-refundable upon acceptance of this Agreement by SWBT.
19.09 Administrative Record-keeping Fees. Subject to applicable
commission orders, SWBT may charge Applicant cost-based administrative
record-keeping fees (e.g., fees associated with records and billing changes
resulting from the sale, consolidation, or other transfer of Applicant's
business or facilities, name changes, and the like) as provided in APPENDIX I.
19.10 Charges for Work Performed by SWBT Employees. Except as otherwise
specifically required by applicable commission orders, SWBT's charges to
Applicant for worked performed by SWBT employees pursuant to this Agreement
shall be computed by multiplying the fully loaded hourly rates for such
employees times the number of hours required to perform the work. Disputes
over SWBT's charges for work performed by SWBT employees, including disputes
between the parties concerning the number of hours required to perform the
work, shall be subject to the dispute resolution procedures of Article 30.
Notwithstanding the execution of this Agreement, Applicant shall have the right
to challenge the methodology utilized by SWBT to determine hourly rates for
SWBT employees at any time in any forum having jurisdiction over the subject
matter.
19.11 Due Date for Payment, Interest on Past Due Invoices, Remedies for
Non-payment and Procedures for Disputing Charges. For fees and charges other
than charges for make-ready work, each bill or invoice submitted by SWBT to
Applicant shall state the date that payment is due, which date shall be not
less than 60 days after the date of the bill or invoice. Applicant will pay
each such bill or invoice on or before the stated due date. For make-ready
work, the payment due date shall be not less than 30 days after the date of the
bill or invoice.
(a) Interest on past due bills and invoices shall accrue at the
rate of 12% per annum, or the maximum rate allowed by law,
whichever is less.
(b) Applicant's failure to pay SWBT's fees and charges shall be
grounds for terminating this Agreement and licenses subject to
this Agreement.
(c) If Applicant fails to pay, when due, any fees or charges billed
to Applicant under this Agreement, and any portion of such fees
or charges remains unpaid more that 15 calendar days after the
due date, SWBT may send Applicant a written notice advising
Applicant that this Agreement, or specified licenses subject to
this Agreement, may be terminated if such fees or charges are
not paid within 15 calendar days after the date of the notice.
Applicant must remit to SWBT all such unpaid fees or charges,
whether disputed or undisputed, within 15 days
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after the date of the notice. If Applicant pays disputed fees
under protest, and it is later determined that such fees or any
portion thereof should be refunded, the portion of fees to be
refunded shall be refunded with interest at the rate of 12% per
annum or the maximum rate allowed by law, whichever is less.
(d) Applicant may dispute any fees or charges billed by SWBT to
Applicant under this Agreement by invoking the dispute
resolution procedures set forth in Article 30 of this Agreement.
(e) If Applicant does not dispute such fees or charges and any
portion of such undisputed fees or charges remains unpaid 30
calendar days after the date of the notice, SWBT may, to the
extent permitted by the Pole Attachment Act and applicable
rules, regulations, and commission orders, terminate this
Agreement and licenses subject to this Agreement, suspend the
processing of pending applications for access to SWBT's poles,
ducts, conduits, and rights-of-way located in this State, and
refuse to accept further applications for access until such
undisputed fees or charges, together with accrued interest
thereon, have been paid in full.
19.12 Modification of Rates, Fees and Charges. Subject to applicable
federal and state laws, rules, regulations, and commission orders, SWBT shall
have the right to modify all rates, charges and fees set forth in this
Agreement, including but not limited to those listed in APPENDIX I, as provided
in this section.
(a) Upon written notice to Applicant, SWBT may change, on a
going-forward basis, the amounts of any rates, fees or charges
assessed under this Agreement. Pole attachment and conduit
occupancy rates shall not be increased more than once annually.
(1) The notice shall state the effective date of the changes,
which, in the event of a rate increase, shall be no earlier
than the 60th day after the notice is given.
(2) The changes shall be effective on the effective date
stated in the notice unless stayed or prohibited by a
court or agency of competent jurisdiction.
(3) The changes shall be reflected on the first semiannual
bill issued on or after the effective date specified in the
notice.
(b) If the rates, fees and charges set forth in the notice are not
acceptable to Applicant, Applicant may, notwithstanding any
other provisions of this Agreement, at Applicant's option (1)
seek the renegotiation of this Agreement, (2) terminate this
Agreement, or (3) seek relief through the
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dispute resolution process or before a court or agency of
competent jurisdiction.
19.13 Disputes Over Charging Methodologies. The parties acknowledge that
the Pole Attachment Act grants the FCC regulatory authority over the rates,
terms, and conditions of access to poles, ducts, conduits, and rights-of-way.
The parties further acknowledge that, as of the date of this Agreement, this
State has not elected to assume reverse preemptive regulatory authority over
such rates, terms, and conditions by certifying to the FCC that it has made
such election. Accordingly, complaints concerning and challenges to SWBT's
charging methodologies shall be brought, in the first instance, before the FCC
in accordance with FCC procedural rules unless this State elects to preempt FCC
regulation of pole attachment rates, terms, and conditions of access; provided,
however, that nothing contained in this section shall be construed as affecting
the right of either party to seek relief from any court or agency of competent
jurisdiction in connection with the negotiation, arbitration, and approval of
interconnection agreements under 47 U.S.C. Section 252.
ARTICLE 20: PERFORMANCE AND PAYMENT BONDS
20.01 Bond May Be Required. SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to execute
performance and payment bonds (or provide other forms of security) in amounts
and on terms sufficient to guarantee the performance of their respective
obligations arising out of or in connection with this Agreement only as
provided in subsections (a)-(b) of this section and Section 20.02. Bonds shall
not be required for entities meeting all self-insurance requirements of Section
23.02 of this Agreement.
(a) If Applicant elects to perform make-ready or facilities
modification work under Section 6.08(c) or Sections 10.02-10.05
of this Agreement, SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to
execute bonds equivalent to those which would be required by
SWBT if the work had been performed by contractors,
subcontractors, or other persons selected directly by SWBT. No
bonds shall be required of Applicant, authorized contractors, or
other persons acting on Applicant's behalf except in those
situations where a bond would be required if the work were being
performed on SWBT's behalf.
(b) No other bond shall be required of Applicant to secure
obligations arising under this Agreement in the absence of due
cause and justification.
(c) If a bond or similar form of assurance is required of
Applicant, an authorized contractor, or other person acting on
Applicant's behalf, Applicant shall promptly submit to SWBT,
upon request, adequate proof that the bond remains in full
force and effect and provide certification
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from the company issuing the bond that the bond will not be
cancelled, changed or materially altered without first providing
SWBT 60 days written notice.
(d) SWBT may communicate directly with the issuer of any bond
required by SWBT pursuant to this section to verify the terms of
the bond, to confirm that the bond remains in force, and to make
demand on the issuer for payment or performance of any
obligations secured by the bond.
20.02 Payment and Performance Bonds in Favor of Contractors and
Subcontractors. Applicant shall be responsible for paying all employees,
contractors, subcontractors, mechanics, materialmen and other persons or
entities performing work or providing materials in connection with (a) the
performance of facilities modification, capacity expansion, or make-ready work
by Applicant, authorized contractors, or other persons acting on Applicant's
behalf under Sections 6.08(c) and 10.02-10.05 of this Agreement or (b) the
construction, attachment, use, inspection, maintenance, repair, rearrangement,
modification, and removal of any of Applicant's facilities attached or to be
attached to SWBT's poles or placed or to be placed within SWBT's ducts,
conduits, or rights-of-way. In the event any claim or demand is made on SWBT
by any such employee, contractor, subcontractor, mechanic, materialman, or
other person or entity providing such materials or performing such work, SWBT
may require, in addition to any security provided under Section 20.01 of this
Agreement, that Applicant execute payment or performance bonds, or provide such
other security, as SWBT may deem reasonable or necessary to protect SWBT from
any such claim or demand.
ARTICLE 21: INDEMNIFICATION
21.01 Risks Associated with Outside Plant Operations. The parties
acknowledge that SWBT's outside plant facilities include thousands of miles of
pole lines, conduits, and rights-of-way located on public and private property
throughout SWBT's service area, that SWBT cannot control or continuously monitor
activities that occur at these sites, and that the risks associated with outside
plant operations and facilities are not similar to the risks associated with
operations occurring inside SWBT's central offices and other secure SWBT
buildings and structures. The parties further acknowledge that the presence of
multiple firms on or in poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT requires that liability risks be fairly allocated between the
parties and that it is the parties' intent to allocate such risks in a just,
reasonable, and nondiscriminatory manner which addresses known risks associated
with the outside plant environment and activities and conditions at outside
plant locations.
21.02 Control of Premises. Applicant acknowledges that its employees and
other persons acting on Applicant's behalf, and employees of joint users and
other persons acting on behalf of joint users, will be present, without
supervision or control by SWBT, and in many cases without SWBT's knowledge, on,
within, and in the vicinity of
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SWBT's poles, ducts, conduits, and rights-of-way. During those times when
Applicant's employees and personnel are present at such sites, Applicant shall
be deemed, for the purpose of allocating liabilities between the parties, to be
an independent contractor in control of the premises except as otherwise
provided in this section. Although SWBT inspectors may be present at the site of
work being performed by Applicant or persons acting on Applicant's behalf, such
inspectors shall have no authority to direct Applicant or personnel acting on
Applicant's behalf concerning the method or manner by which the work is to be
performed, and the presence of a SWBT inspector shall not result in SWBT's being
deemed to be in control of the premises. When both parties are present and
performing work operations at a site subject to this section, SWBT and Applicant
shall be deemed to be jointly in control of the premises. When poles, ducts,
conduits, or rights-of-way occupy property owned by third parties, neither party
shall be deemed to be in control of the premises, except as otherwise provided
by law, at times when such party's work operations are not in progress. Work
operations shall be considered to be in progress from the time work commences
until such work is completed whether or not employees of a party or persons
acting on such party's behalf are actually present at the site.
21.03 INDEMNITY AGAINST AND LIMITATIONS OF LIABILITY WITH RESPECT TO
CERTAIN NEGLIGENT ACTS AND OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS
INDEMNIFYING EACH PARTY FROM LIABILITIES ARISING OUT OF OR IN CONNECTION WITH
CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY. THIS ARTICLE ALSO INCLUDES
PROVISIONS LIMITING THE LIABILITIES OF EACH PARTY ARISING OUT OF OR IN
CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY.
21.04 Indemnities Excluded. Except as otherwise specifically provided in
this article, neither party (as an "indemnifying party") shall be required to
indemnify or defend the other party (as an "indemnified party") against, or
hold the indemnified party harmless from, any suit, claim, demand, loss,
damage, liability, fine, penalty, or expense arising out of:
(a) any breach by the indemnified party of any provision of this
Agreement or any breach by the indemnified party of the parties'
interconnection agreement, if any;
(b) the violation of any law by any employee of the indemnified
party or other person acting on the indemnified party's behalf;
(c) willful or intentional misconduct or gross negligence committed
by any employee of the indemnified party or by any other person
acting on the indemnified party's behalf; or
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(d) any negligent act or acts committed by any employee of the
indemnified party or other person acting on the indemnified
party's behalf, if such negligent act or acts are the sole
producing cause of the injury, loss, or damage giving rise to
the suit, claim, demand, loss, damage, liability, fine, penalty,
or expense for which indemnity is requested.
21.05 Workplace Injuries. The parties acknowledge that injuries may occur
at sites where work is being performed by or for either party and that primary
responsibility for preventing workplace injuries shall be placed on the party
controlling work operations at the site. Workplace injuries may result from
any of variety of causes, including but not limited to electrocution associated
with contact with electric power lines on poles or use of defective equipment,
falls from poles resulting from the negligence of the injured person or
co-workers or due to the existence of unsafe conditions on or in the vicinity
of the pole, cave-ins and other accidents at excavation sites, explosion of
combustible gases within or in the vicinity of a conduit system, exposure to
hazardous substances or noxious gases at the site, acts of God, and acts and
omissions of third parties over whom neither party has control. Except as
expressly provided in this Agreement to the contrary, each party shall
indemnify, on request defend, and hold the other party harmless from any and
all suits, claims, demands, losses, damages, liabilities, fines, penalties, or
expenses of every kind and character, on account of or in connection with any
injury, loss, or damage suffered by any person, which arises out of or in
connection with the personal injury or death of any employee of the
indemnifying party (or other person acting on the indemnifying party's behalf)
if such injury or death results, in whole or in part, from any occurrence or
condition on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way; provided, however, that Applicant's indemnification duties under
this section shall arise only if the person injured is present at such site in
connection with the performance or anticipated performance of any act required
or permitted to be performed by Applicant or by persons acting on Applicant's
behalf pursuant to this Agreement. Indemnities provided by this section shall
be subject to the exclusions set forth in Section 21.04 and include but are not
limited to indemnities arising out of or in connection with claims arising from
or in any way connected with any injury, sickness, disease, or death of any
employee of the indemnifying party or any person acting on the indemnifying
party's behalf attributable or allegedly attributable to occurrences or
conditions on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS 21.04(c)-(d), THE
INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL ARISE
EVEN IF THE INJURY, SICKNESS, DISEASE, OR DEATH WAS ATTRIBUTABLE IN PART TO
NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTY.
21.06 Other Claims Brought Against Either Party by Employees and Other
Persons Acting on the Other Party's Behalf. Nothing contained in this
Agreement shall create any contractual liability or other liability on the part
of either party to any employee, contractor, or subcontractor of the other
party or any other person acting on the other party's behalf. Each party shall
indemnify, on request defend, and hold the other
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party harmless from any and all suits, claims, demands, losses, damages,
liabilities, or expenses of every kind and character (other than workplace
injury claims subject to Section 21.05 above) made, brought, or sought against
the indemnified party by any employee, contractor, or subcontractor of the
indemnifying party or by any other person acting on the indemnifying party's
behalf; provided, however, that this section shall apply only to suits, claims,
demands, losses, damages, liabilities, or expenses related to the subject matter
of this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with the employment relationship or other claimed relationship
between the indemnifying party and the employee, contractor, subcontractor, or
other person acting on the indemnifying party's behalf; claims arising out of
disputes over payments due or allegedly due to any employee, contractor,
subcontractor, or other person acting on the indemnifying party's behalf; and
claims arising out of other contract disputes between the indemnifying party and
the employee, contractor, subcontractor, or other person acting on the
indemnifying party's behalf. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.07 Claims Brought Against Either Party by Vendors, Suppliers,
Customers, and other Persons in Privity of Contract with the Other Party. The
parties acknowledge that neither party controls the contractual relationships
between the other party and vendors, suppliers, customers, and other persons in
privity of contract with the other party and that nothing contained in this
Agreement shall create any contractual or other liability of either party to
any vendor, supplier, customer, or other person or entity in privity of
contract with the other party. Each party shall indemnify, on request defend,
and hold the other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, or expenses of every kind and character, made,
brought, or sought against the indemnified party by any vendor, supplier, or
customer of the indemnifying party or by any other person or entity in privity
with the indemnifying party; provided, however, that this section shall apply
only to suits, claims, demands, losses, damages, liabilities, or expenses
related to the subject matter of this Agreement or Applicant's use of SWBT's
poles, ducts, conduits, or rights-of-way. The indemnifying party may not, as a
defense to any obligations of the indemnifying party under this section, assert
that the indemnified party's claims against the indemnifying party are barred
by any tariff or contract limitation of liability applicable to the
indemnifying party's vendor, supplier, or customer or to such other person in
privity of contract with the indemnifying party. Indemnities provided by this
section shall be subject to the exclusions set forth in Section 21.04 and
include but are not limited to indemnities for claims against either party
arising out of or in connection with the failure by the other party to meet its
obligations (including but not limited to contract and tariff
obligations) to such other party's customers and suppliers. EXCEPT AS PROVIDED
ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION
OBLIGATIONS UNDER THIS
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SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.08 Claims Brought Against Either Party by Such Party's Own Employees,
Contractors, Subcontractors, or Other Persons Acting on Such Party's Behalf,
and Claims Brought Against Either Party by Such Party's Own Vendors, Suppliers,
Customers, or Other Persons in Privity of Contract with Such Party. Neither
party shall be entitled to indemnity, contribution, or subrogation from or by
the other party with respect to any suits, claims, demands, losses, damages,
liabilities, or expenses, of any kind or character, made, brought, or sought
against such party by any employee, contractor, or subcontractor of such party,
by any other person acting on behalf of such party, by any vendor, supplier, or
customer of such party, or by any other person or entity in privity of contract
with such party, if such suit, claim, demand, loss, damage, liability, or
expense arises directly out of or in connection with the subject matter of this
Agreement or the use by Applicant of SWBT's poles, ducts, conduits, or
rights-of-way. Indemnities excluded by this section include, but are not
limited to, indemnities for claims against either party arising out of or in
connection with employment-related disputes between either party and its
employees; claims against either party by contractors, subcontractors, and
suppliers performing work or supplying materials to SWBT sites at the request
of such party; and other failures by either party to meet its obligations
(including but not limited to contract and tariff obligations) to such party's
own customers and suppliers. THE INDEMNIFICATION EXCLUSIONS OF THIS SECTION
SHALL APPLY EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO THE NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFYING PARTY BUT SHALL NOT APPLY IF THE INJURY, LOSS, OR
DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM AROSE FROM WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR ANY OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S
BEHALF OR AROSE FROM ANY NEGLIGENT ACT OR ACTS COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF,
IF SUCH NEGLIGENT ACT OR ACTS ARE THE SOLE PRODUCING CAUSE OF THE INJURY, LOSS,
OR DAMAGE GIVING RISE TO THE SUIT, CLAIM, DEMAND, LOSS, DAMAGE, LIABILITY,
FINE, PENALTY, OR EXPENSE FOR WHICH INDEMNITY IS REQUESTED.
21.09 Injuries to Third Parties and Third-party Property Owners Resulting
from the Parties' Conduct. Each party shall indemnify, on request defend, and
hold the other party harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, or expenses, of every kind and
character, on account of or in connection with the personal injury or death of
any third party or physical damage to real or personal property owned by a
third party, arising, in whole or in part, out of or in connection with the
conduct of employees of the indemnifying party or other persons acting on the
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indemnifying party's behalf while such employees or other persons are present
on, within, or in the vicinity of any SWBT pole, duct, conduit, or right-of-way
in connection with the performance or anticipated performance of any act
required or authorized to be performed pursuant to this Agreement. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities arising out of or in
connection with personal injury, death, and property damage claims by third
parties based on willful or intentional misconduct and negligent acts and
omissions of the indemnifying party.
21.10 Indemnification for Environmental Claims. The parties acknowledge
that hazardous substances may be present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way; that employees and other
persons acting on the parties' behalf working on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way should be familiar with
environmental laws and environmental concerns which arise in outside plant
contexts; that all such employees and other persons should be prepared to
recognize and deal with environmental contingencies existing at specific sites;
and that liabilities associated with environmental claims arising out of or in
connection with the subject matter of this Agreement shall be allocated between
the parties as set forth in this section.
(a) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the violation
or breach, by any employee of the indemnifying party or other
person acting on the indemnifying party's behalf, of (1) any
federal, state, or local environmental statute, rule,
regulation, ordinance, or other law or (2) any provision or
requirement of this Agreement dealing with hazardous substances
or protection of the environment.
(b) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the release or
discharge, onto any public or private property, of any hazardous
substances, regardless of the source of such hazardous
substances, by any employee of the indemnifying party, or by any
person acting on the indemnifying party's behalf, while present
on, within, or in the vicinity of any SWBT pole, duct, conduit,
or right-of-way. Indemnities provided by this subsection include
but are not limited to indemnities arising out of or in
connection with the release or discharge of water and other
substances from SWBT's manholes or other conduit facilities.
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(c) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the removal or
disposal of any hazardous substances by the indemnifying party
or by any person acting on the indemnifying party's behalf, or
arising out of or in connection with the subsequent storage,
processing or other handling of such hazardous substances by any
person or entity after they have been removed by the
indemnifying party or persons acting on the indemnifying party's
behalf from the site of any SWBT pole, duct, conduit, or
right-of-way. For the purposes of this subsection, any person or
entity removing or disposing of hazardous substances at the
request of the indemnifying party or at the request of any
person acting on the indemnifying party's behalf, and any person
or entity subsequently receiving, storing, processing, or
otherwise handling such hazardous substances shall be considered
to be a person acting on the indemnifying party's behalf.
(d) Except as otherwise specifically provided in this section,
neither party shall be required to indemnify or defend the other
party against, or hold the other party harmless from any loss,
damage, claim, demand, suit, liability, fine, penalty or expense
for which the other party may be liable under any federal,
state, or local environmental statute, rule, regulation,
ordinance, or other law.
21.11 Miscellaneous Claims. Applicant shall indemnify, on request defend,
and hold SWBT harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, and expenses, of every kind and
character, made, brought, or sought against SWBT by any person or entity,
arising out of or in connection with the subject matter of this Agreement and
based on either:
(a) claims for taxes, municipal fees, franchise fees, right-to-use
fees, and other special charges assessed on SWBT due to the
placement or presence of Applicant's facilities on or within
SWBT's poles, ducts, conduits, or rights-of-way; or
(b) claims based on the violation by Applicant of any third party's
intellectual property rights, including but not limited to
claims for copyright infringement, patent infringement, or
unauthorized use or transmission of television or radio
broadcast programs or other program material.
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21.12 Applicant's General Indemnity Obligations to SWBT. This section
applies only in those situations not expressly covered by Sections 21.05-21.11
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from Applicant's enforcement of its rights against SWBT pursuant to
this Agreement or other provisions in the parties' interconnection agreement,
if any. Except as otherwise expressly provided in this Agreement to the
contrary, and subject to the exclusions set forth in Section 21.04, Applicant
shall indemnify, on request defend, and hold SWBT harmless from any and all
suits, claims, demands, losses, damages, liabilities, fines, penalties, and
expenses, of every kind and character, on account of or in connection with any
injury, loss, or damage to any person or property, or to the environment,
arising out of or in connection with Applicant's access to or use of SWBT's
poles, ducts, conduits, or rights-of-way, Applicant's performance of any acts
authorized under this Agreement, or the presence or activities of Applicant's
employees or other personnel acting on Applicant's behalf on, within, or in the
vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
21.13 SWBT's General Indemnity Obligations to Applicant. This section
applies only in those situations not expressly covered by Sections 21.05-21.10
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from SWBT's enforcement of its rights against Applicant pursuant to
this Agreement or other provisions in the parties' interconnection agreement,
if any. Except as otherwise expressly provided in this Agreement to the
contrary, SWBT shall indemnify, on request defend, and hold Applicant harmless
from any and all suits, claims, demands, losses, damages, liabilities, fines,
penalties, and expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or property, or to
the environment, arising out of or in connection with SWBT's access to or use
of SWBT's poles, ducts, conduits, or rights-of-way, SWBT's performance of any
acts authorized under this Agreement, or the presence or activities of SWBT's
employees or other personnel acting on SWBT's behalf on, within, or in the
vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
21.14 No Rights' Claims, Causes of Action, or Remedies for the Benefit of
Third Parties. Nothing contained in this article is intended to create any
rights, claims, causes of action, or remedies for the benefit of any third
party.
21.15 Assertion of Limitation of Liability Defenses. Each party shall
diligently assert the limitation of liability provisions of any applicable
tariff or contract in any case involving injury, loss, or damage to any
customer of such party for which the other party is not exempt from
indemnification liabilities to the indemnified party under this Agreement.
21.16 Indemnity Liabilities Not Subject to Article 22 Limitations of
Liability. Indemnity liabilities under this article shall not be subject to
Article 22 limitations of liability.
21.17 Defense of Suits. Upon request by the indemnified party, the
indemnifying party shall defend any suit brought against the indemnified party
for any injury, loss, or
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damage subject to indemnification under this Agreement. The indemnified party
shall notify the indemnifying party promptly in writing of any written claims,
lawsuits, or demands for which the indemnifying party may be responsible under
this Agreement. The indemnified party shall cooperate in every reasonable way to
facilitate defense or settlement. The indemnifying party shall have the right to
control and conduct the defense and settlement of any action or claim subject to
consultation of the indemnified party. The indemnifying party shall not be
responsible for any settlement unless the indemnifying party approved such
settlement in advance and agrees to be bound by the settlement agreement.
ARTICLE 22: LIABILITIES AND LIMITATIONS OF LIABILITY
22.01 LIMITATIONS OF LIABILITY WITH RESPECT TO NEGLIGENT ACTS AND
OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS LIMITING THE LIABILITIES OF EACH
PARTY ARISING OUT OF OR IN CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS
OF SUCH PARTY.
22.02 LIMITATIONS OF LIABILITY IN GENERAL. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN SECTIONS 21.16 AND 22.05, NEITHER PARTY'S LIABILITY TO THE OTHER
PARTY FOR DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY NEGLIGENT ACT OR
OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT OR
TORT, SHALL EXCEED IN THE AGGREGATE FOR ANY CALENDAR YEAR THE GREATER OF
$250,000, OR THE TOTAL AMOUNT CHARGED BY SWBT TO APPLICANT UNDER THIS AGREEMENT
FOR THE CALENDAR YEARS WHEN THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY
OCCURRED. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS LIMITING
EITHER PARTY'S LIABILITY FOR ACTS OR OMISSIONS CONSTITUTING WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE BY SUCH PARTY.
22.03 EXCLUSION OF LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE LIABLE 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 ANY ACT OR FAILURE TO ACT PURSUANT TO THIS
AGREEMENT, EVEN IF THE OTHER PARTY HAS ADVISED SUCH PARTY OF THE POSSIBILITY OF
SUCH DAMAGES. THIS SECTION LIMITS EACH PARTY'S LIABILITY FOR INDIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN
CONNECTION WITH NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF
SUCH PARTY BUT DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR INTENTIONAL
MISCONDUCT.
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22.04 SWBT Not Liable to Applicant for Acts of Third Parties or Acts of
God. By affording Applicant access to poles, ducts, conduits, and rights-of-way
owned or controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by Applicant. Except as specifically
provided in Section 22.05 of this Agreement, Applicant assumes all risks of
injury, loss, or damage (and the consequences of any such injury, loss, or
damage) to Applicant's facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, or rights-of-way, and SWBT shall not be liable to Applicant for
any damages to Applicant's facilities other than as provided in Section 22.05.
In no event shall SWBT be liable to Applicant under this Agreement for any
injury, loss, or damage resulting from the acts or omissions of (1) any joint
user or any person acting on a joint user's behalf, (2) any governmental body or
governmental employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invitee, trespasser, or
other person present at the site or in the vicinity of any SWBT pole, duct,
conduit, or right-of-way in any capacity other than as a SWBT employee or person
acting on SWBT's behalf. In no event shall SWBT be liable to Applicant under
this Agreement for injuries, losses, or damages resulting from acts of God
(including but not limited to storms, floods, fires, and earthquakes), wars,
civil disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than SWBT's
employees or persons acting on SWBT's behalf, or other causes beyond SWBT's
control which occur at sites subject to this Agreement.
22.05 Damage to Facilities. Except as otherwise specifically provided in
this section, neither party shall be liable to the other party for any injury,
loss, or damage (or for the direct or indirect consequences of any such injury,
loss, or damage) to such other party's facilities attached to SWBT's poles or
placed within or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way.
(a) Each party (the "responsible party"), and persons acting on
behalf of the responsible party, shall exercise due care to
avoid damaging the facilities of the other party (the "injured
party"). In the event such damage occurs, the responsible party
or persons acting on behalf of the responsible party shall
immediately report such damages to the injured party, and the
injured party shall promptly make such arrangements as may be
necessary to restore service to its customers using the
facilities affected.
(b) The responsible party shall reimburse the injured party for the
actual costs incurred by the injured party for repair of
facilities damaged by the willful misconduct, grossly negligent
acts, grossly negligent omissions, and negligent acts (but not
negligent omissions other than grossly negligent omissions) of
employees of the responsible party.
(c) The responsible party shall reimburse the injured party for the
actual costs incurred by the injured party for repair of
facilities damaged by the
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willful misconduct, grossly negligent acts or omissions, and
negligent acts (but not negligent omissions other than grossly
negligent omissions) of independent contractors acting on the
responsible party's behalf; provided, however, that the injured
party shall be limited to recovery of those costs which cannot
be recovered from the independent contractor causing the
damage. The responsible party shall not be liable to the
injured party under this section until the injured party's
claims against the independent contractor causing the damage
have been adjudicated or settled and the amount of the injured
party's claim against the responsible party is determinable.
(d) NEITHER PARTY SHALL BE REQUIRED BY
THIS SECTION TO REIMBURSE THE OTHER PARTY FOR COSTS
INCURRED AS A RESULT OF NEGLIGENT OMISSIONS OTHER THAN
GROSSLY NEGLIGENT OMISSIONS COVERED BY SUBSECTIONS
(c)-(d) OF THIS SECTION.
(e) THIS SECTION LIMITS, BUT DOES NOT
EXCLUDE, THE RESPONSIBLE PARTY'S LIABILITY TO THE
INJURED PARTY FOR DAMAGES CAUSED BY NEGLIGENT (INCLUDING
GROSSLY NEGLIGENT) ACTS OF THE RESPONSIBLE PARTY AND
PERSONS ACTING ON THE RESPONSIBLE PARTY'S BEHALF.
22.06 No Limitations of Liability in Contravention of Federal or State
Law. Nothing contained in this article shall be construed as exempting either
party from any liability, or limiting such party's liability, in contravention
of federal law or in contravention of the laws of this State.
22.07 Claims Against Third Parties. Nothing contained in this article
shall be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to contractors,
subcontractors, or persons (other than the other party's employees) acting on
the other party's behalf.
ARTICLE 23: INSURANCE
23.01 Insurance Required. Applicant shall comply with the insurance
requirements specified in this section.
(a) Unless Applicant has provided proof of self-insurance as
permitted in Section 23.02 below, Applicant shall obtain and
maintain in full force and effect, for so long as this Agreement
remains in effect, insurance policies specified in APPENDIX IV
of this Agreement. Each policy shall name SWBT as an additional
insured and shall include provisions requiring the insurer to
give SWBT notice of any lapse, cancellation, or
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termination of the policy or any modification to the policy
affecting SWBT's rights under the policy, including but not
limited to any decrease in coverage or increase in deductibles.
(b) Except as provided in this subsection, exclusions from coverage
or deductibles, other than those expressly permitted in APPENDIX
IV, must be approved in writing by SWBT. For authorized
contractors and other contractors performing work on, within, or
in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way on Applicant's behalf, exclusions from coverage or
deductibles, other than those expressly permitted in APPENDIX
IV, must be approved in writing by Applicant.
(c) Authorized contractors and other contractors performing work
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way on Applicant's behalf shall be
required to meet the same insurance requirements applicable to
contractors performing similar work on SWBT's behalf. Applicant
shall be responsible for securing compliance by its contractors
with this requirement and shall be liable to SWBT for any
damages resulting from its failure to do so.
(d) Self-insurance shall be permitted for persons and entities
(including but not limited to Applicant and authorized
contractors) meeting the self-insurance requirements set forth
in Section 23.02;
23.02 Proof of Insurance or Self-insurance. Proof of insurance or
self-insurance shall be made pursuant to the provisions of this section.
(a) Applicant shall submit to SWBT adequate proof (as determined by
SWBT) that the companies insuring Applicant are providing all
coverages required by this Agreement. Applicant's insurers shall
provide SWBT with certifications that required coverages will
not be cancelled, changed or materially altered (e.g., by
increasing deductibles or altering exclusions from coverage)
except after 30 days written notice to SWBT.
(b) SWBT will accept certified proof of a person or entity's
qualification as a self-insurer for Workers' Compensation and
Employers Liability, where self-insurance is permitted, upon
receipt of a current copy of a Certificate of Authority to
Self-insure issued by the Workers' Compensation Commission of
this State. SWBT will accept self-insurance by a person or
entity in lieu of other Commercial General Liability and
Automobile Liability Coverage if such person or entity warrants
that its net worth, as shown by its most recent audited
financial statement with no negative notes, is at least 10 times
the minimum liability limits set forth in APPENDIX IV and SWBT
is satisfied that
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such entity will be able to meet its liability obligations under
this Agreement.
(c) Applicant shall be responsible for
determining whether contractors and other persons
present on Applicant's behalf on, within, and in the
vicinity of SWBT's poles, ducts, conduits, and
rights-of-way meet the self-insurance requirements of
this subsection. Applicant may accept certified proof
of any such person's or entity's qualification as a
self-insurer for Workers' Compensation and Employers
Liability, where self-insurance is permitted, upon
receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. Applicant may accept proof of
self-insurance by a person or entity in lieu of other
Commercial General Liability and Automobile Liability
Coverage if such person or entity warrants that its net
worth, as shown by its most recent audited financial
statement with no negative notes, is at least 10 times
the minimum liability limits set forth in APPENDIX IV
and Applicant is satisfied that such entity will be able
to meet its liability obligations with respect to
activities performed on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way.
23.03 Licensing Contingent on Proof of Insurance. All insurance required
in accordance with APPENDIX IV, or self-insurance as permitted in Section
23.02, must be in effect before SWBT will issue pole attachment or conduit
occupancy licenses under this Agreement and shall remain in force until all of
Applicant's facilities have been removed from SWBT's poles, ducts, conduits,
and rights-of-way.
23.04 Failure to Obtain or Maintain Coverage. Applicant's failure to
obtain and maintain the required levels and types of insurance coverage
required under this Agreement shall be grounds for termination of this
Agreement and licenses subject to this Agreement. If an insurance carrier
shall at any time notify Applicant or SWBT that any policy or policies of
insurance required under this Agreement will be cancelled or changed in any
manner which will result in Applicant's failure to meet the requirements of
this Agreement, SWBT may terminate this Agreement and all licenses subject to
this Agreement not less than 60 days after giving Applicant written notice of
its intention to do so, and such termination shall be effective on the
termination date specified in the notice unless Applicant has obtained (or made
arrangements satisfactory to SWBT to obtain) the required coverage from another
source. In the alternative, SWBT may, in its sole discretion, elect to take
such action as may be necessary to keep such policy in effect with the required
coverages.
ARTICLE 24: ASSIGNMENT OF RIGHTS
24.01 Assignment Permitted. Neither party may assign or otherwise
transfer its rights or obligations under this Agreement except as provided in
this section.
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(a) SWBT may assign its rights, delegate its benefits, and delegate
its duties and obligations under this Agreement, without
Applicant's consent, to any entity controlling, controlled by,
or under common control with SWBT or which acquires or succeeds
to ownership of substantially all of SWBT's assets.
(b) Applicant may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without SWBT's consent, to: any telecommunications carrier or
cable system operator which (1) is entitled to access to SWBT's
poles, ducts, conduits, and rights-of-way under the Pole
Attachment Act and (2) controls, is controlled by, or is under
common control with Applicant or acquires and succeeds to
ownership of substantially all of Applicant's assets; provided,
however, that such assignment shall not be effective until
Applicant has given SWBT written notice of the assignment
pursuant to Section 24.03 and guaranteed the performance of
Applicant's assignee or successor. Applicant's assignee or
successor shall assume all outstanding obligations of Applicant
under this Agreement, including but not limited to all
liabilities and contingent liabilities of Applicant arising out
of or in connection with this Agreement.
(c) Applicant may, ancillary to a bona fide loan transaction
between Applicant and any lender, and without SWBT's
consent, grant security interests or make collateral
assignments in substantially all of Applicant's assets,
including Applicant's rights under this Agreement, subject to
the express terms of this Agreement. In the event Applicant's
lender, in the bona fide exercise of its rights as a secured
lender, forecloses on its security interest or arranges for a
third party to acquire Applicant's assets through public or
private sale or through an Agreement with Applicant,
Applicant's lender or the third party acquiring Applicant's
rights under this Agreement shall assume all outstanding
obligations of Applicant under the agreement and provide proof
satisfactory to SWBT that such lender or third party has
complied or will comply with all requirements established under
this Agreement. Notwithstanding any provisions of this
Agreement to the contrary, such foreclosure by Applicant's
lender or acquisition of assets by such third party shall not
constitute a breach of this Agreement and, upon such
foreclosure or acquisition, Applicant's lender or such third
party shall succeed to all rights and remedies of Applicant
under this Agreement (other than those rights and remedies, if
any, which have not been transferred and, if Applicant is a
debtor under the Federal Bankruptcy Code, those rights, if any,
which remain a part of the debtor's estate notwithstanding an
attempted foreclosure or transfer) and to all duties and
obligations of Applicant under the Agreement, including
liability to
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SWBT for any act, omission, default, or obligation that arose or
occurred under the Agreement prior to the date on which such
lender or third party succeeds to the rights of Applicant under
the Agreement, as applicable.
(1) In the event Applicant or Applicant's lender requests that
SWBT, in connection with a bona fide loan transaction
between Applicant and Applicant's lender, sign any
additional consents, or make other accommodations to
protect such lender's interest, Applicant or Applicant's
lender shall reimburse SWBT for all expenses incurred by
SWBT in connection with such requests and accommodations,
including but not limited to in-house or outside legal
expenses incurred by SWBT in processing the request.
(2) In the event Applicant or Applicant's lender desires that
SWBT provide notices to Applicant's lender or permit
Applicant's lender, in the event of a breach, to cure any
default or termination event if Applicant fails to do so,
Applicant shall notify SWBT's authorized agent, as
designated in Article 29 of this Agreement, that such
notices may be sent to Applicant's lender as well to
Applicant. Nothing contained in this subsection shall be
construed as imposing any duty on SWBT in favor of
Applicant's lender, and this section shall not be construed
to provide Applicant's lender or any other third parties
with any rights, claims, causes of action of any kind.
Applicant waives any and all claims or causes of action, of
every kind and character, past, present, or future, arising
out of or in connection with the giving of any notice to
Applicant's lender pursuant to this section or any failure
to give such notice.
(d) Either party may assign or transfer rights or obligations under
this Agreement on such terms and conditions as are mutually
acceptable to the other party and with such other party's prior
written consent, which consent may be withheld only for due
cause and justification.
(e) No assignment or transfer by Applicant of rights under this
Agreement, licenses subject to this Agreement, or authorizations
granted under this Agreement shall be effective until Applicant,
its successors, and assigns have complied with the provisions of
this article, secured SWBT's prior written consent to the
assignment or transfer, if necessary, and given SWBT notice of
the assignment or transfer pursuant to Section 24.03.
(f) Except as otherwise expressly provided in this article, neither
this Agreement, nor any licenses or authorizations subject to
this Agreement, shall inure to the benefit of Applicant's
successors or assigns without SWBT's prior written consent.
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24.02 Incorporations, Mergers, Acquisitions, and Other Changes in
Applicant's Legal Identity. When the legal identity or status of Applicant
changes, whether by incorporation, reincorporation, merger, acquisition, or
otherwise, such change shall be treated as an assignment subject to the
provisions of this article.
24.03 Notice of Assignment. Applicant shall provide SWBT with 60 days
advance notice in writing of any assignment.
24.04 Assignment Shall Not Relieve Applicant of Prior Obligations. Except
as otherwise expressly agreed by SWBT in writing, no assignment permitted by
SWBT under this Agreement shall relieve Applicant of any obligations arising
under or in connection with this Agreement, including but not limited to
indemnity obligations under Article 21 of this Agreement or the interconnection
agreement, if any.
24.05 Satisfaction of Existing Obligations and Assumption of Contingent
Liabilities. SWBT may condition its approval of any requested assignment or
transfer on the assignee's or successor's payment or satisfaction of all
outstanding obligations of Applicant under this Agreement and the assignee's or
successor's assumption of any liabilities, or contingent liabilities, of
Applicant arising out of or in connection with this Agreement.
24.06 Satisfaction of All Other Licensing Requirements. Applicant's
assignee or successor must, within 60 days following the assignment, provide
proof satisfactory to SWBT that such assignee or successor has complied or will
comply with all licensing requirements established under this Agreement,
including but not limited to requirements that such assignee or successor
verify, to the best of its information and belief, as provided in Section
17.03, that all facilities owned or used by such assignee or successor and
presently attached to SWBT's poles or placed within any portion of SWBT's
conduit system within this State have been disclosed to SWBT and are subject to
existing licenses and that such assignee or successor has complied with the
insurance requirements set forth in Article 23 of this Agreement.
24.07 Additional Post-Assignment Requirements. Applicant's assignee or
successor shall, within 60 days following the assignment:
(a) sign this Agreement as an assignee or successor expressly
agreeing to be bound by all provisions of this Agreement and
licenses subject to this Agreement;
(b) provide proof, satisfactory to SWBT, of such assignee's
assumption of the obligations of this Agreement; and
(c) pay a one-time contract administration fee, as provided in
APPENDIX I of this Agreement, if no Master Agreement for Access
to SWBT's Poles,
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Ducts, Conduits, or Rights-of-Way between SWBT and such assignee
is in effect for this State, or an administrative record-keeping
fee as provided in APPENDIX I of this Agreement, if there is a
Master Agreement in effect for this State.
24.08 Sublicenses Prohibited. Nothing contained in this Agreement shall
be construed as granting Applicant the right to sublicense any rights under
this Agreement or licenses subject to this Agreement to any third party.
Except as otherwise expressly permitted in this Agreement, Applicant shall not
allow third party to attach or place facilities to or in pole or conduit space
occupied by or assigned to Applicant or to utilize such space.
ARTICLE 25: TERMINATION OF AGREEMENT OR LICENSES;
REMEDIES FOR BREACHES
25.01 Termination Due to Non-Use of Facilities or Loss of Required
Authority. Applicant shall, by written notice to SWBT, terminate this
Agreement and all licenses subject to this Agreement if Applicant ceases to
have authority to do business or ceases to do business in this State, ceases to
have authority to provide or ceases to provide cable television services in
this State (if Applicant is cable television system having access to SWBT's
poles, ducts, conduits or rights-of-way solely to provide cable television
service), ceases to have authority to provide or ceases to provide
telecommunications services in this State (if Applicant is a telecommunications
carrier which does not also have authority to provide cable television service
in this State), or ceases to make active use of SWBT's poles, ducts, conduits,
and rights-of-way in this State. Applicant shall, by written notice to SWBT,
terminate individual licenses subject to this Agreement if (a) Applicant ceases
to utilize the pole attachment or conduit occupancy space subject to such
licenses or (b) Applicant's permission to use or have access to particular
poles, ducts, conduits, or rights-of-way has been revoked, denied, or
terminated for reasons of safety or any other lawful reason by any federal,
state, or local governmental authority or third-party property owner having
authority to revoke, deny, or terminate such use or access. Responsibility for
terminating this Agreement or individual licenses under the circumstances set
forth in this section shall be a contractual obligation imposed on Applicant,
and the failure by Applicant to terminate this Agreement or individual licenses
pursuant to this section shall be a material breach of this Agreement.
25.02 Limitation, Termination, or Refusal of Access for Certain Material
Breaches. Applicant's access to SWBT's poles, ducts, conduits, and
rights-of-way shall not materially interfere with or impair service over any
facilities of SWBT or any joint user, cause material damage to SWBT's plant or
the plant of any joint user, impair the privacy of communications carried over
the facilities of SWBT or any joint user, or create serious hazards
to the health or safety of any persons working on, within, or in the vicinity
of SWBT's poles, ducts, rights-of-way or to the public. Upon reasonable notice
and opportunity to cure, SWBT may limit, terminate or refuse access if
Applicant violates this provision; provided, however, that such limitation,
termination or refusal will be
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limited to Applicant's access to poles, ducts, conduits, and rights-of-way
located in the SWBT construction district in which the violation occurs, shall
be as narrowly limited in time and geographic scope as may be necessary to
enable Applicant to adopt suitable controls to prevent further violations, and
shall be subject to review, at Applicant's request, pursuant to the dispute
resolution procedures set forth in this Agreement (or, if applicable, the
parties' interconnection agreement) or, as permitted by law, before any court,
agency, or other tribunal having jurisdiction over the subject matter. In the
event Applicant invokes dispute resolution procedures or seeks review before a
court, agency, or other tribunal having jurisdiction of the subject matter, the
limitation, termination, or refusal of access may be stayed or suspended by
agreement of the parties or by order of the tribunal having jurisdiction over
the parties' dispute.
25.03 Notice and Opportunity to Cure Breach. In the event of any claimed
breach of this Agreement by either party, the aggrieved party may give written
notice of such claimed breach as provided in this section.
(a) The notice shall set forth in reasonable detail:
(1) the conduct or circumstances complained of, together with
the complaining party's legal basis for asserting that
a breach has occurred;
(2) the action believed necessary to cure the alleged breach;
and
(3) any other matter the complaining party desires to include
in the notice.
(b) Except as provided in Section 25.02 and subsection (c) of this
section, the complaining party shall not be entitled to pursue
any remedies available under this Agreement or relevant law
unless such notice is given and (1) the breaching party fails to
cure the breach within 30 days of such notice, if the breach is
one which can be cured within 30 days, or (2) the breaching
party fails to commence promptly and pursue diligently a cure of
the breach, if the required cure is such that more than 30 days
will be required to effect such cure; provided, however, that
nothing contained in this section shall preclude either party
from invoking the dispute resolution procedures set forth in
Article 30 of this Agreement, or any complaint or dispute
resolution procedures offered by the FCC or State Commission, at
any time.
(c) Nothing contained in this section shall preclude either party
from filing a complaint or bringing suit in any court, agency,
or other tribunal of competent jurisdiction to restrain or
enjoin any conduct of the other party which threatens the
complaining party with irreparable injury, loss
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or damage without first giving the notice otherwise required by
subsection (b).
25.04 Remedies for Breach. Subject to the provisions of this article and
the dispute resolution procedures of Article 30, either party may terminate
this Agreement in the event of a material breach by the other party or exercise
any other legal or equitable right which such party may have to enforce the
provisions of this Agreement. Except as otherwise specifically provided in
Section 30.07, in any action based on an alleged breach of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred
by such party, including but not limited to reasonable attorneys' fees.
ARTICLE 26: FAILURE TO ENFORCE
26.01 No Waiver. The failure by either party to take action to enforce
compliance with any of the terms or conditions of this Agreement, to give
notice of any breach, or to terminate this Agreement or any license or
authorization subject to this Agreement shall not constitute a waiver or
relinquishment of any term or condition of this Agreement, a waiver or
relinquishment of the right to give notice of breach, or waiver or
relinquishment of any right to terminate this Agreement. Notwithstanding any
such failure, all terms and conditions of this Agreement and all rights of
either party hereunder shall be and remain at all times in full force and
effect.
ARTICLE 27: EFFECTIVE DATE, TERM, AND ELECTIVE TERMINATION
27.01 Effective Date. This Agreement shall be effective as of the _____
day of ________________, 199_, or, if this Agreement has been entered into as
an appendix, attachment, or exhibit to an interconnection agreement between the
parties, the date of approval by the State Commission of the interconnection
agreement, whichever date first occurs.
27.02 Initial Term. Unless sooner terminated as herein provided, the
initial term of this Agreement shall run from the effective date until the end
of the calendar year which includes the effective date.
27.03 Automatic Renewal. Unless sooner terminated as herein provided,
this Agreement shall be automatically renewed for successive one-year terms
beginning on the first day of each calendar year after the effective date.
27.04 Elective Termination. Either party may terminate this Agreement by
giving the other party at least six months prior written notice as provided in
this section.
(a) Applicant may terminate this Agreement with or without cause.
(b) The parties acknowledge that the Pole
Attachment Act, 47 U.S.C. Section 224(e), as added by the
Telecommunications Act of 1996, expressly
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directs the FCC to promulgate new regulations governing charges
to telecommunications carriers for access to poles, ducts,
conduits, and rights-of-way and that such new regulations are to
take effect five years after the date of enactment of the
Telecommunications Act of 1996 (that is, February 8, 2001). The
parties further acknowledge that due to nondiscrimination
requirements, it is desirable that formal attachment agreements
establishing rates, terms, and conditions of access be revised
simultaneously, to the extent possible. Accordingly, the parties
agree that SWBT may terminate this Agreement only for cause
during the period beginning with the effective date of this
Agreement through February 8, 2001. Thereafter, SWBT may
terminate this Agreement with or without cause, subject to the
provisions of subsection (d) and Section 27.05 below.
(c) The notice of termination shall state
the effective date of termination, which date shall be
no earlier than the last to occur of the following
dates: the last day of the current term of this
Agreement or six months after the date the notice is
given.
(d) The elective termination of this Agreement by SWBT under this
section shall not require immediate removal of Applicant's
facilities from poles, ducts, conduits, and rights-of-way owned
or controlled by SWBT and shall be subject to the provisions of
Section 27.05 below; provided, however, that Applicant shall,
within 60 days after the effective date of the termination,
either initiate negotiations for continued access to SWBT's
poles, ducts, conduits, and rights-of-way or remove its
facilities in accordance with the provisions of Article 18 of
this Agreement.
27.05 Effect of Elective Termination. Elective termination of this
Agreement by Applicant, as permitted under Section 27.04 of this Agreement,
shall not affect Applicant's liabilities and obligations incurred under this
Agreement prior to the effective date of termination and shall not entitle
Applicant to the refund of any advance payment made to SWBT under this
Agreement. Elective termination of this Agreement by SWBT shall not affect
SWBT's obligations to afford access to SWBT's poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT as required by the Pole Attachment
Act, the Telecommunications Act of 1996, and other applicable laws,
regulations, and commission orders.
ARTICLE 28: CONFIDENTIALITY OF INFORMATION
28.01 Information Provided by Applicant to SWBT. Except as otherwise
specifically provided in this Agreement, all company-specific and
customer-specific information submitted by Applicant to SWBT in connection with
this Agreement (including but not limited to information submitted in connection
with Applicant's applications for the assignment of pole attachment and
occupancy space and for pole
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attachment and conduit occupancy licenses) shall be deemed to be "confidential"
or "proprietary" information of Applicant and shall be subject to the terms set
forth in this article. Confidential or proprietary information specifically
includes information or knowledge related to Applicant's review of records
regarding a particular market area, or relating to assignment of space to
Applicant in a particular market area, and further includes knowledge or
information about the timing of Applicant's request for or review of records or
its inquiry about SWBT facilities. This article does not limit the use by SWBT
of aggregate information relating to the occupancy and use of SWBT's poles,
ducts, conduits, and rights-of-way by firms other than SWBT (that is,
information submitted by Applicant and aggregated by SWBT in a manner that does
not directly or indirectly identify Applicant).
28.02 Access Limited to Persons with a Need to Know. Confidential or
proprietary information provided by Applicant to SWBT in connection with this
Agreement shall not be disclosed to, shared with, or accessed by any person or
persons (including but not limited to personnel involved in sales, marketing,
competitive intelligence, competitive analysis, strategic planning, and similar
activities) other than those who have a need to know such information for the
limited purposes set forth in Sections 28.03-28.06.
28.03 Permitted Uses of Applicant's Confidential Information.
Notwithstanding the provisions of Sections 28.01 and 28.02 above, SWBT and
persons acting on SWBT's behalf may utilize Applicant's confidential or
proprietary information for the following purposes: (a) posting information,
as necessary, to SWBT's outside plant records; (b) placing, constructing,
installing, operating, utilizing, maintaining, monitoring, inspecting,
repairing, relocating, transferring, conveying, removing, or managing SWBT's
poles, ducts, conduits, and rights-of-way and any SWBT facilities located on,
within, or in the vicinity of such poles, ducts, conduits, and rights-of-way;
(c) performing SWBT's obligations under this Agreement and similar agreements
with third parties; (d) performing SWBT's general obligations to afford
nondiscriminatory access to telecommunications carriers and cable television
systems under the Pole Attachment Act; (e) determining which of SWBT's poles,
ducts, conduits, and rights-of-way are (or may in the future be) available for
SWBT's own use, and making planning, engineering, construction, and budgeting
decisions relating to SWBT's poles, ducts, conduits, and rights-of-way; (f)
preparing cost studies; (g) responding to regulatory requests for information;
(h) maintaining SWBT's financial accounting records; and (i) complying with
other legal requirements relating to poles, ducts, conduits, and rights-of-way.
28.04 Access by Third Parties. Information reflecting the assignment of
pole attachment and conduit occupancy space to Applicant may be made available
to personnel of third parties seeking access to SWBT's records under
provisions, and subject to protections, equivalent to those contained and
required by Section 7.03 of this Agreement.
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28.05 Defense of Claims. In the event of a dispute between SWBT and any
person or entity, including Applicant, concerning SWBT's performance of this
Agreement, satisfaction of obligations under similar agreements with third
parties, compliance with the Pole Attachment Act, compliance with the
Telecommunications Act of 1996, or compliance with other federal, state, or
local laws, regulations, commission orders, and the like, SWBT may utilize
confidential or proprietary information submitted by Applicant in connection
with this Agreement as may be reasonable or necessary to demonstrate compliance,
protect itself from allegations of wrongdoing, or comply with subpoenas, court
orders, or reasonable discovery requests; provided, however, that SWBT shall not
disclose Applicant's proprietary or confidential information without first, at
SWBT's option: (a) obtaining an agreed protective order or nondisclosure
agreement that preserves the confidential and proprietary nature of Applicant's
information; (b) seeking such a protective order as provided by law if no agreed
protective order or nondisclosure agreement can be obtained; or (c) providing
Applicant notice of the subpoena, demand, or order and an opportunity to take
affirmative steps of its own to protect such proprietary or confidential
information.
28.06 Response to Subpoenas, Court Orders, and Agency Orders. Nothing
contained in this article shall be construed as precluding SWBT from complying
with any subpoena, civil or criminal investigative demand, or other order
issued or entered by a court or agency of competent jurisdiction; provided,
however, that SWBT shall not disclose Applicant's proprietary or confidential
information without first, at SWBT's option: (a) obtaining an agreed
protective order or nondisclosure agreement that preserves the confidential and
proprietary nature of Applicant's information; (b) seeking such a protective
order as provided by law if no agreed protective order or nondisclosure
agreement can be obtained; or (c) providing Applicant notice of the subpoena,
demand, or order and an opportunity to take affirmative steps of its own to
protect such proprietary or confidential information.
28.07 Other Uses of Confidential Information. No other uses of
confidential information received from Applicant pursuant to this Agreement are
authorized or permitted without Applicant's express written consent.
ARTICLE 29: NOTICES
29.01 Notices to Applicant. Except as otherwise provided in APPENDIX VI
("Notices to Applicant"), all written notices required to be given to Applicant
shall be delivered or mailed to Applicant's duly authorized agent or attorney,
as designated in this section.
(a) Such notice may be delivered to Applicant's duly authorized
agent or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to Applicant's duly authorized agent
or attorney by registered or certified mail, return receipt
requested. When
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notice is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official depository under
the care and control of the United States Postal Service and
shall be deemed to have been given three days after the date of
deposit.
(c) Applicant may authorize delivery of
the notice by telephonic document transfer to the
Applicant's duly authorized agent or attorney. Notice
by telephonic document transfer after 5:00 p.m. local
time of the recipient shall be deemed given on the
following day.
(d) Notices to Applicant shall be sent to
the authorized agent or attorney designated below:
Name: ___________________________________________________
Title: __________________________________________________
Firm: ___________________________________________________
Address: ________________________________________________
City/State/Zip: _________________________________________
29.02 Notices to SWBT. Except as otherwise provided in APPENDIX VII
("Notices to SWBT"), all written notices required to be given to SWBT shall be
delivered or mailed to SWBT's duly authorized agent or attorney, as designated
in this section.
(a) Such notice may be delivered to
SWBT's duly authorized agent or attorney in person or by
agent or courier receipted delivery.
(b) Such notice may be mailed to SWBT's
duly authorized agent or attorney by registered or
certified mail, return receipt requested. When notice
is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official
depository under the care and control of the United
States Postal Service and shall be deemed to have been
given three days after the date of deposit.
(c) SWBT may authorize delivery of the
notice by telephonic document transfer to SWBT's duly
authorized agent or attorney. Notice by telephonic
document transfer after 5:00 p.m. local time of the
recipient shall be deemed given on the following day.
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(d) On the effective date of this Agreement, and until
further notice to Applicant, SWBT's duly authorized
agent shall be the Utility Liaison Supervisor ("ULS")
designated in APPENDIX VIII.
29.03 Changes in Notice Requirements. Either party may, from time to
time, change notice addressees and addresses by giving written notice of such
change to the other party. Such notice shall state, at a minimum, the name,
title, firm, and full address of the new addressee.
ARTICLE 30: DISPUTE RESOLUTION
30.01 Purpose. The provisions of this article are intended to minimize
litigation between the parties with respect to disputes arising in connection
with this Agreement and shall be construed accordingly. Any dispute between
the parties arising under this Agreement may be submitted by either party for
resolution under this article.
30.02 Exclusive Remedy for Monetary Claims under $25,000. Except for
actions seeking injunctive relief related to the purposes of this Agreement or
suits to compel compliance with the dispute resolution processes set forth in
this article, the parties agree to use the dispute resolution processes set
forth in this Agreement as their sole remedy with respect to any monetary claim
of $25,000 or less which arises out of or in connection with this Agreement.
30.03 Prerequisite to Litigation. The provisions of this article shall
also apply to all disputes, without regard to the amount in controversy, in
which Applicant contests charges billed by SWBT to Applicant under the terms of
this Agreement. No suit, except for actions seeking injunctive relief related
to the purposes of this Agreement or suits to compel compliance with the
dispute resolution processes set forth in this article, shall be filed by
either party against the other with respect to such contested charges until the
parties have engaged in good faith negotiations as provided in Section 30.04,
and, if the parties agree, in mediation under Section 30.05.
30.04 Good Faith Negotiation. Good faith negotiation as provided in this
section shall be the first step in the dispute resolution process.
(a) With respect to any dispute subject
to the provisions of this article, either party may
initiate negotiation proceedings by writing a certified
or registered letter to the other party setting forth
the particulars of the dispute, the terms of the
Agreement that are involved, and a suggested resolution
of the problem.
(b) The recipient of the letter shall
respond within 21 days to the proposed solution. The
recipient shall either agree to the proposed solution or
explain its disagreement.
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(c) If the correspondence does not resolve the dispute, each
party, at the request of either party, will appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve the dispute. The
location, form, frequency, duration, and conclusion of
these discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives
may utilize other alternative dispute resolution
procedures such as mediation to assist in the
negotiations.
(d) Discussions and correspondence among the representatives
as provided by this section are for purposes of
settlement, are exempt from discovery and production, and
shall not be admissible in arbitration, judicial,
regulatory, or other proceedings in any forum.
30.05 Mediation. If the parties agree to mediation, the mediation may be
conducted as provided in this section or in such other manner as may be
mutually agreeable to the parties.
(a) If agreed to by the parties, the dispute shall be
referred to the nearest office of the American
Arbitration Association, or such other mediator as may be
selected by agreement of the parties, for mediation, that
is, an informal, non-binding conference or conferences
between the parties in which a mediator will seek to
guide the parties to a resolution of the dispute.
(b) If the dispute is referred to the American Arbitration
Association, the parties are free to select any mutually
acceptable panel member from the list of mediators at the
American Arbitration Association. If the parties cannot
agree or have no particular choice of a mediator and
simply request that the American Arbitration Association
assign a mediator to the dispute, then a list and resumes
of available mediators, numbering one more than there are
parties, will be sent to the parties, each of whom may
strike one name leaving the remaining name as the
mediator. If more than one name remains, the designated
mediator shall be selected by the Administrator of the
American Arbitration Association from the remaining
names.
(c) Mediation sessions shall be private.
(d) All records, reports or other
documents considered by the mediator shall be
confidential.
(e) The parties agree that the mediator
shall not be compelled to divulge confidential materials
or to testify about the mediation in arbitration,
regulatory, judicial, or other proceedings in any forum.
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(f) The parties agree to maintain the confidentiality of the
mediation and shall not rely on, or introduce as
evidence in any arbitration, judicial, or other
proceeding:
(1) views expressed or
suggestions made by the other party with respect
to a possible settlement of the dispute;
(2) admissions made by the
other party during the mediation proceedings;
(3) proposals made or views
expressed by the mediator; or
(4) the fact that the other
party had or had not indicated willingness to
accept a proposal for settlement made by the
mediator.
(g) Subsections (e) and (f) of this section shall apply to
anything said, done or occurring in the course of the
mediation, including any private caucus or
discussions between the mediator and any party or counsel
before or after the joint mediation session. There shall
be no stenographic record of the mediation process,
except to memorialize a settlement record.
(h) The mediation process shall be considered settlement
negotiation for the purpose of all state and
federal rules protecting disclosures made during such
conferences from later discovery or use in evidence. All
conduct, statements, promises, offers, views, and
opinions, oral or written, made during the mediation by
any party or a party's agent, employee, or attorney are
confidential and, where appropriate, are to be considered
work product and privileged. Such conduct, statements,
promises, offers, views, and opinions shall not be
subject to discovery or admissible for any purpose,
including impeachment, in any litigation or other
proceeding involving the parties; provided, however, that
evidence otherwise subject to discovery or admissible is
not excluded from discovery or admission in evidence
simply as a result of its having been used in connection
with this settlement process.
30.06 Arbitration. If negotiations and mediations do not resolve the
dispute within 90 days after the initiation of dispute resolution proceedings
as provided in subsection (a) of Section 30.04 of this Agreement, the dispute
shall be submitted to binding arbitration by a single arbitrator pursuant to
the Commercial Arbitration Rules of the American Arbitration Association if the
dispute involves any monetary claim of $25,000 or less which arises out of or
in connection with this Agreement. The parties may voluntarily elect to
arbitrate disputes in which the amount in controversy exceeds $25,000, but they
shall not be required by this Agreement to do so.
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(a) Either party may demand such arbitration in accordance
with the procedures set out in the Commercial
Arbitration Rules.
(b) Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out
in this subsection.
(1) Each party may submit in writing to any other
party, and such other party shall so respond, to
a maximum of any combination of 35 of the
following: interrogatories, document production
requests, and requests for admissions. The
interrogatories, document production requests,
and requests for admissions shall not have
subparts.
(2) Additional discovery may be permitted upon mutual
agreement of the parties or upon order of the
arbitrator on a showing of good cause.
(c) The arbitrator shall control the scheduling so as to
process the matter expeditiously. The times set
forth in this subsection shall apply unless extended
upon mutual agreement of the parties or by the
arbitrator on a showing of good cause.
(1) The arbitration hearing shall commence within 60
days of the demand for arbitration and shall
be held, in the absence of agreement by the
parties to a different venue, in St. Louis,
Missouri.
(2) The parties shall submit written briefs five days
before the hearing.
(3) The arbitrator shall rule on the dispute by
issuing a written opinion within 30 days after
the close of hearings.
(4) The arbitrator shall have no authority to order
punitive or consequential damages.
(5) Judgment upon the award rendered by the arbitrator
may be entered in any court of competent
jurisdiction.
30.07 Costs. Except as specifically provided in this section, each party
shall bear its own costs of all dispute resolution procedures under this
article.
(a) A party seeking discovery shall
reimburse the responding party for the costs incurred by
the responding party in producing documents.
(b) The parties shall equally split the
fees of the arbitration and the arbitrator.
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30.08 No Abridgment of Rights under the Communications Act of 1934 or the
Pole Attachment Act. Nothing contained in this article shall abridge the
rights of either party to seek relief from the FCC with respect to any dispute
subject to the jurisdiction of the FCC under the Communications Act of 1934 or
the Pole Attachment Act, or from the State Commission with respect to any
dispute subject to its jurisdiction, except that the parties may not seek
relief from the FCC or the State Commission with respect to any dispute that
has already been resolved by mediation under Section 30.05 or by binding
arbitration under Section 30.06.
ARTICLE 31: ACCESS TO APPLICANT'S
POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY
31.01 No Reciprocal Access to Applicant's Facilities. This Agreement does
not include provisions for reciprocal access by SWBT to Applicant's poles,
ducts, conduits, and rights-of-way.
ARTICLE 32: GENERAL PROVISIONS
32.01 Entire Agreement. This Agreement, together with the interconnection
agreement, if any, to which this Agreement is an appendix,attachment, or
exhibit, sets forth the entire understanding and agreement of the parties.
32.02 Prior Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, whether written or oral, between Applicant and
SWBT relating to the placement and maintenance of Applicant's facilities on and
within SWBT's poles, ducts, and conduits within this State.
32.03 Amendments Shall Be in Writing. Except as otherwise specifically
provided to the contrary by other provisions of this Agreement, the terms and
conditions of this Agreement shall not be amended, changed or altered except in
writing and with approval by authorized representatives of both parties.
32.04 Survival of Obligations. Any liabilities or obligations of either
party for acts or omissions prior to the termination of this Agreement, any
obligations of either party under provisions of this Agreement relating to
confidential and proprietary information, indemnification, limitations of
liability, and any other provisions of this Agreement which, by their terms,
are contemplated to survive (or be performed after) termination of this
Agreement, will survive the termination of this Agreement.
32.05 Multiple Counterparts. This Agreement may be executed in multiple
counterparts.
32.06 Effect on Licenses Issued Under Prior Agreements. All currently
effective pole attachment and conduit occupancy licenses granted to Applicant
shall, on the
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effective date of this Agreement, be subject to the rates, terms,
conditions, and procedures set forth in this Agreement.
32.07 Force Majeure. Except as otherwise specifically provided in this
Agreement, neither party will be liable for any delay or failure in performance
of any part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, disputes,
freight embargoes, earthquakes, volcanic actions, wars, civil disturbances,
cable cuts, or other causes beyond the reasonable control of the party claiming
excusable delay or other failure to perform; provided, however, that Force
Majeure will not include acts of any governmental authority relating to
environmental, health, or safety conditions at work locations.
If any Force Majeure condition occurs, the party whose performance fails or is
delayed because of such Force Majeure condition will give prompt notice to the
other party, and, upon cessation of such Force Majeure condition, will give
like notice and commence performance hereunder as promptly as reasonably
practicable.
32.08 Severability. If any article, section, subsection, or other
provision or portion of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not materially
alter the essence of this Agreement as to either party, the invalidity of such
provision shall not render this entire Agreement unenforceable and this
Agreement shall be administered as if it did not contain the invalid provision.
32.09 Choice of Law. Except to the extent that federal law controls any
aspect of this Agreement, the validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and duties of
the parties will be governed by the laws of this State, applied without regard
to the provisions of this State's laws relating to conflicts-of-laws.
32.10 Changes in the Law. Because the primary purpose of this Agreement
is to provide access to poles, ducts, conduits, and rights-of-way in accordance
with the Pole Attachment Act, as amended by the Telecommunications Act of 1996
and subsequent amendments, the parties contemplate that changes in this
Agreement may from time to time be necessary or desirable to conform to changes
in the Pole Attachment Act as that Act is amended, interpreted, and applied.
This Agreement is based in large part on regulatory decisions by the FCC, which
has jurisdiction over the rates, terms, and conditions of access to poles,
ducts, conduits, and rights-of-way (except to the extent that such jurisdiction
has been pre-empted by individual states) and decisions by the State
Commission. More specifically, this Agreement is based in large part on the
FCC's First Interconnection Order in CC Docket No. 96-98, on FCC rules
announced with the First Interconnection Order, and on Arbitration Orders by
the State Commission.
[ ] Applicant desires to have access to
SWBT's poles, ducts, conduits, and rights-of-way on
terms that are not less favorable than those obtained by
firms participating in interconnection arbitration
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proceedings before the State Commission. Applicant also
desires to have access to SWBT's poles, ducts, conduits,
and rights-of-way to the full extent permitted under the
FCC's First Interconnection Order in CC Docket No. 96-98.
SWBT is entering into this Agreement for the purpose of
providing nondiscriminatory access in compliance with the
Pole Attachment Act and regulatory decisions thereunder,
including decisions by the State Commission in
interconnection arbitration proceedings in which
Applicant is not a party. Each party is entering into
this Agreement based on current interpretations of the
law by the FCC and State Commission. In the event of any
changes in the Pole Attachment Act, changes in applicable
FCC or State Commission rulings, or judicial
determinations that such rulings are erroneous or
invalid, each party shall, at the request of the other,
engage in good faith negotiations to supplement, amend or
replace any provisions of this Agreement affected by such
changes or determinations and to conform this Agreement
to changes in the underlying laws on which the Agreement
is based.
[ ] This Agreement has been entered into as a result of
private negotiation between the parties and arbitration
by the State Commission, acting pursuant to the
Telecommunications Act of 1996. If the actions of any
legislative bodies, courts, or regulatory agencies of
competent jurisdiction invalidate, modify, or stay the
enforcement of laws, rules, regulations, or commission
orders that were the basis for a provision of this
Agreement (including but not limited to any provision of
this Agreement required by any arbitration award approved
by the State Commission), the affected provision shall be
invalidated, modified, or stayed as required by action of
the legislative body, court, or regulatory agency. In the
event of such a change in the law, each party shall
expend diligent efforts to arrive at an agreement
respecting the modifications to the Agreement required by
the law or requested in good faith by the other party. If
negotiations fail, disputes between the parties
concerning interpretation of the actions required or
provisions affected by such governmental actions shall be
resolved pursuant to the dispute resolution process
provided for in the interconnection agreement or this
Agreement; provided, however, that this section shall not
be construed as precluding either party from seeking
appropriate relief from the FCC in connection with the
parties' rights and obligations under the Pole Attachment
Act. In the event of any material change in the law, each
party agrees to enter into good faith negotiations to
conform this Agreement to the changes in the law.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
SOUTHWESTERN BELL TELEPHONE COMPANY
By:
-------------------------------------------------------------------------
Signature of SWBT's Authorized Officer/Employee
-------------------------------------------------------------------------
Name of SWBT's Authorized Officer/Employee (Printed or Typed)
-------------------------------------------------------------------------
Position/Title of SWBT's Authorized Officer/Employee
-------------------------------------------------------------------------
Date
-------------------------------------------------------------------------
City and State of Execution by SWBT
- ------------------------------------------------------------------------------
Applicant's Name (Printed or Typed)
By:
-------------------------------------------------------------------------
Signature of Applicant's Authorized Officer/Employee
-------------------------------------------------------------------------
Name of Authorized Officer/Employee (Printed or Typed)
-------------------------------------------------------------------------
Position/Title of Authorized Officer/Employee
-------------------------------------------------------------------------
Date
-------------------------------------------------------------------------
City and State of Execution by Applicant
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Agreement No. ___________
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (OKLAHOMA) -- PAGE 1 OF 4
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and sets forth
the rates, fees and charges to be paid by Applicant to SWBT pursuant to the
Master Agreement and licenses subject to the Master Agreement. The rates, fees,
and charges set forth in this Appendix shall be subject to all applicable laws,
rules, regulations, and commission orders as provided in Section 19.01 of the
Master Agreement and shall be subject to revision as provided in Section 19.12
of the Master Agreement.
A) Pole Attachment Fees
1) General
a) For billing purposes, pole attachments shall be considered i) to
have commenced on the first to occur of the following dates:
the date of assignment (or provisional assignment) of pole
attachment space, the date a license for such pole attachment is
issued, or the date of actual attachment and ii) to have ended on
the last to occur of the following dates: the date Applicant's
assignment lapses or is relinquished, the date of actual removal
of the attached facilities from SWBT's pole, or the date of
termination of Applicant's license.
b) Fees shall be payable semiannually in advance on the first days of
January and July and shall be prorated on a daily basis as
provided in Section 19.04. Fees for pole attachments shall be
based on the number of pole attachments as of the date of
billing. If Applicant occupies more than one usable space on a
pole, separate attachment fees shall apply to each space occupied.
For billing purposes, a single pole attachment includes the point
of attachment and all facilities located in the usable space on
the pole in the space assigned to Applicant (typically six inches
above and six inches below the point of attachment), together with
routine ancillary apparatus such as anchors, anchor/guy strands,
drive rings, J-hooks, dead-end clamps, and other apparatus which
does not interfere with the ability of SWBT to occupy or assign
usable space on the pole other than the usable space licensed to
Applicant. Fees for pole space assignments and unauthorized pole
attachments shall be billed in the same manner as if a license had
been issued.
2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Pole Attachment Fees Annual Semiannual
- ------------------------------- ------ ----------
<S> <C> <C>
Per pole attachment (cable service only) $ 1.55 $0.775
Per pole attachment (telecommunications carriers) $ 1.55 $0.775
Per pole attachment (other) $ N/A $ N/A
</TABLE>
<PAGE> 283
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 2 OF 4
B) Conduit Occupancy Fees
1) General
a) For billing purposes, conduit occupancy shall be considered to
have i) begun on the first to occur of the following dates: the
date of assignment (or provisional assignment) of conduit
occupancy space, the date a license for such conduit occupancy is
issued, or the date of actual occupancy; and ii) ended on the last
to occur of the following dates: the date Applicant's assignment
lapses or is relinquished, the date of actual removal of the
attached facilities from SWBT's conduit, or the date of
termination of Applicant's license. Occupancy ends when
facilities have been removed from SWBT's conduit system and
required post-removal procedures (e.g., plugging ducts) have been
completed. Fees for conduit space assignments and unauthorized
conduit occupancy shall be billed in the same manner as if a
license had been issued.
b) Fees shall be payable semiannually in advance on the first days of
January and July.
2) Fees (1997 Rates)
<TABLE>
<CAPTION>
Semiannual Per Foot Conduit Occupancy Fees Annual Semiannual
- ------------------------------------------ ------ ----------
<S> <C> <C>
Full duct/duct foot (cable service only) $ 0.39/ft $ 0.195/ft
Full duct/duct foot (telecommunications carriers) $ 0.39/ft $ 0.195/ft
Full duct/duct foot (other) $ N/A $ N/A
Half duct/duct foot (cable service only)* $ 0.195/ft $ 0.0975/ft
Half duct/duct foot(telecommunications carriers)* $ 0.195/ft $ 0.0975/ft
Half duct/duct foot(other)* $ N/A $ N/A
1/3 duct/duct foot (telecommunications carriers)** $ 0.13/ft $ 0.065/ft
1/3 duct/duct foot(cable service only)** $ 0.13/ft $ 0.065/ft
1/3 duct/duct foot(other)** $ N/A $ N/A
</TABLE>
*See c)-d) below for partial duct rate.
**See f) below for inner duct rate
a) Facility footage shall be measured i) from the center of one
manhole to the center of an adjacent manhole if the facility runs
between two manholes, ii) from the center of a manhole to the end
of a duct not terminated in a manhole, or iii) from the center of
a manhole to the property line if the duct is connected at the
property line to a duct owned and controlled by a third-party
property owner.
b) Semiannual full duct conduit occupancy fees will apply to the
first facility placed in a previously unoccupied duct except as
provided in c)-d) below.
<PAGE> 284
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 3 OF 4
c) If two or more facilities occupy a duct that has not been
subdivided by inner duct, a semiannual half duct conduit
occupancy fee will be charged for each facility placed in the
duct.
d) A semiannual half duct occupancy fee will apply to the first
facility placed by Applicant in a previously unoccupied duct
that has not been subdivided by inner duct if and only if the
presence of Applicant's facility does not render the other half
of the duct unusable by others.
e) As ordered by the State Commission, when Applicant's facilities
are installed within inner duct, a single semiannual one-third
duct conduit occupancy fee will apply to each inner duct
occupied.
C) Application Fees. No application fees shall be charged for the submission
of access applications or provisional space assignments.
D) Pre-license Survey Work. Charges for pre-license survey work are not set
on a fixed fee basis and will be determined on a case-by-case. If
pre-license survey work is performed by SWBT's contractors, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by SWBT
for such work. If pre-license survey work is performed by SWBT employees,
pre-license survey charges shall be computed by multiplying the applicable
hourly rates times the number of hours reasonably spent by SWBT's
employees on pre-license survey work.
E) Facilities Modification, Capacity Expansion, and Make-ready Work. Charges
for facilities modification, capacity expansion, and make-ready work are
not set on a fixed fee basis and will be determined in a case-by-case
basis. In all cases, except as otherwise specifically provided to the
contrary in the Master Agreement, such charges shall include the costs of
materials required to perform the work. If such work is performed by SWBT's
contractors, Applicant shall reimburse SWBT for the actual out-of-pocket
costs incurred by SWBT for such work. If such work is performed by SWBT
employees, charges for such work shall be computed by multiplying the
applicable hourly rates times the number of hours reasonably spent by
SWBT's employees on the work. No later than 45 days after receipt by SWBT
of Applicant's completed application, or within such other period as may be
mutually agreed upon in writing by the parties, SWBT will furnish Applicant
an estimate of the charges for make-ready work. SWBT shall not be required
to perform the make-ready work until Applicant has prepaid the estimated
make-ready charges in full. After make-ready work has been completed by
SWBT, Applicant shall pay SWBT the difference between the estimated
make-ready charges and the actual charges, if the actual charges are
greater than the estimate, or SWBT shall refund to Applicant the difference
between the estimated make-ready charges and the actual charges, if the
actual charges are less than the estimate.
<PAGE> 285
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 4 OF 4
F) Construction Inspectors. Subject to all applicable commission orders,
where work is being performed on Applicant's behalf in SWBT's manholes or
other portions of SWBT's conduit system, Applicant shall pay SWBT's full
costs attributable to having a construction inspector present; provided,
however, that SWBT shall not charge Applicant for more than one such
construction inspector per site at any given time. If the construction
inspector is a SWBT contractor, Applicant shall reimburse SWBT for the
actual out-of-pocket costs incurred by SWBT in connection with the
presence of such inspector. If the construction inspector is a SWBT
employee, charges for the construction inspector shall be computed by
multiplying the applicable hourly rate times the number of hours
reasonably spent by the employee as a construction inspector in connection
with the project.
G) Other Work Performed Pursuant to the Master Agreement. For all other
work performed by SWBT's contractors pursuant to this Agreement, including
but not limited to work performed in opening manholes and participating in
work operations at Applicant's request, Applicant shall reimburse SWBT for
the actual out-of-pocket costs incurred by SWBT in connection with the
performance of such work. For all other work performed by SWBT's
employees pursuant to this Agreement, including but not limited to work
performed in opening manholes, providing access to and copies of records,
and participating in work operations at Applicant's request, SWBT's
charges shall be computed by multiplying the applicable hourly rates times
the number of hours reasonably spent by SWBT's employees on such work.
H) Contract Administration Fee and Administrative Record-keeping Fees. A one
time contract administration fee of $250.00 shall be due and payable at the
time of the execution of the Master Agreement. SWBT may charge
administrative record-keeping fees not exceeding $125.00 in connection with
records and billing changes resulting from the sale, consolidation, or
other transfer of Applicant's business or facilities, name changes, and the
like. SWBT shall provide Applicant, on Applicant's request, a statement of
the basis for the fees.
I) Other Administrative and Ancillary Fees. No other administrative or
ancillary fees are charged by SWBT on a fixed fee basis.
J) Hourly Rates. Except as otherwise provided by any applicable law, rule,
regulation, or commission order, hourly rates charged for SWBT employees
shall be such employees' fully loaded hourly rates.
K) Payment Date. For fees and charges other than charges for make-ready work,
each bill or invoice submitted by SWBT to Applicant shall state the date
that payment is due, which date shall be not less than 60 days after the
date of the bill or invoice. For make-ready work, the payment due date
shall be not less than 30 days after the date of the bill or invoice.
Interest on past due charges shall accrue as provided in Section 19.11(a)
of the Master Agreement.
<PAGE> 286
Agreement No. _____________
APPENDIX II
IDENTIFICATION OF APPLICANT (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Applicant's legal name is:
------------------------------------------------------
- -------------------------------------------------------------------------------.
Applicant's principal place of business is located in the State of
-------------.
Applicant does business under the following assumed names:
----------------------
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------.
Applicant is:
[ ] a corporation organized under the laws of the State of
, charter no. ;
----------------------- ------------------
[ ] a partnership organized under the laws of the State of
; or
---------------------
[ ] another entity, as follows:
-------------------------------------------
---------------------------------------------------------------------.
Applicant represents that Applicant is:
[ ] (1) a cable system (as defined in 47 U.S.C. Sections 153(37) and
522(7)) seeking a pole attachment or conduit occupancy license
solely to provide cable service (as defined in 47 U.S.C. Section
522(6);
[ ] (2) a telecommunications carrier, as defined in 47 U.S.C.
Section 153(49), as modified by 47 U.S.C. Section 224, or
[ ] (3) a person or entity which is neither (1) nor (2) above,
as follows:
------------------------------------------------------------------
<PAGE> 287
Agreement No. _____
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and contains
administrative forms referred to in the Master Agreement or used in connection
with the provision of access to SWBT's poles, ducts, conduits, and
rights-of-way. The forms are forms presently in use and have not been conformed
to the Master Agreement. The forms may be further revised by SWBT to conform to
the Master Agreement and revised from time to time to reflect changes in the
applicable law, changes in the Master Agreement, and changes in the procedures
through which access to poles, ducts, conduits, and rights-of-way is afforded by
SWBT to Applicant and others.
<TABLE>
<S> <C>
SW-9433: Pole Attachments
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole Attachment License
by Licensee
SW-9436B: Notification of Surrender or Modification of Conduit Occupancy
License by Applicant
SW-9436C: Notification of Unauthorized Attachments by Applicant
</TABLE>
<PAGE> 288
<TABLE>
<S><C>
[SOUTHWESTERN BELL TELEPHONE LOGO]
Retention Period: Active, Plus Five Years Pole Attachments PAGE ___ OF __
FIRM'S NAME:_____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT No:____________________________ [ ] Pre-Occupancy Survey TYPE:_________
APPLICATION No:__________________________
(CATV, Telecom, Other)
- ----------------------------------------------------------------------------------------------------------------------------------
Item Record Pole Ownership Street Proposed Guy Make Ready Make Ready Pole Mntd
- ----------------------------------------------------------------------------------------------------------------------------------
# # # SWBT or Address Attachment Rq'd Work Description Apparatus
- ----------------------------------------------------------------------------------------------------------------------------------
Power Height Y or N Y or N Height
- ----------------------------------------------------------------------------------------------------------------------------------
1
- ----------------------------------------------------------------------------------------------------------------------------------
2
- ----------------------------------------------------------------------------------------------------------------------------------
3
- ----------------------------------------------------------------------------------------------------------------------------------
4
- ----------------------------------------------------------------------------------------------------------------------------------
5
- ----------------------------------------------------------------------------------------------------------------------------------
6
- ----------------------------------------------------------------------------------------------------------------------------------
7
- ----------------------------------------------------------------------------------------------------------------------------------
8
- ----------------------------------------------------------------------------------------------------------------------------------
9
- ----------------------------------------------------------------------------------------------------------------------------------
10
- ----------------------------------------------------------------------------------------------------------------------------------
11
- ----------------------------------------------------------------------------------------------------------------------------------
12
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13
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14
- ----------------------------------------------------------------------------------------------------------------------------------
15
- ----------------------------------------------------------------------------------------------------------------------------------
16
- ----------------------------------------------------------------------------------------------------------------------------------
17
- ----------------------------------------------------------------------------------------------------------------------------------
18
- ----------------------------------------------------------------------------------------------------------------------------------
19
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20
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------------------------------
Number of Cables_____________________ Other Notes:______________________________________
- ----------------------------------------------------------------------------------------------------------------------------------
Weight/per ft. and Size/O.D. ____________ ________________________________________________
- ----------------------------------------------------------------------------------------------------------------------------------
Number and Types of Strands____________ ________________________________________________
- ----------------------------------------------------------------------------------------------------------------------------------
Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:____________________________
SWBT Representative Applicant's Representative
[ ] Official File Copy, If Checked in Red
</TABLE>
<PAGE> 289
SW9433
POLE ATTACHMENTS
FORM INSTRUCTIONS
From SW9433 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete the
SW9433 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring pole attachment space
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant elects
to a Provisional, Records Based Assignment. The form will be signed and dated at
the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or the SWBT mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company based on SWBT's records.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Not required for Provisional, Records Based assignment.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Pole Mntd Apparatus Height: Not required for Provisional, Records Based
assignment.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
<PAGE> 290
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by SWBT.
[ ] Pre-Occupancy Survey: This would be checked when this form is being used as
a Pre-Occupancy Survey. The form would be completed in its entirety and signed
by the applicant and submitted to SWBT for review in obtaining pole attachment
space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Applicant will state if a guy is required. (Yes or No).
Make Ready Work: Applicant will state if make ready work is required. (Yes or
No)
Make Ready Description: Applicant will give description of make ready work
required.
Pole Mntd Apparatus Height: Applicant will state any proposed apparatus that
would be placed on the pole. (Terminal, etc.)
Number of Cables: Applicant will state the number of cables that will be
placed on the pole.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
<PAGE> 291
<TABLE>
<S><C>
[SOUTHWESTERN BELL TELEPHONE LOGO]
Access Application and Make-Ready
Authorization
Retention Period, Active, plus 5 years (Request for Access to Poles, Ducts, Conduit)
Name of Applicant______________________________________________________________
Agreement No.__________________________________________________________________
Application No.________________________________________________________________
Provisional Assignment
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for a provisional assignment of space in anticipation of a
nonexclusive license of communication facilities to access the quantity of SWBT
facilities indicated below:
______ SWBT poles _____ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant desires immediate assignment of space and acknowledges that the
effective date is ____________________. Applicant agrees to provide an
application for assignment/access/occupancy of the assigned space within 30
days from the date of the assignment, or forfeit the assignment.
Expiration Date:___________________
Assignment/Access/Occupancy
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for occupancy of space through a nonexclusive license of
communication facilities to access the quantity of SWBT facilities indicated
below:
______ SWBT poles ______ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant authorizes SWBT to perform the required pre-licensing survey including
any field inspections required to evaluate capacity, safety, reliability, and
engineering standards; and to determine the cost, if any of required
modifications or make-ready work.
Expiration Date:_____________________
Applicant's Estimated Construction Start Date:________________________
Applicant's Estimated Construction Completion Date:___________________
Authorized by Applicant:________________________________________
Signature Title
Date:____________________________
Make-Ready Work
Estimated Costs Hours Rate Total
Constr. Labor --- x $ $
------ --------
Material XXX x $ XXX $
--- ------ --------
Engr. Design x $ $
--- ------ --------
Total $
--------
Estimated SWBT Completion Date
[ ] No Make-Ready Work Required. [ ] No Make-Ready Work Required under 8.03(a)
[ ] Make-Ready Work will be completed by applicant's authorized contractor.
[ ] I authorize SWBT to complete the required make-ready work. Payments due
upon 50% completion and 100% completion. Costs will be based upon actual
costs incurred by SWBT. (This may vary depending on state)
___________________________________________________ Date:_____________________________
Applicant's Signature Title
License No._____________________________ Authorized by SWBT:_________________________________
Date:_________________________ Signature Title
[ ] Official File Copy, If Checked In Red
</TABLE>
<PAGE> 292
SW-9434
ACCESS APPLICATION and MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
Form SW-9434 is used to request access to poles, ducts, and conduit; to transmit
notice of Provisional Assignments; and to provide other information required in
the access process.
REQUIRED INFORMATION
NAME OF APPLICANT. Name of firm requesting on poles or in conduit.
AGREEMENT NO. Number obtained from the Master Agreement Number.
APPLICATION NO. Will be provided by applicant in sequential ascending order.
PROVISIONAL ASSIGNMENT BOX DATA
"ATTACHED DOCUMENTS" Copies of the Assignment Of Space Logs showing the
applicant's entries for the requested space or completed Forms SW-9433 or
SW-9435 if appropriate. Assignment is not official until the required data
is entered in the Assignment Of Space Log.
___ SWBT POLES The number of poles for which space is requested.
___ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
___ FEET SWBT INNERDUCT The accumulated Center-to-Center measurements
for the innerduct to be occupied.
Effective date is date entered in Assignment Of Space Log
PROVISIONAL ASSIGNMENT EXPIRATION DATE: 30 calendar days from the date
entered in the Assignment of Space Log (i.e., Date Application must
be submitted to hold the assignment of space.)
ASSIGNMENT/ACCESS/OCCUPANCY BOX DATA
"ATTACHED DOCUMENTS" Completed Forms SW-9433 and/or SW-9435.
___ SWBT POLES The number of poles to be accessed.
___ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
___ FEET SWBT INNERDUCT The accumulated Center-to-Center measurements
for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
ASSIGNMENT EXPIRATION DATE: 12 Months from the date entered in Assignment
Of Space Log
(Date facilities must be placed to avoid forfeiture of assigned
space.)
PAGE 1
<PAGE> 293
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
APPLICANT'S ESTIMATED CONSTRUCTION START DATE: Current "best estimate" of the
date project construction will begin. "ASAP" is not an acceptable date.
APPLICANT'S ESTIMATED CONSTRUCTION COMPLETION DATE: Current "best estimate" of
the date placements and splicing will be completed. "ASAP" is not an
acceptable date.
AUTHORIZED BY APPLICANT: Signature and Title of the Applicant's representative
authorizing the request for access and payment (if any) of related SWBT
engineering charges in connection with such access.
DATE: Date of authorization by Applicant's representative.
MAKE-READY WORK BOX DATA
ESTIMATED COSTS: SWBT will calculate data for Construction Labor,
Material, and Engineering Design hours and summarize the TOTAL estimated
SWBT Make-Ready Costs.
ESTIMATED SWBT COMPLETION DATE SWBT Engineering will provide the estimated
completion date of SWBT Make-Ready Work based upon current scheduling
loads.
[ ] NO MAKE-READY WORK REQUIRED. Applicant should check this box if it has
determined that fully code/specifications-compliant access can be granted
without any work or modifications by SWBT or other parties. If inner duct
must be placed, box should not be checked.
[ ] MAKE-READY WORK will be completed by Applicant's authorized
contractor. If Applicant plans to utilize a mutually approved authorized
contractor to perform all the Make-Ready work, this box only should be
checked.
[ ] I AUTHORIZE SWBT TO COMPLETE THE REQUIRED MAKE READY WORK.... If
Applicant wants SWBT to perform all the Make-Ready Work, this box only
should be checked.
IF SOME MAKE-READY WORK MUST BE DONE BY SWBT AND SOME WILL BE DONE BY THE
APPLICANT'S AUTHORIZED COMPACTOR, THE LAST TWO BOXES SHOULD BE CHECKED. A
DETAILED DESCRIPTION OF THE WORK TO BE DONE BY SWBT MUST BE INCLUDED.
APPLICANT'S SIGNATURE, TITLE AND DATE:
If the No Make-Ready Work Required box is checked by Applicant,
Applicant's Signature confirms the accuracy of the current Applicant
construction schedule. If the Not Make-Ready Work Required under
8.03(a) box is checked, Applicant confirms conditions under 8.03
Immediate Occupancy apply.
If Make-Ready Work will be completed by Applicant's Authorized
contractor is checked, Applicant's signature concurs with any
changes in proposed Make-Ready work identified by SWBT and confirms
the accuracy of the current schedule.
If SWBT will perform any Make-Ready Work, Applicant's signature
authorizes payment to SWBT of actual cost to perform the required
make-ready work.
LICENSE NO. ______ AUTHORIZED BY SWBT: The SWBT State ULS will authorize, date,
and issue the License No. on the SW-9434 which becomes the Applicant's License
For Access.
PAGE 2
<PAGE> 294
<TABLE>
<S><C>
[SOUTHWESTERN BELL TELEPHONE LOGO]
Retention Period: Active, Plus Five Years Conduit Occupancy PAGE ___ OF ____
FIRM'S NAME:_____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT No.:___________________________ [ ] Pre-Occupancy Survey TYPE:__________
APPLICATION No.:__________________________
(CATV, Telecom, Other)
Item Oper. Record Manhole Street Distance To Proposed Make Ready Make Ready
- ------------------------------------------------------------------------------------------------------------------------------------
# # # # Address Next Manhole Duct or Work Description
- ------------------------------------------------------------------------------------------------------------------------------------
(Ctr to Ctr) Innerduct Y or N
- ------------------------------------------------------------------------------------------------------------------------------------
1
- ------------------------------------------------------------------------------------------------------------------------------------
2
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3
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4
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5
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6
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7
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8
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9
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10
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11
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12
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13
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14
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15
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16
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17
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18
- ------------------------------------------------------------------------------------------------------------------------------------
19
- ------------------------------------------------------------------------------------------------------------------------------------
20
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Cables_____________________ Splice Information Manhole # __________________________, Details
- ------------------------------------------------------------------------------------------------------------------------------------
Size of Cable (O.D. Inches)______________ Splice Information Manhole #___________________________, Details
- ------------------------------------------------------------------------------------------------------------------------------------
Slack Loop Info. Manhole..#_____________________________, Details
- ------------------------------------------------------------------------------------------------------------------------------------
Slack Loop Info. Manhole..#_____________________________, Details
- ------------------------------------------------------------------------------------------------------------------------------------
Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:____________________________________
SWBT Representative Applicant's Representative
[ ] Official File Copy, If Checked in Red
</TABLE>
<PAGE> 295
SW9435
CONDUIT OCCUPANCY
FORM INSTRUCTIONS
From SW9435 may be used for the following two purposes, Provisional,
Records Based Assignment or as the Pre-Occupancy Survey. The applicant may
complete the SW-9435 and submit this to SWBT while reviewing the records
and make a Provisional, Records Based Assignment. The applicant will also
use this form when making the Pre-Occupancy Survey as a reference sheet of
information required for acquiring duct and/or inner duct space.
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending
order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant
would make a Provisional, Records Based Assignment. The form will be signed
and dated at the bottom by both the applicant and the SWBT representative.
A copy will be provided to the applicant and the original will be
maintained by SWBT.
Type: Applicant indicates that they are a CATV, a Telecommunications
Carrier or a firm other than the aforementioned two.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, it
applicable.
Proposed Duct or Inner duct: Applicant will state the number of ducts
and/or inner ducts.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Number of Cables: Applicant will enter the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Slack Loop Info. Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that
the Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
<PAGE> 296
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending
order.
[ ] Pre-Occupancy Survey: Applicable when this form is used as a
Pre-Occupancy Survey. The form would be completed in its entirety by the
applicant and submitted to SWBT for review in obtaining conduit space.
Type: Applicant indicates that they are a CATV, a Telecommunications
Carrier or a firm other than the aforementioned two.
Oper. #: Applicant will provide the operation number when required. The
same operation number may very well be referenced on an attached map.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, it
applicable.
Distance to Manhole: Applicant will state the distance from manhole to
manhole in fact.
Proposed Duct or Inner duct: Applicant will state the number of ducts
and/or inner ducts.
Make Ready Work: Applicant will state if make ready work is required. (Yes
or No)
Make Ready Description: Applicant will give description of make ready work
required.
Number of Cables: Applicant will indicate the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Applicant will enter any relevant splice
information.
Details: Applicant will provide any relevant details regarding splice
information.
Slack Loop Info. Manhole #: Applicant will provide.
Details: Applicant will provide any relevant Slack Loop Information.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
<PAGE> 297
[SOUTHWESTERN BELL TELEPHONE LOGO]
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
Page ____ of _____
Agreement Number________________
________________________________
(Licensee)
________________________________
(Address)
________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the License Agreement between
us, dated _________, 19__, notice is hereby given that the licenses covering
attachments to the following poles and/or anchors and/or utilization of
anchor/guy strand is surrendered (or modified as indicated in Licensee's prior
notification to Licensor, dated ___________________, 19___) effective
_____________________.
<TABLE>
<CAPTION>
<S><C>
DATE FAC.
ANCHOR A/GS RMVD. OR
POLE NO. (ASSOC. POLE NO.) LIC. NO. & DATE SURRENDEER OR MODIFICATION MODIFIED
- ----------------------------------------------------------------------------------------------
1
- ----------------------------------------------------------------------------------------------
2
- ----------------------------------------------------------------------------------------------
3
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4
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5
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6
- ----------------------------------------------------------------------------------------------
7
- ----------------------------------------------------------------------------------------------
8
- ----------------------------------------------------------------------------------------------
9
- ----------------------------------------------------------------------------------------------
10
- ----------------------------------------------------------------------------------------------
11
- ----------------------------------------------------------------------------------------------
12
- ----------------------------------------------------------------------------------------------
13
- ----------------------------------------------------------------------------------------------
14
- ----------------------------------------------------------------------------------------------
15
- ----------------------------------------------------------------------------------------------
Date Notification Received _____________________
Date Modification Accepted _____________________ __________________________
By _____________________________________________ Name of Licensee
Discontinued:
Poles _____________________ By______________________________
Anchors____________________
Anchor/Guy Strands_________ Title___________________________
</TABLE>
<PAGE> 298
[SOUTHWESTERN BELL TELEPHONE LOGO]
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY APPLICANT
Page ____ of _____
License Agreement # ___________________ ________________________________
(Applicant)
________________________________
(Address)
________________________________
SOUTHWESTERN BELL TELEPHONE COMPANY:
In accordance with the terms and conditions of the Licensing Agreement between
us, dated ____________, 19__, notice is hereby given that the licenses covering
occupancy of the following conduit are surrendered (or modified as indicated in
Applicant's prior notification to SWBT, dated ___________________, 19___,)
effective ____________.
<TABLE>
<CAPTION>
DATE
FAC. RMVD.
CONDUIT LOCATION LIC. NO. & DATE SURRENDER OR MODIFICATION OR MODIFIED
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1
- ----------------------------------------------------------------------------------------------------
2
- ----------------------------------------------------------------------------------------------------
3
- ----------------------------------------------------------------------------------------------------
4
- ----------------------------------------------------------------------------------------------------
5
- ----------------------------------------------------------------------------------------------------
6
- ----------------------------------------------------------------------------------------------------
7
- ----------------------------------------------------------------------------------------------------
8
- ----------------------------------------------------------------------------------------------------
9
- ----------------------------------------------------------------------------------------------------
10
- ----------------------------------------------------------------------------------------------------
11
- ----------------------------------------------------------------------------------------------------
12
- ----------------------------------------------------------------------------------------------------
13
- ----------------------------------------------------------------------------------------------------
14
- ----------------------------------------------------------------------------------------------------
15
- ----------------------------------------------------------------------------------------------------
T Date Notification Received _____________________ ______________________________
B Date Modification Accepted _____________________ (Applicant)
W By _____________________________________________ By________________________________
S Discontinued:___________________________________ (Name of Authorized Agent)
Total duct footage_________________ Title_____________________________
(Title of Authorized Agent)
</TABLE>
<PAGE> 299
Agreement No. ________________
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 1 OF 4
This Appendix IV is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
1) Premises. As used in this Appendix, the term "premises" refers to any
site located on, within, or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way and any location where Applicant or any person acting on
Applicant's behalf may be physically present while traveling to or departing
from any such site.
2) Requirements Applicable to Applicant and All Persons and Entities Acting
on Applicant's Behalf. Applicant shall maintain, at all times during the term of
this Master Agreement, all insurance and coverages set forth below. Such
insurance and coverages shall not only cover Applicant but all contractors,
subcontractors, and other persons or entities acting on Applicant's behalf at
the premises described in 1) above. Applicant should require that all
contractors, subcontractors, and other persons or entities acting on Applicant's
behalf at premises described in 1) above obtain the same insurance and
coverages.
3) Workers' Compensation Insurance. Applicant shall maintain, at all times
during the term of this Agreement, Workers' Compensation Insurance and
Employer's Liability Insurance with minimum limits of $100,000 for bodily
injury-each accident, $100,000 for bodily injury by disease-each employee, and
$500,000 for bodily injury by disease-policy limits, for all employees
performing work or otherwise present on the premises described in 1) above. Such
insurance must comply with the Workers' Compensation laws of this State and
shall provide coverage, at a minimum, for all benefits required by such Worker's
Compensation laws. Applicant shall require any contractor, subcontractor, or
other person or entity acting on Applicant's behalf to provide Workers'
Compensation Insurance and Employer's Liability Insurance for their respective
employees unless such employees are covered by the protection afforded by
Applicant.
4) General Liability Insurance. To protect SWBT and any joint user from any
liability for bodily injury or property damage, Applicant shall maintain, at all
times during the term of this Agreement, General Liability insurance
satisfactory to SWBT. SWBT shall be added as an additional insured in the
standard policy or an endorsement thereto. Applicant shall also require any
contractor, subcontractor, or other person or entity acting on Applicant's
behalf to provide General Liability coverage with the same limits and with SWBT
added as an additional insured unless such contractor, subcontractor, or other
person or entity is covered by the General Liability protection afforded by
Applicant.
a) The following coverages must be included in (and may not be excluded
from) the policy or policies obtained to satisfy the General
Liability insurance requirements of Applicant and any contractor,
subcontractor, or other person or entity acting on Applicant's
behalf. The coverages may be provided by the standard policy or
endorsements thereto. Exclusion endorsements deleting these coverages
will not be accepted.
<PAGE> 300
[SOUTHWESTERN BELL TELEPHONE LOGO]
NOTIFICATION OF UNAUTHORIZED
ATTACHMENTS BY APPLICANT
Applicant Name_______________________
In accordance with the terms and conditions of the License Agreement between us,
dated ____________, 19__, notice is hereby given that the license covering
attachments to the following is unauthorized (as indicated in Applicant's prior
agreement to SWBT, dated ______________________, 19___,) effective ____________.
SOUTHWESTERN BELL TELEPHONE
By:__________________________________
Title:_______________________________
<TABLE>
<CAPTION>
POLE NO. LOCATION DATE FAC.
OR (ASSOC. POLE NO.) RMVD. OR
CONDUIT # MANHOLES involved LIC. NO. & DATE UNAUTHORIZED ATTACHMENT MODIFIED
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1
- --------------------------------------------------------------------------------------------------------
2
- --------------------------------------------------------------------------------------------------------
3
- --------------------------------------------------------------------------------------------------------
4
- --------------------------------------------------------------------------------------------------------
5
- --------------------------------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------------------------------
7
- --------------------------------------------------------------------------------------------------------
8
- --------------------------------------------------------------------------------------------------------
9
- --------------------------------------------------------------------------------------------------------
10
- --------------------------------------------------------------------------------------------------------
11
- --------------------------------------------------------------------------------------------------------
12
- --------------------------------------------------------------------------------------------------------
13
- --------------------------------------------------------------------------------------------------------
14
- --------------------------------------------------------------------------------------------------------
15
- --------------------------------------------------------------------------------------------------------
______________________________________
SKETCH OF Name of Applicant
UNAUTHORIZED
ATTACHMENTS
ATTACHED [ ] By ___________________________________
Date Notification
Sent____________________ Title ________________________________
</TABLE>
<PAGE> 301
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 2 OF 4
1) Personal Injury and Advertising Injury coverage.
2) Premises/Operations coverage, including also
coverage for any newly acquired ownership or
controlled premises or operations.
3) Independent Contractors coverage to provide
protection for Applicant's contractors,
subcontractors, and other persons or entities
acting on Applicant's behalf.
4) Explosion, Collapse, and Underground Hazard (XCU)
coverage.
5) Completed Operations coverage providing for bodily
injury and property damage liabilities which may
occur once the operations have been completed or
abandoned.
6) Contractual Liability coverage to provide financial
responsibility for the Applicant to meet its
indemnification obligations.
7) Broad Form Property Damage (BFPD) coverage for
damage to property in the care or custody of
Applicant and damage to work performed by or on
behalf of the Applicant.
b) Minimum policy limits shall be as follows:
General Aggregate Limit: $1,000,000.
Sublimit for all bodily injury, property damages, or
medical expenses incurred in any one occurrence:
$1,000,000.
Sublimit for personal injury and advertising: $1,000,000.
Products/Operations Aggregate Limit: $1,000,000.
Each occurrence sublimit for Products/Operations:
$1,000,000.
c) No coverage shall be deleted from the standard policy
without notification of individual exclusions being
attached for review and acceptance.
d) Policy language or endorsements adding SWBT as an
additional insured shall not include exclusions or
exceptions which defeat the purpose of protecting SWBT
from any liability for bodily injury or property damage
arising out of Applicant's operations.
<PAGE> 302
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 3 OF 4
5) Automobile Liability insurance. The parties contemplate that Applicant
and personnel acting on Applicant's behalf will utilize automobiles, trucks, and
other motor vehicles on public and private property, including public rights of
way, in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way.
Accordingly, Applicant shall maintain, at all times during the term of this
Agreement, Automobile Liability insurance with minimum limits of $1,000,000
combined single limits per occurrence for bodily injury and property damage
which may arise out of the operation or use of motor vehicles of any type.
Coverage shall extend to "any auto" -- that is, coverage shall be extended to
all owned, non-owned, and hired vehicles used by Applicant or by any person or
entity acting on Applicant's behalf in connection with any work performed, or to
be performed, on, within, or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way.
6) Layering of General Liability and Automobile Liability coverages.
Applicant's insurance may be written via a primary policy with either an excess
or umbrella form over the primary policy. If coverage is written in this manner,
the total of the combined policy limits must meet or exceed the minimum limits
specified in this Agreement.
7) Deductibles. No deductibles shall be allowed without the express written
consent of SWBT.
8) Claims Made Policies. Claims Made Policies will not be accepted.
9) Proof of Insurance. Certificates of Insurance stating the types of
insurance and policy limits provided the insured, or other proof of insurance
satisfactory to SWBT, must be received by SWBT prior to the issuance of any
licenses pursuant to this Agreement and before Applicant or any person acting on
Applicant's behalf performs any work on the premises described in 1) above.
a) Certificates of Insurance using the insurance industry standard
ACORD form are preferred.
b) Certificates provided with respect to General Liability policies
and certificates provided with respect to Automobile Liability
policies shall indicate SWBT as an Additional Insured.
c) Deductibles, if permitted, shall be listed on the Certificate of
Insurance.
d) The cancellation clause on the certificate of insurance shall be
amended to read as follows:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED OR
MATERIALLY CHANGED BEFORE THE
<PAGE> 303
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 4 OF 4
EXPIRATION DATE, THE ISSUING COMPANY WILL MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
LEFT."
A certificate which does not include the phrase "or materially
changed" does not meet SWBT's requirements. A certificate reciting
that the issuing company will "endeavor to" mail 30 days written
notice to the certificate holder does not meet SWBT's requirements.
The language "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents,
or representatives" or similar language must be deleted from the
certificate.
e) The certificate holder shall be:
Southwestern Bell Telephone Company
5305 E. 71st, Floor 1
Tulsa, Oklahoma 74136
ATTENTION: Utility Liaison Supervisor
f) Failure to object to any coverage described in a certificate shall
not constitute written permission from SWBT to any variance from or
alteration of any requirement set forth in this Appendix and shall
not be construed as a waiver by SWBT of any rights under this
Agreement.
10) Rating of Insurers. SWBT requires that companies affording insurance
coverage have a B+VII or better rating, as rated in the current A.M. Best Key
Rating Guide for Property and Casualty Insurance Companies.
11) Self-insurance. If authorized in the Master Agreement, self-insurance
shall be allowed in lieu of the above requirements upon Applicant's submission
of proof that it has met the self-insurance requirements stated in the Master
Agreement.
<PAGE> 304
Agreement No. _____________
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 1 OF 4
Nondisclosure Agreement (SWBT Pole, Duct, Conduit, and Right-of-Way)
This Nondisclosure Agreement, effective as of the ____ day of ___________
19_, has been entered into by and between Southwestern Bell Telephone Company
("SWBT"), a Missouri corporation, and the undersigned person or firm
("Recipient") as a condition of access to certain records and information
maintained by SWBT. The parties stipulate and agree as follows:
1) SWBT maintains records and information, including but not limited to
outside plant engineering and construction records, which relate to poles,
ducts, conduits, and rights-of-way which SWBT owns or controls. SWBT represents
that such records and information are not made generally available for
inspection or copying by the public and include business, economic, and
engineering information (including but not limited to plans, designs, maps,
diagrams, cable counts and cable-specific information, circuit records, and
other competitively sensitive information) which SWBT intends to keep secret and
which has economic value by virtue of not being generally known to or readily
ascertainable by the public, including SWBT's competitors.
2) SWBT has agreed to make certain of its records and information relating
to poles, ducts, conduits, and rights-of-way available to cable television
systems and telecommunications carriers who are presently entitled under federal
law to have access to the poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT.
3) Recipient represents that Recipient is a cable television system or
telecommunications carrier entitled under federal law to access to poles, ducts,
conduits, and rights-of-way owned or controlled by SWBT, or, if an individual,
that he or she is acting on behalf of_________________________________, which is
such a cable television system or telecommunications carrier. Recipient further
represents that Recipient is seeking access to SWBT's records and information
relating to poles, ducts, conduits, and rights-of-way for the limited purpose of
enabling engineering and construction personnel employed by or acting on behalf
of such cable television system or telecommunications carrier to make
engineering and construction decisions necessary to utilize SWBT's poles, ducts,
conduits, and rights-of-way.
4) SWBT agrees that permitted uses of records and information concerning
SWBT's poles, ducts, conduits, and rights-of-way are (a) determining which
poles, ducts, conduits, and rights-of-way owned or controlled by SWBT are
available for use by such cable television systems or telecommunications
carriers as permitted by federal law, (b) designing, engineering, constructing,
installing, maintaining, and removing equipment which is to be attached to or
placed within such poles, ducts, conduits, and rights-of-way, and (c) contesting
decisions, if any, by SWBT not to provide access to such poles, ducts, conduits,
and rights-of-
<PAGE> 305
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 2 OF 4
way as requested. No other uses of such records or information are authorized or
permitted under this Agreement.
5) Recipient agrees that Recipient will not use, or permit any other person
or entity to use or have access to SWBT's records and information relating to
poles, ducts, conduits, or rights-of-way or information for any purpose other
than the limited purposes stated in 4) above and that such records and
information shall not be disclosed or shared with any person or persons other
than those who have a need to know such information for such limited purposes.
Recipient specifically agrees that such records and information shall not be
used or accessed by any person involved in sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and similar activities.
Recipient further agrees that Recipient shall not furnish copies of such records
or disclose information contained in such records to any person or entity which
has not executed and delivered to SWBT a counterpart of this Agreement prior to
receipt of such copies or information.
6) Recipient agrees that Recipient will not without SWBT's express written
authorization copy, duplicate, sketch, draw, photograph, download, photocopy,
scan, replicate, transmit, deliver, send, mail, communicate, or convey any of
SWBT's records relating to poles, ducts, conduits, or rights-of-way. Recipient
further agrees that Recipient will not conceal, alter, or destroy any SWBT
records furnished to Recipient pursuant to this Agreement.
7) Notwithstanding the provisions of 6) above, and except as provided in 8)
below, Recipient may copy, take notes from, make, and use (for the limited
purposes specified herein) drawings with reference to the following records
provided by SWBT to Recipient for inspection: pole and conduit route maps, cable
plat maps, and plant location records reflecting approximate locations of SWBT's
existing poles, ducts, conduits, and rights-of-way. All such copies, notes, and
drawings (whether in hardcopy or electronic form) shall be marked with the
legend: "PROPRIETARY INFORMATION: NOT FOR USE BY OR DISCLOSURE TO ANY PERSON WHO
HAS NOT EXECUTED A NONDISCLOSURE AGREEMENT (SWBT POLE, DUCT, CONDUIT, AND
RIGHT-OF-WAY)."
8) No references to cable counts, cable designations or cable-specific
information, circuit information, or customer-specific information of any kind
may be included in any copies, notes, or drawings made pursuant to 7) above;
provided, however, that Recipient may make estimates regarding the physical
characteristics (such as size and weight) of the cables being surveyed when
necessary to make engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits, or rights-of-way
for Recipient/Applicant's intended uses.
<PAGE> 306
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 3 OF 4
9) All records and information relating to poles, ducts, conduits, and
rights-of-way provided to Recipient/Applicant by SWBT (whether in writing,
orally, or in electronic or other formats) shall be deemed to be proprietary
information subject to this Agreement without regard to whether such
information, at the time of disclosure, has been marked with restrictive
notations such as "Proprietary," "Restricted Proprietary," "Confidential," "Not
to Be Copied or Reproduced," or the like.
10) This Agreement applies only to records and information provided to
Recipient by SWBT and does not apply to records and information obtained by
Recipient from other lawful sources.
11) This Agreement does not prohibit the disclosure of records or
information in response to subpoenas and/or orders of a governmental agency or
court of competent jurisdiction. In the event Recipient receives an agency or
court subpoena requiring such disclosure, Recipient shall immediately, and in no
event later than five calendar days after receipt, notify SWBT in writing.
12) The Parties agree that, in the event of a breach or threatened breach
of this Agreement, SWBT may seek any and all relief available in law or in
equity as a remedy for such breach, including but not limited to monetary
damages, specific performance, and injunctive relief The Parties acknowledge
that SWBT's records and information relating to poles, ducts, conduits, and
rights-of-way include valuable and unique information and that disclosure of
such information (including circuit information) will result in irreparable
injury to SWBT. In the event of any breach of this Agreement for which legal or
equitable relief is sought, SWBT shall be entitled to recover from Recipient all
reasonable attorney's fees and other reasonable costs (including but not limited
to fees of expert witnesses) incurred by SWBT in connection with the prosecution
of its claims against Recipient.
13) This Agreement shall be effective on the effective date shown above and
shall remain in full force and effect until terminated by either party as
provided herein. Either party may, at any time, with or without cause, terminate
this Agreement by giving the other party 60 days' advance written notice of its
decision to terminate. The parties further agree that termination of this
Agreement shall have no effect on the duty of any person or entity, including
Recipient, to abide by all terms of this Agreement with respect to records and
information received by Recipient while this Agreement is in effect.
14) This Agreement shall benefit and be binding on the parties below and
their respective heirs, successors, and assigns.
15) This Agreement will be governed by the laws of the State of Oklahoma.
<PAGE> 307
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 4 OF 4
16) This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter hereof, and none of the
terms of this Agreement may be amended or modified except by written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by their duly authorized representatives,
in duplicate, as of the dates set forth below.
Southwestern Bell Telephone Company
------------------------------
Recipient (Print or Type Name)
By By
------------------------------ -----------------------------------
Signature of Recipient or Signature
Representative
------------------------------ -----------------------------------
Name (Printed or Typed) Name (Printed or Typed)
------------------------------ -----------------------------------
Address Address
------------------------------ -----------------------------------
City, State, and Zip Code City, State, and Zip Code
------------------------------ -----------------------------------
Phone Phone
------------------------------ -----------------------------------
Date Date
<PAGE> 308
Agreement No._________
APPENDIX VI
NOTICES TO APPLICANT (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Notices in general. Except as otherwise stated in this Appendix, all
notices to Applicant shall be given to Applicant's duly authorized agent or
attorney as specified in Section 29.01 of the Master Agreement.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by Applicant from time to time in accordance
with the provisions of Section 29.03 of the Master Agreement.
Special notice provisions. The following special notice provisions, if any,
shall apply:
<PAGE> 309
Agreement No._________
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 1 OF 3
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Utility Liaison Supervisor (ULS). Except as otherwise stated in this
Appendix, all notices to SWBT shall be given to the Utility Liaison Supervisor
(ULS) designated in APPENDIX VIII of the Master Agreement. The Utility Liaison
Supervisor is generally responsible for coordinating applications for access to
SWBT's poles, ducts, conduits, and rights-of-way and serving as Applicant's
initial point of contact for matters arising out of or in connection with the
administration of the Master Agreement. Notices to the ULS shall be given in
writing in the manner prescribed in Section 29.02. Notices to be sent to the ULS
include, but are not limited to, notices under the following provisions of the
Master Agreement.
<TABLE>
<S> <C>
7.01 Notification of Designation of Primary Point of Contact
7.03(a) Notification of intent to review records
8.XX All Notifications in Article 8
9.XX All Notifications in Article 9
10.04(e) Notification Regarding Make-Ready Work
12.03(d) Notification of placing J-hook on non-licensed pole
12.04 Notification of occupation of maintenance duct for short-term use
12.06 Notification of Applicant's maintenance contact
13.01 Notification of planned modifications
14.02(c) Notification of Applicant's desire to add to or modify its existing attachment
15.02(b) Notification of occupation of maintenance duct for short-term emergency use
15.03 Notification of emergency repair coordinators
16.01 Notification that facilities have been brought into compliance
17.02(c) Disclaimer of ownership or responsibility for untagged facilities
17.06 Notification of Applicant's response to ownership of facilities in question
</TABLE>
<PAGE> 310
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 2 OF 3
<TABLE>
<S> <C>
18.01(a) Notice of intent to remove facilities
18.01(e) Notice of intent to terminate license
18.06 Notification of completion of removal of facilities
20.01(c) Notification of change of bond
21.17 Notification of claims
23.XX All notifications of insurance coverage in Article 23
24.03 Notification of assignment
25.01 Notification of termination
25.03 Notification of cure of breach
27.04 Notice of elective termination
29.03 Notification of change in notice requirements
</TABLE>
Other notices. The following notices may be given orally or in writing
(including fax) and shall be given to SWBT's Local Service Provider Center
(LSPC) at 1-800-486-5598 instead of the ULS.
<TABLE>
<S> <C>
6.05(a) Notifications relating to electrical interference
6.09(d) Notifications of unsafe conditions
6.11(a) Notification of manhole entry
6.13(c) Notification of environmental contaminants
10.02(b) Notification of materials required for self-provisioning of inner
duct
15.04 Notification of conditions requiring emergency repair
15.06(a) Notification of performing corrective work on emergency repair.
(advanced notice)
</TABLE>
<PAGE> 311
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 3 OF 3
<TABLE>
<S> <C>
15.06(b) Notification of performing corrective work on emergency repair. (no
advanced notice)
</TABLE>
Additional information and questions concerning notice requirements. The
ULS, as Applicant's initial point of contact, will provide additional
information to Applicant concerning notification procedures for notices to be
given to LSPC. Questions to SWBT concerning notice requirements should be
directed to the ULS. The ULS is not authorized to provide Applicant legal advice
with respect to notice requirements. Questions by Applicant's personnel and
other persons acting on Applicant's behalf concerning Applicant's legal
obligations should be directed to Applicant's legal counsel or such other
personnel as Applicant may direct.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by SWBT from time to time in accordance with
the provisions of Section 29.03 of the Master Agreement.
<PAGE> 312
Agreement No.
------------
APPENDIX VIII
IDENTIFICATION OF UTILITY LIAISON SUPERVISOR (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
The Utility Liaison Supervisor for Oklahoma is named below. Notices to the
Utility Liaison Supervisor should be addressed as follow:
Name: Terrence Brennan
----------------------------------------------------------------------
Title: Utility Liaison Supervisor
---------------------------------------------------------------------
Firm: Southwestern Bell Telephone Company
---------------------------------------------------------------------
Address: 5305 E. 71st, Floor 1
-------------------------------------------------------------------
City/State/Zip: Tulsa, Oklahoma 74136
------------------------------------------------------------
<PAGE> 1
Exhibit 10.23
INTERCONNECTION, RESALE AND UNBUNDLING AGREEMENT
BETWEEN
GTE MIDWEST INCORPORATED
GTE ARKANSAS INCORPORATED
AND
DIGITAL TELEPORT, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C> <C>
ARTICLE I
SCOPE AND INTENT OF AGREEMENT.............................................................. I-1
ARTICLE II
DEFINITIONS................................................................................II-1
1. General Definitions........................................................................II-1
1.1 "ACCESS SERVICE REQUEST"................................................II-1
1.2 "ACT"...................................................................II-1
1.3 "AFFILIATE".............................................................II-1
1.4 "AMA"...................................................................II-1
1.5 "APPLICABLE LAW"........................................................II-1
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM (ALI/DMS)"....II-1
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI"..............................II-1
1.8 "BELLCORE"..............................................................II-1
1.9 "BILL-AND-KEEP ARRANGEMENT".............................................II-1
1.10 "BONA FIDE REQUEST (BFR)"...............................................II-2
1.11 "BUSINESS DAY"..........................................................II-2
1.12 "CENTRAL OFFICE SWITCH".................................................II-2
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS)........................II-2
1.14 "CLLI CODES"............................................................II-2
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS)...............................II-2
1.16 "COMMISSION"............................................................II-2
1.17 "COMMON CHANNEL SIGNALING" OR "CCS".....................................II-2
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC).............................II-2
1.19 "COMPLIANCE"............................................................II-2
1.20 "CUSTOMER"..............................................................II-2
1.21 "CUSTOMER USAGE DATA"...................................................II-2
1.22 "DS-1"..................................................................II-2
1.23 "DS-3"..................................................................II-3
1.24 "ELECTRONIC FILE TRANSFER"..............................................II-3
1.25 "EMR"...................................................................II-3
1.26 "E-911 SERVICE".........................................................II-3
1.27 "EXCHANGE SERVICE"......................................................II-3
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE".............................II-3
1.29 "FACILITY"..............................................................II-3
1.30 "FCC"...................................................................II-3
1.31 "GENERATOR".............................................................II-3
1.32 "GTOC"..................................................................II-3
1.33 "GUIDE".................................................................II-3
1.34 "HAZARDOUS CHEMICAL"....................................................II-3
1.35 "HAZARDOUS WASTE".......................................................II-4
1.36 "IMMINENT DANGER".......................................................II-4
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC)...............................II-4
1.38 "INTERIM NUMBER PORTABILITY (INP)"......................................II-4
1.39 "INTERCONNECTION POINT" ("IP")..........................................II-4
1.40 "ISDN USER PART (ISUP)".................................................II-4
1.41 "IXC" OR "INTEREXCHANGE CARRIER"........................................II-4
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY"................II-4
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C> <C> <C>
1.43 "LATA"..................................................................II-4
1.44 "LINE INFORMATION DATA BASE (LIDB)".....................................II-4
1.45 "LINE SIDE".............................................................II-4
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC".......................................II-5
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG"................................II-5
1.48 "LOCAL NUMBER PORTABILITY (LNP)"........................................II-5
1.49 "LOCAL TRAFFIC".........................................................II-5
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME"......................................II-5
1.51 "MEET-POINT BILLING" OR "MPB"...........................................II-5
1.52 "MECAB".................................................................II-5
1.53 "MECOD".................................................................II-5
1.54 "MID-SPAN FIBER MEET"...................................................II-5
1.55 "NANP"..................................................................II-5
1.56 "NETWORK ELEMENT".......................................................II-6
1.57 "NID" OR "NETWORK INTERFACE DEVICE".....................................II-6
1.58 "NUMBERING PLAN AREA" OR "NPA"..........................................II-6
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE"...................II-6
1.60 "911 SERVICE"...........................................................II-6
1.61 "OWNER AND OPERATOR"....................................................II-6
1.62 "POI"...................................................................II-6
1.63 "POLE ATTACHMENT".......................................................II-6
1.64 "PROVIDER"..............................................................II-6
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP"...............................II-6
1.66 "RATE CENTER"...........................................................II-7
1.67 "RIGHT-OF-WAY" OR "ROW".................................................II-7
1.68 "ROUTING POINT".........................................................II-7
1.69 "SERVICE CONTROL POINT" OR "SCP"........................................II-7
1.70 "SERVICE SWITCHING POINT" OR "SSP"......................................II-7
1.71 "SIGNALING POINT" OR "SP"...............................................II-7
1.72 "SIGNALING SYSTEM 7" OR "SS7"...........................................II-7
1.73 "SIGNAL TRANSFER POINT" OR "STP"........................................II-7
1.74 "SUBSIDIARY"............................................................II-7
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET"................................II-7
1.76 "SWITCHED ACCESS SERVICE"...............................................II-8
1.77 "TELECOMMUNICATIONS SERVICES"...........................................II-8
1.78 "THIRD PARTY CONTAMINATION".............................................II-8
1.79 "TRUNK SIDE"............................................................II-8
1.80 "UNDEFINED TERMS".......................................................II-8
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES")........................II-8
1.82 "WIRE CENTER"...........................................................II-8
ARTICLE III
GENERAL PROVISIONS.........................................................................III-1
1. Scope of General Provisions................................................................III-1
2. Term and Termination.......................................................................III-1
2.1 Term....................................................................III-1
2.2 Post-Termination Arrangements...........................................III-1
2.3 Termination Upon Default................................................III-1
2.4 Termination Upon Sale...................................................III-1
2.5 Liability upon Termination..............................................III-1
</TABLE>
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3. Amendments................................................................................III-2
4. Assignment................................................................................III-2
5. Authority.................................................................................III-2
6. Responsibility for Payment................................................................III-2
7. Billing and Payment.......................................................................III-2
7.1 Dispute....................................................................III-2
7.2 Late Payment Charge........................................................III-2
7.3 Due Date...................................................................III-2
7.4 Audits.....................................................................III-2
8. Binding Effect............................................................................III-3
9. Capacity Planning and Forecasting.........................................................III-3
10. Compliance with Laws and Regulations......................................................III-3
11. Confidential Information..................................................................III-3
11.1 Identification.............................................................III-3
11.2 Handling...................................................................III-3
11.3 Exceptions.................................................................III-4
11.4 Survival...................................................................III-4
12. Consent...................................................................................III-4
13. Cooperation on Fraud Minimization.........................................................III-4
14. Dispute Resolution........................................................................III-4
14.1 Alternative to Litigation..................................................III-4
14.2 Negotiations...............................................................III-5
14.3 Arbitration................................................................III-5
14.4 Expedited Arbitration Procedures...........................................III-5
14.5 Costs......................................................................III-5
14.6 Continuous Service.........................................................III-6
15. Entire Agreement..........................................................................III-6
16. Expenses..................................................................................III-6
17. Force Majeure.............................................................................III-6
18. Good Faith Performance....................................................................III-6
19. Governing Law.............................................................................III-6
20. Standard Practices........................................................................III-6
21. Headings..................................................................................III-6
22. Independent Contractor Relationship.......................................................III-6
</TABLE>
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23. Law Enforcement Interface..................................................................III-7
24. Liability and Indemnity....................................................................III-7
24.1 Indemnification.............................................................III-7
24.2 End User and Content-Related Claims.........................................III-7
24.3 DISCLAIMER..................................................................III-8
24.4 Limitation of Liability.....................................................III-8
24.5 Intellectual Property.......................................................III-8
25. Multiple Counterparts......................................................................III-8
26. No Offer...................................................................................III-8
27. No Third Party Beneficiaries...............................................................III-8
28. Notices....................................................................................III-8
29. Protection.................................................................................III-9
29.1 Impairment of Service.......................................................III-9
29.2 Resolution..................................................................III-9
30. Publicity..................................................................................III-9
31. Regulatory Agency Control..................................................................III-9
32. Changes in Legal Requirements..............................................................III-10
33. Effective Date.............................................................................III-10
34. Regulatory Matters.........................................................................III-10
35. Rule of Construction.......................................................................III-10
36. Section References.........................................................................III-10
37. Service Standards..........................................................................III-10
37.1..................................................................................III-10
37.2..................................................................................III-10
37.3..................................................................................III-10
38. Severability...............................................................................III-10
39. Subcontractors.............................................................................III-10
40. Subsequent Law.............................................................................III-10
41. Taxes......................................................................................III-10
42. Trademarks and Trade Names.................................................................III-11
43. Waiver.....................................................................................III-11
</TABLE>
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44. Environmental Responsibility...............................................................III-11
45. TBD Prices.................................................................................III-13
46. Amendment of Certain Rates, Terms and Conditions...........................................III-13
ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS ....................................................................IV-1
1. General....................................................................................IV-1
2. Liability of GTE...........................................................................IV-1
2.1 Inapplicability of Tariff Liability.........................................IV-1
2.2 DTI Tariffs or Contracts....................................................IV-1
2.3 No Liability for Errors.....................................................IV-1
3. Unauthorized Changes.......................................................................IV-1
3.1 Procedures..................................................................IV-1
3.2 Option to Restrict Changes Without Evidence of Authorization................IV-2
4. Impact of Payment of Charges on Service....................................................IV-2
5. Unlawful Use of Service....................................................................IV-2
6. Timing of Messages.........................................................................IV-3
7. Procedures For Preordering, Ordering, Provisioning, Etc....................................IV-3
8. Customer Contacts..........................................................................IV-3
ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC...................................V-1
1. Services Covered by This Article...........................................................V-1
1.1 Types of Services...........................................................V-1
1.2 Service Locations for Interconnection Services and Facilities...............V-1
1.3 Additional Services or Service Locations....................................V-1
2. Billing and Rates.........................................................................V-1
2.1 Rates and Charges...........................................................V-1
2.2 Billing.....................................................................V-1
3. Transport and Termination of Traffic......................................................V-1
3.1 Traffic to be Exchanged.....................................................V-1
3.2 Compensation For Exchange Of Traffic........................................V-2
3.3 Tandem Switching Traffic....................................................V-3
3.4 Inter-Tandem Switching......................................................V-3
4. Direct Network Interconnection............................................................V-3
4.1 Network Interconnection Architecture........................................V-3
4.2 Compensation................................................................V-4
4.3 Trunking Requirements.......................................................V-5
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4.4 Network Redesigns Initiated by GTE..........................................V-6
4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection..........................V-6
5. Indirect Network Interconnection...........................................................V-6
6. Number Resources...........................................................................V-6
6.1 Number Assignment...........................................................V-6
6.2 Rate Centers................................................................V-6
6.3 Routing Points..............................................................V-6
6.4 Code and Numbers Administration.............................................V-7
6.5 Programming Switches........................................................V-7
7. Interim Number Portability (INP)...........................................................V-7
8. Meet-Point Billing.........................................................................V-7
8.1 Meet-Point Arrangements.....................................................V-7
8.2 Compensation................................................................V-8
9. Common Channel Signaling...................................................................V-8
9.1 Service Description.........................................................V-8
9.2 Signaling Parameters........................................................V-8
9.3 Privacy Indicators..........................................................V-8
9.4 Connection Through STP......................................................V-8
9.5 Third Party Signaling Providers.............................................V-8
9.6 Multi-Frequency Signaling...................................................V-8
10. Service Quality and Performance............................................................V-9
11. Network Outages............................................................................V-9
ARTICLE VI
RESALE OF SERVICES.........................................................................VI-1
1. General....................................................................................VI-1
2. Terms and Conditions.......................................................................VI-1
2.1 Quality and Performance.....................................................VI-1
2.2 Restrictions on Resale......................................................VI-1
2.3 Restrictions on Discount of Retail Services.................................VI-1
2.4 Resale to Other Carriers....................................................VI-2
3. Ordering and Billing......................................................................VI-2
3.1 Local Service Request.......................................................VI-2
3.2 Certificate of Operating Authority..........................................VI-2
3.3 Letter of Authorization.....................................................VI-2
3.4 Directory Assistance Listings...............................................VI-2
3.5 Nonrecurring Charges........................................................VI-2
3.6 Transfers Between DTI and Another Reseller of GTE Services..................VI-2
3.7 Local Calling Detail........................................................VI-2
3.8 Procedures..................................................................VI-2
3.9 LIDB........................................................................VI-2
3.10 "OLN".......................................................................VI-3
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4. Maintenance................................................................................VI-3
4.1 Maintenance, Testing and Repair.............................................VI-3
4.2 Specifics and Procedures for Maintenance....................................VI-3
5.1 Description of Local Exchange Services Available for Resale.................VI-3
5.2 List of Services Available for Resale.......................................VI-3
5.3 Rates.......................................................................VI-4
5.4 Grandfathered Services......................................................VI-4
5.5 Access......................................................................VI-4
5.6 Operator Services (OS) and Directory Assistance (DA)........................VI-4
ARTICLE VII
UNBUNDLED NETWORK ELEMENTS.................................................................VII-1
1. General....................................................................................VII-1
2. Unbundled Network Elements.................................................................VII-1
2.1 Categories..................................................................VII-1
2.2 Prices......................................................................VII-1
2.3 Interconnection to Unbundled Elements.......................................VII-1
2.4 Service Quality.............................................................VII-2
3. Network Interface Device...................................................................VII-2
3.1 Direct Connection...........................................................VII-2
3.2 NID to NID Connection.......................................................VII-2
3.3 Removal of Cable Pairs......................................................VII-3
3.4 Maintenance.................................................................VII-3
4. Loop Elements..............................................................................VII-3
4.1 Service Description.........................................................VII-3
4.2 Categories of Loops.........................................................VII-3
4.3 Conditioned Loops...........................................................VII-4
4.4 Features, Functions, Attributes.............................................VII-4
4.5 Digital Loop Carrier........................................................VII-4
4.6 Unbundled Loop Facility Certification.......................................VII-4
4.7 Unbundled Loop Facility Notification........................................VII-5
4.8 Subloops....................................................................VII-5
5. Port and Local Switching Elements..........................................................VII-5
5.1 Port........................................................................VII-5
5.2 Ports Available as Unbundled Network Elements...............................VII-6
5.3 Port Prices.................................................................VII-6
5.4 Local Switching.............................................................VII-6
5.5 Compliance with Section.....................................................VII-6
6. Transport Facility.........................................................................VII-6
6.1 Service Description.........................................................VII-6
6.2 Categories/Types............................................................VII-7
7. SS7 Transport and Signaling................................................................VII-7
7.1..................................................................................VII-7
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8. LIDB Services..............................................................................VII-6
9. Database 800-Type Services.................................................................VII-7
10. Data Switching.............................................................................VII-7
10.1 Access......................................................................VII-7
10.2 Nondiscrimination...........................................................VII-7
10.3 Testing, Monitoring, Administration and Maintenance.........................VII-7
11. Digital Cross Connect System (DCS).........................................................VII-7
11.1 Access......................................................................VII-7
11.2 Optional Characteristics....................................................VII-7
11.3 Alternate Provisioning......................................................VII-7
11.4 Elements....................................................................VII-7
11.5 Capabilities................................................................VII-8
11.6 Protection and Performance..................................................VII-8
11.7 Provisioning, Administration and Maintenance................................VII-8
12. Operator Services (OS) and Directory Assistance (DA).......................................VII-8
12.1 Customized Routing.......................................................VII-8
13. Advanced Intelligent Network Access (AIN)..................................................VII-9
14. Nondiscrimination Provision and Support....................................................VII-9
15. Provisioning Intervals.....................................................................VII-9
16. Directory Assistance Listing...............................................................VII-9
ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS...................................VIII-1
1. Bona Fide Request Process..................................................................VIII-1
1.1 Intent......................................................................VIII-1
1.2 Process.....................................................................VIII-1
2. Transfer of Service Announcements..........................................................VIII-1
3. Misdirected Calls..........................................................................VIII-1
3.1..................................................................................VIII-2
3.2..................................................................................VIII-2
4. 911/E911 Arrangements......................................................................VIII-2
4.1 Description of Service......................................................VIII-2
4.2 Transport...................................................................VIII-2
4.3 Cooperation and Level of Performance........................................VIII-2
4.4 Basic 911 and E911 General Requirements.....................................VIII-2
4.5 Compensation................................................................VIII-6
5. Information Services Traffic...............................................................VIII-7
5.1 Routing.....................................................................VIII-7
5.2 Billing and Collection and Information Service Provider (ISP)
Remuneration................................................................VIII-7
5.3 900-976 Call Blocking.......................................................VIII-7
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5.4 Miscellaneous...............................................................VIII-7
6. Telephone Relay Service....................................................................VIII-7
7. Directory Assistance (DA) and Operator Services (OS).......................................VIII-7
7.1 Directory Assistance Calls..................................................VIII-7
7.2 Operator Services Calls.....................................................VIII-8
8. Directory Assistance Listings Information..................................................VIII-8
8.1..................................................................................VIII-8
8.2..................................................................................VIII-8
8.3..................................................................................VIII-8
9. Directory Listings and Directory Distribution..............................................VIII-8
10. Busy Line Verification and Busy Line Verification Interrupt................................VIII-9
11. SAG........................................................................................VIII-9
12. Dialing Format Changes.....................................................................VIII-9
13. Operational Support Systems (OSS)..........................................................VIII-9
ARTICLE IX
COLLOCATION................................................................................IX-1
1. Physical Collocation.......................................................................IX-1
1.1 Space Planning..............................................................IX-1
1.2 Connection to Customer Loops and Ports......................................IX-1
1.3 Connection to Other Collocated Carriers.....................................IX-1
1.4 Choice of Vendor............................................................IX-2
1.5 Monitoring..................................................................IX-2
1.6 Phone Service...............................................................IX-2
1.7 Intraoffice Diversity.......................................................IX-2
1.8 DTI Proprietary Information.................................................IX-2
1.9 Notification of Modifications...............................................IX-2
1.10 Drawings....................................................................IX-2
1.11 Construction of Space.......................................................IX-2
1.12 Connection Equipment........................................................IX-3
1.13 Access to DTI Collocation Space.............................................IX-3
2. Virtual Collocation........................................................................IX-4
2.1 Existing Virtual Collocation................................................IX-4
2.2 Conversion from Physical to Virtual.........................................IX-4
2.3 Vendors.....................................................................IX-4
2.4 Inspection..................................................................IX-5
ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY.........................................X-1
APPENDIX A
GTE PERFORMANCE MEASURES (PM)..............................................................A-1
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APPENDIX B
SERVICE MATRIX.............................................................................B-1
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES AND
FACILITIES AGREEMENT.......................................................................C-1
APPENDIX D
RATES AND CHARGES FOR TRANSPORT AND TERMINATION
OF TRAFFIC.................................................................................D-1
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF...................................E-1
APPENDIX F
SERVICES AVAILABLE FOR RESALE..............................................................F-2
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS..............................................................G-1
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS................................................H-1
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE....................................I-1
APPENDIX J
SS7 SERVICES...............................................................................J-1
APPENDIX K
POLE ATTACHMENT AGREEMENT..................................................................K-1
APPENDIX L
CONDUIT OCCUPANCY AGREEMENT................................................................L-1
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION...............................................M-1
APPENDIX 46A
GTE TERMS..................................................................................N-1
APPENDIX 46B
OTHERCLEC TERMS............................................................................O-1
</TABLE>
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This Interconnection, Resale and Unbundling Agreement (the "Agreement"), is
made effective as of , 199 , by and
between GTE Midwest Incorporated/GTE Arkansas Incorporated, with its address
for purposes of this Agreement at 600 Hidden Ridge Drive, Irving, Texas 75038
("GTE"), and Digital Teleport, Inc., in its capacity as a certified provider of
local dial-tone service ("DTI"), with its address for this Agreement at 11111
Dorsett Road, St. Louis, Missouri 63043 (GTE and DTI being referred to
collectively as the "Parties" and individually as a "Party"). This Agreement
covers services in the State of Missouri only (the "State").
WHEREAS, interconnection between competing Local Exchange Carriers ("LECs") is
necessary and desirable for the mutual exchange and termination of traffic
originating on each LEC's network; and
WHEREAS, the Parties desire to exchange such traffic and related signalling in a
technically and economically efficient manner at defined and mutually agreed
upon interconnection points; and
WHEREAS, the Parties wish to enter into an agreement to interconnect their
respective telecommunications networks on terms that are fair and equitable to
both Parties; and
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes
specific obligations on LECs with respect to the interconnection of their
networks, resale of their telecommunications services, access to their poles,
ducts, conduits and rights-of-way and, in certain cases, the offering of
certain unbundled network elements and physical collocation of equipment in LEC
premises;
WHEREAS, GTE is entering, under protest, into certain aspects of this Agreement
that incorporate adverse results from the arbitrated agreements approved or
which may be approved by the Commission in this state and is doing so in order
to avoid the expense of arbitration while at the same time preserving its legal
positions, rights and remedies.
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, GTE and DTI hereby covenant and agree as follows:
<PAGE> 13
ARTICLE I
SCOPE AND INTENT OF AGREEMENT
Pursuant to this Agreement, the Parties will extend certain arrangements to one
another within each area in which they both operate within the State for
purposes of interconnection and the exchange of traffic between their
respective end user customers, and reciprocal access to poles, ducts, conduits
and rights-of-way. This Agreement also governs the purchase by DTI of certain
telecommunications services provided by GTE in its franchise areas for resale
by DTI, the purchase by DTI of certain unbundled network elements from GTE, and
the terms and conditions of the collocation of certain equipment of DTI in the
premises of GTE. This Agreement is an integrated package that reflects a
balancing of interests critical to the Parties. This Agreement will be
submitted to the Missouri Public Service Commission (the "Commission") for
approval. The Parties agree that their entrance into this Agreement is without
prejudice to and does not waive any positions they may have taken previously,
or may take in the future, in any legislative, regulatory, judicial or other
public forum addressing any matters, including matters related to the same
types of arrangements and/or matters related to GTE's cost recovery covered in
this Agreement. DTI agrees to negotiate reciprocal terms and conditions with
GTE based on this Agreement. GTE's execution of this Agreement is not a
concession or waiver in any manner concerning its position that certain of the
rates, terms and conditions contained herein are unlawful, illegal and
improper.
The services and facilities to be provided to DTI by GTE in satisfaction of
this Agreement may be provided pursuant to GTE tariffs and then current
practices. Should such services and facilities be modified by tariff or by
Order, including any modifications resulting from other Commission proceedings,
federal court review or other judicial action, such modifications will be
deemed to automatically supersede any rates and terms and conditions of this
Agreement. GTE will provide notification to DTI before such a tariff becomes
effective, and DTI may provide input on such proposed tariff. The Parties
shall cooperate with one another for the purpose of incorporating required
modifications into this agreement.
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<PAGE> 14
ARTICLE II
DEFINITIONS
1. General Definitions. Except as otherwise specified herein, the following
definitions shall apply to all Articles and Appendices contained in this
Agreement. Additional definitions that are specific to the matters
covered in a particular Article may appear in that Article. To the extent
that there may be any conflict between a definition set forth in this
Article II and any definition in a specific Article or Appendix, the
definition set forth in the specific Article or Appendix shall control
with respect to that Article or Appendix.
1.1 "ACCESS SERVICE REQUEST" (ASR) means an industry standard
form used by the Parties to add, establish, change or disconnect
services or trunks for the purposes of Interconnection.
1.2 "ACT" means the Telecommunications Act of 1996, Public Law
104-104 of the 104th United States Congress effective February 8,
1996.
1.3 "AFFILIATE" of a Party means a person, corporation or other
legal entity that, directly or indirectly, owns or controls a Party,
or is owned or controlled by, or is under common ownership or
control with a Party.
1.4 "AMA" means the Automated Message Accounting structure
inherent in switch technology that initially records
telecommunication message information. AMA format is contained in
the Automated Message Accounting document, published by Bellcore as
GR-1100-CORE which defines the industry standard for message
recording.
1.5 "APPLICABLE LAW" shall mean all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders, permits,
and approvals of any Governmental Authority, which apply or relate
to the subject matter of this Agreement.
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM
(ALI/DMS)" means the emergency services (E911/911) database
containing customer location information (including name, address,
telephone number, and sometimes special information from the local
service provider) used to process subscriber access records into
Automatic Location Identification (ALI) records. From this
database, records are forwarded to GTE's ALI Gateway for downloading
by local ALI database systems to be available for retrieval in
response to ANI from a 9-1-1 call. Also, from this database, GTE
will upload to its selective routers the selective router ALI
(SR/ALI) which is used to determine to which Public Safety Answering
Point ("PSAP") to route the call.
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" refers to the
number transmitted through the network identifying the calling
party.
1.8 "BELLCORE" means an organization owned jointly by the Bell
regional holding companies and that may in the future be owned
partially or totally by other persons, that conducts research and
development projects for its owners, including development of new
telecommunications services. Bellcore also provides certain
centralized technical and management services for the regional
holding companies and also provides generic requirements for the
telecommunications industry for products, services and technologies.
1.9 "BILL-AND-KEEP ARRANGEMENT" means a compensation arrangement
whereby the Parties do not render bills to each other for the
termination of local traffic specified in this
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<PAGE> 15
Agreement and whereby the Parties terminate local exchange traffic
originating from end-users served by the networks of the other
Party without explicit charging among or between said carriers for
such traffic exchange.
1.10 "BONA FIDE REQUEST (BFR)" process is intended to be used when
requesting customized Service Orders for certain services, features,
capabilities or functionality defined and agreed upon by the Parties
as services to be ordered as Bona Fide Requests.
1.11 "BUSINESS DAY" shall mean Monday through Friday, except for
holidays on which the U.S. mail is not delivered.
1.12 "CENTRAL OFFICE SWITCH" means a switch used to provide
telecommunications services including (I) "End Office Switches"
which are Class 5 switches from which end user Exchange Services are
directly connected and offered, and (ii) "Tandem Office Switches"
which are Class 4 switches which are used to connect and switch
trunk circuits between and among central office switches. Central
office switches may be employed as combination end office/tandem
office switches (combination Class 5/Class 4).
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the
billing record and clearing house transport system that the Regional
Bell Operating Companies ("RBOCs") and other incumbent LECs use to
efficiently exchange out collects and in collects as well as Carrier
Access Billing System ("CABS") records.
1.14 "CLLI CODES" means Common Language Location Identifier Codes.
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means a radio
communication service between mobile stations or receivers and land
stations, or by mobile stations communicating among themselves that
is provided for profit and that makes interconnected service
available to the public or to such classes of eligible users as to
be effectively available to a substantial portion of the public.
1.16 "COMMISSION" means the Missouri Public Service Commission.
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" means a high-speed
specialized packet-switched communications network that is separate
(out-of-band) from the public packet-switched and message networks.
CCS carries addressed signaling messages for individual trunk
circuits and/or database-related services between Signaling Points
in the CCS network using SS7 signaling protocol.
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) means any company
or person authorized to provide local exchange services in
competition with an ILEC.
1.19 "COMPLIANCE" means environmental and safety laws and
regulations are based upon a federal regulatory framework, with
certain responsibilities delegated to the States. An
environmental/safety compliance program may include review of
applicable laws/regulations, development of written procedures,
training of employees and auditing.
1.20 "CUSTOMER" may mean GTE or DTI depending on the context and
which Party is receiving the service from the other Party.
1.21 "CUSTOMER USAGE DATA" means that the local telecommunications
services usage data of a CLEC customer, measured in minutes,
sub-minute increments, message units, or otherwise, that is recorded
and exchanged by the Parties.
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1.22 "DS-1" is a digital signal rate of 1.544 Mbps.
1.23 "DS-3" is a digital signal rate of 44.736 Mbps.
1.24 "ELECTRONIC FILE TRANSFER" refers to a system or process
which utilizes an electronic format and protocol to send/receive
data files.
1.25 "EMR" means the Exchange Message Record which is an industry
standard record used to exchange telecommunications message
information among CLECs for billable, nonbillable, sample,
settlement and study data. EMR format is defined in BR-010-200-010
CRIS Exchange Message Record, published by Bellcore and which
defines the industry standard for exchange message records.
1.26 "E-911 SERVICE" is a method of routing 911 calls to a Public
Service Answering Point that uses a customer location database to
determine the location to which a call should be routed. E-9-1-1
service includes the forwarding of the caller's Automatic Number
Identification (ANI) to the PSAP where the ANI is used to retrieve
and display the Automatic Location Identification (ALI) on a
terminal screen at the answering Attendant's position. It usually
includes selective routing.
1.27 "EXCHANGE SERVICE" refers to all basic access line services,
or any other services offered to end users which provide end users
with a telephonic connection to, and a unique telephone number
address on, the public switched telecommunications network ("PSTN"),
and which enable such end users to place or receive calls to all
other stations on the PSTN.
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" means a service
that provides interconnecting carriers with the capability to
terminate basic fiber optic transmission facilities, including
optical terminating equipment and multiplexers, at GTE's wire
centers and access tandems and interconnect those facilities with
the facilities of GTE. Microwave is available on a case-by-case
basis where feasible.
1.29 "FACILITY" means all buildings, equipment, structures and
other items located on a single site or contiguous or adjacent sites
owned or operated by the same persons or person as used in Article
III, Section 44.
1.30 "FCC" means the Federal Communications Commission.
1.31 "GENERATOR" means under Resource Conservation Recovery Act
(RCRA), the person whose act produces a hazardous waste (40 CFR 261)
or whose act first causes a hazardous waste to become subject to
regulation. The generator is legally responsible for the proper
management and disposal of hazardous wastes in accordance with
regulations.
1.32 "GTOC" means GTE Telephone Operating Company.
1.33 "GUIDE" means the GTE Open Market Transition Order/Processing
Guide/ALEC Customer Guide, which contains GTE's operating procedures
for ordering, provisioning, trouble reporting and repair for resold
services and unbundled elements. Except as specifically provided
otherwise in this Agreement, service ordering, provisioning, billing
and maintenance shall be governed by the "Guide" which may be
amended from time to time by GTE as needed.
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1.34 "HAZARDOUS CHEMICAL" means as defined in the U.S.
Occupational Safety and Health (OSHA) hazard communication standard
(29 CFR 1910.1200), any chemical which is a health hazard or
physical hazard.
1.35 "HAZARDOUS WASTE" means as described in Resource Conservation
Recovery Act (RCRA), a solid waste(s) which may cause, or
significantly contribute to an increase in mortality or illness or
pose a substantial hazard to human health or the environment when
improperly treated, stored, transported or disposed of or otherwise
managed because of its quantity, concentration or physical or
chemical characteristics.
1.36 "IMMINENT DANGER" means as described in the Occupational
Safety and Health Act and expanded for environmental matters, any
conditions or practices at a facility which are such that a danger
exists which could reasonably be expected to cause death or serious
harm or significant damage to the environment or natural resources.
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) means any local
exchange carrier that was as of February 8,1996, deemed to be a
member of the Exchange Carrier Association as set forth in 47 C.F.R.
Section 69.601(b) of the FCC's regulations.
1.38 "INTERIM NUMBER PORTABILITY (INP)" means the delivery of LNP
capabilities, from a customer standpoint in terms of call
completion, with as little impairment of functioning, quality,
reliability, and convenience as possible and from a carrier
standpoint in terms of compensation, through the use of existing and
available call routing, forwarding, and addressing capabilities.
1.39 "INTERCONNECTION POINT" ("IP") means the physical point on
the network where the two parties interconnect. The "IP" is the
demarcation point between ownership of the transmission facility.
1.40 "ISDN USER PART (ISUP)" means a part of the SS7 protocol that
defines call setup messages and call takedown messages.
1.41 "IXC" OR "INTEREXCHANGE CARRIER" means a telecommunications
service provider authorized by the FCC to provide interstate long
distance communications services between LATAs and are authorized by
the State to provide inter- and/or intraLATA long distance
communications services within the State.
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" means
the physical connection of separate pieces of equipment,
transmission facilities, etc., within, between and among networks,
for the transmission and routing of exchange service and exchange
access.
1.43 "LATA" means Local Access and Transport Area. A LATA denotes
a geographic area for the provision and administration of
communications service; i.e., intraLATA or interLATA.
1.44 "LINE INFORMATION DATA BASE (LIDB)" means one or all, as the
context may require, of the Line Information databases owned
individually by GTE and other entities which provide, among other
things, calling card validation functionality for telephone line
number cards issued by GTE and other entities. A LIDB also contains
validation data for collect and third number-billed calls; i.e.,
Billed Number Screening.
1.45 "LINE SIDE" refers to an end office switch connection that
has been programmed to treat the circuit as a local line connected
to an ordinary telephone station set. Line side
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connections offer only those transmission and signaling features
appropriate for a connection between an end office and an ordinary
telephone set.
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" means any company certified
by the Commission to provide local exchange telecommunications
service. This includes the Parties to this Agreement.
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" means the Bellcore
reference customarily used to identify NPA-NXX routing and homing
information, as well as network element and equipment designation.
1.48 "LOCAL NUMBER PORTABILITY (LNP)" means the ability of users
of telecommunications services to retain, at the same location,
existing telecommunications numbers without impairment of quality,
reliability, or convenience when switching from one
telecommunications carrier to another.
1.49 "LOCAL TRAFFIC" means traffic that is originated by an end
user of one Party and terminates to the end user of the other Party
within GTE's then current local serving area, including mandatory
local calling scope arrangements. A mandatory local calling scope
arrangement is an arrangement that provides end users a local
calling scope, Extended Area Service ("EAS"), beyond their basic
exchange serving area. Local Traffic does not include optional
local calling scopes (i.e., optional rate packages that permit the
end user to choose a local calling scope beyond their basic exchange
serving area for an additional fee), referred to hereafter as
"optional EAS." Local Traffic excludes Information Service Provider
("ISP") traffic (e.g., Internet, paging, 900-976, etc.).
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" means the distribution
frame used to interconnect cable pairs and line trunk equipment
terminating on a switching system.
1.51 "MEET-POINT BILLING" OR "MPB" refers to an arrangement
whereby two LECs jointly provide the transport element of a switched
access service to one of the LEC's end office switches, with each
LEC receiving an appropriate share of the transport element revenues
as defined by their effective access tariffs.
1.52 "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 Telecommunications Industry Solutions ("ATIS"). The MECAB
document, published by Bellcore as Special Report SR-BDS-000983,
contains the recommended guidelines for the billing of an access
service provided by two or more LECs, or by one LEC in two or more
states within a single LATA.
1.53 "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 under the auspices 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, establish methods for processing
orders for access service which is to be provided by two or more
LECs.
1.54 "MID-SPAN FIBER MEET" means an Interconnection architecture
whereby two carriers' fiber transmission facilities meet at a
mutually agreed-upon POI.
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1.55 "NANP" means the "North American Numbering Plan", the system
of telephone numbering employed in the United States, Canada, and
the Caribbean countries that employ NPA 809.
1.56 "NETWORK ELEMENT" means a facility or equipment used in the
provision of a telecommunications service. Network Element includes
features, functions, and capabilities that are provided by means of
such facility or equipment, including subscriber numbers, databases,
signaling systems, and information sufficient for billing and
collection or used in the transmission, routing, or other provision
of a telecommunications service.
1.57 "NID" OR "NETWORK INTERFACE DEVICE" means the point of
demarcation between the end user's inside wiring and GTE's
facilities.
1.58 "NUMBERING PLAN AREA" OR "NPA" is also sometimes referred to
as an area code. This is the three digit indicator which is defined
by the "A", "B", and "C" digits of each 10-digit telephone number
within the NANP. Each NPA contains 800 possible NXX Codes. There
are two general categories of NPA, "Geographic NPAs" and
"Non-Geographic NPAs". A Geographic NPA is associated with a
defined geographic area, and all telephone numbers bearing such NPA
are associated with services provided within that geographic area.
A Non-Geographic NPA, also known as a "Service Access Code" or "SAC
Code" is typically associated with a specialized telecommunications
service which may be provided across multiple geographic NPA areas.
800, 900, 700, and 888 are examples of Non-Geographic NPAs.
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" is the
three digit switch entity indicator which is defined by the "D",
"E", and "F" digits of a 10-digit telephone number within the NANP.
Each NXX Code contains 10,000 station numbers.
1.60 "911 SERVICE" means a universal telephone number which gives
the public direct access to the PSAP. Basic 911 service collects
911 calls from one or more local exchange switches that serve a
geographic area. The calls are then sent to the correct authority
designated to receive such calls.
1.61 "OWNER AND OPERATOR" means as used in OSHA regulations, owner
is the legal entity, including a lessee, which exercises control
over management and record keeping functions relating to a building
or facility. As used in the Resource Conservation and Recovery Act
(RCRA), operator means the person responsible for the overall (or
part of the) operations of a facility.
1.62 "POI" means Point of Interconnection designated for routing
of local interconnection trunks.
1.63 "POLE ATTACHMENT" has the meaning as set forth in Article X
and Appendix K of this Agreement.
1.64 "PROVIDER" may mean GTE or DTI depending on the context and
which Party is providing the service to the other Party.
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" means an answering
location for 9-1-1 calls originating in a given area. A PSAP may be
designated as Primary or Secondary, which refers to the order in
which calls are directed for answering. Primary PSAPs respond
first; Secondary PSAPs receive calls on a transfer basis only, and
generally serve as a centralized answering location for a particular
type of emergency call. PSAPs are staffed
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by employees of Emergency Response Agencies ("ERAs") such as
police, fire or emergency medical agencies or by employees of a
common bureau serving a group of such entities.
1.66 "RATE CENTER" means the specific geographic point and
corresponding geographic area that are associated with one or more
particular NPA-NXX Codes that have been assigned to a LEC for its
provision of Exchange Services. The geographic point is identified
by a specific Vertical and Horizontal (V&H) coordinate that is used
to calculate distance-sensitive end user traffic to/from the
particular NPA-NXXs associated with the specific Rate Center.
1.67 "RIGHT-OF-WAY" OR "ROW" means the right to use the land or
other property of another party to place poles, conduits, cables,
other structures and equipment, or to provide passage to access such
structures and equipment. A ROW may run under, on, or above public
or private property (including air space above public or private
property) and may include the right to use discrete space in
buildings, building complexes, or other locations.
1.68 "ROUTING POINT" denotes a location that a LEC has designated
on its network as the homing (routing) point for traffic that
terminates to Exchange Services provided by the LEC that bear a
certain NPA-NXX designation. The Routing Point is used to calculate
airline mileage for the distance-sensitive transport element charges
of Switched Access Services. Pursuant to Bellcore Practice
BR795-100-100, the Routing Point may be an end office location, or a
"LEC Consortium Point of Interconnection." The Routing Point must
be in the same LATA as the associated NPA-NXX.
1.69 "SERVICE CONTROL POINT" OR "SCP" is the node in the signaling
network to which informational requests for service handling, such
as routing, are directed and processed. The SCP is a real time
database system that, based on a query from the SSP, performs
subscriber or application-specific service logic, and then sends
instructions back to the SSP on how to continue call processing.
1.70 "SERVICE SWITCHING POINT" OR "SSP" means a Signaling Point
that can launch queries to databases and receive/interpret responses
used to provide specific customer services.
1.71 "SIGNALING POINT" OR "SP" means a node in the CCS network
that originates and/or receives signaling messages, or transfers
signaling messages from one signaling link to another, or both.
1.72 "SIGNALING SYSTEM 7" OR "SS7" means the signaling protocol,
Version 7, of the CCS network, based upon American National
Standards Institute ("ANSI") standards.
1.73 "SIGNAL TRANSFER POINT" OR "STP" means a packet switch in the
CCS network that is used to route signaling messages among SSPs,
SCPs and other STPs in order to set up calls and to query databases
for advanced services. GTE's network includes mated pairs of local
and regional STPs. STPs are provided in pairs for redundancy. GTE
STPs conform to ANSI T1.111-8 standards.
1.74 "SUBSIDIARY" of a Party means a corporation or other legal
entity that is majority owned by such Party.
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" means synchronous
electrical ("STS") or optical channel ("OC") connections between
LECs.
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1.76 "SWITCHED ACCESS SERVICE" means the offering of facilities
for the purpose of the origination or termination of traffic to or
from Exchange Service customers in a given area pursuant to a
switched access tariff. Switched Access Services include: Feature
Group A, Feature Group B, Feature Group C, Feature Group D, 800
access and 900 access services.
1.77 "TELECOMMUNICATIONS SERVICES" means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.
1.78 "THIRD PARTY CONTAMINATION" means environmental pollution
that is not generated by the LEC or DTI but results from off-site
activities impacting a facility.
1.79 "TRUNK SIDE" refers to a central office switch connection
that is capable of, and has been programmed to treat the circuit as,
connecting to another switching entity, for example, to another
central office switch. Trunk side connections offer those
transmission and signaling features appropriate for the connection
of switching entities and cannot be used for the direct connection
of ordinary telephone station sets.
1.80 "UNDEFINED TERMS" means the Parties acknowledge that terms
may appear in this Agreement which are not defined and agree that
any such terms shall be construed in accordance with their customary
usage in the telecommunications industry as of the effective date of
this Agreement.
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") means
vertical services and switch functionalities provided by GTE,
including: Automatic Call Back; Automatic Recall; Call Forwarding
Busy Line/Don't Answer; Call Forwarding Don't Answer; Call
Forwarding Variable; Call Forwarding - Busy Line; Call Trace; Call
Waiting; Call Number Delivery Blocking Per Call; Calling Number
Blocking Per Line; Cancel Call Waiting; Distinctive Ringing/Call
Waiting; Incoming Call Line Identification Delivery; Selective Call
Forward; Selective Call Rejection; Speed Calling; and Three Way
Calling/Call Transfer.
1.82 "WIRE CENTER" means a building or space within a building
that serves as an aggregation point on a LEC's network, where
transmission facilities and circuits are connected or switched.
"Wire center" can also denote a building in which one or more
Central Offices, used for the provision of exchange services and
access services, are located.
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ARTICLE III
GENERAL PROVISIONS
1. Scope of General Provisions. Except as may otherwise be set forth in a
particular Article or Appendix of this Agreement, in which case the
provisions of such Article or Appendix shall control, these General
Provisions apply to all Articles and Appendices of this Agreement.
2. Term and Termination.
2.1 Term. Subject to the termination provisions contained in this
Agreement, the term of this Agreement shall be two (2) years from the
effective date referenced in the first paragraph of this Agreement and
shall continue in effect for consecutive one (1) year terms until
either Party gives the other Party at least ninety (90) calendar days
written notice of termination, which termination shall be effective at
the end of the then-current term. In the event notice is given less
than 90 calendar days prior to the end of the current term, this
Agreement shall remain in effect for 90 calendar days after such
notice is received, provided, that in no case shall the term be
extended beyond 90 calendar days after the end of the current term.
2.2 Post-Termination Arrangements. Except in the case of termination as a
result of either Party's default or a termination upon sale, for
service arrangements made available under this Agreement and existing
at the time of termination, those arrangements may continue without
interruption (a) under a new agreement voluntarily executed by the
Parties; (b) standard terms and conditions approved and made generally
effective by the Commission, if any; (c) tariff terms and conditions
made generally available to all CLECs; or (d) any rights under Section
252(I) of the Act.
2.3 Termination Upon Default. Either Party may terminate this Agreement
in whole or in part in the event of a default by the other Party;
provided however, that the non-defaulting Party notifies the
defaulting party in writing of the alleged default and that the
defaulting Party does not cure the alleged default within sixty (60)
calendar days of receipt of written notice thereof. Default is
defined to include:
(a) A Party's insolvency or the initiation of bankruptcy or receivership
proceedings by or against the Party; or
(b) A Party's refusal or failure in any material respect properly to
perform its obligations under this Agreement, or the violation any of
the material terms or conditions of this Agreement.
2.4 Termination Upon Sale. Notwithstanding anything to the contrary
contained herein, a Party may terminate this Agreement as to a
specific operating area or portion thereof of such Party if such Party
sells or otherwise transfers the area or portion thereof. The Party
shall provide the other Party with at least ninety (90) calendar days'
prior written notice of such termination, which shall be effective on
the date specified in the notice. Notwithstanding termination of this
Agreement as to a specific operating area, this Agreement shall remain
in full force and effect in the remaining operating areas.
2.5 Liability upon Termination. Termination of this Agreement, or any part
hereof, for any cause shall not release either Party from any
liability which at the time of termination had already accrued to the
other Party or which thereafter accrues in any respect to any act or
omission occurring prior to the termination or from an obligation
which is expressly stated in this Agreement to survive termination.
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3. Amendments. Any amendment, modification, or supplement to this Agreement
must be in writing and signed by an authorized representative of each
Party. The term "this Agreement" shall include future amendments,
modifications, and supplements.
4. Assignment. Any assignment by either Party of any right, obligation, or
duty, in whole or in part, or of any interest, without the written consent
of the other Party shall be void, except that either Party may assign all
of its rights, and delegate its obligations, liabilities and duties under
this Agreement, either in whole or in part, to any entity that is, or that
was immediately preceding such assignment, a Subsidiary or Affiliate of
that Party without consent, but with written notification. The
effectiveness of an assignment shall be conditioned upon the assignee's
written assumption of the rights, obligations, and duties of the assigning
Party.
5. Authority. Each person whose signature appears on this Agreement
represents and warrants that he or she has authority to bind the Party on
whose behalf he or she has executed this Agreement.
6. Responsibility for Payment. All charges for Services provided under this
Agreement will be billed to DTI, including all applicable taxes and
surcharges. In addition, the End User Common Line (EUCL) Charge from GTOC
Tariff FCC No. 1 is applicable to Resold Services. DTI is responsible for
payment of charges billed regardless of any billing arrangements or
situation between DTI and its end user customer.
7. Billing and Payment. Except as provided elsewhere in this Agreement and
where applicable, in conformance with MECAB and MECOD guidelines, DTI and
GTE agree to exchange all information to accurately, reliably, and
properly bill for features, functions and services rendered under this
Agreement.
7.1 Dispute. If one Party disputes a billing statement issued by the
other Party, the billed Party shall notify Provider in writing
regarding the nature and the basis of the dispute within six (6)
months of the statement date or the dispute shall be waived. The
Parties shall diligently work toward resolution of all billing issues.
7.2 Late Payment Charge. If any undisputed amount due on the billing
statement is not received by Provider on the payment due date,
Provider may charge, and Customer agrees to pay, at Provider's option,
interest on the past due balance at a rate equal to the lesser of the
interest rates set forth in the applicable GTE/Contel state access
tariffs or the GTOC/GSTC FCC No. 1 tariff, one and one-half percent (1
1/2%) per month or the maximum nonusurious rate of interest under
applicable law. Late payment charges shall be included on the next
statement.
7.3 Due Date. Payment is due 30 calendar days from the bill date.
7.4 Audits. Either Party may conduct an audit of the other Party's books
and records pertaining to the Services provided under this Agreement,
no more frequently than once per twelve (12) month period, to evaluate
the other Party's accuracy of billing, data and invoicing in
accordance with this Agreement. Any audit shall be performed as
follows: (I) following at least thirty (30) Business Days' prior
written notice to the audited Party; (ii) subject to the reasonable
scheduling requirements and limitations of the audited Party; (iii) at
the auditing Party's sole cost and expense; (iv) of a reasonable scope
and duration; (v) in a manner so as not to interfere with the audited
Party's business operations; and (vi) in compliance with the audited
Party's security rules.
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8. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the Parties.
9. Capacity Planning and Forecasting. Within thirty (30) days from the
Effective Date of this Agreement, the Parties agree to have met and
developed joint planning and forecasting responsibilities which are
applicable to Local Services, including Features, Network Elements, INP,
Interconnection Services, Collocation, Poles, Conduits and Rights of Way
(ROW). Such responsibilities shall include but are not limited to the
following:
(a) The Parties will establish periodic reviews of network and technology
plans and will notify one another no later than six (6) months in advance
of changes that would impact either Party's provision of services.
(b) DTI will furnish to GTE information that provides for state-wide annual
forecasts of order activity, in-service quantity forecasts, and
facility/demand forecasts.
(c) The Parties will develop joint forecasting responsibilities for traffic
utilization over trunk groups and yearly forecasted trunk quantities.
(d) DTI shall notify GTE promptly of changes to current forecasts (increase
or decrease) that generate a shift in the demand curve for the following
forecasting period.
10. Compliance with Laws and Regulations. Each Party shall comply with all
federal, state, and local statutes, regulations, rules, ordinances,
judicial decisions, and administrative rulings applicable to its
performance under this Agreement.
11. Confidential Information.
11.1 Identification. Either Party may disclose to the other proprietary or
confidential customer, technical, or business information in written,
graphic, oral or other tangible or intangible forms ("Confidential
Information"). In order for information to be considered Confidential
Information under this Agreement, it must be marked "Confidential" or
"Proprietary," or bear a marking of similar import. Orally or
visually disclosed information shall be deemed Confidential
Information only if contemporaneously identified as such and reduced
to writing and delivered to the other Party with a statement or
marking of confidentially within thirty (30) calendar days after oral
or visual disclosure.
Notwithstanding the foregoing, preorders and all orders for Services or
network elements placed by DTI pursuant to this Agreement, and information
that would constitute customer proprietary network information of DTI end
user customers pursuant to the Act and the rules and regulations of the
FCC, as well as recorded usage information with respect to DTI end users,
whether disclosed by DTI to GTE or otherwise acquired by GTE in the course
of its performance under this Agreement, and where GTE is the NANP Number
Plan Administrator, DTI information submitted to GTE in connection with
such responsibilities shall be deemed Confidential Information of DTI for
all purposes under this Agreement whether or not specifically marked or
designated as confidential or proprietary.
11.2 Handling. In order to protect such Confidential Information from
improper disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain the
exclusive property of the source;
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(b) To limit access to such Confidential Information to authorized
employees who have a need to know the Confidential Information for
performance of this Agreement;
(c) To keep such Confidential Information confidential and to use the same
level of care to prevent disclosure or unauthorized use of the
received Confidential Information as it exercises in protecting its
own Confidential Information of a similar nature;
(d) Not to copy, publish, or disclose such Confidential Information to
others or authorize anyone else to copy, publish, or disclose such
Confidential Information to others without the prior written approval
of the source;
(e) To return promptly any copies of such Confidential Information to the
source at its request; and
(f) To use such Confidential Information only for purposes of fulfilling
work or services performed hereunder and for other purposes only upon
such terms as may be agreed upon between the Parties in writing.
11.3 Exceptions. These obligations shall not apply to any Confidential
Information that was legally in the recipient's possession prior to
receipt from the source, was received in good faith from a Third Party
not subject to a confidential obligation to the source, now is or
later becomes publicly known through no breach of confidential
obligation by the recipient, was developed by the recipient without
the developing persons having access to any of the Confidential
Information received in confidence from the source, or that is
required to be disclosed pursuant to subpoena or other process issued
by a court or administrative agency having appropriate jurisdiction,
provided, however, that the recipient shall give prior notice to the
source and shall reasonably cooperate if the source deems it necessary
to seek protective arrangements.
11.4 Survival. The obligation of confidentiality and use with respect to
Confidential Information disclosed by one Party to the other shall
survive any termination of this Agreement for a period of three (3)
years from the date of the initial disclosure of the Confidential
Information.
12. Consent. Where consent, approval, or mutual agreement is required of a
Party, it shall not be unreasonably withheld or delayed.
13. Cooperation on Fraud Minimization. DTI assumes responsibility for all
fraud associated with its end user customers and accounts. GTE shall have
no responsibility for, nor is it required to investigate or make
adjustments to DTI's account in cases of fraud. The Parties agree that
they shall cooperate with one another to resolve cases of fraud. The
Parties' fraud minimization procedures are to be cost effective and
implemented so as not to unduly burden or harm one Party as compared to
the other.
14. Dispute Resolution.
14.1 Alternative to Litigation. Except as provided under Section 252 of
the Act with respect to the approval of this Agreement by the
Commission, the Parties desire to resolve disputes arising out of or
relating to this Agreement without litigation. Accordingly, except
for action seeking a temporary restraining order or an injunction
related to the purposes of this Agreement, or suit to compel
compliance with this dispute resolution process, the Parties agree to
use the following alternative dispute resolution procedures as their
sole remedy
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with respect to any controversy or claim arising out of or relating to
this Agreement or its breach.
14.2 Negotiations. At the written request of a Party, each Party will
appoint a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute arising out of or
relating to this Agreement. The Parties intend that these
negotiations be conducted by non-lawyer, business representatives. The
location, format, frequency, duration, and conclusion of these
discussions shall be left to the discretion of the representatives.
Upon agreement, the representatives may utilize other alternative
dispute resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated as
confidential information developed for purposes of settlement, exempt
from discovery, and shall not be admissible in the arbitration
described below or in any lawsuit without the concurrence of all
Parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise discoverable,
be discovered or otherwise admissible, be admitted in evidence, in the
arbitration or lawsuit.
14.3 Arbitration. If the negotiations do not resolve the dispute within
sixty (60) Business Days of the initial written request, the dispute
shall be submitted to binding arbitration by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association except that the Parties may select an
arbitrator outside American Arbitration Association rules upon mutual
agreement. A Party may demand such arbitration in accordance with the
procedures set out in those rules. Discovery shall be controlled by
the arbitrator and shall be permitted to the extent set out in this
section. Each Party may submit in writing to a Party, and that Party
shall so respond to, a maximum of any combination of thirty-five (35)
(none of which may have subparts) of the following: interrogatories,
demands to produce documents, or requests for admission. Each Party
is also entitled to take the oral deposition of one individual of
another Party. Additional discovery may be permitted upon mutual
agreement of the Parties. The arbitration hearing shall be commenced
within sixty (60) Business Days of the demand for arbitration. The
arbitration shall be held in a mutually agreeable city. The
arbitrator shall control the scheduling so as to process the matter
expeditiously. The Parties may submit written briefs. The arbitrator
shall rule on the dispute by issuing a written opinion within thirty
(30) Business Days after the close of hearings. The times specified
in this section may be extended upon mutual agreement of the Parties
or by the arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction.
14.4 Expedited Arbitration Procedures. If the issue to be resolved through
the negotiations referenced in Section 14.2 directly and materially
affects service to either Party's end user customers, then the period
of resolution of the dispute through negotiations before the dispute
is to be submitted to binding arbitration shall be five (5) Business
Days. Once such a service affecting dispute is submitted to
arbitration, the arbitration shall be conducted pursuant to the
expedited procedures rules of the Commercial Arbitration Rules of the
American Arbitration Association (i.e., rules 53 through 57).
14.5 Costs. Each Party shall bear its own costs of these procedures. A
Party seeking discovery shall reimburse the responding Party the costs
of production of documents (including search time and reproduction
costs). The Parties shall equally split the fees of the arbitration
and the arbitrator.
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14.6 Continuous Service. The Parties shall continue providing services to
each other during the pendency of any dispute resolution procedure,
and the Parties shall continue to perform their obligations (including
making payments in accordance with Article IV, Section 4) in
accordance with this Agreement.
15. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, negotiations, proposals, and representations,
whether written or oral, and all contemporaneous oral agreements,
negotiations, proposals, and representations concerning such subject
matter. No representations, understandings, agreements, or warranties,
expressed or implied, have been made or relied upon in the making of this
Agreement other than those specifically set forth herein.
16. Expenses. Except as specifically set out in this Agreement, each Party
shall be solely responsible for its own expenses involved in all
activities related to the subject of this Agreement.
17. Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood, earthquake or
likes acts of God, wars, revolution, civil commotion, explosion, acts of
public enemy, embargo, acts of the government in its sovereign capacity,
labor difficulties, including without limitation, strikes, slowdowns,
picketing, or boycotts, unavailability of equipment from vendor, changes
requested by Customer, or any other circumstances beyond the reasonable
control and without the fault or negligence of the Party affected, the
Party affected, upon giving prompt notice to the other Party, shall be
excused from such performance on a day-to-day basis to the extent of such
prevention, restriction, or interference (and the other Party shall
likewise be excused from performance of its obligations on a day-to-day
basis until the delay, restriction or interference has ceased); provided
however, that the Party so affected shall use diligent efforts to avoid or
remove such causes of nonperformance and both Parties shall proceed
whenever such causes are removed or cease.
18. Good Faith Performance. In the performance of their obligations under
this Agreement, the Parties shall act in good faith. In situations in
which notice, consent, approval or similar action by a Party is permitted
or required by any provision of this Agreement, such action shall not be
unreasonably delayed, withheld or conditioned.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the state where the Services are
provided or the facilities reside and shall be subject to the exclusive
jurisdiction of the courts therein.
20. Standard Practices. The Parties acknowledge that GTE shall be adopting
some industry standard approaches and/or establishing its own standard
approaches to various requirements hereunder applicable to DTI industry
which may be added in the Guide. DTI agrees that GTE may implement such
approaches to satisfy any GTE obligations under this Agreement. A copy is
attached hereto as Appendix A and is incorporated by reference into this
Agreement.
21. Headings. The headings in this Agreement are inserted for convenience
and identification only and shall not be considered in the interpretation
of this Agreement.
22. Independent Contractor Relationship. The persons provided by each Party
shall be solely that Party's employees and shall be under the sole and
exclusive direction and control of that Party. They shall not be
considered employees of the other Party for any purpose. Each Party shall
remain an independent contractor with respect to the other and shall be
responsible for compliance with all laws, rules and regulations involving,
but not limited to, employment of labor,
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<PAGE> 28
hours of labor, health and safety, working conditions and payment of wages.
Each Party shall also be responsible for payment of taxes, including
federal, state and municipal taxes, chargeable or assessed with respect to
its employees, such as Social Security, unemployment, workers'
compensation, disability insurance, and federal and state withholding. Each
Party shall indemnify the other for any loss, damage, liability, claim,
demand, or penalty that may be sustained by reason of its failure to comply
with this provision.
23. Law Enforcement Interface.
23.1 Except to the extent not available in connection with GTE's operation
of its own business, GTE shall provide seven day a week/twenty-four
hour a day assistance to law enforcement persons for emergency traps,
assistance involving emergency traces and emergency information
retrieval on customer invoked CLASS services, including, without
limitation, call traces requested by DTI.
23.2 GTE agrees to work jointly with DTI in security matters to support law
enforcement agency requirements for taps, traces, court orders, etc.
Charges for providing such services for DTI Customers will be billed
to DTI.
23.3 GTE will, in non emergency situations, inform the requesting law
enforcement agencies that the end-user to be wire tapped, traced, etc.
is a DTI Customer and shall refer them to DTI.
24. Liability and Indemnity.
24.1 Indemnification. Subject to the limitations set forth in Section 24.4
of this Article III, each Party agrees to release, indemnify, defend,
and hold harmless the other Party from all losses, claims, demands,
damages, expenses, suits, or other actions, or any liability
whatsoever, including, but not limited to, costs and attorney's fees,
whether suffered, made, instituted, or asserted by any other party or
person, for invasion of privacy, personal injury to or death of any
person or persons, or for losses, damages, or destruction of property,
whether or not owned by others, proximately caused by the indemnifying
Party's negligence or willful misconduct, regardless of form of
action. The indemnified Party agrees to notify the other Party
promptly, in writing, of any written claims, lawsuits, or demands for
which it is claimed that the indemnifying Party is responsible under
this Section and to cooperate in every reasonable way to facilitate
defense or settlement of claims. The indemnifying Party shall have
complete control over defense of the case and over the terms of any
proposed settlement or compromise thereof. The indemnifying Party
shall not be liable under this Section for settlement by the
indemnified Party or any claim, lawsuit, or demand, if the
indemnifying Party has not approved the settlement in advance, unless
the indemnifying Party has had the defense of the claim, lawsuit, or
demand tendered to it in writing and has failed to assume such
defense. In the event of such failure to assume defense, the
indemnifying Party shall be liable for any reasonable settlement made
by the indemnified Party without approval of the indemnifying Party.
24.2 End User and Content-Related Claims. Each Party agrees to release,
indemnify, defend, and hold harmless the other Party, its affiliates,
and any third-party provider or operator of facilities involved in the
provision of Services, Unbundled Network Elements or Facilities under
this Agreement (collectively, the "Indemnified Party") from all
losses, claims, demands, damages, expenses, suits, or other actions,
or any liability whatsoever, including, but not limited to, costs and
attorney's fees, suffered, made, instituted, or asserted by either
Party's end users against an Indemnified Party arising from Services,
Unbundled Network Elements or Facilities. Each Party further agrees to
release, indemnify, defend, and hold
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<PAGE> 29
harmless the Indemnified Party from all losses, claims, demands,
damages, expenses, suits, or other actions, or any liability
whatsoever, including, but not limited to, costs and attorney's fees,
suffered, made, instituted, or asserted by any Third Party against an
Indemnified Party arising from or in any way related to actual or
alleged defamation, libel, slander, interference with or
misappropriation of proprietary or creative right, or any other injury
to any person or property arising out of content transmitted by the
Indemnified Party or such Party's end users, or any other act or
omission of the Indemnified Party or such Party's end users.
24.3 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER
CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES, UNBUNDLED NETWORK
ELEMENTS OR FACILITIES PROVIDED UNDER THIS AGREEMENT. PROVIDER
DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY OR GUARANTEE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGES OF TRADE.
24.4 Limitation of Liability. Each Party's liability, whether in contract,
tort or otherwise, shall be limited to direct damages, which shall not
exceed the monthly charges for the Services, Unbundled Network
Elements or facilities for the month during which the claim of
liability arose. Under no circumstance shall either Party be
responsible or liable for indirect, incidental, or consequential
damages, including, but not limited to, economic loss or lost business
or profits, damages arising from the use or performance of equipment
or software, or the loss of use of software or equipment, or
accessories attached thereto, delay, error, or loss of data. Should
either Party provide advice, make recommendations, or supply other
analysis related to the Services, unbundled network elements or
facilities described in this Agreement, this limitation of liability
shall apply to provision of such advice, recommendations, and
analysis.
24.5 Intellectual Property. Neither Party shall have any obligation to
defend, indemnify or hold harmless, or acquire any license or right
for the benefit of, or owe any other obligation or have any liability
to, the other based on or arising from any claim, demand, or
proceeding by any Third Party alleging or asserting that the use of
any circuit, apparatus, or system, or the use of any software, or the
performance of any service or method, or the provision or use of any
facilities by either Party under this Agreement constitutes direct or
contributory infringement, or misuse or misappropriation of any
patent, copyright, trademark, trade secret, or any other proprietary
or intellectual property right of any Third Party.
25. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
shall together constitute but one and the same document.
26. No Offer. This Agreement will be effective only upon execution and
delivery by both Parties and approval by the Commission in accordance with
Section 252 of the Act.
27. No Third Party Beneficiaries. Except as may be specifically set forth in
this Agreement, this Agreement does not provide and shall not be construed
to provide third parties with any remedy, claim, liability, reimbursement,
cause of action, or other right or privilege.
28. 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 U.S.
mail, or on the date
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<PAGE> 30
stated on the receipt if delivered by certified or registered mail or by a
courier service that obtains a written receipt. Upon prior immediate oral
agreement of the parties' designated recipients identified below, notice
may also be provided by facsimile, internet or electronic messaging system,
which shall be effective if sent before 5:00 p.m. on that day, or if sent
after 5:00 p.m. it will be effective on the next Business Day following the
date sent. 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:
<TABLE>
<S> <C>
If to GTE: GTE Central
Attention: State Director, External Affairs
1000 GTE Drive
Building "A"
Wentzville, Missouri 63385
Facsimile number: (314) 332-7991
Internet Address:
If to DTI: Digital Teleport, Inc.
Attention: J.W. Sheehy, Vice President, I.C. Support
11111 Dorsett Road
St. Louis, Missouri 63043
Facsimile number: (314) 253-6699
Internet Address:
</TABLE>
29. Protection.
29.1 Impairment of Service. The characteristics and methods of operation
of any circuits, facilities or equipment of either Party connected
with the services, facilities or equipment of the other Party pursuant
to this Agreement shall not interfere with or impair service over any
facilities of the other Party, its affiliated companies, or its
connecting and concurring carriers involved in its services, cause
damage to their plant, violate any applicable law or regulation
regarding the invasion of privacy of any communications carried over
the Party's facilities or create hazards to the employees of either
Party or to the public (each hereinafter referred to as an "Impairment
of Service").
29.2 Resolution. If either Party causes an Impairment in Service, the
Party whose network or service is being impaired (the "Impaired
Party") shall promptly notify the Party causing the Impairment of
Service (the "Impairing Party") of the nature and location of the
problem and that, unless promptly rectified, a temporary
discontinuance of the use of any circuit, facility or equipment may be
required. The Impairing Party and the Impaired Party agree to work
together to attempt to promptly resolve the Impairment of Service. If
the Impairing Party is unable to promptly remedy the Impairment of
Service, then the Impaired Party may at its option temporarily
discontinue the use of the affected circuit, facility or equipment.
30. Publicity. Any news release, public announcement, advertising, or any
form of publicity pertaining to this Agreement, provision of Services,
Unbundled Network Elements or Facilities pursuant to it, or association of
the Parties with respect to provision of the services described in this
Agreement shall be subject to prior written approval of both GTE and DTI.
31. Regulatory Agency Control. This Agreement shall at all times be subject
to changes, modifications, orders, and rulings by the Federal
Communications Commission and/or the applicable state regulatory
commission to the extent the substance of this Agreement is or becomes
subject to the jurisdiction of such agency.
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<PAGE> 31
32. Changes in Legal Requirements. GTE and DTI further agree that the terms
and conditions of this Agreement were composed in order to effectuate the
legal requirements in effect at the time the Agreement was produced. Any
modifications to those requirements will be deemed to automatically
supersede any terms and conditions of this Agreement.
33. Effective Date. If this Agreement or changes or modifications thereto
are subject to approval of a regulatory agency, the "effective date" of
this Agreement for such purposes will be ten (10) Business Days after such
approval or in the event this Agreement is developed in whole or in part
through arbitration, sixty (60) Business Days after such approval. Such
date (i.e., ten (10) or, if arbitrated, sixty (60) Business Days after the
approval) shall become the "effective date" of this Agreement for all
purposes.
34. Regulatory Matters. Each Party shall be responsible for obtaining and
keeping in effect all their own FCC, state regulatory commission,
franchise authority and other regulatory approvals that may be required in
connection with the performance of its obligations under this Agreement.
35. Rule of Construction. No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
36. Section References. Except as otherwise specified, references within an
Article of this Agreement to a Section refer to Sections within that same
Article.
37. Service Standards.
37.1 The Parties shall meet applicable quality of local service standards
imposed by the Commission and will provide a level of services to each
other under this Agreement in compliance with the nondiscrimination
requirements of the Act.
37.2 GTE and DTI agree to implement the performance measures defined in
Appendix A.
37.3 The Parties will alert each other to any network events that can
result or have resulted in service interruption, blocked calls, and/or
changes in network performance.
38. Severability. If any provision of this Agreement is held by a court or
regulatory agency of competent jurisdiction to be unenforceable, the rest
of the Agreement shall remain in full force and effect and shall not be
affected unless removal of that provision results, in the opinion of
either Party, in a material change to this Agreement. If a material
change as described in this paragraph occurs as a result of action by a
court or regulatory agency, the Parties shall negotiate in good faith for
replacement language. If replacement language cannot be agreed upon
within a reasonable period, either Party may terminate this Agreement
without penalty or liability for such termination upon written notice to
the other Party.
39. Subcontractors. Provider may enter into subcontracts with third parties
or affiliates for the performance of any of Provider's duties or
obligations under this Agreement.
40. Subsequent Law. The terms and conditions of this Agreement shall be
subject to any and all applicable laws, rules, or regulations that
subsequently may be prescribed by any federal, state or local governmental
authority. To the extent required by any such subsequently prescribed
law, rule, or regulation, the Parties agree to modify, in writing, the
affected term(s) and condition(s) of this Agreement to bring them into
compliance with such law, rule, or regulation.
41. Taxes. Any state or local excise, sales, or use taxes (excluding any
taxes levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the
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<PAGE> 32
obligation for payment is imposed under applicable law, even if the
obligation to collect and remit such taxes is placed upon the other Party.
The collecting Party shall charge and collect from the obligated Party, and
the obligated Party agrees to pay to the collecting Party, all applicable
taxes, except to the extent that the obligated Party notifies the
collecting Party and provides to the collecting Party appropriate
documentation as GTE requires that qualifies the obligated Party for a full
or partial exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated Party may
contest the same in good faith, at its own expense, and shall be entitled
to the benefit of any refund or recovery, provided that such Party shall
not permit any lien to exist on any asset of the other Party by reason of
the contest. The collecting Party shall cooperate in any such contest by
the other Party. The other Party will indemnify the collecting Party from
any sales or use taxes that may be subsequently levied on payments by the
other Party by the collecting Party.
41.1 Tax - A charge which is statutorily imposed by the state or local
jurisdiction and is either (a) imposed on the seller with the seller
having the right or responsibility to pass the charge(s) on to the
purchaser and the seller is responsible for remitting the charge(s) to
the state or local jurisdiction or (b) imposed on the purchaser with
the seller having an obligation to collect the charge(s) from the
purchaser and remit the charge(s) to the state or local jurisdiction.
Taxes shall include but not be limited to: federal excise tax, state/local
sales and use tax, state/local utility user tax, state/local
telecommunication excise tax, state/local gross receipts tax, and local
school taxes. Taxes shall not include income, income-like, gross receipts
on the revenue of a provider, or property taxes. Taxes shall not include
payroll withholding taxes unless specifically required by statute or
ordinance.
41.2 Fees/Regulatory Surcharges - A charge imposed by a regulatory
authority, other agency, or resulting from a contractual obligation,
in which the seller is responsible or required to collect the
fee/surcharge from the purchaser and the seller is responsible for
remitting the charge to the regulatory authority, other agency, or
contracting party.
Fees/Regulatory Surcharges shall include but not be limited to E911/911,
E311/311, franchise fees, Lifeline, hearing impaired, and Commission
surcharges.
42. Trademarks and Trade Names. Except as specifically set out in this
Agreement, 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 any purpose whatsoever.
43. Waiver. The failure of either Party to insist upon the performance of
any provision of this Agreement, or to exercise any right or privilege
granted to it under this Agreement, shall not be construed as a waiver of
such provision or any provisions of this Agreement, and the same shall
continue in full force and effect.
44. Environmental Responsibility.
44.1 GTE and DTI agree to comply with applicable federal, state and local
environmental and safety laws and regulations including U.S.
Environmental Protection Agency (EPA) regulations issued under the
Clean Air Act, Clean Water Act, Resource Conservation and Recovery
Act, Comprehensive Environmental Response, Compensation and Liability
Act, Superfund Amendments and Reauthorization Act and the Toxic
Substances Control Act and OSHA regulations issued under the
Occupational Safety and Health Act of 1970. Each Party has the
responsibility to notify the other if Compliance inspections occur
and/or
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<PAGE> 33
citations are issued that impact any aspect of this Agreement such as
occurring on a LEC Facility or involving DTI potential employee
exposure.
44.2 GTE and DTI shall provide notice of known and recognized
physical hazards or hazardous chemicals that must include providing
Material Safety Data Sheets (MSDSs) for materials existing on site
or brought on site to the Facility. Each Party is required to
provide specific notice for potential imminent danger conditions
which could include, but is not limited to, a defective utility pole
or significant petroleum contamination in a manhole.
44.3 GTE will make available additional environmental control or
safety procedures for DTI to review and follow when working at a GTE
Facility. Providing these procedures, beyond government regulatory
Compliance requirements, is the decision of GTE. These
practices/procedures will represent the regular work practices
required to be followed by the employees and contractors of GTE for
safety and environmental protection.
44.4 Any materials brought, used or remaining at the Facility by
DTI are owned by DTI. DTI will indemnify GTE for these materials.
No substantial new safety or environmental hazards can be created or
new hazardous materials can be used at a GTE Facility. DTI must
demonstrate adequate emergency response capabilities for its
materials used or remaining at the GTE Facility.
44.5 When Third Party contamination is discovered at a GTE
Facility, the Party uncovering the condition must notify the proper
safety or environmental authority, if required under applicable laws
or regulations. DTI must also notify GTE of Third Party
contamination it discovers at GTE facilities. The cost causer
(requiring access) will become the generator, as owner or operator,
of any waste materials such as petroleum contaminated water, sewage
or manhole sediment. Notwithstanding Section 24 and Section 44.9 of
this Article III, the cost causer (requiring access) shall indemnify
the other Party hereunder.
44.6 DTI should obtain and use its own environmental permits, if
necessary. If GTE's permit or EPA identification number must be
used, DTI must comply with all of GTE's environmental processes
including environmental "best management practices (BMP)" and/or
selection of disposition vendors and disposal sites.
44.7 DTI visitors must comply with GTE security, fire safety,
safety, environmental and building practices/codes including
equivalent employee training when working in GTE facilities.
44.8 GTE and DTI shall coordinate plans or information required to
be submitted to government agencies, such as emergency response
plans and community reporting. If fees are associated with filing,
GTE and DTI must develop a cost sharing procedure.
44.9 Notwithstanding Section 23, with respect to environmental
responsibility under this Section 44, GTE and DTI shall indemnify,
defend and hold harmless the other party from and against any claims
(including, without limitation, Third Party claims for personal
injury or real or personal property damage), judgments, damages
(including direct and indirect damage, and punitive damages),
penalties, fines, forfeitures, cost, liabilities, interest and
losses proximately caused by the indemnifying Party's negligent or
willful misconduct regardless of form, or in connection with the
violation or alleged violation of any applicable requirement with
respect to the presence or alleged presence of contamination arising
out of the indemnifying party's acts or omissions concerning its
operations at the Facility.
44.10 Activities impacting safety or the environment of a Right of
Way must be harmonized with the specific agreement and the
relationship between GTE and the private land
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<PAGE> 34
owner. This could include limitations on equipment access due to
environmental conditions (e.g., wetland area with equipment
restrictions).
45. TBD Prices. Numerous provisions in this Agreement and its Attachments
refer to pricing principles. If a provision references prices in an
Attachment and there are no corresponding prices in such Attachment, such
price shall be considered "To Be Determined" (TBD). With respect to all
TBD prices, prior to DTI ordering any such TBD item, the Parties shall
meet and confer to establish a price. If the Parties are unable to reach
agreement on a price for such item, an interim price shall be set for such
item that is equal to the price for the nearest analogous item for which a
price has been established (for example, if there is not an established
price for a nonrecurring charge (NRC) for a specific network element, the
Parties would use the NRC for the most analogous retail service for which
there is an established price). Any interim prices so set shall be
subject to modification by any subsequent decision of the Commission. If
an interim price is different from the rate subsequently established by
the Commission, any underpayment shall be paid by DTI to GTE, and any
overpayment shall be refunded by GTE to DTI, within 45 Business Days after
the establishment of the price by the Commission.
46. Amendment of Certain Rates, Terms and Conditions. The Parties agree as
follows with respect to modification of the rates, terms and conditions
initially provided for herein:
The rates, terms and conditions that are specified in Appendix 46A (the
"GTE Terms") may be replaced by the rates, terms and conditions from the
GTE/OtherCLEC Interconnection, Resale and Unbundling Agreement (the
"OtherCLEC Agreements"), respectively, that are specified in Appendix 46B
(the "OtherCLEC Terms") if and when the OtherCLEC Agreement becomes
effective after approval by order of the Commission in Case No. . The
rates, terms and conditions that are specified in Appendix 46B (the
OtherCLEC Terms) shall not take effect for purposes of this Agreement until
thirty (30) days following GTE's receipt of written notice of DTI's
election to replace the specified GTE Terms with the specified OtherCLEC
Terms, which notice may be given no earlier than the date the OtherCLEC
Agreement is approved by the Commission and effective. GTE and DTI agree
that if the OtherCLEC Terms are deemed to be unlawful, or are stayed,
enjoined or otherwise modified, in whole or in part, by a court or
commission of competent jurisdiction, then this Agreement shall be deemed
to have been amended accordingly, by modification of the OtherCLEC Terms
or, as appropriate, the substitution of GTE Terms for all stayed or
enjoined OtherCLEC Terms, and such amendment shall be effective retroactive
to the Effective Date of the OtherCLEC Terms.
GTE and DTI further agree that the terms and conditions of this Agreement
reflect certain requirements of the FCC's First Report and Order in CC
Docket No. 96-98. The terms and conditions of this Agreement shall be
subject to any and all actions by any court or other governmental authority
that invalidate, stay, vacate or otherwise modify the FCC's First Report
and Order, in whole or in part ("subsequent action"). To the extent
warranted by any such subsequent action, the Parties agree that this
Agreement shall be deemed to have been modified accordingly as in the first
paragraph of this Section 46. The Parties agree to immediately apply any
effected terms and conditions, including any in other sections and articles
of this Agreement consistent with such subsequent action, and within a
reasonable time incorporate such modified terms and conditions in writing
into this Agreement. If the OtherCLEC Terms are affected by such
subsequent action and GTE determines they cannot be consistently applied
therewith, the GTE Terms shall apply. DTI acknowledges that GTE may seek
to enforce such subsequent action before a commission or court of competent
jurisdiction. GTE does not waive any position regarding the illegality or
inappropriateness of the FCC's First Report and Order.
The rates, terms and conditions (including rates which may be applicable
under true-up) specified in both the GTE Terms and the OtherCLEC Terms are
further subject to amendment,
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<PAGE> 35
retroactive to the Effective Date of the Agreement, to provide for charges
or rate adjustments resulting from future Commission or other proceedings,
including but not limited to any generic proceeding to determine GTE's
unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's end
user surcharge)), the establishment of a competitively neutral universal
service system, or any appeal or other litigation.
If the Commission (or any other commission or federal or state court) in
reviewing this Agreement pursuant to applicable state or federal laws,
including Section 252(e) of the Telecommunications Act of 1996, deletes or
modifies in any way this Section 46, then the Parties agree that they will
reopen negotiations within ten (10) days after receipt of the final
decision making such deletion or modification in order to attempt to craft
the new provision that will provide substantially the same protections to
GTE and DTI as this Section 46. If the Parties cannot reach agreement on
such a provision within twenty (20) calendar days thereafter, the Parties
agree that this entire Agreement is void and will not become effective, and
DTI agrees to withdraw this Agreement from consideration by the Commission
(or any other commission or federal or state court). In such event, each
Party shall have 25 days following the close of the 20-day negotiation
period within which to file a petition for arbitration before the
Commission under Section 252(e) of the Telecommunications Act of 1996 of
the issues that remain in dispute under this paragraph.
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ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS
1. General. General regulations, terms and conditions governing rate
applications, technical parameters, service availability, definitions and
feature interactions, as described in the appropriate GTE intrastate
local, toll and access tariffs, apply to retail services made available by
GTE to DTI for resale and unbundled network elements provided by GTE to
DTI, when appropriate, unless otherwise specified in this Agreement. As
applied to services or network elements offered under this Agreement, the
term "Customer" contained in the GTE Retail Tariff shall be deemed to mean
"DTI" as defined in this Agreement.
2. Liability of GTE.
2.1 Inapplicability of Tariff Liability. GTE's general liability, as
described in the GTE Retail Tariff, does not extend to DTI's customers
or any other Third Party. Liability of GTE to DTI resulting from any
and all causes arising out of services, facilities, network elements
or any other items relating to this Agreement shall be governed by the
liability provisions contained in this Agreement and no other
liability whatsoever shall attach to GTE. GTE shall be liable for the
individual services, facilities or elements that it separately
provides to DTI and shall not be liable for the integration of
components combined by DTI.
2.2 DTI Tariffs or Contracts. DTI shall, in its tariffs or other
contracts for services provided to its end users using services,
facilities or network elements obtained from GTE, provide that in no
case shall GTE be liable to DTI's end users or any third parties for
any indirect, special or consequential damages, including, but not
limited to, economic loss or lost business or profits, whether
foreseeable or not, and regardless of notification by DTI of the
possibility of such damages and DTI shall indemnify and hold GTE
harmless from any and all claims, demands, causes of action and
liabilities based on any reason whatsoever from its customers as
provided in this Agreement. Nothing in this Agreement shall be deemed
to create a third party beneficiary relationship with DTI's end users.
2.3 No Liability for Errors. GTE is not liable for mistakes that appear
in GTE's listings, 911 and other information databases, or for
incorrect referrals of end users to DTI for any ongoing DTI service,
sales or repair inquiries, and with respect to such mistakes or
incorrect referrals, DTI shall indemnify and hold GTE harmless from
any and all claims, demands, causes of action and liabilities
whatsoever, including costs, expenses and reasonable attorney's fees
incurred on account thereof, by third parties, including DTI's end
users or employees. For purposes of this Section 2.3, mistakes and
incorrect referrals shall not include matters arising out of the
willful misconduct of GTE or its employees or agents.
3. Unauthorized Changes.
3.1 Procedures. If DTI submits an order for resold services or unbundled
elements under this Agreement in order to provide service to an end
user that at the time the order is submitted is obtaining its local
services from GTE or another LEC using GTE resold services or
unbundled elements, and the end user notifies GTE that the end user
did not authorize DTI to provide local exchange services to the end
user, DTI must provide GTE with written documentation of authorization
from that end user within thirty (30) Business Days of notification by
GTE. If DTI cannot provide written documentation of authorization
within such time frame, DTI must within three (3) Business Days
thereafter:
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(a) notify GTE to change the end user back to the LEC providing service to
the end user before the change to DTI was made; and
(b) provide any end user information and billing records DTI has obtained
relating to the end user to the LEC previously serving the end user;
and
(c) notify the end user and GTE that the change back to the previous LEC
has been made.
Furthermore, GTE will bill DTI fifty dollars ($50.00) per affected line to
compensate GTE for switching the end user back to the original LEC.
3.2 Option to Restrict Changes Without Evidence of Authorization. DTI's or
GTE's end users may request GTE to permit changes of their provider of
local exchange services only upon end user written notification to GTE
that the end user wishes to change the end user's provider of local
exchange services. In such a situation, GTE will not change an end
user's provider of local exchange services without such written
notification.
4. Impact of Payment of Charges on Service. DTI is solely responsible for
the payment of all charges for all services, facilities and elements
furnished under this Agreement, including, but not limited to, calls
originated or accepted at its or its end users' service locations. If DTI
fails to pay when due any and all charges billed to DTI under this
Agreement, including any late payment charges (collectively, "Unpaid
Charges"), and any or all such charges remain unpaid more than forty-five
(45) Business Days after the due date of such Unpaid Charges excepting
previously disputed charges for which DTI may withhold payment, GTE shall
notify DTI in writing that it must pay all Unpaid Charges to GTE within
seven (7) Business Days. If DTI disputes the billed charges, it shall,
within said seven (7) day period, inform GTE in writing of which portion
of the Unpaid Charges it disputes, including the specific details and
reasons for the dispute, unless such reasons have been previously
provided, and shall immediately pay to GTE all undisputed charges. If DTI
and GTE are unable, within thirty (30) Business Days thereafter, to
resolve issues related to the disputed charges, then either DTI or GTE may
file a request for arbitration under Article III of this Agreement to
resolve those issues. Upon resolution of any dispute hereunder, if DTI
owes payment it shall make such payment to GTE with any late payment
charge under Article III, Section 7.2, from the original payment due date.
If DTI owes no payment, but has previously paid GTE such disputed
payment, then GTE shall credit such payment including any late payment
charges. If DTI fails to pay any undisputed Unpaid Charges, DTI shall, at
its sole expense, within five (5) Business Days notify its end users that
their service may be disconnected for DTI's failure to pay Unpaid Charges,
and that its end users must select a new provider of local exchange
services. If DTI fails to provide such notification or any of DTI's end
users fail to select a new provider of services within the applicable time
period, GTE will provide local exchange services to DTI's end users under
GTE's applicable end user tariff at the then current charges for the
services being provided. In this circumstance, otherwise applicable
service establishment charges will not apply to DTI's end user, but will
be assessed to DTI. GTE may discontinue service to DTI upon failure to
pay undisputed charges as provided in this Section 4, and shall have no
liability to DTI or DTI's end users in the event of such disconnection.
5. Unlawful Use of Service. Services, facilities or unbundled elements
provided by GTE pursuant to this Agreement shall not be used by DTI or its
end users for any purpose in violation of law. DTI, and not GTE, shall be
responsible to ensure that DTI and its end users use of services,
facilities or unbundled elements provided hereunder comply at all times
with all applicable laws. GTE may refuse to furnish service to DTI or
disconnect particular services, facilities or unbundled elements provided
under this Agreement to DTI or, as appropriate, DTI's end user when (i) an
order is issued by a court of competent jurisdiction finding that probable
cause exists to believe that the use made or to be made of the service,
facilities or unbundled elements is prohibited by
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law or (ii) GTE is notified in writing by a law enforcement agency acting
within its jurisdiction that any facility furnished by GTE is being used or
will be used for the purpose of transmitting or receiving gambling
information in interstate or foreign commerce in violation of law.
Termination of service shall take place after reasonable notice is provided
to DTI, or as ordered by the court. If facilities have been physically
disconnected by law enforcement officials at the premises where located,
and if there is not presented to GTE the written finding of a court, then
upon request of DTI and agreement to pay restoral of service charges and
other applicable service charges, GTE shall promptly restore such service.
6. Timing of Messages. With respect to GTE resold measured rate local
service(s), chargeable time begins when a connection is established
between the calling station and the called station. Chargeable time ends
when the calling station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the calling station does
not, chargeable time ends when the network connection is released by
automatic timing equipment in the network. Timing of messages applicable
to GTE's Port and Local Switching element (usage sensitive services) will
be recorded based on originating and terminating access.
7. Procedures For Preordering, Ordering, Provisioning, Etc. Certain
procedures for preordering, ordering, provisioning, maintenance and
billing and electronic interfaces for many of these functions are
described in Appendix I. All costs and expenses for any new or modified
electronic interfaces DTI requires that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI pursuant to
Appendix I. The schedule for implementation of any new or modified
electronic interfaces will be developed by GTE according to industry
standards and will be based upon the amount of work needed to design, test
and implement the new or modified interface.
8. Customer Contacts. Except as otherwise provided in this Agreement or as
agreed to in a separate writing by DTI, DTI shall provide the exclusive
interface with DTI's end user customers in connection with the marketing
or offering of DTI services. Except as otherwise provided in this
Agreement, in those instances in which GTE personnel are required pursuant
to this Agreement to interface directly with DTI's end users, such
personnel shall not identify themselves as representing GTE. All forms,
business cards or other business materials furnished by GTE to DTI end
users shall bear no corporate name, logo, trademark or trade name other
than DTI's. In no event shall GTE personnel acting on behalf of DTI
pursuant to this Agreement provide information to DTI end users about GTE
products or services.
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ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC
1. Services Covered by This Article.
1.1 Types of Services. This Article governs the provision of internetwork
facilities (i.e., physical interconnection services and facilities),
meet point billing by GTE to DTI or by DTI to GTE and the transport
and termination and billing of Local, IntraLATA Toll, optional EAS
traffic and jointly provided Interexchange Carrier Access between GTE
and DTI. The services and facilities described in this Article shall
be referred to in this Article V as the "Services."
1.2 Service Locations for Interconnection Services and Facilities.
Appendix B, Service Matrix, attached to this Agreement and made a part
hereof, sets forth the Services and each location in the State where a
Service shall be provided (the "Service Locations") and the
Interconnection Point ("IP") for such Services.
1.3 Additional Services or Service Locations. If, during the term of this
Agreement, the parties determine that additional services are needed
in the State, or existing Services will be offered in new locations in
the State, the Parties shall execute an amendment to this Agreement
substantially in the form of Appendix C attached to this Agreement and
made a part hereof, incorporating the additional locations and/or any
additional terms necessary for the additional services. Upon the
effective date of the amendment, and continuing through the remaining
term of this Agreement, the new services shall be deemed part of the
Services provided pursuant to this Article and/or the new locations
shall be deemed part of the Service Locations.
2. Billing and Rates.
2.1 Rates and Charges. Customer agrees to pay to Provider the rates and
charges for the Services set forth in the applicable appendices to
this Agreement. GTE's rates and charges are set forth in Appendix D
attached to this Agreement and made a part hereof. DTI's separate
rates and charges are also set forth in Appendix D attached hereto and
made a part hereof.
2.2 Billing. Provider shall render to Customer a bill for interconnection
services on a current basis. Charges for physical facilities and
other nonusage sensitive charges shall be billed in advance, except
for charges and credits associated with the initial or final bills.
Usage sensitive charges, such as charges for termination of Local
Traffic, shall be billed in arrears. DTI is required to order trunks
pursuant to Section 4.3.3 of this Article. Charges for traffic that
has been routed over a jurisdictionally inappropriate trunk group
(e.g., local traffic carried over trunks used for Switched Access
Traffic) may be adjusted to reflect the appropriate compensation
arrangement and may be handled as a post-billing adjustment to bills
rendered. Additional matters relating to billing are included in
Appendix I attached to this Agreement and made a part hereof.
3. Transport and Termination of Traffic.
3.1 Traffic to be Exchanged. The Parties shall reciprocally terminate
Local, IntraLATA Toll, optional EAS and jointly provided Interexchange
Carrier Traffic originating on each other's networks utilizing either
Direct or Indirect Network Interconnections as provided in Section 4
or Section 5 herein. To this end, the Parties agree that there will
be interoperability between their networks. The Parties agree to
exchange traffic associated with Third-Party
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LECs, CLECs and Wireless Service Providers pursuant to the
compensation arrangement specified in Section 3.3 herein. Only
traffic originated by or terminating to the Parties' end user
customers is to be exchanged. In addition, the Parties will notify
each other of any anticipated change in traffic to be exchanged (e.g.,
traffic type, volume).
3.2 Compensation For Exchange Of Traffic.
3.2.1 Mutual Compensation. The Parties shall compensate each other
for the exchange of Local Traffic in accordance with Section
3.2.2 of this Article. The Parties will develop an initial
factor representative of the share of traffic exempt from local
compensation. This factor will be updated quarterly in like
manner or as the Parties otherwise agree. Once the traffic that
is exempt from local compensation can be measured, the actual
exempt traffic will be used rather than the above factor.
Charges for the transport and termination of intraLATA toll and
interexchange traffic shall be in accordance with the Parties'
respective intrastate or interstate access tariffs, as
appropriate
3.2.2 Bill-and-Keep. The Parties shall assume that Local Traffic is
roughly balanced between the parties unless traffic studies
indicate otherwise. Accordingly, the Parties agree to use a
Bill-and-Keep Arrangement with respect to termination of Local
Traffic only. Either Party may request that a traffic study be
performed no more frequently than once a quarter. Should such
traffic study indicate, in the aggregate, that either Party is
terminating more than 60 percent of the Parties' total
terminated minutes for Local Traffic, either Party may notify
the other that mutual compensation will commence pursuant to the
rates set forth in Appendix D of this Agreement and following
such notice it shall begin and continue for the duration of the
Term of this Agreement unless otherwise agreed. To account for
ISP traffic, the Parties will negotiate an initial factor(s)
representative of the proportionate share of traffic exempt from
local compensation. This factor will be updated quarterly in a
like manner or as the Parties otherwise agree. Once the traffic
that is exempt from local compensation can be measured, the
actual exempt traffic will be used rather than the above factor.
Nothing in this Section 3.2.2 shall be interpreted to (i) change
compensation set forth in this Agreement for traffic or services
other than Local Traffic, including but not limited to
internetwork facilities, access traffic or wireless traffic, or
(ii) allow either Party to aggregate traffic other than Local
Traffic for the purpose of compensation under the Bill-and-Keep
Arrangement described in this Section 3.2.2, except as set forth
in Section 3.1 above.
3.2.3 Sharing of Access Charges on Calls to Ported Numbers. Until
permanent number portability is implemented, the Parties agree
that switched access termination to a ported number will be
billed by the party providing interim number portability and
that the party billing the switched access will share the
switched access revenue with the other party. After permanent
number portability is implemented, the Parties agree to
renegotiate sharing of access charges to ported numbers in
accordance with permanent number portability requirements. In
lieu of actual measurements of minutes and/exchange of billing
records for this traffic the Parties agree that the Party
providing the ported number will pay the other Party the rate
per line/per month as specified in Appendix E.
(a) The number of lines/talk paths per ported number that are
subject to compensation will be determined at the time the
end user customer's local service is changed from one party
to the other. The number of lines per number eligible for
the shared revenue arrangement described
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in this section will be limited to the number of lines in
service on the date of conversion plus a 10% growth margin.
After conversion the number of lines per number available
for compensation can only be increased by mutual consent of
the parties.
(b) The Parties agree that the compensation rate in paragraph
3.3.3 may change as a result of changes in access rates,
traffic volume or for other reasons and agree to
renegotiate the rate if a significant event occurs. At a
minimum, the parties agree to reevaluate the rate on an
annual basis.
(c) The Parties agree that terminating switched access calls
ported via interim number portability may appear to the
receiving party to be a local call and that the
implementation of reciprocal compensation for terminating
local calls may result in overcompensation for ported
switched access calls. Therefore, the Parties agree to
renegotiate the terminating shared access compensation rate
if reciprocal compensation for local calls is implemented.
3.3 Tandem Switching Traffic. The Parties will provide tandem switching
for traffic between the Parties' end offices subtending each other's
access tandem, as well as for traffic between either Party's end users
and any Third Party which is interconnected to the other Party's
access tandems as follows:
3.3.1 The originating Party will compensate the tandem Party for each
minute of originated tandem switched traffic which terminates to
Third Party (e.g., other CLEC, ILEC, or wireless service
provider). The applicable rate for this charge is identified in
Appendix D.
3.3.2 The originating Party also assumes responsibility for
compensation to the company which terminates the call.
3.4 Inter-Tandem Switching. The Parties will only use inter-tandem
switching for the transport and termination of local/EAS or intraLATA
toll traffic originating on each other's network at and after such
time as either (I) DTI has agreed to and fully implemented an existing
intraLATA toll compensation mechanism such as IntraLATA Terminating
Access Compensation (ITAC) or a functional equivalent thereof or (ii)
generally accepted industry signaling standards and AMA record
standards support the recognition of multiple tandem switching events.
4. Direct Network Interconnection.
4.1 Network Interconnection Architecture. DTI may interconnect with GTE
at any of the minimum technically feasible points required by the FCC.
Interconnection at additional points will be reviewed on an individual
case basis. Where the Parties mutually agree following a Bona Fide
Request to directly interconnect their respective networks,
interconnection will be as specified in the following subsections.
The "IPs" shall be set forth in Appendix B attached to this Agreement
and made a part hereof. Based on the configuration, the installation
timeline will vary considerably, however, GTE will work with DTI in
all circumstances to install "IPs" within 120 calendar days absent
extenuating circumstances. Internetwork connection and protocol must
be based on industry standards developed consistent with Section 256
of the Telecommunications Act of 1996.
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4.1.1 Subject to mutual agreement, the Parties may use the following
types of network facility interconnection, using such interface
media as are (I) appropriate to support the type of
interconnection requested and (ii) available at the facility at
which interconnection is requested. For each "IP" set forth in
Appendix B, the Parties shall specify the type of
interconnection used at that "IP."
(a) A Mid-Span Fiber Meet within an existing GTE exchange area
whereby the Parties mutually agree to jointly plan and
engineer their facility "IP" at a designated manhole or
junction location. The "IP" is the demarcation between
ownership of the fiber transmission facility. Each party
is individually responsible for its incurred costs in
establishing this arrangement.
(b) A Virtual or Physical EIS arrangement at a GTE wire center
subject to the rates, terms, and conditions contained in
GTE's applicable tariffs.
(c) A Special Access arrangement and/or Switched Transport
terminating at a GTE wire center subject to the rates,
terms, and conditions contained in GTE's applicable
tariffs. These facilities will meet the standards set
forth in such tariffs.
4.1.2 Virtual and Physical EIS arrangements are governed by
appropriate GTE tariffs, except as provided in Article IX,
Section 1.3.
4.1.3 The Parties will mutually designate at least one POI on GTE's
network within each GTE local calling area for the routing of
Local Traffic. Recording and billing of traffic routed over
these facilities shall be as provided in Section 3.4 of this
Article.
4.2 Compensation. The Parties agree to the following compensation for
internetwork facilities, depending on facility type.
4.2.1 Mid-Span Fiber Meet: GTE will charge special access (flat
rated) transport from the applicable intrastate access tariff
and will rate charges between the "IP" and GTE's interconnection
switch. Charges will be reduced to reflect the proportionate
share of the facility that is used for transport of traffic
originated by GTE. DTI will charge flat rated transport to GTE
for DTI facilities used by GTE at their tariffed rates or as
mutually agreed, not to exceed GTE rates. DTI will apply charges
based on the lesser of; (i) the airline mileage from the "IP" to
the DTI switch; or (ii) the airline mileage from the GTE switch
to the serving area boundary.
4.2.2 Collocation: GTE will charge Virtual or Physical EIS rates from
the applicable GTE tariff. DTI will charge GTE flat rated
transport at their tariffed rates or as mutually agreed, not to
exceed GTE rates, to reflect the proportionate share of the
facility that is used for transport of traffic originated by
GTE. DTI will apply charges based on the lesser of; (l) the
airline mileage from the "IP" to the DTI switch; or (ii) two (2)
times the airline mileage from the GTE switch to the serving
area boundary.
4.2.3 Special Access and/or Switched Access: GTE will charge special
access and/or switched access rates from the applicable GTE
intrastate access tariff. Charges will be reduced to reflect
the proportionate share of the facility that is used for
transport of traffic originated by GTE. The Parties will
negotiate an initial factor representative of the proportionate
share of the facilities. This factor will be updated quarterly
in like manner or as the Parties otherwise agree.
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4.3 Trunking Requirements.
4.3.1 The Parties agree to establish trunk groups of sufficient
capacity from the interconnecting facilities such that trunking
is available to any switching center designated by either Party,
including end offices, tandems, 911 routing switches, and
directory assistance/operator service switches. The Parties will
mutually agree where one-way or two-way trunking will be
available. The Parties may use two-way trunks for delivery of
local traffic or either Party may elect to provision its own
one-way trunks for delivery of local traffic to the other Party.
If a Party elects to provision its own one-way trunks, that
Party will be responsible for its own expenses associated with
the trunks.
4.3.2 DTI shall make available to GTE trunks over which GTE shall
terminate to end users of DTI-provided Exchange Services, Local
Traffic and intraLATA toll or optional EAS traffic originated
from end users of GTE-provided Exchange Service.
4.3.3 DTI and GTE shall, where applicable, make reciprocally
available, by mutual agreement, the required trunk groups to
handle different traffic types. DTI and GTE will support the
provisioning of trunk groups that carry combined or separate
Local Traffic and intraLATA toll and optional EAS traffic. GTE
requires separate trunk groups from DTI to originate and
terminate interLATA calls and to provide Switched Access Service
to IXCs. To the extent DTI desires to have any Interexchange
Carriers (IC) originate or terminate traffic to DTI, DTI will
arrange for such IC to issue an ASR to GTE instructing GTE to
route such traffic over the appropriate IC trunk group. Until
GTE receives and processes such ASR, the traffic will not be
routed.
4.3.3.1 Each Party agrees to route traffic only over the proper
jurisdictional trunk group.
4.3.3.2 Each Party shall only deliver traffic over the local
interconnection trunk groups to the other Party's access
tandem for those publicly-dialable NXX Codes served by
end offices that directly subtend the access tandem or
to those wireless service providers that directly
subtend the access tandem.
4.3.3.3 Neither party shall route Switched Access Service
traffic over local interconnection trunks, or local
traffic over Switched Access Service trunks.
4.3.4 DTI and GTE will reciprocally provide Percent Local Usage (PLU)
factors to each other on a quarterly basis to identify the
proper jurisdiction of each call type that is carried over the
required trunks.
4.3.5 Reciprocal traffic exchange arrangement trunk connections shall
be made at a DS-1 or multiple DS-1 level, DS-3, (SONET where
technically available) and shall be jointly-engineered to an
objective P.01 grade of service.
4.3.6 DTI and GTE agree to use diligent efforts to develop and agree
on a Joint Interconnection Grooming Plan prescribing standards
to ensure that the reciprocal traffic exchange arrangement trunk
groups are maintained at consistent P.01 or better grades of
service. Such plan shall also include mutually-agreed upon
default standards for the configuration of all segregated trunk
groups.
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4.3.7 Signaling System 7 (SS7) Common Channel Signaling will be used
to the extent that such technology is available.
4.3.8 The Parties agree to offer and provide to each other B8ZS
Extended Superframe Format ("ESF") facilities, where available,
capable of voice and data traffic transmission.
4.3.9 The Parties will support intercompany 64kbps clear channel where
available.
4.4 Network Redesigns Initiated by GTE. GTE will not charge DTI when GTE
initiates its own network redesigns/reconfigurations.
4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection.
4.5.1 GTE Access Tandem Interconnection calling scope (originating and
terminating) is to those GTE end offices which subtend the GTE
access tandem to which the connection is made except as provided
for in Section 3.3 of this Article V.
4.5.2 GTE End Office Interconnection calling scope (originating and
terminating) is only to the end office to which the connection
is made.
5. Indirect Network Interconnection. Neither Party shall deliver traffic
destined to terminate at the other Party's end office via another LEC's end
office. In addition, neither Party shall deliver traffic destined to
terminate at an end office subtending the other Party's access tandem via
another LEC's access tandem until such time as compensation arrangements
have been established in accordance with this Article V, Sections 3.1 and
3.4.
6. Number Resources.
6.1 Number Assignment. Nothing in this Agreement shall be construed to,
in any manner, limit or otherwise adversely impact DTI's right to
employ or to request and be assigned any NANP number resources
including, but not limited to, Central Office (NXX) Codes pursuant to
the Central Office Code Assignment Guidelines. Any request for
numbering resources by DTI shall be made directly to the NANP Number
Plan Administrator. Except with respect to those areas in which GTE
is the NANP Number Plan Administrator, GTE shall not be responsible
for the requesting or assignment of number resources to DTI. The
Parties agree that disputes arising from numbering assignment shall be
arbitrated by the NANP Number Plan Administrator. DTI shall not
request number resources to be assigned to any GTE switching entity.
6.1.1 Each Party shall be responsible for notifying its customers of
any changes in numbering or dialing arrangements to include
changes such as the introduction of new NPAs or new NXX codes.
Each Party is responsible for administering NXX codes assigned
to it.
6.2 Rate Centers. For purposes of compensation between the Parties and
the ability of GTE to appropriately apply its toll tariff to its end
user customers, DTI shall adopt the Rate Center areas and Rate Center
points that the Commission has approved for the incumbent LEC and
shall assign whole NPA-NXX codes to each Rate Center.
6.3 Routing Points. DTI will also designate a Routing Point for each
assigned NXX code. DTI may designate one location within each Rate
Center as a Routing Point for the NPA-NXX associated with that Rate
Center; alternatively DTI may designate a single location within
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one Rate Center to serve as the Routing Point for all the NPA-NXXs
associated with that Rate Center and with one or more other Rate
Centers served by DTI within an existing GTE exchange area and LATA.
6.4 Code and Numbers Administration. The Parties will comply with code
administration requirements as prescribed by the FCC, the Commission,
and accepted industry guidelines. Where GTE is the NANP Number Plan
Administrator, GTE will administer number resources, and charge for
such administration in accord with applicable rules and regulations.
GTE will administer numbering resources in a competitively neutral
manner, and process requests for NXX codes in a timely manner and in
accord with industry standards. The Parties shall protect DTI
proprietary information that may be submitted to GTE in connection
with GTE's responsibilities as NANP Number Plan Administrator in
accordance with Article III, Section 11 of this Agreement.
6.5 Programming Switches. It shall be the responsibility of each Party to
program and update its own switches and network systems pursuant to
the Local Exchange Routing Guide ("LERG") guidelines to recognize and
route traffic to the other Party's assigned NXX codes at all times.
Neither Party shall impose any fees or charges whatsoever on the other
Party for such activities.
7. Interim Number Portability (INP). Each Party shall provide the other Party
with INP for the purpose of allowing end user customers to change
service-providing Parties without changing their telephone number. GTE
shall provide its INP to DTI using remote call forwarding ("RCF"). The GTE
rates for INP service using RCF are set out in Appendix E attached to this
Agreement and made a part hereof. If DTI wishes to use Direct Inward
Dialing ("DID") to provide INP to its end users, DTI may purchase DID
service from GTE at the rate specified in the appropriate GTE tariff. DTI
shall provide INP to GTE at the rates specified for DTI in Appendix E.
8. Meet-Point Billing.
8.1 Meet-Point Arrangements.
8.1.1 The Parties may mutually establish Meet-Point Billing ("MPB")
arrangements in order to provide Switched Access Services to
Access Service customers via a GTE access tandem in accordance
with the MPB guidelines adopted by and contained in the Ordering
and Billing Forum's MECAB and MECOD documents, except as
modified herein and as described in Section 3.2.3 for Interim
Portability.
8.1.2 Except in instances of capacity limitations, GTE shall permit
and enable DTI to sub-tend the GTE access tandem(s) nearest to
the DTI Rating Point(s) associated with the NPA-NXX(s) to/from
which the Switched Access Services are homed. In instances of
capacity limitation at a given access tandem, DTI shall be
allowed to subtend the next-nearest GTE access tandem in which
sufficient capacity is available.
8.1.3 Interconnection for the MPB arrangement shall occur at the "IP".
8.1.4 Common Channel Signaling shall be utilized in conjunction with
MPB arrangements to the extent such signaling is resident in the
GTE access tandem switch.
8.1.5 DTI and GTE will use diligent efforts, individually and
collectively, to maintain provisions in their respective federal
and state access tariffs, and/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.
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8.1.6 As detailed in the MECAB document, DTI and GTE will, in a timely
fashion, exchange all information necessary to accurately,
reliably and promptly bill Access Service customers for Switched
Access Services traffic jointly handled by DTI and GTE via the
meet-point arrangement. Information shall be exchanged in
Electronic Message Record ("EMR") format, on magnetic tape or
via a mutually acceptable electronic file transfer protocol.
8.1.7 DTI and GTE shall work cooperatively to coordinate rendering of
Meet-Point bills to customers, and shall reciprocally provide
each other usage data and related information at the appropriate
charge.
8.2 Compensation.
8.2.1 Initially, billing to Access Service customers for the Switched
Access Services jointly provided by DTI and GTE via the MPB
arrangement shall be according to the multiple-bill method as
described in the MECAB guidelines. This means each Party will
bill the portion of service they provided at their appropriate
tariff, or price list.
8.2.2 Subsequently, DTI and GTE may mutually agree to implement one of
the following options for billing to third parties for the
Switched Access Services jointly provided by DTI and GTE via the
MPB arrangement: single-bill/single tariff method,
single-bill/multiple tariff method, or to continue the
multiple-bill method. Should either Party prefer to change
among these billing methods, that Party shall notify the other
Party of such a request in writing, ninety (90) Business Days in
advance of the date on which such change is desired to be
implemented, such changes then may be made in accordance with
MECAB guidelines and if the Parties mutually agree, the change
will be made.
9. Common Channel Signaling.
9.1 Service Description. The Parties will provide Common Channel
Signaling ("CCS") to one another via Signaling System 7 ("SS7")
network interconnection, where and as available, in the manner
specified in FCC Order 95-187, in conjunction with all traffic
exchange trunk groups. SS7 signaling and transport services shall be
provided by GTE in accordance with the terms and conditions of this
Section 9 of this Article and Appendix J attached to this Agreement
and made a part hereof. The Parties will cooperate on the exchange of
all appropriate SS7 messages for local and intraLATA call set-up
signaling, including ISUP and Transaction Capabilities Application
Part ("TCAP") messages to facilitate full interoperability of all
CLASS Features and functions between their respective networks. Any
other SS7 message services to be provided using TCAP messages (such as
data base queries) will be jointly negotiated and agreed upon.
9.2 Signaling Parameters. All SS7 signaling parameters will be provided
in conjunction with traffic exchange trunk groups, where and as
available. These parameters include Automatic Number Identification
("ANI"), Calling Party Number ("CPN"), Privacy Indicator, calling
party category information, originating line information, charge
number, etc. Also included are all parameters relating to network
signaling information, such as Carrier Information Parameter ("CIP"),
wherever such information is needed for call routing or billing. GTE
will provide SS7 via GR-394 SS7 and/or GR-317-SS7 format(s).
9.3 Privacy Indicators. Each Party will honor all privacy indicators as
required under applicable law.
9.4 Connection Through STP. DTI must interconnect with the GTE STP(s)
serving the LATA in which the traffic exchange trunk groups are
interconnected. Additionally, all interconnection to GTE's 800/888
database and GTE's LIDB shall, consistent with this section and
Appendix J attached hereto, take place only through appropriate STP
pairs.
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9.5 Third Party Signaling Providers. DTI may choose a third-party SS7
signaling provider to transport messages to and from the GTE SS7
network. In that event, that third-party provider must present a
letter of agency to GTE, prior to the testing of the interconnection,
authorizing the Third Party to act on behalf of DTI in transporting
SS7 messages to and from GTE. The third-party provider must
interconnect with the GTE STP(s) serving the LATA in which the traffic
exchange trunk groups are interconnected.
9.6 Multi-Frequency Signaling. In the case where CCS is not available, in
band Multi-Frequency ("MF"), wink start, E & M channel associated
signaling with ANI will be provided by the Parties. Network signaling
information, such as CIC/OZZ, will be provided wherever such
information is needed for call routing or billing.
10. Service Quality and Performance. Each Party shall provide Services
under this Article to the other Party that are equal in quality to
that the Party provides to itself, its Affiliates or any other entity.
"Equal in quality" shall mean that the Service will meet the same
technical criteria and performance standards that the providing Party
uses within its own network for the same Service at the same location
under the same terms and conditions.
11. Network Outages. GTE shall work with DTI to establish reciprocal
responsibilities for managing network outages and reporting. Each
party shall be responsible for network outage as a result of
termination of its equipment in GTE wire center or access tandem. DTI
shall be responsible for notifying GTE of significant outages which
could impact or degrade GTE switches and services.
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ARTICLE VI
RESALE OF SERVICES
1. General. The purpose of this Article VI is to define the Exchange
Services and related Vertical Features and other Services (collectively
referred to for purposes of this Article VI as the "Services") that may be
purchased from GTE and resold by DTI and the terms and conditions
applicable to such resold Services. Except as specifically provided
otherwise in this Agreement, provisioning of Exchange Services for resale
will be governed by the GTE Guide. GTE will make available to DTI for
resale any Telecommunications Service that GTE currently offers, or may
offer hereafter, on a retail basis to subscribers that are not
telecommunications carriers, except as qualified by Section 2.2 below.
2. Terms and Conditions.
2.1 Quality and Performance. GTE shall provide Services to DTI that are
equal in quality and performance standards to the same Services
provided by GTE to its own end user customers.
2.2 Restrictions on Resale. The following restrictions shall apply to the
resale of retail services by DTI.
2.2.1 DTI shall not resell Basic Exchange Residential Service.
2.2.2 DTI shall not resell to one class of customers a service that is
offered by GTE only to another class of customers in accordance
with State requirements (e.g., R-1 to B-1, disabled services or
Lifeline services to non-qualifying customers).
2.2.3 DTI shall not resell public pay telephone lines.
2.2.4 DTI shall not resell semi-public pay telephone lines.
2.3 Restrictions on Discount of Retail Services. The discount specified
in Section 5.3 herein shall apply to all retail services except for
the following:
2.3.1 DTI shall resell services that are provided at a volume discount
in accordance with terms and conditions of applicable tariff.
DTI shall not aggregate end user traffic in order to qualify for
volume discount.
2.3.2 DTI shall resell ICB/Contract services without a discount and
only to end user customers that already have such services.
2.3.3 DTI shall resell COCOT coin or coinless line but no discount
applies.
2.3.4 DTI shall resell Lifeline services and services for the disabled
but no discount shall apply and they shall only be resold to end
user customers who qualify under GTE's tariffs and
state/Commission rules, orders and regulations.
2.3.5 DTI shall resell special access but no discount applies.
2.3.6 DTI shall resell Operator Services and Directory Assistance as
specified in Section 5.6 herein however no discount applies.
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<PAGE> 49
2.3.7 DTI shall resell promotional offerings that are ninety (90) days
or less in duration without a discount.
2.4 Resale to Other Carriers. Services available for resale may not be
used by DTI to provide access to the local network as an alternative
to tariffed switched and special access by other carriers, including,
but not limited to; interexchange carriers, wireless carriers,
competitive access providers, or other retail telecommunications
providers.
3. Ordering and Billing.
3.1 Local Service Request. Orders for resale of Services will be placed
utilizing a standard Local Service Request ("LSR") form. GTE will
continue to participate in industry forums for developing service
order/disconnect order formats and will incorporate appropriate
industry standards. A complete and accurate LSR (containing the
requisite end user information as described in the Guide) must be
provided by DTI before a request can be processed.
3.2 Certificate of Operating Authority. When ordering, DTI must represent
and warrant to GTE that it is a certified provider of local dial-tone
service. DTI will provide a copy of its Certificate of Operating
Authority or other evidence of its status to GTE upon request.
3.3 Letter of Authorization. A Letter of Authorization ("LOA") will be
required before resold Services will be provided in cases in which the
subscriber currently receives Exchange Service from GTE or from a
local service provider other than DTI. Such LOA may be a blanket LOA
or such other form as agreed upon between GTE and DTI. GTE will not
release information to DTI on GTE end user customer accounts unless
DTI first provides to GTE a written LOA, signed by the end user
customer, authorizing the release of such information to DTI or if
state or federal law provides otherwise, in accordance with such law.
3.4 Directory Assistance Listings. GTE shall include a DTI customer
listing in its Directory Assistance database as part of the Local
Service Request ("LSR") process. GTE will honor DTI Customer's
preferences for listing status, including non-published and unlisted,
as noted on the LSR and will enter the listing in the GTE database
which is used to perform Directory Assistance functions as it appears
on the LSR.
3.5 Nonrecurring Charges. DTI shall be responsible for the payment of all
nonrecurring charges ("NRCs") applicable to resold Services (e.g.,
installation, changes, ordering charges) in accordance with the
appropriate tariff. No discount applies to nonrecurring charges.
3.6 Transfers Between DTI and Another Reseller of GTE Services. When DTI
has obtained an end user customer from another reseller of GTE
services, DTI will inform GTE of the transfer by submitting a standard
LSR to GTE.
3.7 Local Calling Detail. Except for those Services and in those areas
where measured rate local service is available to end users, monthly
billing to DTI does not include local calling detail. However, DTI
may request and GTE shall consider developing the capabilities to
provide local calling detail in those areas where measured local
service is not available for a mutually agreeable charge.
3.8 Procedures. An overview of the procedures for preordering, ordering,
provisioning and billing for resold services are outlined in Appendix
I, attached hereto and made a part hereof.
3.9 LIDB. For resale services, GTE's service order will generate updates
to the LIDB for validation of calling card, collect, and third number
billed calls.
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<PAGE> 50
3.10 "OLN". Upon request, GTE will update the database to provide Originating
Line Number ("OLN") Screening which indicates to an operator the
acceptable billing methods for calls originating from the calling number
(e.g., penal institutions, COCOTS).
4. Maintenance.
4.1 Maintenance, Testing and Repair. GTE will provide repair and maintenance
services to DTI and its end user customers for resold Services in
accordance with the same standards and charges used for such services
provided to GTE end user customers. GTE will not initiate a maintenance
call or take action in response to a trouble report from a DTI end user
until such time as trouble is reported to GTE by DTI. DTI must provide to
GTE all end user information necessary for the installation, repair and
servicing of any facilities used for resold Services according to the
procedures described in the Guide.
4.2 Specifics and Procedures for Maintenance. An overview of the procedures
for maintenance of resold services and additional matters agreed to by the
Parties concerning maintenance are set forth in Appendix I.
5. Services Available for Resale.
5.1 Description of Local Exchange Services Available for Resale. Resold
basic Exchange Service includes, but is not limited to, the following
elements:
(a) Voice Grade Local Exchange Access Line - includes a telephone
number and dial tone.
(b) Local Calling - at local usage measured rates if applicable
to the end user customer.
(c) Access to long distance carriers
(d) E-911 Emergency Dialing
(e) Access to Service Access Codes - e.g., 800, 888, 900
(f) Use of AIN Services (those currently available to end users)
(g) End User Private Line Services
(h) Listing of telephone number in appropriate "white pages"
directory; and
(i) Copy of "White Pages" and "Yellow Pages" directories for the
appropriate GTE service area
5.2 List of Services Available for Resale. The type of Services listed on
Appendix F, attached hereto and made a part of this Agreement, are
available for resale by DTI. Subject to the limitations on resale
enumerated in this Article, any new services that GTE offers in the future
at retail to customers who are not telecommunications carriers shall also
be available to DTI for resale under the same terms and conditions
contained in this Agreement. Additional regulations, terms and conditions
relating to the type of Services listed on Appendix F can be found in the
appropriate intrastate local, toll and access tariffs. Terms, conditions
and other matters concerning rate applications, technical parameters,
provisioning capability, definitions and feature interactions contained in
such tariffs are applicable to the type of Services offered under this
Agreement and are incorporated herein by reference. Modifications to
Services listed on Appendix F shall be provided to DTI in accordance with
GTE's practices and procedures.
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<PAGE> 51
5.3 Rates. The prices charged to DTI for Local Services shall be calculated
as follows:
(1) Avoided Cost Discount of 15.33% shall apply to all retail
services except those services listed in Section 2.2 and Section 2.3
herein.
(2) The discount dollar amount calculated under Step 1 above will
be deducted from the retail rate.
(3) The resulting rate is the Wholesale Rate.
(4) This discount dollar amount in Step 2 above shall not change
during the Term of this Agreement, even though GTE may change its
retail rates.
5.4 Grandfathered Services. Services identified in GTE Tariffs as
grandfathered in any manner are available for resale only to end user
customers that already have such grandfathered service. An existing end
user customer may not move a grandfathered service to a new service
location.
5.5 Access. GTE retains all revenue due from other carriers for access to
GTE facilities, including both switched and special access charges.
5.6 Operator Services (OS) and Directory Assistance (DA). Where GTE provides
access to GTE Operator Services for local and toll assistance (for
example, call completion, busy line verification and emergency
interruption) and Directory Assistance (e.g., 411 calls routed to GTE's DA
operator centers) as an element of Exchange Services offered for resale,
DTI will be billed in accordance with Appendix F. GTE will provide its
existing OS and DA to a DTI at the same quality and in a nondiscriminatory
manner as the service GTE's end users receive.
5.6.1 Where Customized Routing is available (pursuant to Article
VII, Section 12.1), GTE will offer unbranded OS and DA or rebranded
OS and DA with the DTI brand. GTE will provide such unbranding or
rebranding on a switch-by-switch basis, subject to capability and
capacity limitations. Upon receipt of an order for unbranding or
rebranding, GTE will implement within 90 Business Days when
technically capable.
5.6.2 DTI will be billed for unbranding or rebranding and
Customized Routing. Upon written request from DTI, GTE will provide
DTI with terms and conditions for providing Customized Routing and
branding, plus the applicable charges. In addition, a port and
dedicated trunk facilities are required as specified in Article VII,
Section 12.1.4.
5.6.3 For those offices that DTI has requested GTE to rebrand
and/or unbrand OS and DA, GTE will provide it using live operators
where GTE performs its own OS and DA service and where handled by
automated systems. If GTE uses a Third Party contractor to provide
OS or DA, GTE will not provide branding nor will GTE negotiate it
with a Third Party on behalf of DTI. DTI must negotiate with the
Third Party. In these instances, DTI will need to purchase
customized routing to differentiate OS/DA traffic between GTE's and
a Third Party.
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<PAGE> 52
ARTICLE VII
UNBUNDLED NETWORK ELEMENTS
1. General. The purpose of this Article VII is to define the unbundled
network elements that may be leased by DTI from GTE. Unless otherwise
specified in this Agreement, provisioning of unbundled network
arrangements will be governed with the GTE Customer Guide for DTI
Establishment of Services - Resale and Unbundling (the "Guide").
Additional procedures for preordering, ordering, provisioning and billing
of unbundled network elements are outlined in Appendix I.
2. Unbundled Network Elements.
2.1 Categories. There are several separate categories of Network Components
that shall be provided as unbundled network elements by GTE:
(a) Network Interface Device or NID
(b) Loop Elements
(c) Port and Local Switching Elements
(d) Transport Elements
(e) Signaling Elements
(f) Data Switching
(g) Digital Cross Connect System (DCS)
2.2 Prices. Individual unbundled network elements and prices are identified
on Appendix G attached to this Agreement and made a part hereof, or under
the appropriate GTE tariff as referenced in this Article. Nonrecurring
charges relating to unbundled elements are also listed on Appendix G.
2.2.1 Reciprocal Compensation Arrangements for Call Termination.
Reciprocal compensation arrangements for call termination shall be
as provided in Appendix M attached hereto.
2.3 Interconnection to Unbundled Elements. DTI may lease and interconnect to
whichever of these unbundled network elements DTI chooses, and subject to
technical feasibility, may combine these unbundled elements with any
facilities or services that DTI may itself provide subject to the
following:
2.3.1 Interconnection shall be achieved via expanded interconnection/
collocation arrangements DTI shall maintain at the wire center at
which the unbundled services are resident.
2.3.2 DTI may order transport pursuant to Section 6 below as follows:
(a) From the wire center at which the unbundled elements (e.g.,
loop, port) are located to the GTE wire center where DTI has
established an interconnection/collocation arrangement.
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<PAGE> 53
(b) Directly from the DTI switch to a GTE wire center and connect
to unbundled loops. Applicable charges would be transport,
transport termination, multiplexing, loop/port connector and
loop.
2.3.3 Each loop or port element shall be delivered to DTI collocation
arrangement over a loop/port connector applicable to the unbundled
services as listed on Appendix G.
2.3.4 DTI shall combine unbundled network elements with its own
facilities. GTE has no obligation to combine any network elements
for DTI. DTI may not combine such network elements to provide
solely interexchange service or solely access service to an
interexchange carrier.
2.4 Service Quality. To the degree reasonably possible, all service
attributes, grades-of-service and installation, maintenance and repair
intervals which apply to the bundled service will apply to unbundled
network elements. Notwithstanding the foregoing, GTE shall not be
responsible for impacts on service attributes, grades of service, etc.,
resulting from DTI's specific use of or modification to any unbundled
network element.
3. Network Interface Device.
3.1 Direct Connection. DTI shall be permitted to connect its own Loop
directly to GTE's Network Interface Device or NID in cases in which DTI
uses its own facilities to provide local service to an end user formerly
served by GTE, as long as such direct connection does not adversely affect
GTE's network. In order to minimize any such adverse effects, DTI shall
follow the procedures in Sections 3.1.1 and 3.1.2 below.
3.1.1 When connecting its own loop facility directly to GTE's NID
for a residence or business customer, DTI must make a clean cut on
the GTE drop wire at the NID so that no bare wire is exposed. DTI
shall not remove or disconnect GTE's drop wire from the NID or take
any other action that might cause GTE's drop wire to be left lying
on the ground.
3.1.2 At multi-tenant customer locations, DTI must remove the
jumper wire from the distribution block (i.e. the NID) to the GTE
cable termination block. If DTI cannot gain access to the cable
termination block, DTI must make a clean cut at the closest point to
the cable termination block. At DTl's request and discretion, GTE
will determine the cable pair to be removed at the NID in
multi-tenant locations. DTI will compensate GTE for the trip charge
necessary to identify the cable pair to be removed.
3.1.3 GTE agrees to offer NIDs for lease to DTI but not for sale.
DTI may remove GTE identification from any NID which it connects to
a DTI loop, but DTI may not place its own identification on such
NID.
3.1.4 GTE Loop elements leased by DTI will be required to
terminate only on a GTE NID. If DTI leasing a GTE loop wants a DTI
NID, they will also be required to lease a GTE NID for the direct
loop termination and effect a NID to NID connection.
3.2 NID to NID Connection. Rather than connecting its loop directly to GTE's
NID, DTI may also elect to install its own NID and effect a NID to NID
connection to gain access to the end user's inside wiring.
3.2.1 DTI that provides its own loop facilities may elect to move
all inside wire terminated on a GTE NID to one provided by DTI. In
this instance, a NID to NID connection will not be
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<PAGE> 54
required. DTI, or the end user premise owner, can elect to leave
the GTE disconnected NID in place, or to remove the GTE NID from
the premise and dispose of it entirely.
3.3 Removal of Cable Pairs. Removal of existing cable pairs required for DTI
to terminate service is the responsibility of DTI.
3.4 Maintenance. When DTI provides its own loop and connects directly to
GTE's NID, GTE does not have the capability to perform remote maintenance.
DTI can perform routine maintenance via its loop and inform GTE once the
trouble has been isolated to the NID and GTE will repair (or replace) the
NID, or, at DTI's option, it can make a NID to NID connection, using the
GTE NID only to gain access to the inside wire at the customer location.
4. Loop Elements.
4.1 Service Description. a "Loop" is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or group
of channels on such facility) which extends from a Main Distribution Frame
("MDF') or functionally comparable piece of equipment in a GTE end office
or wire center to a demarcation or connector block in/at a subscriber's
premises. Traditionally, Loops were provisioned as 2-wire or 4-wire
copper pairs running from the end office MDF to the customer premises.
However, a loop may be provided via other media, including radio
frequencies, as a channel on a high capacity feeder/distribution facility
which may, in turn, be distributed from a node location to the subscriber
premises via a copper or coaxial drop facility, etc.
4.2 Categories of Loops. There are six general categories of loops:
4.2.1 "2-wire analog voice grade" loops will support analog
transmission of 300-3000 Hz, repeat loop start or ground start
seizure and disconnect in one direction (toward the end office
switch), and repeat ringing in the other direction (toward the end
user). This loop is commonly used for local dial tone service;
4.2.2 "4-wire analog voice grade" loops conform to the characteristics of
a 2-wire voice grade loop and, in addition, can support the
simultaneous independent transmission of information in both
directions;
4.2.3 "2-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 2-wire digital
loops shall be the price for the basic 2-wire loop plus the loop
facility NRC to recover the cost of the special provisioning.
4.2.4 "4-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 4-wire digital
loops shall be the price for the basic 4-wire loop plus the loop
facility NRC to recover the cost of the special provisioning.
4.2.5 "DS-1" loops will support a digital transmission rate of
1.544 Mbps. The DS-1 loop will have no bridge taps or load coils
and will employ special line treatment. DS-1 loops will include
span line repeaters where required, office terminating repeaters,
and DSX cross connects. Prices for DS-1 grade loops are the prices
set forth in the appropriate GTE intrastate special access tariff.
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<PAGE> 55
4.2.6 "DS-3" loops will support the transmission of isochronous
bipolar serial data at a rate of 44.736 Mbps. This DS-3 type of
loop provides the equivalent of 28 DS-1 channels and shall include
the electronics at either end.
4.3 Conditioned Loops. DTI may also require that the loops ordered above be
conditioned in order for them to provide the end-user service. Examples
of this type of conditioning are: Type C, Type DA, Improved C, Clear
Channel, etc. The price for such a conditioned loops shall be the
applicable charge as provided in the appropriate GTE intrastate special
access tariff.
4.4 Features, Functions, Attributes. To the degree reasonably possible, all
transport-based features, functions, service attributes,
grades-of-service, installation, maintenance and repair intervals that
apply to the bundled services will apply to unbundled loops.
4.4.1 GTE will not perform routine testing of the unbundled loop
for maintenance purposes. DTI will be required to provision a loop
testing device either in its central office (switch location),
Network Control Center or in its collocation arrangement to test the
unbundled loop. GTE will perform repair and maintenance once
trouble is identified by DTI.
4.4.2 All Loop facilities furnished by GTE on the premises of
DTI's end users and up to the network interface or functional
equivalent are the property of GTE. GTE must have access to all
such facilities for network management purposes. GTE employees and
agents may enter said premises at any reasonable hour to test and
inspect such facilities in connection with such purposes or, upon
termination or cancellation of the Loop facility, to remove such
facility.
4.4.3 GTE will provide loop transmission characteristics to DTI
end users which are equal to those provided to GTE end users.
4.4.4 If DTI leases loops which are conditioned to transmit
digital signals, as a part of that conditioning, GTE will test the
loop and provide recorded test results to DTI. In maintenance and
repair cases, if loop tests are taken, GTE will provide any recorded
readings to DTI at time the trouble ticket is closed in the same
manner as GTE provides to itself and its end users.
4.5 Digital Loop Carrier. Where GTE utilizes integrated digital loop carrier
("IDLC")1 technology to provision the Loop element, GTE will take the
necessary affirmative steps to provide unbundled Loops. The basic Loop
provided will support voice grade services. Loop capabilities beyond
voice grade (i.e., ISDN, ADSL, etc.) will be provided under the terms and
conditions, and at the prices indicated in Section 4.3.
4.5.1 GTE will permit DTI to collocate digital loop carriers and
associated equipment in conjunction with collocation arrangements
DTI maintains at a GTE wire center for the purpose of
interconnecting to unbundled Loop elements.
4.6 Unbundled Loop Facility Certification.
4.6.1 Before deploying any service enhancing copper cable
technology (e.g., HDSL, ISDN, etc.) over unbundled 2-wire analog
voice grade loops leased from GTE, DTI shall notify GTE of
____________________
1 See Bellcore TR-TSY-000008, Digital Interface Between the SLC-96 Digital Loop
Carrier System and Local Digital Switch and TR-TSY-000303, Integrated Digital
Loop Carrier (IDLC) Requirements, Objectives and Interface.
VII-4
<PAGE> 56
such intentions to enable GTE to assess the loop transport
facilities to determine whether there are any existing copper cable
loop transport technologies (e.g., analog carrier, etc.) deployed
within the same cable sheath that would be interfered with if DTI
deployed the proposed service enhancing copper cable technology.
If there are existing copper cable loop transport technologies
already deployed within the same cable sheath, or if GTE already
has existing near term (within 18 months of the date of facility
certification) plans to deploy copper cable loop transport
technologies that would be interfered with as described above, GTE
will so inform DTI and DTI shall not be permitted to deploy such
service enhancing copper cable technologies. GTE will charge DTI
the applicable engineering time and labor costs to perform the
certification.
4.6.2 If DTI fails to notify GTE of its plans to deploy service
enhancing copper cable technology and obtain prior certification
from GTE of the facilities, if DTI's deployment of such technology
is determined to have caused interference with existing or planned
copper cable loop transport technologies deployed by GTE in the same
cable sheath, DTI will immediately remove such service enhancing
copper cable technology and shall reimburse GTE for all incurred
expense related to this interference.
4.7 Unbundled Loop Facility Notification.
4.7.1 GTE reserves the right to deploy within its network at its
sole discretion any and all copper cable loop transport
technologies. If GTE plans to deploy copper cable loop transport
technology within a cable sheath in which such technology was not
previously deployed, GTE will provide notice to DTI of such planned
deployment, indicating all service enhancing copper cable
technologies that would cause interference with the technology to be
deployed, or that would be interfered with by the deployment of such
technology. Such notice will be provided at least ninety (90)
Business Days in advance of the planned deployment. If DTI has
deployed any technologies within the same cable sheath that would
interfere with, or be interfered with, by the technology GTE plans
to deploy, the parties will work together to resolve the situation.
4.8 Subloops.
4.8.1 GTE will provide as separate items the loop distribution, loop
concentrator and loop feeder on a case-by-case basis pursuant to a
Bona Fide Request ("BFR").
4.8.2 GTE will design and construct loop access facilities (including loop
feeders and loop concentration/multiplexing systems) in accordance
with standard industry practices as reflected in applicable tariffs
and/or as agreed to by GTE and DTI.
4.8.3 Transport for loop concentrators/multiplexers services not
supported by embedded technologies will be provided pursuant to
applicable tariffs or as individually agreed upon by GTE and DTI.
The Parties understand that embedded loop concentrators/multiplexers
are not necessarily capable of providing advanced and/or digital
services.
4.8.4 GTE will provide loop transmission characteristics as specified in
Section 4.4.3 herein.
5. Port and Local Switching Elements.
5.1 Port. Port is an unbundled component of Exchange Service that provides
for the interconnection of individual loops or trunks to the switching
components of GTE's network. In general, it is a line card or trunk card
and associated peripheral equipment on GTE end office switch that serves
as the hardware termination for the end user's Exchange Service on that
switch and generates dial
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tone and provides the end user access to the public switched
telecommunications network. The port does not include such features and
functions which are provided as part of Local Switching. Each line-side
port is typically associated with one (or more) telephone number(s),
which serve as the end user's network address.
5.2 Ports Available as Unbundled Network Elements. There are four types of
Ports available as unbundled network elements;
5.2.1 "2-wire analog line" Port is a line side switch connection
employed to provide basic residential and business type Exchange
Service.
5.2.2 "2-wire ISDN digital line" Port is a Basic Rate Interface
(BRI) line side switch connection employed to provide ISDN Exchange
Services.
5.2.3 "DS-1 digital trunk" Port is a direct inward dialing (DID)
trunk side switch connection employed to provide the equivalent of
24 analog incoming trunk type Exchange Services.
5.2.4 "4-wire ISDN digital DS-1 trunk" Port is a Primary Rate
Interface (PRI) trunk side switch connection employed to provide the
ISDN Exchange Services
5.3 Port Prices. Prices for 2-wire analog and DS-1 Ports are listed in
Appendix G. 2-wire ISDN line side Ports and 4-wire ISDN trunk side Ports
shall be provided at a price agreed to by the Parties.
5.4 Local Switching. Local switching provides the basic switching functions
to originate, route and terminate traffic and any signaling deployed in
the switch. Vertical features are optional services provided through
software programming in the switch which can be added on a per-feature
basis with applicable rate. GTE will offer only those features and
functions currently available to the particular platform used (e.g., DMS,
5ESS, GTD5). Any feature or function which is not available, but the
switch is capable of providing, may be requested via the BFR process. DTI
will be responsible for bearing any costs incurred by GTE in making such
feature/function available, including Right-to-Use (RTU) fees. The rates
for Local Switching and Vertical Features are listed in Appendix G.
5.4.1 DTI must purchase Local Switching with the line-side Port or
trunk-side Port, if applicable.
5.5 Compliance with Section 2.3. DTI shall only order unbundled elements in
accordance with Section 2.3 herein and it will be the responsibility of
DTI to make arrangements for the delivery of interexchange traffic and
routing of traffic over interoffice transmission facilities, if
applicable.
6. Transport Facility.
6.1 Service Description. Transport is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or group
of channels on such facility) which extends from a Main Distribution Frame
(MDF) or functionally comparable piece of equipment in a GTE end office or
access tandem to either (l) another MDF or functionally comparable piece
of equipment in a GTE end office or access tandem, or (ii) a meet point
with transport facilities of DTI or another carrier. Transport may be
provided over a variety of media, including, but not limited to, copper
cables, radio frequencies or channels on a high capacity facility.
6.1.1 Tandem Switching Capability. GTE will provide tandem
switching capability at GTE access tandems for traffic between DTI
and GTE end offices subtending the GTE access tandem and for traffic
between DTI and non-GTE end offices subtending GTE access tandems.
GTE will provide the features and functions that are
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centralized in tandem switches including but not limited to call
recording, the routing of calls to operator services when
technically feasible, and signaling conversion features.
6.2 Categories/Types. Unbundled transport is provided under rates, terms and
conditions of the applicable GTE access tariff or local private line
tariff.
7. SS7 Transport and Signaling. SS7 signaling and transport services in
support of DTI's local exchange services shall be provided in accordance
with the terms and conditions of Appendix I attached to this Agreement and
made a part hereof.
7.1 GTE will provide interconnection with its SS7 at the STPs but not at
other points.
8. LIDB Services. Access to GTE's LIDB shall be provided in accordance with
the rates, terms and conditions of GTE's switched access tariff, GTOC
Tariff FCC No. 1, Section 8.
9. Database 800-Type Services. Access to GTE's 800-Type database (i.e.,
888, 877) shall be provided in accordance with the rates, terms and
conditions of GTE's switched access tariff, GTOC Tariff FCC No. 1, Section
8.
10. Data Switching.
10.1 Access. GTE will provide unbundled access to GTE data switches to DTI at
the user network interface ("UNI") and network to network interface
("NNI") level subject to mutual agreement on technical standards.
10.2 Nondiscrimination. Data switching features and functionalities provided
to DTI will be without discrimination with respect to the way GTE provides
them to GTE end users. In the event of overflow or congestion conditions
on the data switching network, DTI's data traffic carried on GTE
facilities will be equal priority to GTE data traffic.
10.3 Testing, Monitoring, Administration and Maintenance. Testing,
monitoring, administration and maintenance will be performed by GTE in a
nondiscriminatory manner.
11. Digital Cross Connect System (DCS).
11.1 Access. GTE will provide unbundled access to the DCS element, which
shall provide automated cross-connection (with CNC), facility grooming,
bridging (MJU-digital), point to multipoint connections (DMB-analog),
broadcast and automated facility test capabilities. These functionalities
will be provided consistent with that which is provided to GTE end users.
DTI shall submit a Bona Fide Request to GTE specifying these
functionalities.
11.2 Optional Characteristics. The DCS element may include multiplexing,
format conversion, signaling conversion and manual cross connection
wiring.
11.3 Alternate Provisioning. Where no automated DCS capability exists, the
cross connection function will be provided manually by GTE through the
combination of DSX patch panels and D4 banks or DS0 (or higher capacity)
equipment.
11.4 Elements. DTI will have access to the following DCS elements:
(a) DS0 with DS1 interface (CNC)
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(b) DS1/VT1.5 with DS1, DS3 and SONET interfaces (CNC and Titan
5500)
11.5 Capabilities. The DCS elements will provide the following capabilities:
(a) Real-time configuration (with CNC)
(b) Real-time access to integrated test equipment (with React and
Customer Service)
(c) SONET asynchronous gateway functionality (with Titan 5500
only)
(d) Compliance with Bellcore and industry standards.
11.6 Protection and Performance. The unbundled DCS elements provided to DTI
will have equipment/interface protection, redundant power supply and/or
battery backup and performance/availability consistent with that provided
to GTE end users.
11.7 Provisioning, Administration and Maintenance. GTE will provide
provisioning, administration and maintenance of the DCS elements the same
level as GTE provides to itself as well as real time access to performance
monitoring and alarm data affecting DTI traffic (with CNC). GTE is not
required to keep software updated to the "current available release" in
every instance.
12. Operator Services (OS) and Directory Assistance (DA). GTE will provide
OS and DA to DTI in accordance with the terms set forth as follows:
12.0.1 Where Customized Routing is available, GTE will offer unbranded OS
and DA or rebranded OS and DA with the DTI brand. GTE will provide
such unbranding or rebranding on a switch-by-switch basis, subject
to capability and capacity limitations. Upon receipt of an order
for unbranding or rebranding, GTE will implement within 90 Business
Days when technically capable.
12.0.2 DTI will be billed an element charge for OS and DA and a charge
for unbranding or rebranding and Customized Routing as set forth in
Section 12.1.2. In addition, charges specified in Section 12.1.4
will apply.
12.0.3 For those offices that DTI has requested GTE to rebrand and/or
unbrand OS and DA, GTE will provide it using live operators where
GTE performs its own OS and DA service and where handled by
automated systems. If GTE uses a Third Party contractor to provide
OS or DA, GTE will not provide branding nor will GTE negotiate it
with a Third Party on behalf of DTI. DTI must negotiate with the
Third Party. In these instances, DTI will need to purchase
customized routing to differentiate OS/DA traffic between GTE's and
a Third Party.
12.1 Customized Routing. Where technically feasible and upon receipt of
written request from DTI, GTE agrees to provide customized routing for the
following types of calls:
0-
0+Local
0+411
1+411
0+HNPA-555-1212 (intraLATA, only when intraLATA
presubscription is not available)
1+HNPA-555-1212 (intraLATA, only when intraLATA
presubscription is not available)
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12.1.1 GTE will provide DTI a list of switches that can provide
customized routing using line class codes or similar method
(regardless of current capacity limitations). DTI will return a
list of these switches ranked in priority order. GTE will return to
DTI a schedule for customized routing in the switches with existing
capabilities and capacity.
12.1.2 Upon written request from DTI, GTE will provide DTI with
applicable charges, and terms and conditions, for providing OS and
DA, branding, and Customized Routing.
12.1.3 Subject to the above provisions, GTE will choose the method of
implementing customized routing of OS and DA calls.
12.1.4 The use of customized routing will require the purchase of a trunk
side port and dedicated facilities between the GTE end office and
the designated OS/DA platform. The rates for these elements will be
billed in accordance with Appendix G.
13. Advanced Intelligent Network Access (AIN). GTE will provide DTI access
to GTE AIN functionality from GTE's AIN SCP via GTE's local switch or
DTI's local switch.
14. Nondiscrimination Provision and Support. GTE agrees to provide unbundled
network elements in a timely manner considering the need and volume of
requests. GTE will provide unbundled network elements in a
non-discriminatory manner and shall provide power to such elements on the
same basis as GTE provides to itself.
15. Provisioning Intervals. GTE agrees to provide unbundled network elements
in a timely manner considering the need and volume of requests, pursuant
to agreed upon service provisioning intervals.
16. Directory Assistance Listing. When DTI orders an unbundled port, a
Directory Service Request (DSR) must be submitted to have the listing
included in GTE's Directory Assistance database. The applicable ordering
charge will be applied for processing the DSR.
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ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS
1. Bona Fide Request Process.
1.1 Intent. The Bona Fide Request process is intended to be used when DTI
requests customized Service Orders for certain services, features,
capabilities or functionality defined and agreed upon by the Parties as
services to be ordered as Bona Fide Requests.
1.2 Process.
1.2.1 A Bona Fide Request shall be submitted in writing by DTI and shall
specifically identify the need to include technical requirements, space
requirements and/or other such specifications that clearly define the
request such that GTE has sufficient information to analyze and prepare a
response.
1.2.2 Although not expected to do so, DTI may cancel a Bona Fide Request in
writing at any time prior to DTI and GTE agreeing to price and
availability. GTE will then cease analysis of the request.
1.2.3 Within two (2) Business Days of its receipt, GTE shall acknowledge in
writing the receipt of the Bona Fide Request and identify a single point
of contact and any additional information needed to process the request.
1.2.4 Except under extraordinary circumstances, within ten (10) Business
Days of its receipt of a Bona Fide Request, GTE shall provide a proposed
price and availability date, or it will provide an explanation as to why
GTE elects not to meet DTI's request. If extraordinary circumstances
prevail, GTE will inform DTI as soon as it realizes that it cannot meet
the ten (10) Business Day response due date. DTI and GTE will then
determine a mutually agreeable date for receipt of the request.
1.2.5 Unless DTI agrees otherwise, all proposed prices shall be consistent
with the pricing principles of the Act, FCC and/or the Commission.
Payments for services purchased under a Bona Fide Request will be made
upon delivery, unless otherwise agreed to by DTI, in accordance with the
applicable provisions of the Agreement.
1.2.6 Upon affirmative response from GTE, DTI will submit in writing its
acceptance or rejection of GTE's proposal. If at any time an agreement
cannot be reached as to the terms and conditions or price of the request
GTE agrees to meet, the Dispute resolution procedures described in
Article III herein may be used by a Party to reach a resolution.
2. Transfer of Service Announcements. For services other than GTE resold
and ported number services, when an end user customer transfers service
from one Party to the other Party, and does not retain its original
telephone number, the Party formerly providing service to the end user
will provide, upon request and if such service is provided to its own
customers, a referral announcement on the original telephone number. This
announcement will provide the new number of the customer and will remain
in effect for the same time period this service is provided to GTE's own
end users. For GTE resold and ported number services, GTE shall provide
an intercept referral on behalf of DTI.
3. Misdirected Calls. The Parties will employ the following procedures for
handling any misdirected calls (e.g., Business office, repair bureau,
etc.).
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3.1 To the extent the correct provider can be determined, each Party will
refer misdirected calls to the proper provider of local exchange service.
When referring such calls, both Parties agree to do so in a courteous
manner, at no charge.
3.2 For misdirected repair calls, the Parties will provide their respective
repair bureau contact number to each other on a reciprocal basis and
provide the end user the correct contact number.
3.3 In responding to misdirected calls, neither Party shall make disparaging
remarks about each other, nor shall they use these calls as a basis for
internal referrals or to solicit end users or to market services.
4. 911/E911 Arrangements.
4.1 Description of Service. DTI will install a minimum of two (2) dedicated
trunks to GTE's 911/E911 selective routers (i.e., 911 tandem offices) that
serve the areas in which DTI provides Exchange Services, for the provision
of 911/E911 services and for access to all subtending PSAPs. The
dedicated trunks shall be, at a minimum, DS-0 level trunks configured as a
2-wire analog interface or as part of a digital (1.544 Mbps) interface in
which all circuits are dedicated to 9-1-1 traffic. Either configuration
shall use CAMA type signaling with multifrequency ("MF") tones that will
deliver ANI with the voice portion of the call. GTE will provide DTI with
the appropriate CLLI codes and specifications of the tandem office serving
area or the location of the primary PSAP when there is no 911 routing in
that 911 district. If a DTI central office serves end users in an area
served by more than one (1) GTE 911/E911 selective router, DTI will
install a minimum of two (2) dedicated trunks in accordance with this
Section to each of such 911/E911 selective routers or primary PSAP.
4.2 Transport. If DTI desires to obtain transport from GTE to the GTE 911
selective routers, DTI may purchase such transport from GTE at the rates
set forth in Appendix H.
4.3 Cooperation and Level of Performance. The Parties agree to provide
access to 911/E911 in a manner that is transparent to the end user. The
Parties will work together to facilitate the prompt, reliable and
efficient interconnection of DTI's systems to the 911/E911 platforms, with
a level of performance that will provide the same grade of service as that
which GTE provides to its own end users. To this end, GTE will provide
documentation to DTI showing the correlation of its rate centers to its
E911 tandems at rates set forth in Appendix H.
4.4 Basic 911 and E911 General Requirements:
4.4.1 Basic 911 and E911 provides a caller access to the
appropriate emergency service bureau by dialing a 3-digit universal
telephone number (911).
4.4.2 Where GTE has a 911 selective router installed in the
network serving the 911 district, GTE shall use subscriber data
derived from the Automatic Location Identification/Database
Management System (ALI/DMS) to selectively route the 911 call to the
Public Safety Answering Point (PSAP) responsible for the caller's
location.
4.4.3 All requirements for E911 also apply to the use of SS7 as a
type of signaling used on the interconnection trunks from the local
switch to an end office or a selective router.
4.4.4 Basic 911 and E911 functions provided to DTI shall be at
least at parity with the support and services that GTE provides to
its subscribers for such similar functionality.
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4.4.5 Basic 911 and E911 access from Local Switching shall be
provided to DTI in accordance with the following:
4.4.5.1 GTE and DTI shall conform to all state regulations
concerning emergency services.
4.4.5.2 For E911, both DTI and GTE shall use their respective
service order processes to update access line subscriber data
for transmission to the database management systems.
Validation will be done via MSAG comparison listed in Section
4.4.5.5.
4.4.5.3 If legally required by the appropriate jurisdiction, GTE
shall provide or overflow 911 traffic to be routed to GTE
Operator Services or, at DTI's discretion, directly to DTI
Operator Services.
4.4.5.4 Basic 911 and E911 access from the DTI local switch shall
be provided from GTE to DTI in accordance with the following:
4.4.5.4.1 If required by DTI and technically feasible, GTE
shall interconnect direct trunks from the DTI network
to the E911 PSAP, or to the E911 selective routers as
designated by DTI. Such trunks may alternatively be
provided by DTI.
4.4.5.4.2 In government jurisdictions where GTE has
obligations under existing Agreements as the primary
provider of the 911 System to the county (i.e., "lead
telco"), DTI shall participate in the provision of the
911 System as follows:
4.4.5.4.2.1 Each Party shall be responsible for
those portions of the 911 System for which it
has control, including any necessary
maintenance to each Party's portion of the
911 System.
4.4.5.4.2.2 DTI and GTE recognize that the lead
telco in a 911 district has the
responsibility of maintaining the ALI
database for that district. Each company
will provide its access line subscriber
records to the database organization of that
lead telco. DTI and GTE will be responsible
for correcting errors when notified by either
the 911 district or its customer, and then
submitting the corrections to the lead telco.
Lead telco database responsibilities are
covered in Section 4.4.5.5 of this Article.
4.4.5.4.2.3 DTI shall have the right to verify the
accuracy of information regarding DTI
customers in the ALI database using methods
and procedures mutually agreed to by the
Parties. The fee for this service shall be
determined based upon the agreed upon
solution.
4.4.5.4.3 If a Third Party is the primary service provider
to a 911 district, DTI shall negotiate separately with
such Third Party with regard to the provision of 911
service to the agency. All relations between such
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Third Party and DTI are totally separate from
this Agreement and GTE makes no
representations on behalf of the Third Party.
4.4.5.4.4 If DTI or Affiliate is the primary service
provider to a 911 district, DTI and GTE shall
negotiate the specific provisions necessary for
providing 911 service to the agency and shall include
such provisions in an amendment to this Agreement.
4.4.5.4.5 Interconnection and database access shall be at
rates as set forth in Appendix H.
4.4.5.4.6 GTE shall comply with established, competitively
neutral intervals for installation of facilities,
including any collocation facilities, diversity
requirements, etc.
4.4.5.4.7 In a resale situation, where it may be
appropriate for GTE to update the ALI database, GTE
shall update such database with DTI data in an
interval no less than is experienced by GTE
subscribers, or than for other carriers, whichever is
faster, at no additional cost.
4.4.5.5 The following are Basic 911 and E911 Database Requirements:
4.4.5.5.1 The ALI database shall be managed by GTE, but is
the property of GTE and any participating LEC or DTI
which provides their records to GTE.
4.4.5.5.2 Copies of the MSAG shall be provided within five
(5) business days after the date the request is
received and provided on diskette or paper copy at the
rates set forth in Appendix H.
4.4.5.5.3 DTI shall be solely responsible for providing DTI
database records to GTE for inclusion in GTE's ALI
database on a timely basis.
4.4.5.5.4 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database information
related to DTI end users. GTE shall work
cooperatively with DTI to ensure the accuracy of the
data transfer by verifying it against the Master
Street Address Guide ("MSAG"). GTE shall accept
electronically transmitted files or magnetic tape that
conform to National Emergency Number Association
("NENA") Version #2 format.
4.4.5.5.5 DTI shall assign an E911 database coordinator
charged with the responsibility of forwarding DTI end
user ALI record information to GTE or via a
third-party entity, charged with the responsibility of
ALI record transfer. DTI assumes all responsibility
for the accuracy of the data that DTI provides to GTE.
4.4.5.5.6 GTE shall update the database within one (1)
business day of receiving the data from DTI. If GTE
detects an error in the DTI provided data, the data
shall be returned to DTI within one day from when it
was provided to GTE. DTI shall respond to requests
from GTE to make corrections to database record errors
by
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uploading corrected records within one day.
Manual entry shall be allowed only in the event
that the system is not functioning properly.
4.4.5.5.7 GTE agrees to treat all data on DTI subscribers
provided under this Agreement as strictly confidential
and to use data on DTI subscribers only for the
purpose of providing E911 services.
4.4.5.5.8 GTE shall adopt use of a Carrier Code (NENA
standard five-character field) on all ALI records
received from DTI. The Carrier Code will be used to
identify the carrier of record in NP configurations.
The NENA Carrier Code for DTI is "DTI"; the NENA
Carrier Code for GTE is "GTE."
4.4.5.6 GTE and DTI will comply with the following requirements for
network performance, maintenance and trouble notification.
4.4.5.6.1 Equipment and circuits used for 911 shall be
monitored at all times. Monitoring of circuits shall
be done to the individual trunk level. Monitoring
shall be conducted by GTE for trunks between the
selective router and all associated PSAPs.
4.4.5.6.2 Repair service shall begin immediately upon
report of a malfunction. Repair service includes
testing and diagnostic service from a remote location,
dispatch of or in-person visit(s) of personnel. Where
an on-site technician is determined to be required, a
technician will be dispatched without delay.
4.4.5.6.3 GTE shall notify DTI forty-eight (48) hours in
advance of any scheduled testing or maintenance
affecting DTI 911 service. GTE shall provide
notification as soon as possible of any unscheduled
outage affecting DTI 911 service.
4.4.5.6.4 All 911 trunks must be capable of transporting
Baudot Code necessary to support the use of
Telecommunications Devices for the Deaf ("TTY/TDDs").
4.4.5.7 Basic 911 and E911 Additional Requirements
4.4.5.7.1 All DTI lines that have been ported via INP shall
reach the correct PSAP when 911 is dialed. Where GTE
is the lead telco and provides the ALI, the ALI record
will contain both the DTI number and GTE ported
number. The PSAP attendant shall see both numbers
where the PSAP is using a standard ALI display screen
and the PSAP extracts both numbers from the data that
is sent. GTE shall cooperate with DTI to ensure that
911 service is fully available to all DTI end users
whose telephone numbers have been ported from GTE,
consistent with State provisions.
4.4.5.7.2 DTI and GTE shall be responsible for reporting
all errors, defects and malfunctions to one another.
GTE and DTI shall provide each other with a point of
contact for reporting errors, defects, and
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malfunctions in the service and shall also provide
escalation contacts.
4.4.5.7.3 DTI may enter into subcontracts with third
parties, including DTI Affiliates, for the performance
of any of DTI's duties and obligations stated herein.
4.4.5.7.4 Where GTE is the lead telco, GTE shall provide
DTI with notification of any pending
selective router moves within at least ninety (90)
days in advance.
4.4.5.7.5 Where GTE is the lead telco, GTE shall establish
a process for the management of NPA splits by
populating the ALI database with the appropriate new
NPA codes.
4.4.5.7.6 Where GTE is the lead telco, GTE shall provide
the ability for DTI to update 911 database with end
user information for lines that have been ported via
INP or LNP.
4.4.6 Basic 911 and E911 Information Exchanges and interfaces.
Where GTE is the lead telco:
4.4.6.1 GTE shall provide DTI access to the ALI Gateway
which interfaces to the ALI/DMS database. GTE shall
provide error reports from the ALI/DMS database to DTI
within one (1) day after DTI inputs information into
the ALI/DMS database. Alternately, DTI may utilize
GTE or a Third Party entity to enter subscriber
information into the database on a demand basis, and
validate subscriber information on a demand basis.
The rates are set forth in Appendix H.
4.4.6.2 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database information
related to DTI end users. GTE shall work
cooperatively with DTI to ensure the accuracy of the
data transfer by verifying it against the Master
Street Address Guide ("MSAG"). GTE shall accept
electronically transmitted files or magnetic tape that
conform to National Emergency Number Association
("NENA") Version #2 format.
4.4.6.3 Updates to MSAG. Upon receipt of an error
recording an DTI subscriber's address from GTE, and
where GTE is the lead telco, it shall be the
responsibility of DTI to ensure that the address of
each of its end users is included in the Master Street
Address Guide ("MSAG") via information provided on
DTI's Local Service Request ("LSR") or via a separate
feed established by DTI pursuant to Section 4.4.5.7 of
this Article.
4.4.6.4 The ALI database shall be managed by GTE, but is
the property of GTE and all participating telephone
companies. The interface between the E911 Switch or
Tandem and the ALI/DMS database for DTI subscriber
shall meet industry standards.
4.5 Compensation. In situations in which GTE is responsible for maintenance
of the 911/E911 database and can be compensated for maintaining DTI's
information by the municipality, GTE will seek such compensation from the
municipality. GTE will seek compensation from DTI only if, and to the
extent, that GTE is unable to obtain such compensation from the
municipality. GTE
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shall charge DTI a portion of the cost of the shared 911/E911 selective
router as set forth in Appendix H.
5. Information Services Traffic.
5.1 Routing. Each Party shall route traffic for Information Services (i.e.
900-976, Internet, weather lines, sports providers, etc.) which originates
on its network to the appropriate Information Service Platform.
5.2 Billing and Collection and Information Service Provider (ISP)
Remuneration.
5.2.1 In the event GTE performs switching of ISP traffic
associated with resale or unbundled network elements for DTI, GTE
shall provide to DTI GTE's standard call detail records so as to
allow DTI to bill its end users. GTE shall not be responsible or
liable to DTI or ISP for Billing and Collection and/or any
receivables of Information Service Providers.
5.2.2 Notwithstanding and in addition to Article III, Section 24,
GTE shall be indemnified and held harmless by CLEC from and against
any and all suits, actions, losses, damages, claims, or liability of
any character, type, or description, including all expenses of
litigation and court cost which may arise as a result of the
provisions contained in this Article VIII, Section 5.2.1 supra. The
indemnity contained in this section shall survive the termination of
this Agreement, for whatever reason.
5.2.3 GTE agrees to notify DTI in writing within ten (10) working
days, by registered or certified mail at DTI's address of any claim
made against GTE on the obligations indemnified against pursuant to
this Article VIII, Section 5.
5.2.4 It is understood and agreed that the indemnity provided for
in this Article VIII, Section 5 is to be interpreted and enforced so
as to provide indemnification of liability to GTE to the fullest
extent now or hereafter permitted by law.
5.3 900-976 Call Blocking. GTE shall not unilaterally block 900-976 traffic
in which GTE performs switching associated with resale or unbundled
network elements. GTE will block 900-976 traffic when requested to do so,
in writing, by DTI. DTI shall be responsible for all cost associated with
the 900-976 call blocking request. GTE reserves the right to block any
and all calls which may harm or damage its network.
5.4 Miscellaneous. GTE reserves the right to provide to any Information
Service Provider a list of any and all Telecommunications Providers doing
business with GTE.
6. Telephone Relay Service. Local and intraLATA Telephone Relay Service
("TRS") enables deaf, hearing-impaired, or speech-impaired TRS users to
reach other telephone users. With respect to resold services, DTI's end
users will have access to the state authorized TRS provider to the extent
required by the Commission, including any applicable compensation
surcharges.
7. Directory Assistance (DA) and Operator Services (OS). Where DTI is
providing local service with its own switch, upon DTI's request GTE will
provide to DTI rebranded or unbranded directory assistance services and/or
operator services pursuant to separate contracts to be negotiated in good
faith between the Parties. If DTI so requests directory assistance
services and/or operator services, such contracts shall provide for the
following:
7.1 Directory Assistance Calls. GTE directory assistance centers shall
provide number and addresses to DTI end users in the same manner that
number and addresses are provided to
VIII-7
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GTE end users. If information is provided by an automated response unit
("ARU"), such information shall be repeated twice in the same manner in
which it is provided to GTE end users. Where available, GTE will provide
call completion to DTI end users in the same manner that call completion
is provided to GTE end users. GTE will provide its existing services to
DTI end users consistent with the service provided to GTE end users.
7.2 Operator Services Calls. GTE operator services provided to DTI end users
shall be provided in the same manner GTE operator services are provided to
GTE end users. In accordance with GTE practices and at GTE rates, GTE
will offer to DTI end users collect, person-to-person, station-to-station
calling, Third Party billing, emergency call assistance, calling card
services, credit for calls, time and charges, notification of the length
of call, and real time rating. GTE operators shall also have the ability
to quote DTI rates upon request but only if there is appropriate cost
recovery to GTE and to the extent it can be provided within the technical
limitations of GTE's switches. GTE will provide its existing services to
DTI end users consistent with the service GTE provides to its own end
users.
8. Directory Assistance Listings Information. GTE will include listings in
its directory assistance database for DTI end users in the same geographic
area as GTE provides directory assistance for GTE end users as specified
in Article VI, Section 3.4.
8.1 GTE shall provide to DTI, at DTI's request, for purposes of DTI providing
DTI-branded directory assistance services to its local customers, within
sixty (60) Business Days after an order for such tape is received, all
published DA listings for that specific state via magnetic tape. Such
listings will be Confidential Information under this Agreement and DTI
will use the listings only for its directory assistance services to its
end users. If DTI uses a Third Party directory assistance service to its
end users, DTI will ensure that such Third Party likewise treats the
listings as Confidential Information under this Agreement, and uses them
only for such directory assistance. Changes to the DA Listing Information
shall be updated on a daily basis through the same means used to transmit
the initial list. DA Listing Information provided shall indicate whether
the customer is a residence or business customer. The rate to be paid by
DTI to GTE will be reasonable and mutually agreed upon.
8.2 The Parties will not release DA Listing Information that includes the
other Party's end user information to Third Parties without the other
Party's written approval. The other Party will inform the Releasing Party
if it desires to have the Releasing Party provide the other Party's DA
Listing Information to the Third Party, in which case, the Releasing Party
shall provide the other Party's DA Listing Information at the same time as
the Releasing Party provides the Releasing Party's DA Listing Information
to the Third Party. The rate to be paid by the Releasing Party to the
other Party shall be no more than the direct costs of compiling such
information. The other Party shall be responsible for billing the Third
Party.
8.3 The Parties will work together to identify and develop procedures for
database error corrections.
9. Directory Listings and Directory Distribution. DTI will be required to
negotiate a separate agreement for directory listings and directory
distribution, except as set forth below, with GTE's directory publication
company.
Listings. DTI agrees to supply GTE on a regularly scheduled basis, at no
charge, and in a mutually agreed upon format (e.g. Ordering and Billing
Forum developed), all listing information for DTI's subscribers who wish
to be listed in any GTE published directory for the relevant operating
area. Listing information will consist of names, addresses (including
city, state and zip code) and telephone numbers. Nothing in this
Agreement shall require GTE to publish a directory where it would not
otherwise do so.
VIII-8
<PAGE> 69
Listing inclusion in a given directory will be in accordance with GTE's
solely determined directory configuration, scope, and schedules, and
listings will be treated in the same manner as GTE's listings.
Distribution. Upon directory publication, GTE will arrange for the
initial distribution of the directory to service subscribers in the
directory coverage area at no charge.
DTI will supply GTE in a timely manner with all required subscriber
mailing information including non-listed and non-published subscriber
mailing information, to enable GTE to perform its distribution
responsibilities.
10. Busy Line Verification and Busy Line Verification Interrupt. Each Party
shall establish procedures whereby its operator assistance bureau will
coordinate with the operator assistance bureau of the other Party to
provide Busy Line Verification ("BLV") and Busy Line Verification and
Interrupt ("BLVI") services on calls between their respective end users.
Each Party shall route BLV and BLVI inquiries over separate inward
operator services trunks. Each Party's operator assistance bureau will
only verify and/or interrupt the call and will not complete the call of
the end user initiating the BLV or BLVI. Each Party shall charge the
other for the BLV and BLVI services at the rates contained in Appendix F,
or if there is no applicable rate listed in Appendix F, at the rates in
their respective tariffs.
11. SAG. GTE will provide to DTI upon request the Street Address Guide at a
reasonable charge. Two companion files will be provided with the SAG
which lists all services and features at all LSOs, and lists services and
features that are available in a specific LSO.
12. Dialing Format Changes. GTE will provide reasonable notification to DTI
of changes to local dialing format, i.e., 7 to 10 digit, by end office.
13. Operational Support Systems (OSS). GTE shall provide OSS functions to
DTI for ordering, provisioning and billing that are generally available as
described in Appendix I attached to this Agreement. DTI shall pay GTE for
access to GTE's OSS functions consistent with processes defined in
Appendix I.
VIII-9
<PAGE> 70
ARTICLE IX
COLLOCATION
1. Physical Collocation. GTE shall provide to DTI physical collocation of
equipment pursuant to 47 CFR Section 51.323 necessary for interconnection
or for access to unbundled network elements, provided that GTE may provide
virtual collocation in place of physical collocation, or in some cases
deny a particular collocation request entirely, if GTE demonstrates that
physical collocation, or perhaps even virtual collocation, is not
practical because of technical reasons or space limitations, as provided
in Section 251 (c)(6) of the Act. GTE will work with DTI to install
collocation arrangements within 120 calendar days absent extenuating
circumstances, GTE will provide such collocation for purposes of
interconnection or access to unbundled network elements pursuant to the
terms and conditions in the applicable federal and state EIS tariffs.
1.1 Space Planning. In addition to such provisions for space planning and
reservation as may be set forth in the applicable GTE federal and state
EIS tariffs, the parties agree to the following terms and conditions.
1.1.1 GTE has the right to reserve space within its central
offices for its own use based on a 5-year planning horizon.
1.1.2 GTE will notify DTI if it plans to build an addition to a
central office where DTI has collocated facilities, if such addition
would result in a material increase of space available for
collocation.
1.1.3 Should DTI submit to GTE a two-year forecast for space
planning for collocated facilities in a central office, GTE will, in
good faith, consider and discuss such forecast with DTI when
considering space planning or utilization decisions for such central
office; provided, however that any final space planning or
utilization decision shall be made by GTE in its sole discretion in
light of GTE requirements.
1.1.4 Subject to technical feasibility and space limitations, GTE
will make available at applicable federal and state EIS tariffs such
intraoffice facilities as may be necessary to accommodate projected
volumes of DTI traffic.
1.2 Connection to Customer Loops and Ports. Facilities for cross-connection
to unbundled loops and ports shall be provided under the applicable GTE
federal tariff for Special Access Cross Connect, until such time as a
local tariff applicable to the facilities used for such cross-connection
is filed.
1.3 Connection to Other Collocated Carriers. Subject to technical
feasibility and space limitations, DTI may interconnect with other
carriers collocated at a GTE central office at which DTI has collocated
facilities; provided, however, that DTI and such other carriers must be
collocated at the GTE central office for the primary purpose of
interconnecting with GTE or accessing GTE's unbundled network elements.
If DTI wants to interconnect with other carriers collocated at a GTE
central office, DTI must provide GTE with thirty Business Days' prior
written notice, during which time GTE may elect to provide the facilities
necessary to accomplish such interconnection. DTI and the other
collocated carriers may provide the necessary interconnection facilities
only if GTE elects not to provide such facilities or fails to so elect
within the thirty day notice period. If GTE elects to provide
interconnection facilities under this section, GTE will provide this cross
connection under the GTE federal tariff for Special Access Cross Connect,
until such time as a local tariff applicable to the facilities used for
such interconnection facilities is filed.
IX-1
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1.4 Choice of Vendor. DTI may use the vendor of its choice to install,
maintain and repair equipment within DTI's collocated space. Access by
the employees, agents or contractors of such vendor shall be subject to
the same restrictions on access by employees, agents or contractors of DTI
imposed under the applicable GTE federal and state EIS tariffs, including
but not limited to certification and approval by GTE.
1.5 Monitoring. Subject to technical feasibility and space limitations, DTI
may extend its own facilities for remote monitoring of its collocated
equipment to its collocated space. DTI may request that GTE provide the
facilities necessary for such remote monitoring, at which time GTE and DTI
will negotiate in good faith the price, terms and conditions of remote
monitoring by GTE.
1.6 Phone Service. Upon ordering collocated space, DTI may order that its
collocation cage be provided with plain old telephone service (POTS)
commencing at such time as GTE has completed construction of the
collocated space. DTI shall pay separately for any ordered POTS service.
1.7 Intraoffice Diversity. At DTI's request, GTE will provide diversity for
ingress/egress fiber and power cables where such diversity is available
and subject to technical feasibility and space limitations.
1.8 DTI Proprietary Information. GTE will protect all DTI proprietary
information to the extent required under non-disclosure agreements
existing as of the date GTE completes construction of a physical
collocation space at DTl's request.
1.9 Notification of Modifications. GTE will notify DTI of modifications to
collocation space in accord with the terms of applicable GTE state and
federal EIS tariffs. Additionally, GTE shall notify DTI when major
upgrades are made to the power plants supporting DTI's collocation space.
The following shall constitute such major upgrades:
(a) replacement of a rectifier;
(b) addition or replacement of a new fusing module;
(c) addition or replacement of a power distribution unit frame; or
(d) addition or replacement of modular rectifiers.
1.10 Drawings. When DTI orders collocated space, GTE and DTI will hold a
GTE/Customer meeting in accord with applicable GTE state and federal EIS
tariffs. At such meeting, GTE will provide such drawings of GTE's central
office facility as may be necessary to adequately depict DTI's proposed
collocation space.
1.11 Construction of Space. GTE will construct DTI's collocation space in
accord with the terms and conditions set forth in the applicable GTE state
and federal EIS tariff. Additionally, GTE agrees to the following terms
and conditions regarding construction of collocated space:
1.11.1 Space will be constructed in 100 square foot increments, and shall
be designed so as to prevent unauthorized access.
1.11.2 a standard 100 square foot cage shall have the following standard
features:
(a) eight-foot high, nine gauge chain link panels;
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(b) three of the panels listed at (a) above shall
measure eight by ten feet, the fourth panel shall measure
eight by seven feet;
(c) the door to the cage shall measure eight by three feet and
shall also consist of nine gauge chain link;
(d) the cage shall be provided with one padlock set, with GTE
retaining one master key;
(e) one ac electrical outlet;
(f) one charger circuit system;
(g) one electrical sub-panel;
(h) such additional lighting as may be necessary;
(i) one fire detection requirement evaluation;
(j) grounding for the cage consistent with COEI.
1.11.3 Modifications to the standard configuration set forth in Section
1.11.2 can be made on an individual case basis. If modifications
are agreed upon and made by the Parties, GTE will work with DTI to
implement such additional modifications as may be necessary to
ensure that DTI's collocated space is protected from unauthorized
access.
1.11.4 At such time as construction of DTI's collocation space is
approximately 50 percent completed, GTE will give DTI notification,
and such notification shall include scheduled completion and
turnover dates.
1.11.5 Upon completion of construction of collocated space, GTE will
conduct a walk through of the collocated space with DTI. Should DTI
note any deviations from the plan agreed upon by GTE and DTI at the
customer meeting, and if such deviations were not requested by DTI
or not required by law, GTE shall correct such deviations at its own
expense within 5 Business Days.
1.12 Connection Equipment. DTI may provision equipment for the connection of
DTI termination equipment to GTE equipment using either of the following
methods:
1.12.1 DTI may extend an electrical or optical cable from the terminal
within DTI's collocation cage and terminate that cable at GTE's
network.
1.12.2 DTI may install a patch panel within its collocation cage and then
hand the cabling to GTE to extend to and have GTE terminate that
cable at GTE's network.
1.13 Access to DTI Collocation Space. The terms and conditions of access to
DTI's collocation space shall be as set forth in applicable GTE state and
federal EIS tariffs. Additionally, GTE agrees that the following terms
and conditions shall apply to access:
1.13.1 GTE shall implement adequate measures to control access to
collocation cages.
1.13.2 Collocation space shall comply with all applicable fire and safety
codes.
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1.13.3 Doors with removable hinges or inadequate strength shall be
monitored by an alarm connected to a manned site. All other alarms
monitoring DTI collocation space provided by GTE shall also be
connected to a manned site. DTI may, at its option, provide its own
intrusion alarms for its collocated space.
1.13.4 GTE shall control janitorial access to collocation cages, and
restrict such access to approved and certified employees, agents or
contractors.
1.13.5 GTE shall establish procedures for access to collocation cages by
GTE and non-GTE emergency personnel, and shall not allow access by
security guards unless such access comports with this section and is
otherwise allowed under applicable GTE state and federal EIS
tariffs.
1.13.6 GTE shall retain a master key to DTI's collocation space for use
only in event of emergency as detailed in applicable GTE state and
federal tariffs. At DTI's option, the Parties shall review key
control procedures no more frequently than once in any twelve month
period. At any time, DTI may elect to change keys if it suspects
key control has been lost, provided, however, that GTE will be
provided with a master key in accord with this section.
1.13.7 Not more frequently than once a year, DTI may audit the security
and access procedures and equipment applicable to its collocated
space and the central office housing the collocation space. Access
by personnel necessary to conduct such an audit shall be limited as
set forth in applicable GTE state and federal EIS tariffs. Should
DTI identify deficiencies in security and access procedures and
equipment as a result of such audit, the cost, terms and conditions
of the correction of such deficiencies shall be negotiated in good
faith between the parties.
2. Virtual Collocation. Subject to Section 1 of this Article IX, GTE will
provide virtual collocation for purposes of interconnection or access to
unbundled network elements pursuant to the terms and conditions in the
applicable GTE federal and state EIS tariffs. In addition, GTE agrees
that the terms and conditions set forth in this Section 2 of this Article
IX, shall apply to virtual collocation provided to DTI.
2.1 Existing Virtual Collocation. If, on the effective date of this
Agreement, DTI is virtually collocated in a GTE premise, DTI may (I) elect
to retain its virtual collocation arrangement in that premise or (ii)
unless it is not practical for technical reasons or because of space
limitations, convert its virtual collocation arrangement at that premise
to physical collocation. If DTI elects the latter option, DTI's request
shall be treated as a new physical collocation request and DTI shall pay
GTE at the applicable tariff rates for construction and rearrangement of
DTI's equipment as well as all applicable tariffed physical collocation
recurring charges.
2.2 Conversion from Physical to Virtual. Unless it is not practical for
technical reasons or because of space limitations, DTI may convert a
physical collocation arrangement to a virtual collocation arrangement.
DTI's request to do so shall be treated as a new virtual collocation
request and DTI shall pay GTE at the applicable tariff rates for
construction and rearrangement of DTI's equipment as well as all
applicable tariffed virtual collocation recurring charges. If DTI elects
to change to a virtual collocation arrangement pursuant to this section,
GTE will not refund previous payments for physical collocation received
from DTI.
2.3 Vendors. Choice of vendors for equipment used for virtual collocation
shall be under the terms and conditions set forth in the applicable GTE
federal and state EIS tariff. Upon request by DTI,
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GTE shall provide a list of locally qualified vendors approved for the
type of equipment to be collocated.
2.4 Inspection. Upon provision of virtual collocation by GTE, the Parties
shall agree on a mutually acceptable schedule whereby DTI may inspect the
equipment in its virtual collocation space.
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ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY
To the extent required by the Act, GTE and DTI shall each afford to the other
access to the poles, ducts, conduits and rights of way it owns or controls on
terms, conditions and prices comparable to those offered to any other entity
pursuant to each Parties tariffs and/or standard agreements. Accordingly, GTE
and DTI shall execute pole attachment and conduit occupancy agreements in the
form set forth in Appendices I and J.
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IN WITNESS WHEREOF, each Party has executed this Agreement to be effective as
of the date first above written.
<TABLE>
<S> <C>
GTE ARKANSAS INCORPORATED DIGITAL TELEPORT, INC.
GTE MIDWEST INCORPORATED
By /s/ Connie Nicholas By /s/ J. W. Sheehy
Name Connie E. Nicholas Name J. W. Sheehy
Assistant Vice President
Title Wholesale Markets - Interconnection Title Vice President IC Support
Date November 7, 1997 Date 10/22/97
</TABLE>
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<PAGE> 77
APPENDIX A
GTE PERFORMANCE MEASURES (PM)
Pursuant to Article III of this Agreement, the following terms and conditions
shall apply regarding the performance measures set forth in this Appendix A.
The Parties recognize that these performance measures are new and evolving, and
as further evolution is made by GTE, the parties will discuss the changed
procedures, including new standard processes and procedures, if any, for the
purpose of applying them to and incorporating them in this Agreement.
GTE'S PERFORMANCE MEASURES (PMS) as set forth in this Appendix implement
standards to measure the quality of services supplied by GTE with respect to
pre-ordering, order/provisioning, maintenance and billing that is equivalent in
equality to what GTE provides to itself. GTE's PMs contain measures for both
GTE and DTI with the measures for DTI being considered an essential element for
GTE meeting customer expectations.
GTE's PMs are conditioned upon a 150 order per month minimum requirement as
described below for Service Units, as a threshold for providing Financial
Incentives for certain PMs. The 150 order per month requirement for Service
Units was developed to provide a statistically valid sample size to measure
GTE's performance for DTI in relationship to the level of performance GTE
provides to its own customers. Service Units are defined to include unbundled
loops, unbundled ports, resold local service lines, INP ported numbers, and
interconnection trunks.
GTE will begin recording of performance data in the first full month in which
it receives the first official order from DTI. GTE's report of performance
measures to DTI, however, will begin after 6 months of data recording; i.e.,
for data recorded in the seventh full month. Each month's report will then be
reported as a rolling 3-month result (i.e., July's report will actually include
May, June, July data). The calculation of DTI performance will be based on
this 3 month rolling average of actual performance unless otherwise specified.
Reporting will be available monthly, or at a longer interval, as requested by
DTI. The details of report delivery shall be agreed upon between DTI and the
appropriate GTE Account Management group.
FORECASTING PERFORMANCE MEASUREMENT - GTE's PMs are conditioned upon the
requirement, as described more fully below, that DTI submit timely and accurate
forecasts. The Forecasting PM includes provisions that measure the accuracy of
DTI's forecast by comparing forecasted Service Units to ordered Service Units
for the same period.
DTI shall furnish a quarterly forecast of service order volumes and quantities
of resold local services, unbundled network elements, and interconnection
trunks on a State-wide basis, identifying these volumes/quantities by month,
for each month included in the quarter. These forecasts shall be received by
GTE at least one month before the beginning of the quarter covered by the
forecast. Should the first month of the next quarterly forecast be greater
than ten (10%) percent of the last month of the current quarterly forecast, DTI
shall notify GTE promptly of the increased order volume. Notification shall be
made to the appropriate GTE Account Management group in order to allow
sufficient "lead time" to ensure staffing levels are available to support the
increased order volumes.
DTI must agree to comply with the requirements of the Forecasting PM as the
basis for the application of Financial Incentives described below. If DTI
chooses not to comply with the Forecasting PM, Financial Incentives will not
apply. For purposes of applying Financial Incentives the accuracy of forecasts
will be determined at the state level.
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The measurement and reporting of GTE's PMs will still be made available as
stated above regardless of DTI's election for the Forecasting PM.
FINANCIAL INCENTIVES - When DTI agrees to the Forecasting PM described above,
Financial Incentives will begin concurrently with reporting of individual DTI
performance data except as specified below for the
Pre-Ordering/Ordering/Provisioning and Interconnection PMs.
Financial Incentives will apply to Maintenance/Repair PMs without restriction
other than DTI's participation in the Forecasting PM.
Financial Incentives will apply to Pre-Ordering/Ordering/Provisioning and
Interconnection PMs subject to DTI's participation in the Forecasting PM and
the required per month ordering threshold. DTI must place a 150 orders per
month minimum for Service Units, by state, for three (3) consecutive months
(hereafter the "150-order requirement"). Once DTI's order volume reaches the
"150-order requirement", a ninety (90) day grace period will begin wherein data
will be accumulated and reviewed. At the end of that ninety (90) day grace
period, applicable Financial Incentives shall apply. The three (3) consecutive
months and the subsequent ninety (90) day grace period may be concurrent with
all or part of the beginning six (6) month period after recording of official
data begins, between initial order activity and the implementation of
performance reporting (i.e., month 7 data).
For purposes of applying Financial Incentives to the Forecasting PM, if DTI's
actual order activity for Service Units in a given month is below the forecast
for that month by more than 10%, Financial Incentives will apply only to the
incremental Service Units that were forecasted but not ordered; i.e., the
difference between the actual quantity ordered and the quantity which reflects
the forecast less 10%.
For purposes of applying Financial Incentives to the
Pre-ordering/Ordering/Provisioning and Interconnection PM, if DTI's actual
order activity for Service Units in a given month exceeds the forecast for that
month by more than 10%, Financial Incentives will not apply.
Average Non-Recurring Charges - The averages are calculated by dividing the sum
of all non-recurring charges applied to service orders issued by DTI to GTE by
the total number of orders or the total number of Service Units ordered. These
calculations will be made by service activity and service category: Business
(Single/Multi-line, Centranet, PBX, Trunks), Residence, etc.. The average
Non-Recurring Charges will be separately calculated for field work and
non-field work orders. These averages and a weighting factor for field and
non-field work will be calculated during a study period to be mutually agreed
between the Parties. The initial average Non-Recurring Charge calculation will
occur within three (3) months of DTI's initial issuance of official orders.
The average Non-Recurring Charge shall be recalculated annually as mutually
agreed between the Parties.
Average Recurring Charges - The averages are calculated by dividing the sum of
all recurring charges applied to service orders issued by DTI to GTE by the
total number of orders or Service Units ordered. These averages will be
calculated during a study period to be mutually agreed between the Parties.
These calculations will be made by service activity and service category,
Business, Residence, etc. The initial average Recurring Charge calculation
will occur within three (3) months of DTI's initial issuance of official
orders. The average Recurring Charges shall be recalculated annually as
mutually agreed between the Parties.
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GTE PERFORMANCE MEASURES WITH FINANCIAL INCENTIVES
PRE-ORDERING/ORDERING/PROVISIONING
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
1 GTE National Prompt transmission 85% of CSR's sent 5% of average NRC
of Customer Service to DTI by the close incurred by DTI for
Record (CSR) of business on the number of CSR's
Information business day for which the
following receipt Quality Standard is
of request not met in the
reported month
2 GTE National Prompt transmission 85% of LSC's sent 20% of average NRC
of Local Service to DTI by the close incurred by DTI for
Confirmation (LSC) of business on the lines ordered
business day for which GTE
following receipt failed to meet the
of request Quality Standard in
the reported month
3 GTE State Due Date Percent of DTI Waiver of the
commitments met customer install, average NRC
transfer, and installation
change service charges for the
orders for which number of lines by
service is which GTE fails to
installed by close meet the Quality
of business on the Standard in the
committed due date reported month
is not more than
2.5% below the
percent of GTE
customer install,
transfer, and
change service
orders
</TABLE>
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<PAGE> 80
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
4 GTE State % reporting trouble Percent of DTI One month's average
within 30 days of customer install, MRC per trouble
the date installed transfer, and report exceeding
change service the Quality
orders which are Standard in the
followed by a reported month (not
customer trouble to exceed one
report within 30 month's credit per
days of service customer line
order completion month)
date is not more
than 2.5% worse
than the percent
GTE customer
install, transfer,
and change service
orders which are
followed by a
customer trouble
report within 30
days of service
order completion
5 GTE State Service Order 80% of LSR's Payment by DTI to
discrepancy: LSR's initiated by DTI's GTE equal to 20% of
issued without do not contain an the average NRC
material errors order discrepancy installation
or error: 90% in charges for the
12 months. Final number of lines
target - 95% which DTI fails to
meet the Quality
Standard in the
reported month
</TABLE>
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<PAGE> 81
INTERCONNECTION
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
1 GTE State Trunk orders Percent of trunk Waiver of 100% of
completed on or orders by DTI average NRC for
before the completed by GTE on trunks ordered for
Committed Due Date or before the which GTE failed to
commitment date is meet the Quality
not more than 10% Standard in the
below the percent reported month
of FG B/D Switched
access orders by
all ordering
companies completed
by GTE on or before
the commitment date
2 GTE National Firm Order Percent of trunk Waiver of 20%
Confirmation (FOC) orders by DTI average of average
on time delivery completed by GTE on NRC installation
or before the for trunks for
commitment date is which GTE failed to
not more than 5% meet the Quality
below the percent Standard in the
of FG B/D Switched reported month
access by all
ordering companies
for which GTE sends
FOC (within 5 days,
or longer, as
requested by DTI)
</TABLE>
A-5
<PAGE> 82
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
3 DTI National Service Order 80% of ASR's Charge equal to 20%
discrepancy: ASR's initiated by DTI do of average NRC
issued without not contain installation of
material errors material error or trunks ordered for
result in which DTI failed to
discrepancy; 90% in meet the Quality
12 months. Final Standard in the
target 95% reported month
</TABLE>
A-6
<PAGE> 83
MAINTENANCE/REPAIR
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
1 GTE State Percent Commitments Percent of DTI One month's flat
Met customer Network rate average MRC
trouble reports per line out of
where commitment service for which
was meet more than Quality Standard is
2.5% worse than the not met in the
percent of GTE's reported month
customer Network
trouble reports
where commitment
was met (excluding
reports which are
cleared CPE, DTI
customer error)
</TABLE>
A-7
<PAGE> 84
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
2 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC
Service (OOS) - elapsed hours/ per line OOS for
Designed minutes for OOS DTI which Quality
customer Network Standard is not met
trouble reports in the reported
divided by total month
number OOS customer
Network trouble
reports) for DTI
customers is more
than 10% of the
average repair time
for GTE customers
(includes only
"Designed"
services)
</TABLE>
A-8
<PAGE> 85
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
3 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC
Service (OOS) - elapsed per line OOS for
Non-Designed hours/minutes for which Quality
OOS DTI customer Standard is not met
Network trouble in the reported
reports divided by month
total number OOS
customer Network
trouble reports)
for DTI customers
is more than 10% of
the average repair
time for GTE
customers (includes
only POTS and
circuits which do
not require a
design)
4 GTE State Percent reports per Percent of DTI Within six (6)
100 (Failure customers making months of effective
Frequency) trouble reports date, GTE will have
(total number of established a
DTI customer minimum access line
Network trouble threshold.
reports divided by One month's flat
the total access rate average MRC
lines multiplied by per line OOS for
100) is not worse which Quality
than .5 percent Standard is not met
points of the in the reported
percentage of GTE month.
customers making
trouble reports
</TABLE>
A-9
<PAGE> 86
<TABLE>
<CAPTION>
Performance Quality Financial
Issue No. Obligation Data Level Measure(PM) Standard Incentive
<S> <C> <C> <C> <C> <C>
5 GTE State Percent repeat Percent of DTI One month's flat
reports in 30 days customer repeat rate average MRC
trouble reports per line OOS for
(total number of which Quality
DTI customer Standard is not met
Network trouble in the reported
reports which had a month
previous Network
trouble report
within the last 30
days divided by the
total of customer
Network trouble
reports multiplied
by 100) is not more
than 2.5% worse
than the percent of
GTE customer repeat
trouble reports
</TABLE>
**Note: Outage Credits: Local Service and Unbundled Network Elements: Outage
Credits apply to interruptions of Local Services and Unbundled Network Elements
in accordance with applicable state Public Service Commission requirements. If
a Local Service or Unbundled Network Element is interrupted, DTI will be
entitled to outage credits. An interruption period begins when DTI reports to
GTE that a Local Service or Unbundled Network Element is interrupted (or GTE
has knowledge that an interruption has occurred through service monitoring or
other means). An interruption period ends when the Local Service is repaired
and returned to DTI. A Local Service or Unbundled Network Element is
considered to be interrupted when there has been a loss of continuity, the
Local Service or Unbundled Network Element does not operate in accordance with
the applicable service standards, or it is otherwise unavailable for use by
DTI. This definition is not intended to conflict with State Public Utility
Commission requirements.
A-10
<PAGE> 87
FORECASTING
<TABLE>
<CAPTION>
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATALEVEL MEASUREMENT(PM) STANDARD INCENTIVE
- --------- ---------- --------- ------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C>
1 DTI State Service Units Volume of DTI's 20% of the average
requirements Service Units NRC for the number
accurately forecast requirements in a of service units
all volumes for month is not below the forecast
each month greater than 10% when the actual
contained in the below the amount volumes are greater
quarterly report. forecast by DTI in than 10% and less
it's most recent than or equal to
quarterly forecast 30% under forecast.
(which shall have 40% of the average
been made not later NRC for the number
than 30 days prior of service units
to the quarter in below the forecast
question) when the actual
volumes are greater
than 30% and less
than or equal to
40% under the
forecast. 50% of
the average NRC for
the number of
service units below
the forecast when
the actual volumes
are over 40% under
the forecast
</TABLE>
A-11
<PAGE> 88
APPENDIX B
SERVICE MATRIX
Date
--------------------
<TABLE>
<CAPTION>
Service Location
(identified by tandem serving IP Services
area) (identified by CLLI code) (identified by )
- ----------------------------- ------------------------- -----------------------
<S> <C> <C>
TO BE DETERMINED TO BE DETERMINED TO BE DETERMINED
</TABLE>
B-1
<PAGE> 89
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
GENERAL AND LOCAL EXCHANGE SERVICE -
PSC MO. NO. 1 LOCAL EXCHANGE SERVICE
Business Service
GRP A-1
MO GTE 4-SHT.17 8 1-Party MRC Yes Yes $13.00 $1.99 $11.01
MO GTE 4-SHT.17 8 4-Party MRC Yes Yes $13.00 $1.99 $11.01
MO GTE 4-SHT.17 8 PBX Trunk MRC Yes Yes $16.25 $2.49 $13.76
MO GTE 4-SHT.17 8 Key Line MRC Yes Yes $16.25 $2.49 $13.76
MO GTE 4-SHT.17 0 Semi-Public MRC No No $16.25 N/A N/A
MO GTE 4-SHT.17 0 COPT MRC Yes No $26.95 N/A $26.95
GRP A-2
MO GTE 4-SHT.17 8 1-Party MRC Yes Yes $14.00 $2.15 $11.85
MO GTE 4-SHT.17 8 4-Party MRC Yes Yes $14.00 $2.15 $11.85
MO GTE 4-SHT.17 8 PBX Trunk MRC Yes Yes $17.50 $2.68 $14.82
MO GTE 4-SHT.17 8 Key Line MRC Yes Yes $17.50 $2.68 $14.82
MO GTE 4-SHT.17 0 Semi-Public MRC No No $17.50 N/A N/A
MO GTE 4-SHT.17 0 COPT MRC Yes No $26.95 N/A $26.95
GRP A-3
MO GTE 4-SHT.17 8 1-Party MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 4-SHT.17 8 4-Party MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 4-SHT.17 8 PBX Trunk MRC Yes Yes $18.75 $2.87 $15.88
MO GTE 4-SHT.17 8 Key Line MRC Yes Yes $18.75 $2.87 $15.88
MO GTE 4-SHT.17 0 Semi-Public MRC No No $18.75 N/A N/A
MO GTE 4-SHT.17 0 COPT MRC Yes No $26.95 N/A $26.95
GRP A-4
MO GTE 4-SHT.17 8 1-Party MRC Yes Yes $16.00 $2.45 $13.55
MO GTE 4-SHT.17 8 4-Party MRC Yes Yes $16.00 $2.45 $13.55
MO GTE 4-SHT.17 8 PBX Trunk MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 4-SHT.17 8 Key Line MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 4-SHT.17 0 Semi-Public MRC No No $20.00 N/A N/A
MO GTE 4-SHT.17 0 COPT MRC Yes No $26.95 N/A $26.95
GRP A-5
MO GTE 4-SHT.17 8 1-Party MRC Yes Yes $17.00 $2.61 $14.39
MO GTE 4-SHT.17 8 4-Party MRC Yes Yes $17.00 $2.61 $14.39
MO GTE 4-SHT.17 8 PBX Trunk MRC Yes Yes $21.25 $3.26 $17.99
MO GTE 4-SHT.17 8 Key Line MRC Yes Yes $21.25 $3.26 $17.99
MO GTE 4-SHT.17 0 Semi-Public MRC No No $21.25 N/A N/A
MO GTE 4-SHT.17 0 COPT MRC Yes No $26.95 N/A $26.95
GRP Metro
MO GTE 4-SHT.18 8 1-Party MRC Yes Yes $20.22 $3.10 $17.12
MO GTE 4-SHT.18 8 PBX Trunk MRC Yes Yes $31.67 $4.86 $26.81
</TABLE>
Page 1
<PAGE> 90
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 4-SHT.18 8 Key Line MRC Yes Yes $31.67 $4.86 $26.81
MO GTE 4-SHT.18 0 Semi-Public MRC No No $31.67 N/A N/A
MO GTE 4-SHT.18 0 COPT MRC Yes No $26.95 N/A $26.95
Residence Service
GRP A-1
MO GTE 4-SHT.17 0 1-Party MRC No No $6.50 N/A N/A
MO GTE 4-SHT.17 0 2-Party MRC No No $5.20 N/A N/A
MO GTE 4-SHT.17 0 4-Party MRC No No $4.23 N/A N/A
MO GTE 4-SHT.17 0 Key Line MRC No No $6.50 N/A N/A
GRP A-2 N/A
MO GTE 4-SHT.17 0 1-Party MRC No No $7.00 N/A N/A
MO GTE 4-SHT.17 0 2-Party MRC No No $5.60 N/A N/A
MO GTE 4-SHT.17 0 4-Party MRC No No $4.55 N/A N/A
MO GTE 4-SHT.17 0 Key Line MRC No No $7.00 N/A N/A
GRP A-3 N/A
MO GTE 4-SHT.17 0 1-Party MRC No No $7.50 N/A N/A
MO GTE 4-SHT.17 0 2-Party MRC No No $6.00 N/A N/A
MO GTE 4-SHT.17 0 4-Party MRC No No $4.88 N/A N/A
MO GTE 4-SHT.17 0 Key Line MRC No No $7.50 N/A N/A
GRP A-4 N/A
MO GTE 4-SHT.17 0 1-Party MRC No No $8.00 N/A N/A
MO GTE 4-SHT.17 0 2-Party MRC No No $6.40 N/A N/A
MO GTE 4-SHT.17 0 4-Party MRC No No $5.20 N/A N/A
MO GTE 4-SHT.17 0 Key Line MRC No No $8.00 N/A N/A
GRP A-5 N/A
MO GTE 4-SHT.17 0 1-Party MRC No No $8.50 N/A N/A
MO GTE 4-SHT.17 0 2-Party MRC No No $6.80 N/A N/A
MO GTE 4-SHT.17 0 4-Party MRC No No $5.53 N/A N/A
MO GTE 4-SHT.17 0 Key Line MRC No No $8.50 N/A N/A
GRP Metro N/A
MO GTE 4-SHT.18 0 1-Party MRC No No $10.40 N/A N/A
EXTENDED AREA SERVICE
MO GTE 4-SHT.6 0 Business Rate - High MRC Yes Yes $10.55 $0.00 $10.55
MO GTE 4-SHT.6 0 Business Rate - Low MRC Yes Yes $0.10 $0.00 $0.10
MO GTE 4-SHT.6 0 Residence Rate - High MRC No No $5.70 N/A N/A
MO GTE 4-SHT.6 0 Residence Rate - Low MRC No No $0.10 N/A N/A
METROPOLITAN CALLING AREA (MCA) PLAN
Springfield MCA-2
MO GTE 4-SHT.31 8 Bus MRC Yes Yes $21.75 $3.33 $18.42
MO GTE 4-SHT.31 0 Res MRC No No $11.45 N/A N/A
</TABLE>
Page 2
<PAGE> 91
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
St. Louis/Kansas City MCA - 4
MO GTE 4-SHT.31 8 Bus MRC Yes Yes $46.75 $7.17 $39.58
MO GTE 4-SHT.31 0 Res MRC No No $21.55 N/A N/A
St. Louis/Kansas City MCA - 5
MO GTE 4-SHT.31 8 Bus MRC Yes Yes $70.70 $10.84 $59.86
MO GTE 4-SHT.31 0 Res MRC No No $32.50 N/A N/A
SERVICE CHARGES
Service Ordering Charge
Initial Ordering Charge
MO GTE 5-SHT.4 0 Bus NRC No No $25.00 N/A N/A
MO GTE 5-SHT.4 0 Res NRC No No $13.00 N/A N/A
Subsequent Ordering Charge N/A
MO GTE 5-SHT.4 0 Bus NRC No No $9.00 N/A N/A
MO GTE 5-SHT.4 0 Res NRC No No $4.00 N/A N/A
Line Connection Charge N/A
MO GTE 5-SHT.4 0 Bus NRC Yes No $14.00 N/A $14.00
MO GTE 5-SHT.4 0 Res NRC Yes No $7.60 N/A $7.60
MO GTE 5-SHT.4 0 Semi-Public Telephone
installation Charge NRC No No $100.00 N/A N/A
Restoral Charge N/A
MO GTE 5-SHT.4 0 Bus NRC No No $23.00 N/A N/A
MO GTE 5-SHT.4 0 Res NRC No No $11.60 N/A N/A
Maintenance of Service Charge N/A
MO GTE 5-SHT.4 0 Bus NRC No No $25.00 N/A N/A
MO GTE 5-SHT.4 0 Res NRC No No $25.00 N/A N/A
CUSTOM CALLING SERVICES
Remote Call Forwarding Service
MO GTE 6-SHT.2 8 Bus MRC Yes Yes $16.00 $2.45 $13.55
MO GTE 6-SHT.2 8 Res MRC Yes Yes $16.00 $2.45 $13.55
SmartCall Services
Anonymous Call Rejection
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $1.00 N/A $1.00
MO GTE 6-SHT.13 8 Res MRC Yes Yes $1.00 $0.15 $0.85
Automatic Busy Redial
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 6-SHT.13 8 Res MRC Yes Yes $5.00 $0.77 $4.23
Automatic Call Return
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 6-SHT.13 8 Res MRC Yes Yes $5.00 $0.77 $4.23
</TABLE>
Page 3
<PAGE> 92
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Call Block
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 6-SHT.13 8 Res MRC Yes Yes $3.00 $0.46 $2.54
Call Forwarding
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $2.75 $0.42 $2.33
MO GTE 6-SHT.13 8 Res MRC Yes Yes $2.30 $0.35 $1.95
Call Forwarding Busy Line - Fixed
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $1.25 $0.19 $1.06
MO GTE 6-SHT.13 8 Res MRC Yes Yes $1.25 $0.19 $1.06
Call Forwarding No Answer - Fixed
MO GTE 6-SHT.13 8 Bus MRC Yes Yes $1.25 $0.19 $1.06
MO GTE 6-SHT.13 8 Res MRC Yes Yes $1.25 $0.19 $1.06
Call Forwarding Busy Line/No Answer -
Fixed
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $1.50 $0.23 $1.27
MO GTE 6-SHT.14 8 Res MRC Yes Yes $1.50 $0.23 $1.27
Call Forwarding Busy Line/No Answer -
Variable
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 6-SHT.14 8 Res MRC Yes Yes $3.00 $0.46 $2.54
Call Tracing Service
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $3.50 $0.54 $2.96
MO GTE 6-SHT.14 8 Res MRC Yes Yes $2.50 $0.38 $2.12
Call Waiting
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $3.75 $0.57 $3.18
MO GTE 6-SHT.14 8 Res MRC Yes Yes $3.30 $0.51 $2.79
Caller ID - Number
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $10.00 $1.53 $8.47
MO GTE 6-SHT.14 8 Res MRC Yes Yes $7.00 $1.07 $5.93
Caller ID - Name and Number
MO GTE 6-SHT.14 8 Bus MRC Yes Yes $11.50 $1.76 $9.74
MO GTE 6-SHT.14 8 Res MRC Yes Yes $7.95 $1.22 $6.73
Smart Ring
MO GTE 6-SHT.15 8 Bus MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 6-SHT.15 8 Res MRC Yes Yes $6.00 $0.92 $5.08
Smart Ring with any PAK
MO GTE 6-SHT.15 8 Bus MRC Yes Yes $3.00 $0.46 $2.54
Special Call Acceptance
MO GTE 6-SHT.15 8 Bus MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 6-SHT.15 8 Res MRC Yes Yes $2.00 $0.31 $1.69
Special Call Forwarding
MO GTE 6-SHT.15 8 Bus MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 6-SHT.15 8 Res MRC Yes Yes $2.00 $0.31 $1.69
Speed Calling
8 Numbers
</TABLE>
Page 4
<PAGE> 93
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 6-SHT.16 8 Bus MRC Yes Yes $3.50 $0.54 $2.96
MO GTE 6-SHT.16 8 Res MRC Yes Yes $2.50 $0.38 $2.12
30 Numbers
MO GTE 6-SHT.16 8 Bus MRC Yes Yes $4.50 $0.69 $3.81
MO GTE 6-SHT.16 8 Res MRC Yes Yes $3.50 $0.54 $2.96
Three-Way Calling
MO GTE 6-SHT.16 8 Bus MRC Yes Yes $3.75 $0.57 $3.18
MO GTE 6-SHT.16 8 Res MRC Yes Yes $3.30 $0.51 $2.79
VIP Alert
MO GTE 6-SHT.16 8 Bus MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 6-SHT.16 8 Res MRC Yes Yes $3.00 $0.46 $2.54
Smarter Call PAK
MO GTE 6-SHT.17 8 Bus MRC Yes Yes $5.50 $0.84 $4.66
SmartCall Pak 4400
MO GTE 6-SHT.17 8 Res Only MRC Yes Yes $8.75 $1.34 $7.41
SmartCall PAK 4900
MO GTE 6-SHT.17 8 Res Only MRC Yes Yes $13.25 $2.03 $11.22
CONTROLINK DIGITAL CHANNEL SERVICE
MO GTE 7-SHT.14 0 Service Establishment Charge NRC Yes No $300.00 N/A $300.00
MO GTE 7-SHT.14 0 Service Change Charge NRC Yes No $100.00 N/A $100.00
Digital Channel Capacity -
36 Month Contract
MO GTE 7-SHT.15 8 24 Channels MRC Yes Yes $340.00 $52.12 $287.88
MO GTE 7-SHT.15 0 NRC NRC Yes No $250.00 N/A $250.00
MO GTE 7-SHT.15 8 48 Channels MRC Yes Yes $520.00 $79.72 $440.28
MO GTE 7-SHT.15 0 NRC NRC Yes No $500.00 N/A $500.00
MO GTE 7-SHT.15 8 72 Channels MRC Yes Yes $700.00 $107.31 $592.69
MO GTE 7-SHT.15 0 NRC NRC Yes No $750.00 N/A $750.00
MO GTE 7-SHT.15 8 96 Channels MRC Yes Yes $880.00 $134.90 $745.10
MO GTE 7-SHT.15 0 NRC NRC Yes No $1,000.00 N/A $1,000.00
MO GTE 7-SHT.15 8 120 Channels MRC Yes Yes $1,060.00 $162.50 $897.50
MO GTE 7-SHT.15 0 NRC NRC Yes No $1,250.00 N/A $1,250.00
MO GTE 7-SHT.15 8 144 Channels MRC Yes Yes $1,240.00 $190.09 $1,049.91
MO GTE 7-SHT.15 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE 7-SHT.15 8 192 Channels MRC Yes Yes $1,600.00 $245.28 $1,354.72
MO GTE 7-SHT.15 0 NRC NRC Yes No $2,000.00 N/A $2,000.00
MO GTE 7-SHT.15 8 240 Channels MRC Yes Yes $1,960.00 $300.47 $1,659.53
MO GTE 7-SHT.15 0 NRC NRC Yes No $2,500.00 N/A $2,500.00
MO GTE 7-SHT.15 8 288 Channels MRC Yes Yes $2,320.00 $355.66 $1,964.34
MO GTE 7-SHT.15 0 NRC NRC Yes No $3,000.00 N/A $3,000.00
MO GTE 7-SHT.15 8 384 Channels MRC Yes Yes $3,040.00 $466.03 $2,573.97
MO GTE 7-SHT.15 0 NRC NRC Yes No $4,000.00 N/A $4,000.00
</TABLE>
Page 5
<PAGE> 94
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.15 8 480 Channels MRC Yes Yes $3,760.00 $576.41 $3,183.59
MO GTE 7-SHT.15 0 NRC NRC Yes No $5,000.00 N/A $5,000.00
MO GTE 7-SHT.15 8 576 Channels MRC Yes Yes $4,480.00 $686.78 $3,793.22
MO GTE 7-SHT.15 0 NRC NRC Yes No $6,000.00 N/A $6,000.00
MO GTE 7-SHT.15 8 672 Channels MRC Yes Yes $5,200.00 $797.16 $4,402.84
MO GTE 7-SHT.15 0 NRC NRC Yes No $7,000.00 N/A $7,000.00
MO GTE 7-SHT.15 8 1344 Channels MRC Yes Yes $10,240.00 $1,569.79 $8,670.21
MO GTE 7-SHT.15 0 NRC NRC Yes No $14,000.00 N/A $14,000.00
MO GTE 7-SHT.15 8 2016 Channels MRC Yes Yes $15,280.00 $2,342.42 $12,937.58
MO GTE 7-SHT.15 0 NRC NRC Yes No $21,000.00 N/A $21,000.00
Digital Channel Capacity -
60 Month Contract
MO GTE 7-SHT.16 8 24 Channels MRC Yes Yes $320.00 $49.06 $270.94
MO GTE 7-SHT.16 0 NRC NRC Yes No $250.00 N/A $250.00
MO GTE 7-SHT.16 8 48 Channels MRC Yes Yes $490.00 $75.12 $414.88
MO GTE 7-SHT.16 0 NRC NRC Yes No $500.00 N/A $500.00
MO GTE 7-SHT.16 8 72 Channels MRC Yes Yes $660.00 $101.18 $558.82
MO GTE 7-SHT.16 0 NRC NRC Yes No $750.00 N/A $750.00
MO GTE 7-SHT.16 8 96 Channels MRC Yes Yes $830.00 $127.24 $702.76
MO GTE 7-SHT.16 0 NRC NRC Yes No $1,000.00 N/A $1,000.00
MO GTE 7-SHT.16 8 120 Channels MRC Yes Yes $1,000.00 $153.30 $846.70
MO GTE 7-SHT.16 0 NRC NRC Yes No $1,250.00 N/A $1,250.00
MO GTE 7-SHT.16 8 144 Channels MRC Yes Yes $1,170.00 $179.36 $990.64
MO GTE 7-SHT.16 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE 7-SHT.16 8 192 Channels MRC Yes Yes $1,510.00 $231.48 $1,278.52
MO GTE 7-SHT.16 0 NRC NRC Yes No $2,000.00 N/A $2,000.00
MO GTE 7-SHT.16 8 240 Channels MRC Yes Yes $1,850.00 $283.61 $1,566.40
MO GTE 7-SHT.16 0 NRC NRC Yes No $2,500.00 N/A $2,500.00
MO GTE 7-SHT.16 8 288 Channels MRC Yes Yes $2,190.00 $335.73 $1,854.27
MO GTE 7-SHT.16 0 NRC NRC Yes No $3,000.00 N/A $3,000.00
MO GTE 7-SHT.16 8 384 Channels MRC Yes Yes $2,870.00 $439.97 $2,430.03
MO GTE 7-SHT.16 0 NRC NRC Yes No $4,000.00 N/A $4,000.00
MO GTE 7-SHT.16 8 480 Channels MRC Yes Yes $3,550.00 $544.22 $3,005.79
MO GTE 7-SHT.16 0 NRC NRC Yes No $5,000.00 N/A $5,000.00
MO GTE 7-SHT.16 8 576 Channels MRC Yes Yes $4,230.00 $648.46 $3,581.54
MO GTE 7-SHT.16 0 NRC NRC Yes No $6,000.00 N/A $6,000.00
MO GTE 7-SHT.16 8 672 Channels MRC Yes Yes $4,910.00 $752.70 $4,157.30
MO GTE 7-SHT.16 0 NRC NRC Yes No $7,000.00 N/A $7,000.00
MO GTE 7-SHT.16 8 1344 Channels MRC Yes Yes $9,670.00 $1,482.41 $8,187.59
MO GTE 7-SHT.16 0 NRC NRC Yes No $14,000.00 N/A $14,000.00
MO GTE 7-SHT.16 8 2016 Channels MRC Yes Yes $14,430.00 $2,212.12 $12,217.88
MO GTE 7-SHT.16 0 NRC NRC Yes No $21,000.00 N/A $21,000.00
Digital Channel Capacity -
84 Month Contract
MO GTE 7-SHT.17 8 24 Channels MRC Yes Yes $300.00 $45.99 $254.01
</TABLE>
Page 6
<PAGE> 95
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.17 0 NRC NRC Yes No $250.00 N/A $250.00
MO GTE 7-SHT.17 8 48 Channels MRC Yes Yes $460.00 $70.52 $389.48
MO GTE 7-SHT.17 0 NRC NRC Yes No $500.00 N/A $500.00
MO GTE 7-SHT.17 8 72 Channels MRC Yes Yes $620.00 $95.05 $524.95
MO GTE 7-SHT.17 0 NRC NRC Yes No $750.00 N/A $750.00
MO GTE 7-SHT.17 8 96 Channels MRC Yes Yes $780.00 $119.57 $660.43
MO GTE 7-SHT.17 0 NRC NRC Yes No $1,000.00 N/A $1,000.00
MO GTE 7-SHT.17 8 120 Channels MRC Yes Yes $940.00 $144.10 $795.90
MO GTE 7-SHT.17 0 NRC NRC Yes No $1,250.00 N/A $1,250.00
MO GTE 7-SHT.17 8 144 Channels MRC Yes Yes $1,100.00 $168.63 $931.37
MO GTE 7-SHT.17 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE 7-SHT.17 8 192 Channels MRC Yes Yes $1,420.00 $217.69 $1,202.31
MO GTE 7-SHT.17 0 NRC NRC Yes No $2,000.00 N/A $2,000.00
MO GTE 7-SHT.17 8 240 Channels MRC Yes Yes $1,740.00 $266.74 $1,473.26
MO GTE 7-SHT.17 0 NRC NRC Yes No $2,500.00 N/A $2,500.00
MO GTE 7-SHT.17 8 288 Channels MRC Yes Yes $2,060.00 $315.80 $1,744.20
MO GTE 7-SHT.17 0 NRC NRC Yes No $3,000.00 N/A $3,000.00
MO GTE 7-SHT.17 8 384 Channels MRC Yes Yes $2,700.00 $413.91 $2,286.09
MO GTE 7-SHT.17 0 NRC NRC Yes No $4,000.00 N/A $4,000.00
MO GTE 7-SHT.17 8 480 Channels MRC Yes Yes $3,340.00 $512.02 $2,827.98
MO GTE 7-SHT.17 0 NRC NRC Yes No $5,000.00 N/A $5,000.00
MO GTE 7-SHT.17 8 576 Channels MRC Yes Yes $3,980.00 $610.13 $3,369.87
MO GTE 7-SHT.17 0 NRC NRC Yes No $6,000.00 N/A $6,000.00
MO GTE 7-SHT.17 8 672 Channels MRC Yes Yes $4,620.00 $708.25 $3,911.75
MO GTE 7-SHT.17 0 NRC NRC Yes No $7,000.00 N/A $7,000.00
MO GTE 7-SHT.17 8 1344 Channels MRC Yes Yes $9,100.00 $1,395.03 $7,704.97
MO GTE 7-SHT.17 0 NRC NRC Yes No $14,000.00 N/A $14,000.00
MO GTE 7-SHT.17 8 2016 Channels MRC Yes Yes $13,580.00 $2,081.81 $11,498.19
MO GTE 7-SHT.17 0 NRC NRC Yes No $21,000.00 N/A $21,000.00
Digital Channel Capacity - Month to Month
MO GTE 7-SHT.18 8 24 Channels MRC Yes Yes $300.00 $45.99 $254.01
MO GTE 7-SHT.18 8 48 Channels MRC Yes Yes $460.00 $70.52 $389.48
MO GTE 7-SHT.18 8 72 Channels MRC Yes Yes $620.00 $95.05 $524.95
MO GTE 7-SHT.18 8 96 Channels MRC Yes Yes $780.00 $119.57 $660.43
MO GTE 7-SHT.18 8 120 Channels MRC Yes Yes $940.00 $144.10 $795.90
MO GTE 7-SHT.18 8 144 Channels MRC Yes Yes $1,100.00 $168.63 $931.37
MO GTE 7-SHT.18 8 192 Channels MRC Yes Yes $1,420.00 $217.69 $1,202.31
MO GTE 7-SHT.18 8 240 Channels MRC Yes Yes $1,740.00 $266.74 $1,473.26
MO GTE 7-SHT.18 8 288 Channels MRC Yes Yes $2,060.00 $315.80 $1,744.20
MO GTE 7-SHT.18 8 384 Channels MRC Yes Yes $2,700.00 $413.91 $2,286.09
MO GTE 7-SHT.18 8 480 Channels MRC Yes Yes $3,340.00 $512.02 $2,827.98
MO GTE 7-SHT.18 8 576 Channels MRC Yes Yes $3,980.00 $610.13 $3,369.87
MO GTE 7-SHT.18 8 672 Channels MRC Yes Yes $4,620.00 $708.25 $3,911.75
</TABLE>
Page 7
<PAGE> 96
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.18 8 1344 Channels MRC Yes Yes $9,100.00 $1,395.03 $7,704.97
MO GTE 7-SHT.18 8 2016 Channels MRC Yes Yes $13,580.00 $2,081.81 $11,498.19
MO GTE 7-SHT.19 8 Digital Channel Activation -
per Channel Activated MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 7-SHT.19 0 NRC NRC Yes No $6.00 N/A $6.00
Service Activation, per Channel
MO GTE 7-SHT.19 8 Local Exchane Line/Trunk MRC Yes Yes $16.00 $2.45 $13.55
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 CentraNet Line MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 FX, OPX or Private Line MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 Digital Data Service 2.4 - 19.2 Kbps MRC Yes Yes $60.00 $9.20 $50.80
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 Digital Data Service 56 Kbps MRC Yes Yes $65.00 $9.96 $55.04
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 DS1 Service MRC Yes Yes $75.00 $11.50 $63.50
MO GTE 7-SHT.19 0 NRC NRC Yes No $500.00 N/A $500.00
Switched Data Service
MO GTE 7-SHT.19 8 Single Line MRC Yes Yes $10.00 $1.53 $8.47
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 CentraNet MRC Yes Yes $10.00 $1.53 $8.47
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 7-SHT.19 8 CentraNet with DID/DOD MRC Yes Yes $10.00 $1.53 $8.47
MO GTE 7-SHT.19 0 NRC NRC Yes No $40.00 N/A $40.00
Customer Premises Channelization -
36 Month Contract
MO GTE 7-SHT.20 8 24 Channels MRC Yes Yes $120.00 $18.40 $101.60
MO GTE 7-SHT.20 8 48 Channels MRC Yes Yes $240.00 $36.79 $203.21
MO GTE 7-SHT.20 8 72 Channels MRC Yes Yes $360.00 $55.19 $304.81
MO GTE 7-SHT.20 8 96 Channels MRC Yes Yes $480.00 $73.58 $406.42
MO GTE 7-SHT.20 8 120 Channels MRC Yes Yes $600.00 $91.98 $508.02
MO GTE 7-SHT.20 8 144 Channels MRC Yes Yes $720.00 $110.38 $609.62
MO GTE 7-SHT.20 8 192 Channels MRC Yes Yes $960.00 $147.17 $812.83
MO GTE 7-SHT.20 8 240 Channels MRC Yes Yes $1,200.00 $183.96 $1,016.04
MO GTE 7-SHT.20 8 288 Channels MRC Yes Yes $1,440.00 $220.75 $1,219.25
MO GTE 7-SHT.20 8 384 Channels MRC Yes Yes $1,920.00 $294.34 $1,625.66
MO GTE 7-SHT.20 8 480 Channels MRC Yes Yes $2,400.00 $367.92 $2,032.08
MO GTE 7-SHT.20 8 576 Channels MRC Yes Yes $2,880.00 $441.50 $2,438.50
MO GTE 7-SHT.20 8 672 Channels MRC Yes Yes $3,360.00 $515.09 $2,844.91
MO GTE 7-SHT.20 8 1344 Channels MRC Yes Yes $6,720.00 $1,030.18 $5,689.82
MO GTE 7-SHT.20 8 2016 Channels MRC Yes Yes $10,080.00 $1,545.26 $8,534.74
Customer Premises Channelization -
60 Month Contract
MO GTE 7-SHT.21 8 24 Channels MRC Yes Yes $110.00 $16.86 $93.14
MO GTE 7-SHT.21 8 48 Channels MRC Yes Yes $220.00 $33.73 $186.27
</TABLE>
Page 8
<PAGE> 97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.21 8 72 Channels MRC Yes Yes $330.00 $50.59 $279.41
MO GTE 7-SHT.21 8 96 Channels MRC Yes Yes $440.00 $67.45 $372.55
MO GTE 7-SHT.21 8 120 Channels MRC Yes Yes $550.00 $84.32 $465.69
MO GTE 7-SHT.21 8 144 Channels MRC Yes Yes $660.00 $101.18 $558.82
MO GTE 7-SHT.21 8 192 Channels MRC Yes Yes $880.00 $134.90 $745.10
MO GTE 7-SHT.21 8 240 Channels MRC Yes Yes $1,100.00 $168.63 $931.37
MO GTE 7-SHT.21 8 288 Channels MRC Yes Yes $1,320.00 $202.36 $1,117.64
MO GTE 7-SHT.21 8 384 Channels MRC Yes Yes $1,760.00 $269.81 $1,490.19
MO GTE 7-SHT.21 8 480 Channels MRC Yes Yes $2,200.00 $337.26 $1,862.74
MO GTE 7-SHT.21 8 576 Channels MRC Yes Yes $2,640.00 $404.71 $2,235.29
MO GTE 7-SHT.21 8 672 Channels MRC Yes Yes $3,080.00 $472.16 $2,607.84
MO GTE 7-SHT.21 8 1344 Channels MRC Yes Yes $6,160.00 $944.33 $5,215.67
MO GTE 7-SHT.21 8 2016 Channels MRC Yes Yes $9,240.00 $1,416.49 $7,823.51
Customer Premises Channelization - 84 Month Contract
MO GTE 7-SHT.22 8 24 Channels MRC Yes Yes $100.00 $15.33 $84.67
MO GTE 7-SHT.22 8 48 Channels MRC Yes Yes $200.00 $30.66 $169.34
MO GTE 7-SHT.22 8 72 Channels MRC Yes Yes $300.00 $45.99 $254.01
MO GTE 7-SHT.22 8 96 Channels MRC Yes Yes $400.00 $61.32 $338.68
MO GTE 7-SHT.22 8 120 Channels MRC Yes Yes $500.00 $76.65 $423.35
MO GTE 7-SHT.22 8 144 Channels MRC Yes Yes $600.00 $91.98 $508.02
MO GTE 7-SHT.22 8 192 Channels MRC Yes Yes $800.00 $122.64 $677.36
MO GTE 7-SHT.22 8 240 Channels MRC Yes Yes $1,000.00 $153.30 $846.70
MO GTE 7-SHT.22 8 288 Channels MRC Yes Yes $1,200.00 $183.96 $1,016.04
MO GTE 7-SHT.22 8 384 Channels MRC Yes Yes $1,600.00 $245.28 $1,354.72
MO GTE 7-SHT.22 8 480 Channels MRC Yes Yes $2,000.00 $306.60 $1,693.40
MO GTE 7-SHT.22 8 576 Channels MRC Yes Yes $2,400.00 $367.92 $2,032.08
MO GTE 7-SHT.22 8 672 Channels MRC Yes Yes $2,800.00 $429.24 $2,370.76
MO GTE 7-SHT.22 8 1344 Channels MRC Yes Yes $5,600.00 $858.48 $4,741.52
MO GTE 7-SHT.22 8 2016 Channels MRC Yes Yes $8,400.00 $1,287.72 $7,112.28
Customer Premises Channelization - Month to Month
MO GTE 7-SHT.23 8 24 Channels MRC Yes Yes $100.00 $15.33 $84.67
MO GTE 7-SHT.23 8 48 Channels MRC Yes Yes $200.00 $30.66 $169.34
MO GTE 7-SHT.23 8 72 Channels MRC Yes Yes $300.00 $45.99 $254.01
MO GTE 7-SHT.23 8 96 Channels MRC Yes Yes $400.00 $61.32 $338.68
MO GTE 7-SHT.23 8 120 Channels MRC Yes Yes $500.00 $76.65 $423.35
MO GTE 7-SHT.23 8 144 Channels MRC Yes Yes $600.00 $91.98 $508.02
MO GTE 7-SHT.23 8 192 Channels MRC Yes Yes $800.00 $122.64 $677.36
MO GTE 7-SHT.23 8 240 Channels MRC Yes Yes $1,000.00 $153.30 $846.70
MO GTE 7-SHT.23 8 288 Channels MRC Yes Yes $1,200.00 $183.96 $1,016.04
MO GTE 7-SHT.23 8 384 Channels MRC Yes Yes $1,600.00 $245.28 $1,354.72
MO GTE 7-SHT.23 8 480 Channels MRC Yes Yes $2,000.00 $306.60 $1,693.40
MO GTE 7-SHT.23 8 576 Channels MRC Yes Yes $2,400.00 $367.92 $2,032.08
MO GTE 7-SHT.23 8 672 Channels MRC Yes Yes $2,800.00 $429.24 $2,370.76
</TABLE>
Page 9
<PAGE> 98
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.23 8 1344 Channels MRC Yes Yes $5,600.00 $858.48 $4,741.52
MO GTE 7-SHT.23 8 2016 Channels MRC Yes Yes $8,400.00 $1,287.72 $7,112.28
Customer Premises Channelization -
per Channel
MO GTE 7-SHT.24 8 Local Exchange Line/Trunk MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE 7-SHT.24 8 CentraNet Line MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE 7-SHT.24 8 FX, OPX or Private Line MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE 7-SHT.24 8 Digital Data Service 2.4 - 19.2 Kbps MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE 7-SHT.24 8 Digital Data Service 56 Kbps MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE 7-SHT.24 8 Switched Data Service MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 7-SHT.24 0 NRC NRC Yes No $20.00 N/A $20.00
LOCAL DIGITAL DATA SERVICE
Special Access Line
MO GTE 7-SHT.29 0 2.4 - 19.2 Kbps MRC Yes No $55.00 N/A $55.00
MO GTE 7-SHT.29 0 NRC NRC Yes No $71.00 N/A $71.00
MO GTE 7-SHT.29 0 56 Kbps MRC Yes No $68.00 N/A $68.00
MO GTE 7-SHT.29 0 NRC NRC Yes No $71.00 N/A $71.00
Special Transport - All Speeds
MO GTE 7-SHT.29 0 Per Intraexchange/Intraoffice mile MRC Yes No $2.00 N/A $2.00
MO GTE 7-SHT.29 0 Per Termination MRC Yes No $25.00 N/A $25.00
MO GTE 7-SHT.29 0 Bridging, per Port MRC Yes No $12.00 N/A $12.00
GTE DIAL DATALINK SERVICE
MO GTE 7-SHT.31 8 Bus MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.31 0 NRC NRC Yes No $25.00 N/A $25.00
MO GTE 7-SHT.31 8 Res MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.31 0 NRC NRC Yes No $25.00 N/A $25.00
LOCAL HIGH CAPACITY DS1 (1.544Mbps) SERVICE
MO GTE 7-SHT.35 0 Special Access Line, First System -
Month to Month MRC Yes No $317.00 N/A $317.00
MO GTE 7-SHT.35 0 NRC NRC Yes No $965.00 N/A $965.00
MO GTE 7-SHT.35 0 Special Access Line, Each Addl System -
Month to Month MRC Yes No $180.00 N/A $180.00
MO GTE 7-SHT.35 0 NRC NRC Yes No $128.00 N/A $128.00
MO GTE 7-SHT.35 0 Special Access Line, First System -
12 Month Contract MRC Yes No $301.00 N/A $301.00
MO GTE 7-SHT.35 0 Special Access Line, Each Addl System -
12 Month Contract MRC Yes No $180.00 N/A $180.00
MO GTE 7-SHT.35 0 Special Access Line, First System -
36 Month Contract MRC Yes No $271.00 N/A $271.00
MO GTE 7-SHT.35 0 Special Access Line, Each Addl System -
36 Month Contract MRC Yes No $180.00 N/A $180.00
</TABLE>
Page 10
<PAGE> 99
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.35 0 Special Access Line, First System -
60 Month Contract MRC Yes No $241.00 N/A $241.00
MO GTE 7-SHT.35 0 Special Access Line, Each Addl System -
60 Month Contract MRC Yes No $180.00 N/A $180.00
MO GTE 7-SHT.36 0 Special Transport, interoffice - intraexchange -
per mile MRC Yes No $30.85 N/A $30.85
MO GTE 7-SHT.36 0 Special Transport, interoffice - intraexchange -
per termination MRC Yes No $50.00 N/A $50.00
VOICE GRADE INTRAEXCHANGE MILEAGE - OPX
MO GTE 7-SHT.39 8 Line Extension Mileage - single pair,
first 1/4 mile MRC Yes Yes $2.05 $0.31 $1.74
MO GTE 7-SHT.39 8 Each Additional 1/4 mile MRC Yes Yes $1.85 $0.28 $1.57
LOCAL PRIVATE LINES - VOICE GRADE
MO GTE 7-SHT.43 0 Special Access Line, 2 Wire MRC Yes No $9.40 N/A $9.40
MO GTE 7-SHT.43 0 Special Access Line, 4 Wire MRC Yes No $18.80 N/A $18.80
MO GTE 7-SHT.43 0 Special Transport, interoffice Intraexchange,
per mile MRC Yes No $5.00 N/A $5.00
MO GTE 7-SHT.43 0 Bridging, per port MRC Yes No $8.00 N/A $8.00
MO GTE 7-SHT.43 0 Conditioning MRC Yes No $19.00 N/A $19.00
MO GTE 7-SHT.43 0 NRC NRC Yes No $46.65 N/A $46.65
SWITCHED DATA SERVICE
MO GTE 7-SHT.56 8 Low Speed, Single Line MRC Yes Yes $37.00 $5.67 $31.33
MO GTE 7-SHT.56 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.56 8 Low Speed, CentraNet Line, 2-49 Lines MRC Yes Yes $40.00 $6.13 $33.87
MO GTE 7-SHT.56 8 50-100 Lines MRC Yes Yes $37.00 $5.67 $31.33
MO GTE 7-SHT.56 8 101 and above Lines MRC Yes Yes $34.00 $5.21 $28.79
MO GTE 7-SHT.56 8 High Speed, Single Line MRC Yes Yes $47.00 $7.21 $39.79
MO GTE 7-SHT.56 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.56 8 High Speed, CentraNet Line, 2-49 Lines MRC Yes Yes $50.00 $7.67 $42.34
MO GTE 7-SHT.56 8 50-100 Lines MRC Yes Yes $47.00 $7.21 $39.79
MO GTE 7-SHT.56 8 101 and above Lines MRC Yes Yes $44.00 $6.75 $37.25
Switched Data - Individual Line Loop
Extension Access
MO GTE 7-SHT.57 8 Single Line - Monthly MRC Yes Yes $50.00 $7.67 $42.34
MO GTE 7-SHT.57 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.57 8 CentraNet Line - Monthly MRC Yes Yes $50.00 $7.67 $42.34
MO GTE 7-SHT.57 0 NRC NRC Yes No $50.00 N/A $50.00
Switched Data - Individual Loop Extension Channel
MO GTE 7-SHT.57 8 Single Line - Monthly MRC Yes Yes $12.00 $1.84 $10.16
MO GTE 7-SHT.57 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.57 8 CentraNet Line - Monthly MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 7-SHT.57 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.58 8 Switched Data Central Office Termination,
per access arrangement MRC Yes Yes $150.00 $23.00 $127.01
MO GTE 7-SHT.58 0 NRC NRC Yes No $125.00 N/A $125.00
MO GTE 7-SHT.58 8 Switched Data Central Office Channelization
Single Line MRC Yes Yes $7.00 $1.07 $5.93
MO GTE 7-SHT.58 8 Switched Data Central Office Channelization
Multiline with DID/DOD MRC Yes Yes $7.00 $1.07 $5.93
</TABLE>
Page 11
<PAGE> 100
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 7-SHT.58 8 Switched Data Central Office Channelization -
CentraNet Line MRC Yes Yes $7.00 $1.07 $5.93
MO GTE 7-SHT.58 8 Switched Data Customer Premises Termination MRC Yes Yes $100.00 $15.33 $84.67
MO GTE 7-SHT.58 0 NRC NRC Yes No $75.00 N/A $75.00
MO GTE 7-SHT.58 8 Switched Data Customer Premises Channelization MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 7-SHT.58 0 NRC NRC Yes No $20.00 N/A $20.00
Optional Features
MO GTE 7-SHT.59 8 Data Direct Connect MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 7-SHT.59 8 Data Closed User Group MRC Yes Yes $1.00 $0.15 $0.85
Voice Option Per Line
MO GTE 7-SHT.59 8 Single Line MRC Yes Yes $8.00 $1.23 $6.77
MO GTE 7-SHT.59 8 CentraNet Line MRC Yes Yes $5.00 $0.77 $4.23
Optional Feature Packages
MO GTE 7-SHT.59 8 Data 1000 MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 7-SHT.59 8 Data 1000 with Toll Restriction MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 7-SHT.59 8 Data 2000 MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.59 8 Data 2000 with Toll Restriction MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.59 0 Software Reconfiguration Charge NRC Yes No $12.75 N/A $12.75
MO GTE 7-SHT.60 8 Switched Data Network Usage -
Local Call Setup, per call USAGE Yes Yes $0.0300 $0.00 $0.03
MO GTE 7-SHT.60 8 Switched Data Network Usage -
Usage, per minute of use USAGE Yes Yes $0.0200 $0.00 $0.02
ISDN (INTERGRATED SERVICES DIGITAL NETWORK)
SINGLE LINE SERVICES
Home Digital (ISDN) Single Line Service
Digital Single Line Access
MO GTE 7-SHT.83 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.83 8 Month to Month Rate MRC Yes Yes $31.00 $4.75 $26.25
MO GTE 7-SHT.83 8 12 Month Rate MRC Yes Yes $26.00 $3.99 $22.01
MO GTE 7-SHT.83 8 36 Month Rate MRC Yes Yes $23.00 $3.53 $19.47
Channel Capability N/A
B-Voice/CSD, per line N/A
MO GTE 7-SHT.83 8 Month to Month Rate MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 7-SHT.83 8 12 Month Rate MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 7-SHT.83 8 36 Month Rate MRC Yes Yes $2.00 $0.31 $1.69
D-Packet, per channel N/A
MO GTE 7-SHT.83 8 Month to Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.83 8 12 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.83 8 36 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
Business Digital (ISDN) Single Line Service
Digital Single Line Access
MO GTE 7-SHT.84 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.84 8 Month to Month Rate MRC Yes Yes $39.00 $5.98 $33.02
MO GTE 7-SHT.84 8 12 Month Rate MRC Yes Yes $34.00 $5.21 $28.79
MO GTE 7-SHT.84 8 36 Month Rate MRC Yes Yes $31.00 $4.75 $26.25
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Channel Capability N/A
B-Voice/CSD, per line N/A
MO GTE 7-SHT.84 8 Month to Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.84 8 12 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.84 8 36 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
D-Packet, per channel N/A
MO GTE 7-SHT.84 8 Month to Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.84 8 12 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.84 8 36 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
Usage Options
Home Digital (ISDN), per line
MO GTE 7-SHT.85 8 25 hour block of time MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 7-SHT.85 8 50 hour block of time MRC Yes Yes $43.00 $6.59 $36.41
MO GTE 7-SHT.85 8 Flat Rate MRC Yes Yes $50.00 $7.67 $42.34
Business Digital (ISDN), per line N/A
MO GTE 7-SHT.85 8 50 hour block of time MRC Yes Yes $43.00 $6.59 $36.41
MO GTE 7-SHT.85 8 100 hour block of time MRC Yes Yes $80.00 $12.26 $67.74
Feature Package Rates (Home or Business)
MBKS Basic Svc, per line
MO GTE 7-SHT.86 0 NRC NRC Yes No $25.00 N/A $25.00
MO GTE 7-SHT.86 8 Monthly Rate MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 7-SHT.86 8 12 Month Rate MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 7-SHT.86 8 36 Month Rate MRC Yes Yes $6.00 $0.92 $5.08
CSD 1000, per line N/A
MO GTE 7-SHT.86 0 NRC NRC Yes No $15.00 N/A $15.00
MO GTE 7-SHT.86 8 Monthly Rate MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 7-SHT.86 8 12 Month Rate MRC Yes Yes $3.00 $0.46 $2.54
MO GTE 7-SHT.86 8 36 Month Rate MRC Yes Yes $3.00 $0.46 $2.54
CSD 2000, per line N/A
MO GTE 7-SHT.86 0 NRC NRC Yes No $15.00 N/A $15.00
MO GTE 7-SHT.86 8 Monthly Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.86 8 12 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.86 8 36 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
X.25 Deluxe Pkg, per line N/A
MO GTE 7-SHT.86 0 NRC NRC Yes No $15.00 N/A $15.00
MO GTE 7-SHT.86 8 Monthly Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.86 8 12 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 7-SHT.86 8 36 Month Rate MRC Yes Yes $5.00 $0.77 $4.23
Individual Optional Feature Rates
Data Direct Connect, per line
MO GTE 7-SHT.86 8 Monthly Rate MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 7-SHT.86 8 12 Month Rate MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 7-SHT.86 8 36 Month Rate MRC Yes Yes $1.00 $0.15 $0.85
</TABLE>
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GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Digital (ISDN) Individual Line Loop Extension,
per line
MO GTE 7-SHT.87 0 NRC NRC Yes No $50.00 N/A $50.00
MO GTE 7-SHT.87 8 MRC MRC Yes Yes $21.00 $3.22 $17.78
MO GTE 7-SHT.87 8 Foreign Exchange Provisioning, per line -
MRC MRC Yes Yes $75.00 $11.50 $63.50
MO GTE 7-SHT.87 8 Foreign Exchange Provisioning,
interoffice transport, per mile-MRC MRC Yes Yes $7.50 $1.15 $6.35
MO GTE 7-SHT.87 8 Additional Directory Numbers, each - MRC MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 7-SHT.87 0 Data Base Changes, Add Line Features -
NRC NRC Yes No $25.00 N/A $25.00
PUBLIC TELEPHONE SERVICE
MO GTE 8-SHT.5 0 Rate Each Local Message NRC No No $0.25 N/A N/A
SEMI-PUBLIC TELEPHONE SERVICE
MO GTE 8-SHT.7 0 Rate Each Local Message NRC No No $0.25 N/A N/A
OPERATOR AND DIRECTORY SERVICE
Directory Assistance Service
MO GTE 9-SHT.3 0 Local Director Assistance 1+411, per call NRC Yes No $0.40 N/A $0.40
MO GTE 9-SHT.3 0 1+555+1212 Directory Assistance, per call NRC Yes No $0.40 N/A $0.40
MO GTE 9-SHT.3 0 Operator connected Directory Assistance,
per call NRC Yes No $0.45 N/A $0.45
MO GTE 9-SHT.3 0 Directory Calls billed to a Third Number
or Calling Card NRC Yes No $0.45 N/A $0.45
MO GTE 9-SHT.3.3 0 Directory Connect PLUS NRC Yes No $0.50 N/A $0.50
Directory Listings N/A
Additional Listings N/A
MO GTE 9-SHT.7 0 Bus MRC No No $1.95 N/A N/A
MO GTE 9-SHT.7 0 Res MRC No No $1.55 N/A N/A
Foreign Exchange Listings N/A
MO GTE 9-SHT.7 0 Bus MRC No No $1.95 N/A N/A
MO GTE 9-SHT.7 0 Res MRC No No $1.55 N/A N/A
MO GTE 9-SHT.7 0 Nonlisted Service MRC No No $1.55 N/A N/A
MO GTE 9-SHT.7 0 Nonpublished Service MRC No No $1.60 N/A N/A
Intercept Services - 90 day Period N/A
MO GTE 9-SHT.9 0 Bus NRC Yes No $10.00 N/A $10.00
MO GTE 9-SHT.9 0 Res NRC Yes No $10.00 N/A $10.00
Local Operator Service Charges N/A
MO GTE 9-SHT.11 0 Busy Line Interrupt NRC Yes No $0.95 N/A $0.95
MO GTE 9-SHT.11 0 Busy Line Verify NRC Yes No $0.50 N/A $0.50
MO GTE 9-SHT.11 0 Calling Card Call NRC Yes No $0.60 N/A $0.60
MO GTE 9-SHT.11 0 Operator Assisted Station Call NRC Yes No $1.15 N/A $1.15
MO GTE 9-SHT.11 0 Operator Assisted Person to Person Call NRC Yes No $2.40 N/A $2.40
CALL RESTRICTION SERVICES
Billed Number Screening Service
</TABLE>
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GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 10-SHT.1 8 Option 1 - Collect and Third Number Billing MRC Yes Yes $4.10 $0.63 $3.47
MO GTE 10-SHT.1 8 Option 2 - Third Number Billing MRC Yes Yes $4.10 $0.63 $3.47
MO GTE 10-SHT.1 8 Option 3 - Collect Billing MRC Yes Yes $4.10 $0.63 $3.47
Selective Class of Call Screening Service
MO GTE 10-SHT.3 8 Outgoning Screening per Line MRC Yes Yes $4.10 $0.63 $3.47
Toll Blocking Service
MO GTE 10-SHT.5 8 Option 1, per line MRC Yes Yes $4.10 $0.63 $3.47
MO GTE 10-SHT.5 0 NRC NRC Yes No $8.00 N/A $8.00
MO GTE 10-SHT.5 8 Option 2, per line MRC Yes Yes $4.10 $0.63 $3.47
MO GTE 10-SHT.5 0 NRC NRC Yes No $8.00 N/A $8.00
MO GTE 10-SHT.6 0 700 Blocking Service, per each additional
Business Line NRC Yes No $4.00 N/A $4.00
MO GTE 10-SHT.7 0 900 Blocking Service, per each additional
Business Line NRC Yes No $4.00 N/A $4.00
MO GTE 10-SHT.8 0 976 Blocking Service, per each Additional
Business Line NRC Yes No $4.00 N/A $4.00
CUSTOMIZED NUMBER SERVICE
Per Customized Number requested and placed
into service
MO GTE 10-SHT.10 8 Bus MRC Yes Yes $3.50 $0.54 $2.96
MO GTE 10-SHT.10 8 Res MRC Yes Yes $1.50 $0.23 $1.27
DIRECT INWARD DIALING SERVICE (DID)
Per Block of 100 Numbers
MO GTE 10-SHT.12 8 Assigned, each block MRC Yes Yes $32.00 $4.91 $27.09
MO GTE 10-SHT.12 8 Reserved, each block MRC Yes Yes $32.00 $4.91 $27.09
Per Block of 20 Numbers
MO GTE 10-SHT.12 8 Assigned, each block MRC Yes Yes $18.00 $2.76 $15.24
MO GTE 10-SHT.12 8 Reserved, each block MRC Yes Yes $18.00 $2.76 $15.24
MO GTE 10-SHT.12 8 Per Trunk Termination Charge MRC Yes Yes $35.00 $5.37 $29.63
EMERGENCY CONFERENCE SERVICE (FIREBAR)
MO GTE 10-SHT.14 0 Solid State - Type 10 (10 stations) MRC Yes Yes $46.25 $0.00 $46.25
MO GTE 10-SHT.14 0 NRC NRC Yes No $177.15 N/A $177.15
MO GTE 10-SHT.14 0 Solid State - Type 20 (20 stations) MRC Yes Yes $71.05 $0.00 $71.05
MO GTE 10-SHT.14 0 NRC NRC Yes No $272.05 N/A $272.05
MO GTE 10-SHT.14 0 Solid State - Type 30 (30 stations) MRC Yes Yes $95.85 $0.00 $95.85
MO GTE 10-SHT.14 0 NRC NRC Yes No $367.10 N/A $367.10
MO GTE 10-SHT.14 0 Solid State - Type 40 (40 stations) MRC Yes Yes $135.35 $0.00 $135.35
MO GTE 10-SHT.14 0 NRC NRC Yes No $518.35 N/A $518.35
MO GTE 10-SHT.14 0 Solid State - Type 50 (50 stations) MRC Yes Yes $165.35 $0.00 $165.35
MO GTE 10-SHT.14 0 NRC NRC Yes No $633.20 N/A $633.20
MO GTE 10-SHT.14 0 Solid State - Type 60 (60 stations) MRC Yes Yes $191.75 $0.00 $191.75
MO GTE 10-SHT.14 0 NRC NRC Yes No $734.30 N/A $734.30
Options for Type 10, 20 and 30 Systems N/A
</TABLE>
Page 15
<PAGE> 104
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 10-SHT.14 0 Siren Control MRC Yes Yes $4.50 $0.00 $4.50
MO GTE 10-SHT.14 0 NRC NRC Yes No $17.15 N/A $17.15
MO GTE 10-SHT.14 0 Remote Answer, 10-30 Line System MRC Yes Yes $1.15 $0.00 $1.15
MO GTE 10-SHT.14 0 NRC NRC Yes No $4.35 N/A $4.35
Options for Type 40, 50 and 60 Systems N/A
MO GTE 10-SHT.15 0 Siren Control MRC Yes Yes $4.50 $0.00 $4.50
MO GTE 10-SHT.15 0 NRC NRC Yes No $17.15 N/A $17.15
MO GTE 10-SHT.15 0 Automatic Access MRC Yes Yes $3.15 $0.00 $3.15
MO GTE 10-SHT.15 0 NRC NRC Yes No $14.15 N/A $14.15
MO GTE 10-SHT.15 0 Manual Access for 40 - 60 Line Systems MRC Yes Yes $0.40 $0.00 $0.40
MO GTE 10-SHT.15 0 NRC NRC Yes No $1.55 N/A $1.55
MO GTE 10-SHT.15 0 Remote Answer, 40-60 Line System MRC Yes Yes $1.80 $0.00 $1.80
MO GTE 10-SHT.15 0 NRC NRC Yes No $6.95 N/A $6.95
FOREIGN EXCHANGE SERVICE
MO GTE 10-SHT.20 Local B1 required & refer to Interexchange
Private Line Tariff
RESERVED TELEPHONE NUMBERS
MO GTE 10-SHT.21 8 per Reserved Telephone Number MRC Yes Yes $5.00 $0.77 $4.23
SPECIAL BILLING NUMBER SERVICE
MO GTE 10-SHT.32 8 First Number Billed with Customers main number MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 10-SHT.32 8 Each Additional Number Billed with Customers
main number MRC Yes Yes $1.15 $0.18 $0.97
MO GTE 10-SHT.32 8 Each Special Billing Number Billed Separately MRC Yes Yes $4.25 $0.65 $3.60
TOLL TAPES
MO GTE 10-SHT.33 8 Long Distance or WATS calls on Magnetic Tape -
Monthly Arrangement MRC Yes Yes $32.65 $5.01 $27.64
MO GTE 10-SHT.33 8 Long Distance or WATS calls on Magnetic Tape -
Upon Request NRC Yes No $40.65 N/A $40.65
CENTRANET SERVICE
CentraNet Service Line Rates
Month to Month Contract
MO GTE 11-SHT.22 8 3-25 Lines, per Line MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 11-SHT.22 8 26-50 Lines, per Line MRC Yes Yes $14.75 $2.26 $12.49
36 Month Contract
MO GTE 11-SHT.22 8 26-50 Lines, per Line MRC Yes Yes $13.75 $2.11 $11.64
MO GTE 11-SHT.22 8 51-100 Lines, per Line MRC Yes Yes $13.00 $1.99 $11.01
MO GTE 11-SHT.22 8 101-200 Lines, per Line MRC Yes Yes $12.25 $1.88 $10.37
60 Month Contract
MO GTE 11-SHT.22 8 26-50 Lines, per Line MRC Yes Yes $12.75 $1.95 $10.80
MO GTE 11-SHT.22 8 51-100 Lines, per Line MRC Yes Yes $12.00 $1.84 $10.16
MO GTE 11-SHT.22 8 101-200 Lines, per Line MRC Yes Yes $11.25 $1.72 $ 9.53
</TABLE>
Page 16
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GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 11-SHT.23 8 Feature Package 1000, per Line MRC Yes Yes $1.50 $0.23 $1.27
MO GTE 11-SHT.23 8 Feature Package 2000, per Line MRC Yes Yes $2.20 $0.34 $1.86
MO GTE 11-SHT.23 8 Feature Package 3000, per Line MRC Yes Yes $2.55 $0.39 $2.16
CCLASS Feature Package
MO GTE 11-SHT.23 8 3-25 Lines, per Line MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 11-SHT.23 8 26-50 Lines, per Line MRC Yes Yes $4.50 $0.69 $3.81
MO GTE 11-SHT.23 8 51+ Lines, per Line MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 11-SHT.23 8 Additional CentraNet Network Access, each Trunk MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 11-SHT.24 8 CentraNet PBX Trunk Add-on MRC Yes Yes $5.00 $0.77 $4.23
Programming Charges
MO GTE 11-SHT.24 0 First Line Programmed or Reprogrammed NRC Yes No $25.00 N/A $25.00
MO GTE 11-SHT.24 0 Each Additional Line Programmed or Reprogrammed NRC Yes No $2.50 N/A $2.50
Optional Features
MO GTE 11-SHT.25 8 Authorization Codes (per group of 10) MRC Yes Yes $0.05 $0.01 $0.04
MO GTE 11-SHT.25 8 Automatic Route Selection, per line MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 11-SHT.25 8 Code Call Access MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 11-SHT.25 8 Conference Calling MRC Yes Yes $90.00 $13.80 $76.20
MO GTE 11-SHT.25 8 Data Link Console Interface MRC Yes Yes $70.00 $10.73 $59.27
MO GTE 11-SHT.25 8 Dictation Access and Control MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 11-SHT.25 8 Flexible Night Answer MRC Yes Yes $0.20 $0.03 $0.17
MO GTE 11-SHT.25 8 FX Access MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 11-SHT.25 8 Identification-Multiple Directoru Numbers MRC Yes Yes $0.10 $0.02 $0.08
MO GTE 11-SHT.25 8 Music-on-hold Interface MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 11-SHT.25 8 Non-Data Link Console Interface MRC Yes Yes $50.00 $7.67 $42.34
MO GTE 11-SHT.25 8 Paging/Public Address Access MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 11-SHT.25 8 Pilot Number of Hunt Groups MRC Yes Yes $0.05 $0.01 $0.04
MO GTE 11-SHT.25 8 Predetermined Night Answer-Fixed MRC Yes Yes $0.20 $0.03 $0.17
MO GTE 11-SHT.25 8 Preferential Hunting MRC Yes Yes $0.05 $0.01 $0.04
MO GTE 11-SHT.25 8 Priority Queuing MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 11-SHT.25 8 Proprietary Set Interface MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 11-SHT.25 8 Pseudo Number Flat Rate Service MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 11-SHT.25 8 Recorded Announcement MRC Yes Yes $15.00 $2.30 $12.70
MO GTE 11-SHT.25 8 Speed Call 30 (System) MRC Yes Yes $0.10 $0.02 $0.08
MO GTE 11-SHT.25 8 Station Message Detail Recording, per line MRC Yes Yes $0.50 $0.08 $0.42
MO GTE 11-SHT.25 8 Stop Hunt MRC Yes Yes $0.75 $0.11 $0.64
MO GTE 11-SHT.25 8 T-1 Access MRC Yes Yes $300.00 $45.99 $254.01
MO GTE 11-SHT.25 8 Terminal Make Busy MRC Yes Yes $0.50 $0.08 $0.42
MO GTE 11-SHT.25 8 Tie Facility Access MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 11-SHT.25 8 Universal Night Answer MRC Yes Yes $0.10 $0.02 $0.08
MO GTE 11-SHT.25 8 WATS Access MRC Yes Yes $1.00 $0.15 $0.85
MO GTE 11-SHT.25 8 800 Service Access MRC Yes Yes $1.00 $0.15 $0.85
Caller ID - Number
MO GTE 11-SHT.26 8 3-25 Lines, per line MRC Yes Yes $6.00 $0.92 $5.08
</TABLE>
Page 17
<PAGE> 106
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 11-SHT.26 8 26-50 Lines, per line MRC Yes Yes $4.50 $0.69 $3.81
MO GTE 11-SHT.26 8 51+ Lines, per line MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 11-SHT.26 8 3-25 Lines, per customer group MRC Yes Yes $10.00 $1.53 $8.47
MO GTE 11-SHT.26 8 26-50 Lines, per cusaomer group MRC Yes Yes $20.00 $3.07 $16.93
MO GTE 11-SHT.26 8 51+ Lines, per customer group MRC Yes Yes $40.00 $6.13 $33.87
MO GTE 11-SHT.26 8 Caller ID - Name and Number N/A
MO GTE 11-SHT.26 8 3-25 Lines, per customer group MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 11-SHT.26 8 26-50 Lines, per customer group MRC Yes Yes $45.00 $6.90 $38.10
MO GTE 11-SHT.26 8 51+ Lines, per customer group MRC Yes Yes $85.00 $13.03 $71.97
MO GTE 11-SHT.26 8 Call Tracing Service MRC Yes Yes $3.50 $0.54 $2.96
MO GTE 11-SHT.26 8 VIP Alert MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 11-SHT.26 8 CentraNet System Interface N/A
MO GTE 11-SHT.26 8 Attendant Console Interface, per interface N/A
MO GTE 11-SHT.26 8 36 Month Contract Period MRC Yes Yes $170.00 $26.06 $143.94
MO GTE 11-SHT.26 8 60 Month Contract Period MRC Yes Yes $125.00 $19.16 $105.84
EMERGENCY TELEPHONE SERVICE (911)
MO GTE 11-SHT.50 0 Automatic Number Identification (ANI),
per central office MRC Yes No $69.00 N/A $69.00
0 911 Network Service N/A
MO GTE 11-SHT.50 0 PSAP to Central Office Flat Rate,
per line MRC Yes No $30.00 N/A $30.00
MO GTE 11-SHT.50 0 NRC NRC Yes No $393.00 N/A $393.00
MO GTE 11-SHT.50 0 CO to CO Interoffice Facility Flat Rate,
per trunk MRC Yes No $25.00 N/A $25.00
MO GTE 11-SHT.50 0 NRC NRC Yes No $312.00 N/A $312.00
0 Automatic Location Identification (ALI)
Database N/A
MO GTE 11-SHT.51 0 Database Administration, per database MRC Yes No $380.00 N/A $380.00
0 Database N/A
MO GTE 11-SHT.51 0 each GTE subscriber record MRC Yes No $0.04 N/A $0.04
MO GTE 11-SHT.51 0 NRC NRC Yes No $0.75 N/A $0.75
MO GTE 11-SHT.51 0 each Non-GTE subscriber record MRC Yes No $0.04 N/A $0.04
MO GTE 11-SHT.51 0 NRC NRC Yes No $0.35 N/A $0.35
0 Selective Routing N/A
MO GTE 11-SHT.51 0 Database Administration, per database MRC Yes No $8.50 N/A $8.50
MO GTE 11-SHT.51 0 NRC NRC Yes No $2,461.00 N/A $2,461.00
MO GTE 11-SHT.51 0 Database, per record MRC Yes No $0.01 N/A $0.01
MO GTE 11-SHT.51 0 NRC NRC Yes No $0.14 N/A $0.14
MO GTE 11-SHT.52 0 Selective Router, each MRC Yes No $1,363.00 N/A $1,363.00
MO GTE 11-SHT.52 0 NRC NRC Yes No $13,280.00 N/A $13,280.00
MO GTE 11-SHT.52 0 Selective Router Interface, per trunk
termination MRC Yes No $36.50 N/A $36.50
MO GTE 11-SHT.52 0 NRC NRC Yes No $150.00 N/A $150.00
0 Alternate Network Routing - TELTONE SWITCHED
ACCESS SYSTEM N/A
0 Trunk Dial Unit (TDU) N/A
MO GTE 11-SHT.52 0 Without Monitoring, 1st Trunk MRC Yes No $189.58 N/A $189.58
MO GTE 11-SHT.52 0 NRC NRC Yes No $2,081.11 N/A $2,081.11
</TABLE>
Page 18
<PAGE> 107
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 11-SHT.52 0 Without Monitoring, add'l Trunk in same CO MRC Yes No $90.87 N/A $90.87
MO GTE 11-SHT.52 0 NRC NRC Yes No $507.26 N/A $507.26
0 Call Answer Unit (CAU) N/A
MO GTE 11-SHT.52 0 Without Monitoring, 1st Trunk MRC Yes No $84.79 N/A $84.79
MO GTE 11-SHT.52 0 NRC NRC Yes No $481.53 N/A $481.53
MO GTE 11-SHT.52 0 Without Monitoring, add'l Trunk in same CO MRC Yes No $48.68 N/A $48.68
MO GTE 11-SHT.52 0 NRC NRC Yes No $403.36 N/A $403.36
0 Call Transfer Unit (CTU) N/A
MO GTE 11-SHT.52 0 Without Monitoring, 1st Trunk MRC Yes No $88.55 N/A $88.55
MO GTE 11-SHT.52 0 NRC NRC Yes No $755.76 N/A $755.76
MO GTE 11-SHT.52 0 Without Monitoring, add'l Trunk in same CO MRC Yes No $42.68 N/A $42.68
MO GTE 11-SHT.52 0 NRC NRC Yes No $375.44 N/A $375.44
0 Alternate Network Routing - PROCTOR INSTANT NETWORK BACKUP N/A
SYS.
0 Instant Network Backup (INB) Mini-Pac N/A
MO GTE 11-SHT.52.1 0 Without Monitoring, 1st Trunk MRC Yes No $115.94 N/A $115.94
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $666.09 N/A $666.09
MO GTE 11-SHT.52.1 0 Without Monitoring, add'l Trunk in same CO MRC Yes No $101.24 N/A $101.24
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $507.26 N/A $507.26
MO GTE 11-SHT.52.1 0 With Monitoring, 1st Trunk MRC Yes No $129.64 N/A $129.64
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $666.09 N/A $666.09
MO GTE 11-SHT.52.1 0 With Monitoring, add'l Trunk in same CO MRC Yes No $114.93 N/A $114.93
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $507.26 N/A $507.26
0 Instant Network BackUp (INB) Shelf System N/A
MO GTE 11-SHT.52.1 0 Without Monitoring, 1st Trunk MRC Yes No $163.72 N/A $163.72
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $755.76 N/A $755.76
MO GTE 11-SHT.52.1 0 Without Monitoring, add'l Trunk in same CO MRC Yes No $54.82 N/A $54.82
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $375.44 N/A $375.44
MO GTE 11-SHT.52.1 0 With Monitoring, 1st Trunk MRC Yes No $188.62 N/A $188.62
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $755.76 N/A $755.76
MO GTE 11-SHT.52.1 0 With Monitoring, add'l Trunk in same CO MRC Yes No $59.18 N/A $59.18
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $375.44 N/A $375.44
MO GTE 11-SHT.52.1 0 Expansion Shelf MRC Yes No $77.54 N/A $77.54
MO GTE 11-SHT.52.1 0 NRC NRC Yes No $375.44 N/A $375.44
0 Instant Network Backup (INB) Responder Equipment N/A
MO GTE 11-SHT.52.2 0 PSAP Responder, 1st Responder MRC Yes No $130.85 N/A $130.85
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $589.16 N/A $589.16
MO GTE 11-SHT.52.2 0 PSAP Responder, Add'l Responder MRC Yes No $127.58 N/A $127.58
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $589.16 N/A $589.16
MO GTE 11-SHT.52.2 0 Central Office Responder, 1st Responder MRC Yes No $80.27 N/A $80.27
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $589.16 N/A $589.16
MO GTE 11-SHT.52.2 0 Central Office Responder, Add'l Responder MRC Yes No $50.67 N/A $50.67
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $589.16 N/A $589.16
MO GTE 11-SHT.52.2 0 INB Line Switch or 4/2 Converter Card MRC Yes No $15.19 N/A $15.19
</TABLE>
Page 19
<PAGE> 108
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $13.32 N/A $13.32
MO GTE 11-SHT.52.2 0 INB Cellular Transceiver MRC Yes No $66.50 N/A $66.50
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $507.26 N/A $507.26
0 INB Cellular Antenna
MO GTE 11-SHT.52.2 0 3 dB Antenna MRC Yes No $1.93 N/A $1.93
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $13.32 N/A $13.32
MO GTE 11-SHT.52.2 0 9 dB Antenna MRC Yes No $10.67 N/A $10.67
MO GTE 11-SHT.52.2 0 NRC NRC Yes No $124.35 N/A $124.35
0 Alternate Network Routing - TELLULAR
PHONECELL SERVICES EQUIP. N/A
MO GTE 11-SHT.52.3 0 Cellular Transceivers, 1M Transceiver MRC Yes No $38.30 N/A $38.30
MO GTE 11-SHT.52.3 0 NRC NRC Yes No $831.52 N/A $831.52
MO GTE 11-SHT.52.3 0 Cellular Transceivers, 4M Transceiver MRC Yes No $122.87 N/A $122.87
MO GTE 11-SHT.52.3 0 NRC NRC Yes No $919.18 N/A $919.18
MO GTE 11-SHT.52.3 0 Cellular Antennas, 3 B Antenna MRC Yes No $2.06 N/A $2.06
MO GTE 11-SHT.52.3 0 NRC NRC Yes No $13.32 N/A $13.32
MO GTE 11-SHT.52.3 0 Cellular Antennas, 12 B Antenna MRC Yes No $4.13 N/A $4.13
MO GTE 11-SHT.52.3 0 NRC NRC Yes No $124.35 N/A $124.35
0 Distribution Machine for the Address and
Routing Control System (DMARCS) N/A
MO GTE 11-SHT.52.3 0 Per ALI Computer to which records will be
downloaded MRC Yes No $154.03 N/A $154.03
MO GTE 11-SHT.52.3 0 NRC NRC Yes No $104.00 N/A $104.00
0 Private Switch (PS) 911 Service N/A
MO GTE 11-SHT.52.5 0 GTE PS ENTRY Full Site Administration Package MRC Yes No $150.02 N/A $150.02
MO GTE 11-SHT.52.5 0 NRC NRC Yes No $512.28 N/A $512.28
MO GTE 11-SHT.52.5 0 GTE PS ALI Software Package MRC Yes No $16.45 N/A $16.45
MO GTE 11-SHT.52.5 0 NRC NRC Yes No $266.21 N/A $266.21
MO GTE 11-SHT.52.5 0 GTE PS ALI LQ Parallel Printer MRC Yes No $34.38 N/A $34.38
MO GTE 11-SHT.52.5 0 NRC NRC Yes No $201.18 N/A $201.18
N/A
LOCAL SERVICES LIMITED TO EXISTING CUSTOMERS N/A
AT EXISTING LOCATIONS N/A
N/A
SmartCall Services N/A
Camp on/Busy Number Redial N/A
MO GTE 6-SHT 14 8 Bus MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 6-SHT 14 8 Res MRC Yes Yes $4.00 $0.61 $3.39
Last Number/Save Number Redial N/A
MO GTE 6-SHT 15 8 Bus MRC Yes Yes $4.00 $0.61 $3.39
MO GTE 6-SHT 15 8 Res MRC Yes Yes $4.00 $0.61 $3.39
Smart Ring with any PAK N/A
MO GTE 6-SHT 15 8 Res MRC Yes Yes $3.00 $0.46 $2.54
Special Call Waiting N/A
MO GTE 6-SHT 16 8 Bus MRC Yes Yes $6.00 $0.92 $5.08
</TABLE>
Page 20
<PAGE> 109
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 6-SHT 16 8 Res MRC Yes Yes $5.00 $0.77 $4.23
Economy Package N/A
MO GTE 6-SHT 17 8 Bus MRC Yes Yes $4.35 $0.67 $3.68
MO GTE 6-SHT 17 8 Res MRC Yes Yes $4.35 $0.67 $3.68
Professional Package N/A
MO GTE 6-SHT 17 8 Bus MRC Yes Yes $7.90 $1.21 $6.69
MO GTE 6-SHT 17 8 Res MRC Yes Yes $7.90 $1.21 $6.69
Smarter Call PAK N/A
MO GTE 6-SHT 17 8 Res MRC Yes Yes $4.50 $0.69 $3.81
Smartest Call PAK N/A
MO GTE 6-SHT 17 8 Bus MRC Yes Yes $7.50 $1.15 $6.35
MO GTE 6-SHT 17 8 Res MRC Yes Yes $6.50 $1.00 $5.50
N/A
Emergency Conference Service N/A
Automatic Type N/A
MO GTE 10-SHT 15 8 Up to 10 reporting stations MRC Yes Yes $25.00 $3.83 $21.17
MO GTE 10-SHT 15 0 NRC NRC Yes No $25.00 N/A $25.00
MO GTE 10-SHT 15 8 Up to 20 reporting stations MRC Yes Yes $40.00 $6.13 $33.87
MO GTE 10-SHT 15 0 NRC NRC Yes No $40.00 N/A $40.00
MO GTE 10-SHT 15 8 Control Relay, per siren MRC Yes Yes $0.50 $0.08 $0.42
MO GTE 10-SHT 15 0 NRC NRC Yes No $5.00 N/A $5.00
MO GTE 10-SHT 15 8 Pushbottons or Keys, each MRC Yes Yes $0.50 $0.08 $0.42
MO GTE 10-SHT 15 0 NRC NRC Yes No $5.00 N/A $5.00
MO GTE 10-SHT 15 8 Each line or additional lines MRC Yes Yes $2.00 $0.31 $1.69
MO GTE 10-SHT 15 8 Central Office Common Equipment MRC Yes Yes $12.00 $1.84 $10.16
MO GTE 10-SHT 15 0 NRC NRC Yes No $5.00 N/A $5.00
MO GTE 10-SHT 15 8 Additional Common Equipment MRC Yes Yes $1.50 $0.23 $1.27
MO GTE 10-SHT 15 0 NRC NRC Yes No $5.00 N/A $5.00
MO GTE 10-SHT 15 8 Pushbotton Number Term MRC Yes Yes $0.35 $0.05 $0.30
MO GTE 10-SHT 15 0 NRC NRC Yes No $5.00 N/A $5.00
N/A
CentraNet Service Lines N/A
60 Month Contract N/A
MO GTE 11-SHT 22.1 8 4-15 lines, each MRC Yes Yes $13.85 $2.12 $11.73
MO GTE 11-SHT 22.1 8 16-20 lines, each MRC Yes Yes $12.10 $1.85 $10.25
84 Month Contract N/A
MO GTE 11-SHT 22.1 8 4-15 lines, each MRC Yes Yes $12.05 $1.85 $10.20
MO GTE 11-SHT 22.1 8 16-20 lines, each MRC Yes Yes $10.00 $1.53 $8.47
N/A
Group Alerting and Dispatching Service N/A
Basic fire reporting common equipment N/A
MO GTE 13-SHT 6 0 In former GTE Systems of Missouri Exchanges MRC Yes No $12.00 N/A $12.00
</TABLE>
Page 21
<PAGE> 110
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 13-SHT 6 0 In former GTE of Eastern Missouri Exchanges MRC Yes No $21.40 N/A $21.40
Fire reporting system equipment multiplies N/A
MO GTE 13-SHT 6 0 In former GTE Systems of Missouri Exchanges MRC Yes No $1.50 N/A $1.50
MO GTE 13-SHT 6 0 In former GTE of Eastern Missouri Exchanges MRC Yes No $3.55 N/A $3.55
N/A
Hotel/Motel Trunks (Level 8) N/A
MO GTE 13-SHT 7 8 Inside Base Rate Area, per line MRC Yes Yes $13.25 $2.03 $11.22
MO GTE 13-SHT 7 8 Outside Base Rate Area, per line MRC Yes Yes $19.10 $2.93 $16.17
N/A
Special Reversed Charge Toll Service
(Enterprise/Zenith) N/A
Rate per exchange N/A
MO GTE 13-SHT 10 8 In former GTE North Exchanges MRC Yes Yes $6.65 $1.02 $5.63
MO GTE 13-SHT 10 8 In former GTE Missouri Exchanges MRC Yes Yes $10.60 $1.62 $8.98
N/A
Transfer Service N/A
Customer Transfer Service N/A
MO GTE 13-SHT 12 8 For former GTE North MRC Yes Yes $5.00 $0.77 $4.23
MO GTE 13-SHT 12 0 NRC NRC Yes No $13.30 N/A $13.30
MO GTE 13-SHT 12 0 Subsequent Line Charge, NRC NRC Yes No $6.65 N/A $6.65
MO GTE 13-SHT 12 8 For former GTE Missouri MRC Yes Yes $4.75 $0.73 $4.02
MO GTE 13-SHT 12 8 For former GTE Systems of Missouri MRC Yes Yes $6.00 $0.92 $5.08
MO GTE 13-SHT 12 8 For former GTE of Eastern Missouri MRC Yes Yes $6.50 $1.00 $5.50
N/A
INTRALATA LONG DISTANCE MESSAGE TELECOMMUNICATIONS
SERVICE N/A
GTE MIDWEST INCORPORATED PSC MO. NO. 3 N/A
OPERATOR SERVICE CHARGES N/A
MO GTE D-SHT 24 0 Dial Calling Card Station-to-Station, per call NRC Yes No $0.60 N/A $0.60
MO GTE D-SHT 24 0 Operator Station-to-Station, per call NRC Yes No $1.15 N/A $1.15
MO GTE D-SHT 24 0 Person-to-Person, per call NRC Yes No $2.40 N/A $2.40
MO GTE D-SHT 24 0 Line Status Verification, per call NRC Yes No $0.50 N/A $0.50
MO GTE D-SHT 24 0 Busy Interrupt, per call NRC Yes No $0.95 N/A $0.95
DAY MESSAGE RATES - Initial 1 Minute
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0900 $0.01 $0.08
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.1200 $0.02 $0.10
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.1700 $0.03 $0.14
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.2300 $0.04 $0.19
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.3600 $0.06 $0.30
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.3900 $0.06 $0.33
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.4000 $0.06 $0.34
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.4200 $0.06 $0.36
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.4600 $0.07 $0.39
</TABLE>
Page 22
<PAGE> 111
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.4700 $0.07 $0.40
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.4800 $0.07 $0.41
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.4800 $0.07 $0.41
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.5100 $0.08 $0.43
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.5400 $0.08 $0.46
DAY MESSAGE RATES - Each Additional Minute
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0800 $0.01 $0.07
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.1100 $0.02 $0.09
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.1400 $0.02 $0.12
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.1600 $0.02 $0.14
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.2000 $0.03 $0.17
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.2200 $0.03 $0.19
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.2400 $0.04 $0.20
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.2500 $0.04 $0.21
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.2700 $0.04 $0.23
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.3000 $0.05 $0.25
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.3100 $0.05 $0.26
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.3400 $0.05 $0.29
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.3600 $0.06 $0.30
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.3600 $0.06 $0.30
EVENING MESSAGE RATES - Initial 1 Minute
(20% Reduction to DAY Rate)
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0720 $0.01 $0.06
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.0960 $0.01 $0.08
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.1360 $0.02 $0.12
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.1840 $0.03 $0.16
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.2880 $0.04 $0.24
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.3120 $0.05 $0.26
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.3200 $0.05 $0.27
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.3360 $0.05 $0.28
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.3680 $0.06 $0.31
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.3760 $0.06 $0.32
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.3840 $0.06 $0.33
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.3840 $0.06 $0.33
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.4080 $0.06 $0.35
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.4320 $0.07 $0.37
EVENING MESSAGE RATES - Each Additional Minute
(20% Reduction to DAY Rate)
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0640 $0.01 $0.05
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.0880 $0.01 $0.07
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.1120 $0.02 $0.09
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.1280 $0.02 $0.11
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.1600 $0.02 $0.14
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.1760 $0.03 $0.15
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.1920 $0.03 $0.16
</TABLE>
Page 23
<PAGE> 112
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.2000 $0.03 $0.17
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.2160 $0.03 $0.18
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.2400 $0.04 $0.20
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.2480 $0.04 $0.21
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.2720 $0.04 $0.23
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.2880 $0.04 $0.24
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.2880 $0.04 $0.24
NIGHT MESSAGE RATES - Initial 1 Minute
(35% Reduction to DAY Rate)
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0585 $0.01 $0.05
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.0780 $0.01 $0.07
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.1105 $0.02 $0.09
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.1495 $0.02 $0.13
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.2340 $0.04 $0.20
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.2535 $0.04 $0.21
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.2600 $0.04 $0.22
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.2730 $0.04 $0.23
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.2990 $0.05 $0.25
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.3055 $0.05 $0.26
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.3120 $0.05 $0.26
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.3120 $0.05 $0.26
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.3315 $0.05 $0.28
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.3510 $0.05 $0.30
NIGHT MESSAGE RATES - Each Additional Minute
(35% Reduction to DAY Rates)
MO GTE D-SHT 27 8 1-10 miles USAGE Yes Yes $0.0520 $0.01 $0.04
MO GTE D-SHT 27 8 11-14 miles USAGE Yes Yes $0.0715 $0.01 $0.06
MO GTE D-SHT 27 8 15-18 miles USAGE Yes Yes $0.0910 $0.01 $0.08
MO GTE D-SHT 27 8 19-23 miles USAGE Yes Yes $0.1040 $0.02 $0.09
MO GTE D-SHT 27 8 24-28 miles USAGE Yes Yes $0.1300 $0.02 $0.11
MO GTE D-SHT 27 8 29-33 miles USAGE Yes Yes $0.1430 $0.02 $0.12
MO GTE D-SHT 27 8 34-40 miles USAGE Yes Yes $0.1560 $0.02 $0.13
MO GTE D-SHT 27 8 41-50 miles USAGE Yes Yes $0.1625 $0.02 $0.14
MO GTE D-SHT 27 8 51-60 miles USAGE Yes Yes $0.1755 $0.03 $0.15
MO GTE D-SHT 27 8 61-80 miles USAGE Yes Yes $0.1950 $0.03 $0.17
MO GTE D-SHT 27 8 81-100 miles USAGE Yes Yes $0.2015 $0.03 $0.17
MO GTE D-SHT 27 8 101-125 miles USAGE Yes Yes $0.2210 $0.03 $0.19
MO GTE D-SHT 27 8 126-150 miles USAGE Yes Yes $0.2340 $0.04 $0.20
MO GTE D-SHT 27 8 Over 150 miles USAGE Yes Yes $0.2340 $0.04 $0.20
COMMUNITY OPTIONAL SERVICE (COS) -
Two Way Optional Toll
Rural
MO GTE F-SHT 35 8 Bus MRC Yes Yes $33.50 $5.14 $28.36
MO GTE F-SHT 35 8 Res MRC Yes Yes $16.00 $2.45 $13.55
Metropolitan - St. Louis/Kansas City
</TABLE>
Page 24
<PAGE> 113
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE F-SHT 35 8 Bus MRC Yes Yes $80.20 $12.29 $67.91
MO GTE F-SHT 35 8 Res MRC Yes Yes $37.80 $5.79 $32.01
Metropolitan - Springfield
MO GTE F-SHT 35 8 Bus MRC Yes Yes $50.50 $7.74 $42.76
MO GTE F-SHT 35 8 Res MRC Yes Yes $24.50 $3.76 $20.74
Noncontiguous Exhange Additive Charge
MO GTE F-SHT 36 8 Bus MRC Yes Yes $10.85 $1.66 $9.19
MO GTE F-SHT 36 8 Res MRC Yes Yes $5.15 $0.79 $4.36
OUTSTATE CALLING AREA (OCA) PLAN (23 Mile Radius)
2 Hour Block of Time
MO GTE G-SHT 46 8 Bus USAGE Yes Yes $10.80 $1.66 $9.14
MO GTE G-SHT 46 8 Res USAGE Yes Yes $9.60 $1.47 $8.13
5 Hour Block of Time
MO GTE G-SHT 46 8 Bus USAGE Yes Yes $24.50 $3.76 $20.74
MO GTE G-SHT 46 8 Res USAGE Yes Yes $21.85 $3.35 $18.50
Each Additional Minute
MO GTE G-SHT 46 8 Bus USAGE Yes Yes $0.0800 $0.01 $0.07
MO GTE G-SHT 46 8 Res USAGE Yes Yes $0.0700 $0.01 $0.06
GTE BETWEEN FRIENDS SERVICE
MO GTE H-SHT 50 8 One Hour Block of Time Residence USAGE Yes Yes $8.00 $1.23 $6.77
MO GTE H-SHT 50 8 Each Additional Minute USAGE Yes Yes $0.1300 $0.02 $0.11
GTE DISCOUNT CALLING PLANS
Plan 1 - 15% Discount of IntraLATA Toll
MO GTE I-SHT 55 8 Bus MRC Yes Yes $3.00 $0.46 $2.54
MO GTE I-SHT 55 8 Res MRC Yes Yes $1.00 $0.15 $0.85
Plan 2 - 25% Discount of IntraLATA Toll
MO GTE I-SHT 55 8 Bus MRC Yes Yes $10.00 $1.53 $8.47
MO GTE I-SHT 55 8 Res MRC Yes Yes $3.00 $0.46 $2.54
WIDE AREA TELECOMMUNICATIONS SERVICE (WATS) -
PSC MO. NO. 4
GTE MIDWEST INCORPORATED PSC MO. NO. 4
800 SERVICE
MO GTE D-SHT 17 8 Each IntraLATA Access Line MRC Yes Yes $35.50 $5.44 $30.06
MO GTE D-SHT 22 0 NRC NRC Yes No $121.00 N/A $121.00
Business DAY Rates
MO GTE D-SHT 20 8 First 9 Hours, each Hour USAGE Yes Yes $18.17 $2.79 $15.38
MO GTE D-SHT 20 8 Next 9 Hours, each Hour USAGE Yes Yes $17.94 $2.75 $15.19
MO GTE D-SHT 20 8 Next 17 Hours, each Hour USAGE Yes Yes $17.66 $2.71 $14.95
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE D-SHT 20 8 Over 35 Hours, each Hour USAGE Yes Yes $17.50 $2.68 $14.82
EVENING Rates
MO GTE D-SHT 20 8 First 9 Hours, each Hour USAGE Yes Yes $15.19 $2.33 $12.86
MO GTE D-SHT 20 8 Next 9 Hours, each Hour USAGE Yes Yes $15.01 $2.30 $12.71
MO GTE D-SHT 20 8 Next 17 Hours, each Hour USAGE Yes Yes $14.78 $2.27 $12.51
MO GTE D-SHT 20 8 Over 35 Hours, each Hour USAGE Yes Yes $14.63 $2.24 $12.39
NIGHT/WEEKEND Rates
MO GTE D-SHT 20 8 First 9 Hours, each Hour USAGE Yes Yes $12.50 $1.92 $10.58
MO GTE D-SHT 20 8 Next 9 Hours, each Hour USAGE Yes Yes $12.36 $1.89 $10.47
MO GTE D-SHT 20 8 Next 17 Hours, each Hour USAGE Yes Yes $12.15 $1.86 $10.29
MO GTE D-SHT 20 8 Over 35 Hours, each Hour USAGE Yes Yes $12.04 $1.85 $10.19
OUTWARD WATS
MO GTE D-SHT 18 8 Each IntraLATA Access Line MRC Yes Yes $25.40 $3.89 $21.51
MO GTE D-SHT 22 0 NRC NRC Yes No $106.00 N/A $106.00
Business DAY Rates
MO GTE D-SHT 20 8 First 10 Hours, each Hour USAGE Yes Yes $18.11 $2.78 $15.33
MO GTE D-SHT 20 8 Next 10 Hours, each Hour USAGE Yes Yes $16.64 $2.55 $14.09
MO GTE D-SHT 20 8 Next 18 Hours, each Hour USAGE Yes Yes $16.42 $2.52 $13.90
MO GTE D-SHT 20 8 Over 38 Hours, each Hour USAGE Yes Yes $14.00 $2.15 $11.85
EVENING Rates
MO GTE D-SHT 20 8 First 10 Hours, each Hour USAGE Yes Yes $15.21 $2.33 $12.88
MO GTE D-SHT 20 8 Next 10 Hours, each Hour USAGE Yes Yes $13.98 $2.14 $11.84
MO GTE D-SHT 20 8 Next 18 Hours, each Hour USAGE Yes Yes $13.79 $2.11 $11.68
MO GTE D-SHT 20 8 Over 38 Hours, each Hour USAGE Yes Yes $11.76 $1.80 $9.96
NIGHT/WEEKEND Rates
MO GTE D-SHT 20 First 10 Hours, each Hour USAGE Yes Yes $12.42 $1.90 $10.52
MO GTE D-SHT 20 8 Next 10 Hours, each Hour USAGE Yes Yes $11.46 $1.76 $9.70
MO GTE D-SHT 20 8 Next 18 Hours, each Hour USAGE Yes Yes $11.32 $1.74 $9.58
MO GTE D-SHT 20 8 Over 38 Hours, each Hour USAGE Yes Yes $9.56 $1.47 $8.09
GTE BUSINESS / RESIDENCE LINE 800 SERVICE
GTE Business Line 800 Service
MO GTE J-SHT 31 8 Each 800 Number terminating on a Business Access Line MRC Yes Yes $10.00 $1.53 $8.47
MO GTE J-SHT 31 0 NRC NRC Yes No $10.00 N/A $10.00
MO GTE J-SHT 31 0 Each 800 Number Record Changed NRC Yes No $10.00 N/A $10.00
MO GTE J-SHT 31 8 Variable Call Destination Rate MRC Yes Yes $2.00 $0.31 $1.69
IntraLATA Usage Rates - All Times of Day
Month-by-Month (no contract)
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $12.00 $1.84 $10.16
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $11.00 $1.69 $9.31
One Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $11.40 $1.75 $9.65
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE J-SHT 32 8 Greater than 10 hours USAGE Yes Yes $10.45 $1.60 $8.85
Two Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $10.83 $1.66 $9.17
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $9.72 $1.49 $8.23
Three Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $10.07 $1.54 $8.53
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $9.23 $1.41 $7.82
GTE Residence Line 800 Service
MO GTE J-SHT 31 8 Each 800 Number terminating on a
Residence Access Line MRC Yes Yes $10.00 $1.53 $8.47
MO GTE J-SHT 31 0 NRC NRC Yes No $10.00 N/A $10.00
MO GTE J-SHT 31 0 Each 800 Number Record Changed NRC Yes No $10.00 N/A $10.00
MO GTE J-SHT 31 8 Variable Call Destination Rate MRC Yes Yes $2.00 $0.31 $1.69
IntraLATA Usage Rates - All Times of Day
Month-by-Month (no contract)
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $12.00 $1.84 $10.16
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $11.00 $1.69 $9.31
One Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $11.40 $1.75 $9.65
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $10.45 $1.60 $8.85
Two Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $10.83 $1.66 $9.17
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $9.72 $1.49 $8.23
Three Year Contract
MO GTE J-SHT 32 8 Usage per Hour, 0 to 10 Hours USAGE Yes Yes $10.07 $1.54 $8.53
MO GTE J-SHT 32 8 Greater than 10 Hours USAGE Yes Yes $9.23 $1.41 $7.82
INTRASTATE SPECIAL ACCESS SERVICES
GTE MIDWEST INCORPORATED PSC MO. NO. 2
MO GTE 5.6.9 0 SPECIAL ACCESS SURCHARGE MRC Yes No $25.00 N/A $25.00
N/A
VOICEBAND FACILITIES N/A
MO GTE 5.7.2(A) 0 Special Transport, 2-Wire and 4-Wire -
Per Mile MRC Yes No $5.19 N/A $5.19
MO GTE 5.7.2(A) 0 Special Access Line - Two Wire MRC Yes No $30.00 N/A $30.00
MO GTE 5.7.2(A) 0 Special Access Line - Four Wire MRC Yes No $58.20 N/A $58.20
MO GTE 5.7.2(A) 0 NRC 2-Wire and 4-Wire SAL NRC Yes No $200.00 N/A $200.00
Optional Arrangements N/A
Multipoint Data Bridging N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $8.00 N/A $8.00
Voice Conference Bridging N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $8.00 N/A $8.00
Alarm Distribution Bridging Common Equipment N/A
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 5.7.2(B) 0 MRC MRC Yes No $30.00 N/A $30.00
Alarm Distribution Bridging Per Two-Wire Port N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $2.00 N/A $2.00
Conditioning Arrangements-Data Type C N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $11.86 N/A $11.86
Conditioning Arrangements-Data Type DA N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $2.00 N/A $2.00
Conditioning Arrangements-Data Type C Improv N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $30.00 N/A $30.00
MO GTE 5.7.2(B) 0 NRC NRC Yes No $3.00 N/A $3.00
Loop Signaling Range Extension, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $10.00 N/A $10.00
Loop or E&M to SF, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $16.00 N/A $16.00
E&M to DX, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $14.00 N/A $14.00
E&M to Loop, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $12.00 N/A $12.00
Loop or E&M to PCM, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $4.00 N/A $4.00
Automatic Ringdown, Per SAL N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $16.78 N/A $16.78
Echo Suppression, Per Circuit N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $30.00 N/A $30.00
Echo Canceller, Per Circuit N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $85.00 N/A $85.00
Voiceband Facility Switching Arrangement N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $7.00 N/A $7.00
Improved Return Loss N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $3.75 N/A $3.75
Improved Termination Option N/A
MO GTE 5.7.2(B) 0 MRC MRC Yes No $10.00 N/A $10.00
Improved Echo Level Echo Path Loss/SAL
MO GTE 5.7.2(B) 0 MRC MRC Yes No $3.75 N/A $3.75
PROGRAM AUDIO (200-3500HZ) FACILITIES
Special Transport, Per Airline Mile
MO GTE 5.7.3(A) 0 MRC MRC Yes No $5.02 N/A $5.02
MO GTE 5.7.3(A) 0 Daily Rate DRC Yes No $0.50 N/A $0.50
Special Access Line N/A
MO GTE 5.7.3(A) 0 MRC MRC Yes No $30.00 N/A $30.00
MO GTE 5.7.3(A) 0 Daily Rate DRC Yes No $3.00 N/A $3.00
MO GTE 5.7.3(A) 0 NRC NRC Yes No $200.00 N/A $200.00
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
N/A
PROGRAM AUDIO (100-5000HZ) FACILITIES N/A
Special Transport, Per Airline Mile N/A
MO GTE 5.7.3(B) 0 MRC MRC Yes No $59.68 N/A $59.68
MO GTE 5.7.3(B) 0 Daily Rate DRC Yes No $5.97 N/A $5.97
Special Access Line N/A
MO GTE 5.7.3(B) 0 MRC MRC Yes No $41.00 N/A $41.00
MO GTE 5.7.3(B) 0 Daily Rate DRC Yes No $4.10 N/A $4.10
MO GTE 5.7.3(B) 0 NRC NRC Yes No $200.00 N/A $200.00
N/A
PROGRAM AUDIO (50-8000HZ) FACILITIES N/A
Special Transport, Per Airline Mile N/A
MO GTE 5.7.3(C) 0 MRC MRC Yes No $74.65 N/A $74.65
MO GTE 5.7.3(C) 0 Daily Rate DRC Yes No $7.47 N/A $7.47
Special Access Line N/A
MO GTE 5.7.3(C) 0 MRC MRC Yes No $42.00 N/A $42.00
MO GTE 5.7.3(C) 0 Daily Rate DRC Yes No $4.20 N/A $4.20
MO GTE 5.7.3(C) 0 NRC NRC Yes No $200.00 N/A $200.00
N/A
PROGRAM AUDIO (50-15000HZ) FACILITIES N/A
Special Transport, Per Airline Mile N/A
MO GTE 5.7.3(D) 0 MRC MRC Yes No $89.61 N/A $89.61
MO GTE 5.7.3(D) 0 Daily Rate DRC Yes No $8.96 N/A $8.96
Special Access Line N/A
MO GTE 5.7.3(D) 0 MRC MRC Yes No $60.42 N/A $60.42
MO GTE 5.7.3(D) 0 Daily Rate DRC Yes No $6.04 N/A $6.04
MO GTE 5.7.3(D) 0 NRC NRC Yes No $200.00 N/A $200.00
N/A
PROGRAM AUDIO Optional Arrangements N/A
Program Audio Bridging, Per Port - All Bandwidths N/A
MO GTE 5.7.3(F) 0 MRC MRC Yes No $19.15 N/A $19.15
MO GTE 5.7.3(F) 0 Daily Rate DRC Yes No $1.92 N/A $1.92
Conditioning-Zero Loss, Per SAL - All Bandwidths N/A
MO GTE 5.7.3(F) 0 MRC MRC Yes No $15.72 N/A $15.72
MO GTE 5.7.3(F) 0 Daily Rate DRC Yes No $1.57 N/A $1.57
Conditioning-Stereo Conditioning - 50-15000 Hz Only N/A
MO GTE 5.7.3(E) 0 MRC MRC Yes No $1.31 N/A $1.31
MO GTE 5.7.3(E) 0 Daily Rate DRC Yes No $0.13 N/A $0.13
N/A
DIGITAL DATA (2.4, 4.8, 9.6 56 KBPS) FACILITIES N/A
Special Transport, Per Airline Mile - All Speeds N/A
MO GTE 5.7.5(A) 0 MRC MRC Yes No $11.50 N/A $11.50
Special Access Line - 2.4, 4.8, 9.6 Kbps N/A
</TABLE>
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GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE 5.7.5(A) 0 MRC MRC Yes No $73.50 N/A $73.50
Special Access Line - 56 Kbps N/A
MO GTE 5.7.5(A) 0 MRC MRC Yes No $83.00 N/A $83.00
MO GTE 5.7.5(A) 0 NRC - All Speeds NRC Yes No $250.00 N/A $250.00
DDS Bridging N/A
MO GTE 5.7.5(B) 0 MRC MRC Yes No $11.00 N/A $11.00
N/A
MULTIPLEXING ARRANGEMENTS N/A
DS1 to Voice N/A
MO GTE 5.7.6 0 NRC NRC Yes No $800.00 N/A $800.00
MO GTE 5.7.6 0 MRC MRC Yes No $184.00 N/A $184.00
Digital Data Carrier Multiplexer-Common Equip N/A
MO GTE 5.7.6 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE 5.7.6 0 MRC MRC Yes No $550.00 N/A $550.00
Digital Data Subrate Multiplexer N/A
One 64 KBPS to Twenty 2.4 KBPS N/A
MO GTE 5.7.6 0 NRC NRC Yes No $800.00 N/A $800.00
MO GTE 5.7.6 0 MRC MRC Yes No $160.00 N/A $160.00
One 64 KBPS to Ten 4.8 KBPS N/A
MO GTE 5.7.6 0 NRC NRC Yes No $800.00 N/A $800.00
MO GTE 5.7.6 0 MRC MRC Yes No $120.00 N/A $120.00
One 64 KBPS to Five 9.6 KBPS N/A
MO GTE 5.7.6 0 NRC NRC Yes No $800.00 N/A $800.00
MO GTE 5.7.6 0 MRC MRC Yes No $100.00 N/A $100.00
N/A
HIGH CAP DIGITAL DS1 (1.544 MBPS) FACILITIES N/A
Special Access Line - First System N/A
MO GTE 5.7.7(A) 0 NRC NRC Yes No $900.00 N/A $900.00
MO GTE 5.7.7(A) 0 MRC MRC Yes No $295.00 N/A $295.00
Special Access Line - Each Add'l System N/A
MO GTE 5.7.7(A) 0 NRC NRC Yes No $130.00 N/A $130.00
MO GTE 5.7.7(A) 0 MRC MRC Yes No $150.00 N/A $150.00
Special Transport N/A
MO GTE 5.7.7(A) 0 Fixed - Monthly MRC Yes No $30.00 N/A $30.00
MO GTE 5.7.7(A) 0 Per Mile - Monthly MRC Yes No $21.60 N/A $21.60
OPTIONAL ARRANGEMENT N/A
Automatic Protection Switching N/A
MO GTE 5.7.7(B) 0 NRC NRC Yes No $700.00 N/A $700.00
MO GTE 5.7.7(B) 0 MRC MRC Yes No $100.00 N/A $100.00
METROLAN SPECIAL TRANSPORT
MO GTE 5.7.7(B) 0 MRC MRC Yes No $75.00 N/A $75.00
</TABLE>
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RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NONRECURRING CHARGES
MO GTE 5.7.1 0 Sp Acc Ordering Charge - Initial, per order NRC Yes No $116.24 N/A $116.24
MO GTE 5.7.1 0 Sp Acc Ordering Charge - Subsequent, per order NRC Yes No $85.85 N/A $85.85
MO GTE 5.7.1 0 Design Change Charge, per order NRC Yes No $27.00 N/A $27.00
INTRALATA PRIVATE LINE AND DIGITAL DATA SERVICES
GTE MIDWEST INCORPORATED PSC MO. NO. 5
SERIES 100 METALLIC SERVICE
Type 102 -
Local Channel
MO GTE C-SHT 54 0 MRC MRC Yes Yes $17.65 $0.00 $17.65
MO GTE C-SHT 54 0 NRC NRC Yes No $240.00 N/A $240.00
Interoffice Channel Terminal N/A
MO GTE C-SHT 54 0 MRC MRC Yes Yes $11.10 $0.00 $11.10
Interexchange Channel Mileage N/A
MO GTE C-SHT 54 0 MRC MRC Yes Yes $0.50 $0.00 $0.50
Interexchange Channel Terminal N/A
MO GTE C-SHT 55 0 MRC MRC Yes Yes $33.65 $0.00 $33.65
Interexchange Channel Mileage N/A
MO GTE C-SHT 55 0 MRC 0-250 Miles MRC Yes Yes $3.65 $0.00 $3.65
MO GTE C-SHT 55 0 MRC Over 250 Miles MRC Yes Yes $1.00 $0.00 $1.00
N/A
SERIES 200 TELEGRAPH SERVICE N/A
Type 250 - N/A
Local Channel N/A
MO GTE C-SHT 58 0 MRC - Half Duplex MRC Yes Yes $23.65 $0.00 $23.65
MO GTE C-SHT 58 0 MRC - Full Duplex MRC Yes Yes $41.20 $0.00 $41.20
MO GTE C-SHT 58 0 NRC MRC Yes No $300.00 N/A $300.00
Interoffice Channel Terminal N/A
MO GTE C-SHT 59 0 MRC - Half Duplex MRC Yes Yes $7.00 $0.00 $7.00
MO GTE C-SHT 59 0 MRC - Full Duplex MRC Yes Yes $7.00 $0.00 $7.00
Interoffice Channel Mileage N/A
MO GTE C-SHT 58 0 MRC - Half Duplex MRC Yes Yes $3.80 $0.00 $3.80
MO GTE C-SHT 58 0 MRC - Full Duplex MRC Yes Yes $6.75 $0.00 $6.75
Interexchange Channel Terminal N/A
MO GTE C-SHT 60 0 MRC - Half Duplex MRC Yes Yes $40.85 $0.00 $40.85
MO GTE C-SHT 60 0 MRC - Full Duplex MRC Yes Yes $41.75 $0.00 $41.75
Interexchange Channel Mileage N/A
MO GTE C-SHT 59 0 MRC - Half Duplex 0-250 miles MRC Yes Yes $1.80 $0.00 $1.80
MO GTE C-SHT 59 0 MRC - Half Duplex Over 250 mi MRC Yes Yes $0.90 $0.00 $0.90
MO GTE C-SHT 59 0 MRC - Full Duplex 0-250 miles MRC Yes Yes $1.80 $0.00 $1.80
MO GTE C-SHT 59 0 MRC - Full Duplex Over 250 mi MRC Yes Yes $0.90 $0.00 $0.90
</TABLE>
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GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Type 251 - N/A
Local Channel N/A
MO GTE C-SHT 58 0 MRC - Half Duplex MRC Yes Yes $43.85 $0.00 $43.85
MO GTE C-SHT 58 0 MRC - Full Duplex MRC Yes Yes $59.90 $0.00 $59.90
MO GTE C-SHT 58 0 NRC NRC Yes No $300.00 N/A $300.00
Interoffice Channel Terminal N/A
MO GTE C-SHT 59 0 MRC - Half Duplex MRC Yes Yes $3.45 $0.00 $3.45
MO GTE C-SHT 59 0 MRC - Full Duplex MRC Yes Yes $3.45 $0.00 $3.45
Interoffice Channel Mileage N/A
MO GTE C-SHT 58 0 MRC - Half Duplex MRC Yes Yes $3.80 $0.00 $3.80
MO GTE C-SHT 58 0 MRC - Full Duplex MRC Yes Yes $6.75 $0.00 $6.75
Interexchange Channel Terminal N/A
MO GTE C-SHT 60 0 MRC - Half Duplex MRC Yes Yes $38.15 $0.00 $38.15
MO GTE C-SHT 60 0 MRC - Full Duplex MRC Yes Yes $38.15 $0.00 $38.15
Interexchange Channel Mileage N/A
MO GTE C-SHT 59 0 MRC - Half Duplex 0-250 miles MRC Yes Yes $2.45 $0.00 $2.45
MO GTE C-SHT 59 0 MRC - Half Duplex Over 250 miles MRC Yes Yes $1.50 $0.00 $1.50
MO GTE C-SHT 59 0 MRC - Full Duplex 0-250 miles MRC Yes Yes $2.45 $0.00 $2.45
MO GTE C-SHT 59 0 MRC - Full Duplex Over 250 mi MRC Yes Yes $1.50 $0.00 $1.50
N/A
SERIES 300 AND 400 VOICEBAND SERVICE N/A
Local Channel N/A
Type 311 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $39.40 $0.00 $39.40
MO GTE C-SHT 71 0 NRC NRC Yes Yes $280.00 $0.00 $280.00
Type 312 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $61.25 $0.00 $61.25
MO GTE C-SHT 71 0 NRC NRC Yes No $270.00 N/A $270.00
Type 314A N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $83.35 $0.00 $83.35
MO GTE C-SHT 71 0 NRC NRC Yes No $340.00 N/A $340.00
Type 320 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $66.40 $0.00 $66.40
MO GTE C-SHT 71 0 NRC NRC Yes No $270.00 N/A $270.00
Type 414B N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $96.30 $0.00 $96.30
MO GTE C-SHT 71 0 NRC NRC Yes No $560.00 N/A $560.00
Type 414C N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $55.85 $0.00 $55.85
MO GTE C-SHT 71 0 NRC NRC Yes No $440.00 N/A $440.00
Type 415 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $38.90 $0.00 $38.90
MO GTE C-SHT 71 0 NRC NRC Yes No $200.00 N/A $200.00
</TABLE>
Page 32
<PAGE> 121
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Type 417A N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $98.30 $0.00 $98.30
MO GTE C-SHT 71 0 NRC NRC Yes No $410.00 N/A $410.00
Type 417B N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $98.30 $0.00 $98.30
MO GTE C-SHT 71 0 NRC NRC Yes No $410.00 N/A $410.00
Type 420 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $63.45 $0.00 $63.45
MO GTE C-SHT 71 0 NRC NRC Yes No $290.00 N/A $290.00
Type 422 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $63.45 $0.00 $63.45
MO GTE C-SHT 71 0 NRC NRC Yes No $290.00 N/A $290.00
Type 423 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $32.95 $0.00 $32.95
MO GTE C-SHT 71 0 NRC NRC Yes No $280.00 N/A $280.00
Type 424 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $61.70 $0.00 $61.70
MO GTE C-SHT 71 0 NRC NRC Yes No $340.00 N/A $340.00
Type 425 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $45.85 $0.00 $45.85
MO GTE C-SHT 71 0 NRC NRC Yes No $270.00 N/A $270.00
Type 428 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $43.55 $0.00 $43.55
MO GTE C-SHT 71 0 NRC NRC Yes No $270.00 N/A $270.00
Type 432 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $49.70 $0.00 $49.70
MO GTE C-SHT 71 0 NRC NRC Yes No $500.00 N/A $500.00
Type 435 N/A
MO GTE C-SHT 71 0 MRC MRC Yes Yes $66.40 $0.00 $66.40
MO GTE C-SHT 71 0 NRC NRC Yes No $250.00 N/A $250.00
Interoffice Channel Terminal - All N/A
MO GTE C-SHT 72 0 MRC MRC Yes Yes $4.35 $0.00 $4.35
Interoffice Channel Mileage - All N/A
MO GTE C-SHT 72 0 MRC MRC Yes Yes $7.55 $0.00 $7.55
Interexchange Channel Terminal N/A
MO GTE C-SHT 73 0 Type 311 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 312 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 314A - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 320 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 414B - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 414C - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 415 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 417A - MRC MRC Yes Yes $27.90 $0.00 $27.90
</TABLE>
Page 33
<PAGE> 122
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE C-SHT 73 0 Type 417B - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 420 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 422 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 423 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 424 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 425 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 428 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Type 432 - MRC MRC Yes Yes $31.90 $0.00 $31.90
MO GTE C-SHT 73 0 Type 435 - MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 73 0 Foreign Exchange - MRC MRC Yes Yes $27.90 $0.00 $27.90
Interexchange Channel Mileage - All N/A
MO GTE C-SHT 72 0 MRC 0-250 miles MRC Yes Yes $4.10 $0.00 $4.10
MO GTE C-SHT 72 0 MRC Over 250 miles NRC Yes No $1.05 N/A $1.05
Business Extension Line N/A
MO GTE C-SHT 74 0 MRC MRC Yes Yes $4.50 $0.00 $4.50
Bridging Charge N/A
MO GTE C-SHT 75 0 MRC MRC Yes Yes $7.55 $0.00 $7.55
Foreign Exchange Service N/A
Point of Termination in one fx N/A
MO GTE C-SHT 79 0 MRC 0-20 miles apart MRC Yes Yes $61.10 $0.00 $61.10
MO GTE C-SHT 79 0 MRC over 20 miles apart MRC Yes Yes $70.70 $0.00 $70.70
MO GTE C-SHT 79 0 NRC NRC Yes No $410.00 N/A $410.00
Point of Termination in two fx's N/A
MO GTE C-SHT 79 0 MRC MRC Yes Yes $109.95 $0.00 $109.95
MO GTE C-SHT 79 0 NRC NRC Yes No $410.00 N/A $410.00
Four-Wire Access Service Arrangement N/A
FX or FSO Four-Wire Service Access N/A
MO GTE C-SHT 81 0 MRC MRC Yes Yes $33.80 $0.00 $33.80
MO GTE C-SHT 81 0 NRC NRC Yes No $26.90 N/A $26.90
Signaling Options N/A
Manual N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $26.25 $0.00 $26.25
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Automatic N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $27.90 $0.00 $27.90
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Arranged for E & M Type Signaling N/A
Type 420 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $20.25 $0.00 $20.25
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Type 422 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $20.25 $0.00 $20.25
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
</TABLE>
Page 34
<PAGE> 123
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Type 423 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $21.30 $0.00 $21.30
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Type 424 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $21.60 $0.00 $21.60
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Type 425 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $21.60 $0.00 $21.60
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Type 428 N/A
MO GTE C-SHT 89 0 MRC MRC Yes Yes $21.60 $0.00 $21.60
MO GTE C-SHT 89 0 NRC NRC Yes No $65.00 N/A $65.00
Arranged for Loop Signaling N/A
Type 420 N/A
MO GTE C-SHT 90 0 MRC MRC Yes Yes $33.25 $0.00 $33.25
MO GTE C-SHT 90 0 NRC NRC Yes No $65.00 N/A $65.00
Type 422 N/A
MO GTE C-SHT 90 0 MRC MRC Yes Yes $33.25 $0.00 $33.25
MO GTE C-SHT 90 0 NRC NRC Yes No $65.00 N/A $65.00
Type 423 N/A
MO GTE C-SHT 90 0 MRC MRC Yes Yes $34.15 $0.00 $34.15
MO GTE C-SHT 90 0 NRC NRC Yes No $65.00 N/A $65.00
Arranged for Loop Signaling N/A
Type 428 N/A
MO GTE C-SHT 90 0 MRC MRC Yes Yes $17.55 $0.00 $17.55
MO GTE C-SHT 90 0 NRC NRC Yes No $65.00 N/A $65.00
Arranged for Loop Signaling / ohm Max N/A
Type 428 N/A
MO GTE C-SHT 90 0 MRC MRC Yes Yes $21.60 $0.00 $21.60
MO GTE C-SHT 90 0 NRC NRC Yes No $65.00 N/A $65.00
Type A, B, and C Signaling Arrgments N/A
Type A N/A
MO GTE C-SHT 91 0 MRC MRC Yes Yes $8.40 $0.00 $8.40
MO GTE C-SHT 91 0 NRC NRC Yes No $30.00 N/A $30.00
Type B N/A
MO GTE C-SHT 91 0 MRC MRC Yes Yes $8.70 $0.00 $8.70
MO GTE C-SHT 91 0 NRC NRC Yes No $30.00 N/A $30.00
Type C N/A
MO GTE C-SHT 91 0 MRC MRC Yes Yes $3.55 $0.00 $3.55
MO GTE C-SHT 91 0 NRC NRC Yes No $1.05 N/A $1.05
Channel Conditioning Charge N/A
Type C1 N/A
2 point, not arranged for switch N/A
</TABLE>
Page 35
<PAGE> 124
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE C-SHT 92 0 MRC MRC Yes Yes $9.40 $0.00 $9.40
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
2 point arranged for switching N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $17.00 $0.00 $17.00
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Multipoint N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $18.80 $0.00 $18.80
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Type C2 N/A
2 point, not arranged for switch N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $37.70 $0.00 $37.70
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
2 point arranged for switching N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $56.45 $0.00 $56.45
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Multipoint N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $56.45 $0.00 $56.45
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Type C4 N/A
2 point channel N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $65.80 $0.00 $65.80
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
3 or 4 point channel N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $84.70 $0.00 $84.70
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Type C5 N/A
2 pt chan, not arnged for switch N/A
MO GTE C-SHT 92 0 MRC MRC Yes Yes $94.10 $0.00 $94.10
MO GTE C-SHT 92 0 NRC NRC Yes No $80.00 N/A $80.00
Type D1 N/A
MO GTE C-SHT 93 0 MRC MRC Yes Yes $11.35 $0.00 $11.35
MO GTE C-SHT 93 0 NRC NRC Yes No $80.00 N/A $80.00
Dataphone Select-a-Station Service N/A
PDSS - N/A
Sequen Arrangement, Common Equip N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $119.60 $0.00 $119.60
Addressable Arrangemnt, Comm Equip N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $152.85 $0.00 $152.85
Channel Connections - N/A
Per two-wire channel N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $4.00 $0.00 $4.00
Per four-wire channel N/A
</TABLE>
Page 36
<PAGE> 125
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE C-SHT 99 0 MRC MRC Yes Yes $13.60 $0.00 $13.60
SDSS - N/A
Sequential Arrangement, Com Equip N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $119.60 N/A $119.60
Addressable Arrangement, Com Equip N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $152.85 $0.00 $152.85
Channel Connections - N/A
Per two-wire channel N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $4.00 $0.00 $4.00
Per four-wire channel N/A
MO GTE C-SHT 99 0 MRC MRC Yes Yes $13.60 $0.00 $13.60
SCU - N/A
Common Equipment - N/A
First SCU, for sequential oper N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $66.45 $0.00 $66.45
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
First SCU, for addressable oper N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $93.00 $0.00 $93.00
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
Additional SCU Connections N/A
For sequential operation N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $15.65 $0.00 $15.65
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
For addressable operation N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $39.85 $0.00 $39.85
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
Spare SCU Connection N/A
For sequential operation N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $26.25 $0.00 $26.25
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
For addressable operation N/A
MO GTE C-SHT 100 0 MRC MRC Yes Yes $51.10 $0.00 $51.10
MO GTE C-SHT 100 0 NRC NRC Yes No $14.00 N/A $14.00
/A N/A
DIGITAL DATA TRANSMISSION SERVICE - GTE Midwest PSC MO NO 6 N/A
Local Channel N/A
2.4 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $55.00 $0.00 $55.00
MO GTE C-SHT 33 0 NRC NRC Yes No $71.00 N/A $71.00
4.8 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $55.00 $0.00 $55.00
MO GTE C-SHT 33 0 NRC NRC Yes No $71.00 N/A $71.00
9.6 Kbps N/A
</TABLE>
Page 37
<PAGE> 126
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE C-SHT 33 0 MRC MRC Yes Yes $55.00 $0.00 $55.00
MO GTE C-SHT 33 0 NRC NRC Yes No $71.00 N/A $71.00
/A 19.2 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $55.00 $0.00 $55.00
MO GTE C-SHT 33 0 NRC NRC Yes No $71.00 N/A $71.00
56 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $68.00 $0.00 $68.00
MO GTE C-SHT 33 0 NRC NRC Yes No $71.00 N/A $71.00
Interexchange Mileage N/A
Fixed Mileage N/A
2.4 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $25.00 $0.00 $25.00
4.8 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $25.00 $0.00 $25.00
9.6 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $25.00 $0.00 $25.00
/A 19.2 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $25.00 $0.00 $25.00
56 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $25.00 $0.00 $25.00
Per Mile Rate N/A
2.4 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $2.00 $0.00 $2.00
4.8 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $2.00 $0.00 $2.00
9.6 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $2.00 $0.00 $2.00
/A 19.2 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $2.00 $0.00 $2.00
56 Kbps N/A
MO GTE C-SHT 33 0 MRC MRC Yes Yes $2.00 $0.00 $2.00
Multistation Arrangement, Per Chan N/A
Connected at a Digital Hub N/A
MO GTE C-SHT 34 0 MRC MRC Yes Yes $12.00 $0.00 $12.00
/A N/A
WIDEBAND DIGITAL SERVICE/1.544 Mbps GTE Midwest PSC MO NO 6 N/A
Local Distribution Channel N/A
First Local Distribution Channel N/A
MO GTE D-SHT 43 0 MRC MRC Yes Yes $295.00 $0.00 $295.00
MO GTE D-SHT 43 0 NRC NRC Yes No $965.00 N/A $965.00
Each Additional Dist Channel N/A
MO GTE D-SHT 43 0 MRC MRC Yes Yes $150.00 $0.00 $150.00
MO GTE D-SHT 43 0 NRC NRC Yes No $128.00 N/A $128.00
</TABLE>
Page 38
<PAGE> 127
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Interexch Interofc Channel N/A
Channel Terminal N/A
MO GTE D-SHT 44 0 NRC NRC Yes No $30.00 N/A $30.00
Channel Mileage, Per Mile
MO GTE D-SHT 44 0 NRC NRC Yes No $21.60 N/A $21.60
N/A
N/A
FRAME RELAY SERVICE GTE Midwest Inc - PSC MO NO 6 N/A
Frame Relay Service with Port and Access N/A
56 Kbps N/A
MO GTE F-SHT 90 0 NRC NRC Yes No $295.00 N/A $295.00
MO GTE F-SHT 90 0 Month to Month MRC Yes No $110.00 N/A $110.00
MO GTE F-SHT 90 0 One Year MRC Yes No $105.00 N/A $105.00
MO GTE F-SHT 90 0 Three Year MRC Yes No $95.00 N/A $95.00
MO GTE F-SHT 90 0 Five Year MRC Yes No $85.00 N/A $85.00
128 Kbps N/A
MO GTE F-SHT 90 0 NRC NRC Yes No $395.00 N/A $395.00
MO GTE F-SHT 90 0 Month to Month MRC Yes No $200.00 N/A $200.00
MO GTE F-SHT 90 0 One Year MRC Yes No $190.00 N/A $190.00
MO GTE F-SHT 90 0 Three Year MRC Yes No $175.00 N/A $175.00
MO GTE F-SHT 90 0 Five Year MRC Yes No $165.00 N/A $165.00
256 Kbps N/A
MO GTE F-SHT 90 0 NRC NRC Yes No $395.00 N/A $395.00
MO GTE F-SHT 90 0 Month to Month MRC Yes No $285.00 N/A $285.00
MO GTE F-SHT 90 0 One Year MRC Yes No $270.00 N/A $270.00
MO GTE F-SHT 90 0 Three Year MRC Yes No $255.00 N/A $255.00
MO GTE F-SHT 90 0 Five Year MRC Yes No $240.00 N/A $240.00
384 Kbps
MO GTE F-SHT 90 0 NRC NRC Yes No $395.00 N/A $395.00
MO GTE F-SHT 90 0 Month to Month MRC Yes No $365.00 N/A $365.00
MO GTE F-SHT 90 0 One Year MRC Yes No $345.00 N/A $345.00
MO GTE F-SHT 90 0 Three Year MRC Yes No $335.00 N/A $335.00
MO GTE F-SHT 90 0 Five Year MRC Yes No $320.00 N/A $320.00
1.544 Mbps N/A
MO GTE F-SHT 90 0 NRC NRC Yes No $595.00 N/A $595.00
MO GTE F-SHT 90 0 Month to Month MRC Yes No $530.00 N/A $530.00
MO GTE F-SHT 90 0 One Year MRC Yes No $510.00 N/A $510.00
MO GTE F-SHT 90 0 Three Year MRC Yes No $490.00 N/A $490.00
MO GTE F-SHT 90 0 Five Year MRC Yes No $470.00 N/A $470.00
Frame Relay Service with Port Only N/A
56 Kbps N/A
MO GTE F-SHT 91 0 NRC NRC Yes No $95.00 N/A $95.00
MO GTE F-SHT 91 0 Month to Month MRC Yes No $45.00 N/A $45.00
</TABLE>
Page 39
<PAGE> 128
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE F-SHT 91 0 One Year MRC Yes No $43.00 N/A $43.00
MO GTE F-SHT 91 0 Three Year MRC Yes No $41.00 N/A $41.00
MO GTE F-SHT 91 0 Five Year MRC Yes No $38.00 N/A $38.00
128 Kbps N/A
MO GTE F-SHT 91 0 NRC NRC Yes No $295.00 N/A $295.00
MO GTE F-SHT 91 0 Month to Month MRC Yes No $90.00 N/A $90.00
MO GTE F-SHT 91 0 One Year MRC Yes No $85.00 N/A $85.00
MO GTE F-SHT 91 0 Three Year MRC Yes No $80.00 N/A $80.00
MO GTE F-SHT 91 0 Five Year MRC Yes No $75.00 N/A $75.00
256 Kbps N/A
MO GTE F-SHT 91 0 NRC NRC Yes No $295.00 N/A $295.00
MO GTE F-SHT 91 0 Month to Month MRC Yes No $135.00 N/A $135.00
MO GTE F-SHT 91 0 One Year MRC Yes No $130.00 N/A $130.00
MO GTE F-SHT 91 0 Three Year MRC Yes No $120.00 N/A $120.00
MO GTE F-SHT 91 0 Five Year MRC Yes No $110.00 N/A $110.00
384 Kbps N/A
MO GTE F-SHT 91 0 NRC NRC Yes No $295.00 N/A $295.00
MO GTE F-SHT 91 0 Month to Month MRC Yes No $190.00 N/A $190.00
MO GTE F-SHT 91 0 One Year MRC Yes No $180.00 N/A $180.00
MO GTE F-SHT 91 0 Three Year MRC Yes No $170.00 N/A $170.00
MO GTE F-SHT 91 0 Five Year MRC Yes No $160.00 N/A $160.00
1.544 Mbps N/A
MO GTE F-SHT 91 0 NRC NRC Yes No $495.00 N/A $495.00
MO GTE F-SHT 91 0 Month to Month MRC Yes No $300.00 N/A $300.00
MO GTE F-SHT 91 0 One Year MRC Yes No $285.00 N/A $285.00
MO GTE F-SHT 91 0 Three Year MRC Yes No $265.00 N/A $265.00
MO GTE F-SHT 91 0 Five Year MRC Yes No $245.00 N/A $245.00
Frame Relay UNI PVC N/A
MO GTE F-SHT 92 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE F-SHT 92 0 Month to Month MRC Yes No $8.00 N/A $8.00
MO GTE F-SHT 92 0 One Year MRC Yes No $7.00 N/A $7.00
MO GTE F-SHT 92 0 Three Year MRC Yes No $6.00 N/A $6.00
MO GTE F-SHT 92 0 Five Year MRC Yes No $5.00 N/A $5.00
Frame Relay NNI PVC N/A
MO GTE F-SHT 92 0 NRC NRC Yes No $20.00 N/A $20.00
MO GTE F-SHT 92 0 From 0 to 16 MRC Yes No $7.00 N/A $7.00
MO GTE F-SHT 92 0 From 17 to 32 MRC Yes No $9.00 N/A $9.00
MO GTE F-SHT 92 0 From 33 to 64 MRC Yes No $13.00 N/A $13.00
MO GTE F-SHT 92 0 From 65 to 128 MRC Yes No $22.00 N/A $22.00
MO GTE F-SHT 92 0 From 129 to 256 MRC Yes No $40.00 N/A $40.00
MO GTE F-SHT 92 0 From 257 to 384 MRC Yes No $58.00 N/A $58.00
MO GTE F-SHT 92 0 From 385 to 448 MRC Yes No $66.00 N/A $66.00
MO GTE F-SHT 92 0 From 449 to 512 MRC Yes No $75.00 N/A $75.00
</TABLE>
Page 40
<PAGE> 129
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
MO GTE F-SHT 92 0 From 513 to 768 MRC Yes No $110.00 N/A $110.00
MO GTE F-SHT 92 0 From 769 to 1024 MRC Yes No $146.00 N/A $146.00
MO GTE F-SHT 92 0 From 1025 to 1536 MRC Yes No $216.00 N/A $216.00
N/A
N/A
MetroLAN CDL Connect N/A
DS-3 CDL N/A
3 Year OPP N/A
MO GTE G-SHT 106 0 NRC NRC Yes No $3,000.00 N/A $3,000.00
MO GTE G-SHT 106 0 MRC MRC Yes No $1,350.00 N/A $1,350.00
5 Year OPP N/A
MO GTE G-SHT 106 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE G-SHT 106 0 MRC MRC Yes No $1,250.00 N/A $1,250.00
7 Year OPP N/A N/A
MO GTE G-SHT 106 0 MRC MRC Yes No $1,150.00 N/A $1,150.00
OC-3 N/A
3 Year OPP N/A
MO GTE G-SHT 106 0 NRC NRC Yes No $3,000.00 N/A $3,000.00
MO GTE G-SHT 106 0 MRC MRC Yes No $1,750.00 N/A $1,750.00
5 Year OPP N/A
MO GTE G-SHT 106 0 NRC NRC Yes No $1,500.00 N/A $1,500.00
MO GTE G-SHT 106 0 MRC MRC Yes No $1,600.00 N/A $1,600.00
7 Year OPP N/A
MO GTE G-SHT 106 0 MRC MRC Yes No $1,500.00 N/A $1,500.00
MetroLAN CO Connect N/A
MO GTE G-SHT 106 0 MRC MRC Yes No $60.00 N/A $60.00
MetroLAN Transport N/A
1.544 Mbps N/A
MO GTE G-SHT 107 0 3 Year OPP MRC Yes No $90.00 N/A $90.00
MO GTE G-SHT 107 0 5 Year OPP MRC Yes No $75.00 N/A $75.00
MO GTE G-SHT 107 0 7 Year OPP MRC Yes No $60.00 N/A $60.00
10 Mbps N/A
MO GTE G-SHT 107 0 3 Year OPP MRC Yes No $300.00 N/A $300.00
MO GTE G-SHT 107 0 5 Year OPP MRC Yes No $250.00 N/A $250.00
MO GTE G-SHT 107 0 7 Year OPP MRC Yes No $200.00 N/A $200.00
16 Mbps N/A
MO GTE G-SHT 107 0 3 Year OPP MRC Yes No $450.00 N/A $450.00
MO GTE G-SHT 107 0 5 Year OPP MRC Yes No $400.00 N/A $400.00
MO GTE G-SHT 107 0 7 Year OPP MRC Yes No $300.00 N/A $300.00
44.736 Mbps N/A
MO GTE G-SHT 107 0 3 Year OPP MRC Yes No $900.00 N/A $900.00
MO GTE G-SHT 107 0 5 Year OPP MRC Yes No $850.00 N/A $850.00
MO GTE G-SHT 107 0 7 Year OPP MRC Yes No $800.00 N/A $800.00
</TABLE>
Page 41
<PAGE> 130
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF MISSOURI
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
ST CO TAR SEC Rule Service Description Type Position Position Rate Cost Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
155 Mbps N/A
MO GTE G-SHT 107 0 3 Year OPP MRC Yes No $2,150.00 N/A $2,150.00
MO GTE G-SHT 107 0 5 Year OPP MRC Yes No $1,950.00 N/A $1,950.00
MO GTE G-SHT 107 0 7 Year OPP MRC Yes No $1,750.00 N/A $1,750.00
MetroLAN Service Activation N/A
DS-1 N/A
MO GTE G-SHT 108 0 3 Year OPP MRC Yes No $50.00 N/A $50.00
MO GTE G-SHT 108 0 5 Year OPP MRC Yes No $45.00 N/A $45.00
MO GTE G-SHT 108 0 7 Year OPP MRC Yes No $40.00 N/A $40.00
DS-3 N/A
MO GTE G-SHT 108 0 3 Year OPP MRC Yes No $170.00 N/A $170.00
MO GTE G-SHT 108 0 5 Year OPP MRC Yes No $150.00 N/A $150.00
MO GTE G-SHT 108 0 7 Year OPP MRC Yes No $130.00 N/A $130.00
Ethernet N/A
MO GTE G-SHT 108 0 3 Year OPP MRC Yes No $500.00 N/A $500.00
MO GTE G-SHT 108 0 5 Year OPP MRC Yes No $450.00 N/A $450.00
MO GTE G-SHT 108 0 7 Year OPP MRC Yes No $400.00 N/A $400.00
Token Ring N/A
MO GTE G-SHT 108 0 3 Year OPP MRC Yes No $500.00 N/A $500.00
MO GTE G-SHT 108 0 5 Year OPP MRC Yes No $450.00 N/A $450.00
MO GTE G-SHT 108 0 7 Year OPP MRC Yes No $400.00 N/A $400.00
MetroLAN Service Activations - Additional
MO GTE G-SHT 108 0 NRC NRC Yes No $130.00 N/A $130.00
</TABLE>
Page 42
<PAGE> 131
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT
BETWEEN
GTE MIDWEST INCORPORATED
GTE ARKANSAS INCORPORATED
AND
DIGITAL TELEPORT, INC.
AMENDMENT NO. _________
THIS AMENDMENT (herein so called) is made effective as of ___________, 199____,
by and between GTE Midwest Incorporated/GTE Arkansas Incorporated ("GTE") and
Digital Teleport, Inc. ("DTI"). GTE and DTI are sometimes referred to herein
collectively as the "Parties" and individually as a "Party." Either GTE or DTI
may be referred to as "Provider" or "Customer" as the context requires.
WHEREAS, Provider is providing to Customer and Customer is purchasing from
Provider those Services described in that certain Interconnection,
Telecommunications Services and Facilities Agreement for the State of
by and between GTE and DTI dated effective as of _______________, 199_____ (the
"Agreement"); and
WHEREAS, the Parties desire to amend the Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the terms and conditions contained in this
Amendment, the Parties agree as follows:
1.
2. ADDITIONAL SERVICES [IF APPLICABLE]
2.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following services under the terms and conditions set
forth in the Agreement and within the service attachment listed below and
attached to this Amendment:
Service Attachment _______ - ______________
2.2 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, ____________________________________ is
made a part of the Services provided under the Agreement and Service
Attachment _______ shall be deemed to be a Service Attachment to the
Agreement.
2.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect the additional
Services and related Service Locations.
C-1
<PAGE> 132
3. SERVICE LOCATIONS [IF APPLICABLE]
3.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following Services in the following locations:
C-2
<PAGE> 133
<TABLE>
<S> <C> <C>
Service Location Services
(identified by (identified by
tandem serving IP Service Attachment
area) (identified by CLLI code) Number)
- ---------------------------------------------------------------------------------------
</TABLE>
3.2 As of the effective date of this Amendment, the locations set forth in
Section 3.1 above shall be deemed Service Locations under the Agreement.
3.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect additional Service
Locations.
4. INTERPRETATION
All capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
5. EFFECT
Except as modified herein, the Agreement shall remain in full force and
effect.
6. AUTHORITY
Each person whose signature appears below represents and warrants that he
or she has the authority to bind the Party on whose behalf he or she has
executed this Amendment.
7. MULTIPLE COUNTERPARTS
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which shall constitute but one
and the same instrument.
8. NO OFFER
Submission of this Amendment for examination or signature does not
constitute an offer by Provider for the provision of the products or
services described herein. This Amendment will be effective only upon
execution by both Provider and Customer.
IN WITNESS WHEREOF, the Parties have executed this Amendment on the date or
dates written below effective as of the date first above written.
<TABLE>
<S> <C>
GTE MIDWEST INCORPORATED DIGITAL TELEPORT, INC.
GTE ARKANSAS INCORPORATED
By By
-------------------------------- --------------------------------
Name Name
------------------------------ ------------------------------
Title Title
----------------------------- -----------------------------
</TABLE>
C-3
<PAGE> 134
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC
General. The rates contained in this Appendix D are the rates as defined in
Article V and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
Each Party will bill the other Party as appropriate:
A. The Local Interconnection rate element that applies to Local
Traffic on a minute of use basis that each Party switches for
termination purposes at its wire centers. The local interconnection
rate is $0.0064061.
B. The Tandem Switching rate element that applies to tandem
routed Local Traffic on a minute of use basis. This rate includes
tandem transport, but does not include the local interconnection
charge. The tandem switching rate is $0.0022100.
C. The Common Transport Facility rate element that applies to
tandem routed Local Traffic on a per minute/per mile basis. The
Common Transport Facility rate is $0.0000029.
D. The Common Transport facility rate element that applies to tandem
routed Local Traffic on a per minute/per termination basis. The
Common Transport facility rate is $0.0001068.
D-1
<PAGE> 135
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF
General. The rates contained in this Appendix E are as defined in Article V,
Section 7, and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
In addition, as defined in Article V, Section 3.2.3, the Party providing the
ported number will pay the other Party the rate per line per month for each
ported business line and the rate per line per month for each ported
residential line for the sharing of Access Charges on calls to ported numbers.
<TABLE>
<S> <C> <C>
Business Rate Per Line Per Month: $10.32
Residential Rate Per Line Per Month: $4.59
SERVICE NUMBER PORTABILITY
Remote Call Forwarding $3.40 line/month
Simultaneous Call Capability $3.30 path/month
Non-recurring for Portability $10.50
</TABLE>
E-1
<PAGE> 136
APPENDIX F
SERVICES AVAILABLE FOR RESALE
General. The rates contained in this Appendix F are based upon an avoided cost
discount from GTE's retail rates as provided in Article VI, Section 5.3 of the
Agreement to which this Appendix F is attached and are subject to change
resulting from future Commission or other proceedings, including but not
limited to any generic proceeding to determine GTE's unrecovered costs (e.g.,
historic costs, contribution, undepreciated reserve deficiency, or similar
unrecovered GTE costs (including GTE's interim Universal Service Support
Surcharge)), the establishment of a competitively neutral universal service
system, or any appeal or other litigation.
<TABLE>
<CAPTION>
NON-RECURRING CHARGES FOR RESALE SERVICES
<S> <C>
Initial Service Order, per order $41.50
Subsequent Service Order, per order $24.00
Installation, per line $25.50
Outside Facility Connection Charge, per order* $Tariffed
</TABLE>
*This charge will apply when field work is required for establishment of new
resale service. The terms, conditions and rates that apply for this work are
described in GTE's retail local service tariffs.
F-2
<PAGE> 137
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS
General. The rates contained in this Appendix G are the rates as defined in
Article VII and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Service Support Surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
<TABLE>
<S> <C> <C> <C>
(1) Local Loops
Local Loop
2 Wire Loop $45.10
4 Wire Loop $63.60
Network Interface Device
Basic NID $1.80
12x NID $1.80
(2) Local Switching (Must purchase Port)
Ports
2 Wire Basic Port $4.20
DS-1 Port $108.00
Local Switching
Originating MOU $0.0064061
Terminating MOU $0.0064061
Intrastate End Office Switching
Originating MOU $0.0064061
Terminating MOU $0.0064061
Interconnection Charge $0.0024022
CCL
-Originating $0.0299013
-Terminating $0.0714142
Interstate End Office Switching
Originating MOU $0.0064061
Terminating MOU $0.0064061
Interconnection Charge $0.0024022
CCL
-Originating $0.0100000
-Terminating $0.0185608
(3) Features See Attached
(4) Dedicated Transmission Links
Entrance Facility
2 Wire Voice $32.00
4 Wire Voice $50.00
DS1 Standard 1st System $325.00
DS1 Standard Add'l System $150.00
DS3 Protected, Electrical $1,257.92
DS1 to Voice Multiplexing $195.00
</TABLE>
G-1
<PAGE> 138
<TABLE>
<S> <C> <C> <C>
DS3 to Voice Multiplexing $490.00
Direct Trunked Transport
Voice Facility Per ALM $5.25
DS1 Facility Per ALM $5.50
DS1 Per Termination $40.00
DS3 Facility Per ALM $40.00
DS3 Per Termination $217.85
(5) Common/Shared Transmission Links
Transport Termination MOU/Term $0.0001068
Transport Facility MOU/Mile $0.0000029
(6) Tandem Switching MOU $0.0022100
(7) Databases and Signaling Systems
Signaling Links and STP
56 Kbps Links N/A
DS-1 Link N/A
Signal Transfer Point (STP) Port Term N/A
Call Related Databases
Line Information Database (ABS-Queries) $0.035
Line Information Database Transport (ABS-Queries) $0.0046
Toll Free Calling Database (DB800 Queries) $0.0079990
Non-Recurring Charges for Unbundled Services
Service Ordering (loop or port)
Initial Service Order, per order $47.25
Transfer of Service Charges, per order $16.00
Subsequent Service Order, per order $24.00
Customer Service Record Research, per request $5.25
Installation
Unbundled Loop, per loop $11.00
Unbundled Port, per port $11.00
Loop Facility Charge, per order $59.75
This charge will apply when field work is required for establishment of new unbundled
loop service.
Monthly Recurring Charge for EIS
DS0 Level Connection $2.93
DS1 Level Connection $6.62
</TABLE>
G-2
<PAGE> 139
MISSOURI FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
<S> <C> <C>
1. Speed Call 8 (Changeable) $0.25
2. Speed Call 30 (Changeable) $0.25
3. Cancel Call Waiting $0.25
4. Call Forward Variable $0.25
5. Call Waiting $0.25
6. Dual Tone Multifrequency (DTMF) $0.25
7. Teen Service/Distinctive Ringing $0.25
8. Three-Way Calling $1.00
9. Account Codes For AFR $0.25
10. Add On - Consultation Hold - Incoming Only $0.25
11. Attendant BL Verification $1.25
12. Attendant camp-on (NonDL Console) $0.50
13. Attendant Conference $3.25
14. Attendant Position Busy $0.25
15. Attendant Recall from Satellite $1.75
16. Authorization Codes for AFR $0.25
17. Basic Business Group $3.00
18. Dual Tone Multifrequency (DTMF) $0.25
19. Station-to-Station Dialing (Intercom) $2.75
20. Business Group Automatic Callback (BGAC) $0.25
21. Call Forwarding Variable $0.25
22. Business Group - Speed Call - 8 $0.25
23. Business Group - Speed Call - 30 $0.25
24. Business Group - Three Way Calling (TWC) $1.00
25. Business Set Access To Paging $2.50
26. Business Set Call Grp Intercom $113.50
27. Code Calling $0.50
28. Call Forward Busy Line $0.25
29. Call Forward Don't Answer $0.25
30. Call Forward Fixed $0.25
31. Call Forwarding - Incoming Only $0.25
32. Call Flip/Flop $0.25
33. Call Forwarding - Within Group $0.25
34. Call Hold $0.25
35. Circular Hunting $0.25
36. Control of Facilities $0.25
37. Conference Calling 6 Way $3.25
38. Call Park $0.25
39. Call Pick-Up $0.25
40. Code Restrictions and Diversion $0.75
41. Call Transfer Individual - All Calls $0.25
42. Call Waiting Originating $0.25
43. Call Waiting Terminating $0.25
44. Direct Connect $0.25
45. Directed Call Pickup W/BI $0.25
46. Directed Call Pickup WO/BI $0.25
47. Dial Call Waiting $0.25
</TABLE>
G-3
<PAGE> 140
MISSOURI FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
<S> <C> <C>
48. Remote Access to (Business Group) Features $0.25
49. Distinctive Ringing $0.25
50. Expensive Route Warning Tone $0.25
51. Fixed Night Service - Call Fwd $0.25
52. Fixed Night Service - Key $1.50
53. Fully Restricted (Orig/Term) $0.25
54. Facility Restriction Level $0.75
55. Foreign Exchange Facilities $0.50
56. Last Number Redial $0.25
57. Loud Speaker Paging $0.50
58. Make Busy Key $0.50
59. Music on Hold $0.25
60. Off-Hook Queuing $0.25
61. On-Hook Queuing $0.25
62. Preferential Multiline Hunting $0.25
63. Queuing $0.75
64. Recorded Telephone Dictation $0.75
65. Speed Calling Individual 1 Digit $0.25
66. Speed Calling Individual 2 Digit $0.25
67. Stop Hunt Key $0.50
68. Special Intercept Announcements $14.25
69. SMDR To Customer Premise $19.50
70. Station Message Detail Recording - RAO $1.00
71. Station Restricted (Orig/Term) $0.25
72. Time of Day Routing Control $0.25
73. Toll Restricted Service $0.75
74. Two-way Splitting $0.25
75. Uniform Call Distribution (UCD) Hunting $0.25
76. Auto Alt Rt $0.50
77. Auto Rt Sel $0.50
78. Meet Me Conf $20.00
79. Auto Call Back $0.25
80. Anon Call Rej $0.25
81. Auto Recall $0.25
82. Call Num Deliver $0.25
83. Call Num Deliver Blk $0.25
84. Cust Ord. Trace $0.25
85. Dist Ring/VIP $0.25
86. Select Call Accept $0.25
87. Select Call Frwd $0.25
88. Select Call Reject $0.25
89. Select Call Wait $0.25
------------------------------------------ -------
TOTAL $212.50
</TABLE>
G-4
<PAGE> 141
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS
The following services are offered by GTE for purchase by DTI, where an
individual item is not superseded by a tariffed offering.
<TABLE>
<CAPTION>
NRC MRC
------- -------
<S> <C> <C> <C>
1. 9-1-1 Selective Router Map $125.00 n/a
Provided is a color map showing a
selective router's location and the GTE
central offices that send their 9-1-1 call
to it. The selective router and central
office information will include CLLI codes
and NPA/NXXs served. The map will include
boundaries of each central office and show
major streets and the county boundary.
Permission to reproduce within DTI for its
internal use is granted without further
fee. Non-tariffed price.
2. 9-1-1 Selective Router Pro-Rata Fee/trunk $0 $100.77
This fee covers the cost of selective
routing switch capacity per trunk to cover
investment to handle the additional
capacity without going to the 9-1-1
districts for additional funding.
3. PS ALI Software $790.80
a personal computer software program
running on Windows 3.1(TM) for formatting
subscriber records into NENA Version #2
format to create files for uploading to
GTE's ALI Gateway. Fee includes software,
warranty and 1 800 872-3356 support at no
additional cost.
4. ALI Gateway Service $135.00 $36.12
Interface for delivery of ALI records to
GTE's Data Base Management System. This
provides a computer access port for DTI to
transmit daily subscriber record updates
to GTE for loading into ALI databases. It
includes support at 1 800 872-3356 at no
additional cost.
5. 9-1-1 Interoffice Trunk Tariff Tariff
This is a tariffed offering, to be found
in each state's Emergency Number Service
Tariff.
6. ALI Database Tariff Tariff
This is a tariffed offering, to be found
in each state's Emergency Number Service
Tariff.
7. Selective Router Database per Record Charge Tariff Tariff
Fee for each ALI record used in a GTE
selective router. This is a tariffed
offering, to be found in each state's
Emergency Number Service Tariff.
</TABLE>
H-1
<PAGE> 142
<TABLE>
<CAPTION>
NRC MRC
------- -------
<S> <C> <C> <C>
8. MSAG Copy
Production of one copy of a 9-1-1 Customer's Master
Street Address Guide, postage paid.
a. Copy provided in paper format $238.50 $54.00
b. Copy provided in flat ASCII file on a 3 1/2"
diskette $276.00 $36.00
</TABLE>
H-2
<PAGE> 143
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE
1. Service Ordering, Service Provisioning, and Billing Systems Generally.
The following describes generally the operations support systems that GTE
will use and the related functions that are available for ordering,
provisioning and billing for resold services, interconnection facilities
and services and unbundled network elements. Except as specifically
provided otherwise in this Agreement, service ordering, provisioning,
billing and maintenance shall be governed by the GTE Guide. Before orders
can be taken, DTI will provide GTE with its Operating Company Number
("OCN") and Company Code ("CC") as follows:
(a) The ALEC must provide their OCN (four-digit alpha-numeric
assigned by Bellcore or number administrator) on the ALEC Profile.
The GTE Guide provides the necessary information for the ALEC to
contact Bellcore to obtain the OCN. There are no optional fields on
the Profile.
(b) Before the Local Service Request ("LSR") and Directory
Service Request ("DSR") order forms can be processed DTI must
provide the OCN and Customer Carrier Name Abbreviation ("CCNA").
1.1 Operations Support Systems for Trunk-Side Interconnection
1.1.1 DTI will be able to order trunk-side interconnection
services and facilities from GTE through a direct electronic
interface over the GTE Network Data Mover ("NDM") in a
nondiscriminatory manner. Orders for trunk-side interconnection
will be initiated by an Access Service Request ("ASR") sent
electronically by DTI over the NDM. ASRs for trunk-side
interconnection will be entered electronically into GTE's Carrier
Access Management System ("CAMS") to validate the request, identify
any errors, and resolve any errors back to DTI. CAMS is a family of
GTE systems comprised primarily of EXACT/TUF, SOG/SOP, and CABS.
1.1.2 The use of CAMS to support DTI's requests for trunk-side
interconnection will operate in the following manner: GTE will
route the ASR through its data center to one of two National Access
Ordering Centers ("NACC"). The ASR will be entered electronically
into the EXACT/TUF system for validation and correction of errors.
Errors will be referred back to DTI. DTI then will correct any
errors that GTE has identified and resubmit the request to GTE
electronically through a supplemental ASR, without penalty or charge
(e.g., order modification charge) to DTI. Similarly, errors
committed by GTE subsequent to the receipt of a valid ASR from DTI
will be expeditiously identified and corrected by GTE without the
need for DTI's submission of a supplemental ASR. GTE then will
translate the ASR into a service order for provisioning and billing.
In order to convert the ASR into a service order, GTE personnel
must apply the necessary elements to provision the service and
include the billable elements necessary for GTE to bill DTI for the
services provided. This application also requires a determination
of the access tandem to end office relationships with the service
requested.
1.1.3 At the next system level, translated service orders will be
distributed electronically through the SOG/SOP systems to several
destinations. The SOG/SOP system will begin the actual provisioning
of the service for DTI. Other GTE provisioning systems are CNAS and
ACES. The GTE Database Administrative Group ("DBA")
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and the Special Services Control Center ("SSCC") will be the two
most important destinations at this level. The DBA location will
identify codes for the appropriate GTE switch in order to provide
the functions required by the ASR. The SSCC will provide the
engineering for the facilities over which the services will be
handled. Information from these two groups (and others) then will
be transmitted electronically to GTE's field service personnel
(Customer Zone Technicians or "CZTs") who will establish the trunks
and facilities, thus connecting the GTE facilities to a connecting
company, if one is required, and to DTI. GTE's CZTs also will
contact DTI directly to perform testing, and upon acceptance by DTI,
will make the necessary entries into the GTE system to complete the
order. The completed orders then will pass to GTE's Carrier Access
Billing System ("CABS") which will generate the bill to DTI. The
billing process under CABS requires coordination with several other
systems.
1.1.4 Billing for transport and termination services cannot be
accomplished without call records from GTE's central office
switches. Records of usage will be generated at GTE's end office
switches or the access tandems. Call usage records will be
transmitted electronically from GTE's switches through GTE's Billing
Intermediate Processor ("BIP"). This system will collect the call
records, perform limited manipulations to the record and transfer
them to a centralized data center where they will be processed
through the Universal Measurement System ("UMS") to determine the
validity and accuracy of the records. UMS also will sort the
records and send them to the CABS billing system, from which GTE
will produce a bill and send it to DTI.
1.2 Operations Support Systems for Resold Services and Unbundled Elements
1.2.1 DTI will also be able to order services for resale and
unbundled network elements, as well as interim number portability,
directly from GTE through an electronic interface. To initiate an
order for these services or elements, DTI will submit a Local
Service Request ("LSR") from its data center to GTE's Data Center
using the same electronic NDM interface used for trunk-side
interconnection. If no NDM interface exists or if DTI chooses to
establish a separate NDM interface, DTI must request an NDM
facility. For new entrants that elect not to interface
electronically, GTE will accommodate submission of LSR orders by
facsimile, E-mail, Internet or a dial NDM arrangement. An LSR is
very similar to an ASR, except that it will be used exclusively for
line-side interconnection requests. GTE will transfer LSRs to
GTE's NOMC centralized service order processing center
electronically.
1.2.2 Most LSRs will be used either to transfer an existing GTE
customer to DTI or to request service for a new customer who is not
an existing GTE customer. Depending on the situation, different
information will be required on the LSR. LSRs for a conversion of
a GTE local customer to DTI must include information relating to
all existing, new and disconnected services for that customer,
including the customer's name, type of service desired, location of
service and features or options the customer desires. DTI will be
able to obtain this customer information after GTE has received the
customer's written consent as specified in Article VI.3.3. For
service to a new customer who is not an existing GTE customer, the
LSR must contain the customer's name, service address, service
type, services, options, features and ALEC data. If known, the LSR
should include the telephone number and due date/desired due date.
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1.2.3 While DTI would have its own customer information and may
have the SAG/GTE products on tape from GTE, DTI would not have the
due date or new telephone number for new customers since that
information is contained in GTE's systems. Therefore, a process is
required to provide this information to DTI. GTE itself does not
have uniform access to this information electronically. Until GTE
and DTI have agreed and established electronic interfaces, DTI
agrees that an 800 number is the method that will be used. The 800
telephone number will connect DTI directly to GTE's NOMC service
representatives. When DTI receives a request for basic services
from a new local service customer, DTI will call GTE's NOMC through
the 800 number, and, while the new customer is on hold, GTE will
provide the due date for service and the new telephone number for
that customer. At the same time, DTI will give GTE the new
customer's name, service address and type of requested service
(i.e., R1, B1). GTE will enter that information into its SORCES or
SOLAR service ordering systems to be held in suspense until DTI
sends the confirming LSR. DTI will then return to its customer
holding on the line and provide the due date and new telephone
number.
1.2.4 After concluding the telephone call with the new customer,
DTI will complete a confirming LSR for the new service and send it
electronically to GTE's data center for processing. Upon receipt,
GTE will match the LSR with the service order suspended in GTE's
system, and if there is a match, GTE will process the LSR. After
the LSR is processed, GTE will transmit confirmation electronically
to DTI through the NDM that the LSR has been processed, providing a
record of the telephone number and due date. DTI will be required
to submit the confirming LSR by 12:00 p.m. each day local time, as
defined by the location of the service address. If DTI fails to
submit the LSR in a timely manner, the suspended LSR will be
considered in jeopardy, at which time GTE will assign a new due date
upon receipt of the delayed LSR for such customer requests and
notify DTI of the change.
1.2.5 Number assignments and due date schedules for services other
than single line service and hunt groups up to 12 lines will be
assigned within approximately twenty-four (24) hours after GTE's
receipt of the LSR using the standard Local Confirmation ("LSC")
report sent electronically to DTI over the NDM, thereby providing a
record of the newly established due date. An exception would be a
multi-line hunt group for 12 lines or fewer. The other numbers then
will be provided through the normal electronic confirmation process.
1.2.6 The processing of specifically requested telephone numbers
(called "vanity numbers") is as follows. GTE will work with DTI on
a real time interface to process vanity numbers while DTI's customer
is still on the line. If a number solution can be established
expeditiously, it will be done while the customer is still on the
line. If extensive time will be required to find a solution, GTE
service representatives will work with DTI representatives off line
as GTE would for its own customers. For all of this, the basic
tariff guidelines for providing telephone numbers will be followed.
1.2.7 Once the order for line-side interconnection service is
established, it is moved for provisioning to the next system level.
Here, GTE will validate and process the LSR to establish an account
for DTI and, if GTE continues to provide some residual services to
the customer, GTE will maintain a GTE account. In GTE's system,
GTE's account is called the Residual Account and DTI's account is
referred to as DTI Account. If any engineering for the service is
necessary, the account would be distributed to the SSCC. Otherwise,
it will be distributed for facility assignment.
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1.2.8 With the account established and any engineering and
facility assignment complete, GTE then will transmit electronically
a record to GTE's CZT field personnel if physical interconnection or
similar activity is required. The CZTs will provision the service
and then electronically confirm such provision in the SOLAR/SORCES
system when completed. The accounts then will be transmitted to
GTE's Customer Billing Services System ("CBSS"). GTE shall provide
to DTI a service completion report. Call records for actual service
provided to DTI's customers on GTE facilities will be transmitted
from GTE's switches through some usage rating systems (BIP, UMS),
screened and eventually delivered to CBSS for the generation of
bills.
1.2.9 CBSS is a different system than CABS, and it is the one that
GTE will utilize to produce the required bills for resold services,
unbundled elements and local number portability. CBSS will create a
bill to DTI for resold services and unbundled elements along with a
summary bill master. Daily unrated records for intraLATA toll usage
and local usage (in collect usage data will be provided on rated
basis) on DTI's accounts will be generated and transmitted
electronically to DTI.
1.2.10 On resold accounts, GTE will provide usage in EMR format per
existing file exchange schedules. The usage billing will be in
agreed upon level of detail for DTI to issue a bill to its end
users.
1.2.11 GTE will provide DTI with detailed monthly billing information in
a paper format until an agreed upon Electronic Data Interchange 811
electronic bill format is operational.
1.2.12 State or sub-state level billing will include up to ten (10)
summary bill accounts.
1.2.13 GTE accepts DTI's control reports and agrees to utilize industry
standard return codes for unbillable messages. Transmission will
occur via the NDM. Tape data will conform to Attachment "A" of the
LRDTR. Data will be delivered Monday through Friday except for
Holidays as agreed. Data packages will be tracked by invoice
sequencing criteria. GTE contacts will be provided for
sending/receiving usage files.
1.2.14 GTE will retain data backup for 45 Business Days. To the extent
this retention is exclusively for DTI, DTI shall reimburse GTE for
all expenses related to this retention.
1.2.15 In addition to the LSR delivery process, DTI will distribute
directory assistance and directory listing information (together
sometimes referred to hereafter as "DA/DL information") to GTE via
the LSR ordering process over the NDM. GTE will provide listings
service via its "listing continuity" offering.
1.2.16 Charges and credits for PIC changes ordered via an LSR will appear
on the wholesale bill. As DTI places a request for a PIC change via
LSR, the billing will be made on DTI account associated with each
individual end user. GTE will process all PIC changes from IXCs
that are received for DTI end users by rejecting back to the IXC
with DTI OCN. Detail is provided so that DTI can identify the
specific charges for rebilling to their end user.
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1.2.17 CMDS. The parties will provide for the distribution of intraLATA
CMDS incollect messages and/or selected local measured service
messages as follows:
1.2.17.1 Messages to be Screened. GTE receives CMDS I
transmissions containing intraLATA incollect messages
from the state RBOC CMDS host each business day. Per
DTI's request, GTE will screen the incollects by NPA and
line number and accumulate the Collect, Third Number
Billed and Credit Card (collectively called incollects)
messages in a data file. The screening will be for end
users who have chosen DTI as their local service
provider through a Resale or Unbundled Network
arrangement. The screened incollect messages and any
Local Measured Service (LMS) usage will be accumulated
and forwarded to DTI. The Parties will mutually agree
on the frequency of the data exchange and the method of
transmission (i.e., magnetic tape or direct electronic
transmission). GTE will forward the screened messages
in the industry standard EMR format. GTE intraLATA toll
messages that are recorded by GTE and dialed on a one
plus or zero plus basis are not part of this section and
will not be screened.
1.2.17.2 Compensation. GTE will bill DTI monthly for all
services related to the screening, accumulating,
processing and transmitting of incollect messages and
LMS usage, if applicable, at a reasonable and mutually
agreeable charge. In addition, any message processing
fee associated with DTI's incollect messages that are
charged to GTE by the CMDS Host will be passed on to DTI
on the monthly statement. All revenue, surcharges,
taxes and any other amounts due to the CMDS Host for
DTI's incollect messages will be billed on the monthly
statement. It is DTI's responsibility to bill and
collect all incollect and LMS amounts due from its end
users. The incollect and LMS revenue amounts that are
listed on the monthly invoice are payable to GTE in
total. The Parties agree that the arrangement for
invoicing the incollect and LMS revenue amounts due GTE
is not a settlement process with DTI.
1.2.17.3 Administration. The Parties agree to develop a
process whereby DTI's end user information is available
in a timely manner to allow GTE to build tables to
screen the CMDS incollect files and LMS files on behalf
of DTI.
1.2.18 Backbilling. GTE shall bill DTI on a timely basis. In no case
shall GTE bill DTI for previously unbilled charges that are for more
than one year prior to the current bill date.
1.3 Order Processing.
1.3.1 Order Expectations. DTI agrees to warrant to GTE that it is
a certified provider of telecommunications service. DTI will
document its Certificate of Operating Authority on DTI Profile and
agrees to update this DTI Profile as required to reflect its current
certification. The Parties agree to exchange and to update end user
contact and referral numbers for order inquiry, trouble reporting,
billing inquiries,
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and information required to comply with law enforcement and other
security agencies of the government. The Parties also agree to
exchange and to update internal order, repair and billing point of
contacts. Prior to submitting an order under this Agreement, DTI
shall obtain such documentation as may be required by state and
federal laws and regulations.
1.3.2 GTE shall provide DTI with a specified customer contact
center for purposes of placing service orders and coordinating the
installation of services. These activities shall be accomplished by
telephone call or facsimile until electronic interface capability
has been established. The Parties adopt the OBF LSR and DSR forms
for the ordering, confirmation and billing of resale and unbundled
services. The Parties adopt the OBF ASR forms for the ordering,
confirmation and billing of trunk-side interconnection.
1.3.3 GTE will process such service orders during normal operating
hours, at a minimum on each Business Day between the hours of 8 a.m.
to 8 p.m. Eastern Time and shall implement service orders within the
same time intervals used to implement service orders for similar
services for its own users.
1.3.4 GTE will provide current GTE customer proprietary network
information (name, address, telephone number and description of
services provided by GTE including PIC and white page directory
listing information) as provided in Article VI, Section 3. The
return of customer information will be via facsimile or via
electronic transmission.
1.3.5 Transfer Between Local Service Providers - GTE will provide
a displacement/out service report to a Local Service Provider (LSP)
whenever an end user leaves that LSP and procures service from
another LSP. When DTI end user changes to another LSP, GTE will
notify DTI when such activity occurs the day after completion or
within 48 hours of such disconnect.
2. Maintenance Systems.
2.1 General Overview
2.1.1 If DTI requires maintenance for its local service customers,
DTI will initiate a request for repair (sometimes referred to as a
"trouble report") by calling GTE's Customer Care Repair Center.
During this call, GTE service representatives will verify that the
end-user is DTI customer and will then obtain the necessary
information from DTI to process the trouble report. While DTI
representatives are still on the line, GTE personnel will perform an
initial analysis of the problem and remote line testing for resale
services. If engineered services are involved, the call will be
made to the GTE SSCC for handling. If no engineering is required
and the line testing reveals that the trouble can be repaired
remotely, GTE personnel will correct the problem and close the
trouble report while DTI representatives are still on the line. If
on-line resolution is not possible, GTE personnel will provide DTI
representatives a commitment time for repair, and the GTE personnel
then will enter the trouble ticket into the GTE service dispatch
queue. DTI's repair service commitment times will be within the
same intervals as GTE provides to its own end users. Maintenance
and repair of GTE facilities is the responsibility of GTE and will
be performed at no incremental charge to DTI. If, as a result of
DTI-initiated trouble report, trouble is found to be the
responsibility of DTI (e.g., non-network cause) GTE will charge DTI
for trouble isolation. DTI will have the ability to report
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trouble for its end users to appropriate trouble reporting centers
24 hours a day, 7 days a week. DTI will be assigned a customer
contact center when initial service agreements are made.
2.1.2 Repair calls to the SSCC for engineered services will be
processed in essentially the same manner as those by the GTE
Customer Care Center. GTE personnel will analyze the problem,
provide DTI representative with a commitment time while they are
still on the line, and then place the trouble ticket in the dispatch
queue.
2.1.3 GTE then will process all DTI trouble reports in the dispatch queue
along with GTE trouble reports in the order they were filed (first
in, first out), with priority given to out-of-service conditions.
If, at any time, GTE would determine that a commitment time given to
DTI becomes in jeopardy, GTE service representatives will contact
DTI by telephone to advise of the jeopardy condition and provide a
new commitment time.
2.1.4 Trouble reports in the dispatch queue will be transmitted
electronically to GTE CZT service technicians who will repair the
service problems and clear the trouble reports. For cleared DTI
trouble reports, GTE service technicians will make a telephone call
to DTI directly to clear the trouble ticket. GTE service
technicians will make the confirmation call to the telephone number
provided by DTI. If DTI is unable to process the call or places the
GTE technician on hold, the call will be terminated. To avoid
disconnect, DTI may develop an answering system, such as voice mail,
to handle the confirmation calls expeditiously.
2.1.5 GTE will provide electronic interface access to operation
support systems functions which provide the capability to initiate,
status and close a repair trouble ticket. GTE will not provide to
DTI real time testing capability on DTI end user services. GTE will
not provide to DTI an interface for network surveillance
(performance monitoring).
2.1.6 GTE will resolve repair requests by or for DTI local service
customers using GTE's existing repair system in parity with repair
requests by GTE end users. GTE will respond to service requests for
DTI using the same time parameters and procedures that GTE uses.
DTI then would call GTE's Customer Care Center or SSCC while the
customers were on hold.
2.2 Network Management Controls.
2.2.1 Network Maintenance and Management. The Parties will work
cooperatively to install and maintain a reliable network.
2.2.2 Neither Party shall be responsible to the other if necessary
changes in network configurations render any facilities of the other
obsolete or necessitate equipment changes.
2.2.3 Network Management Controls. Each Party shall provide a
24-hour contact number for Network Traffic Management issues to the
other's network surveillance management center. A fax number must
also be provided to facilitate event notifications for planned mass
calling events. Additionally, both Parties agree that they shall
work cooperatively that all such events shall attempt to be
conducted in such a manner as to avoid degradation or loss of
service to other end users. Each
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Party shall maintain the capability of respectively implementing
basic protective controls such as "Cancel To" and "Call Gap."
3. Electronic Interface. The Parties shall work cooperatively in the
implementation of electronic gateway access to GTE operational support
systems functions in the long-term in accordance with established industry
standards. DTI shall compensate GTE for the full costs including but not
limited to design, development, testing, implementation and deployment,
for access to GTE's Operational Support System functions. Where
subsequent parties request use of GTE's operation support systems, cost
recovery for such electronic interface systems shall be allocated among
all requesting users.
3.1 DTI shall have immediate access to the following OSS electronic
interfaces that will provide functionality to enable DTI to service
customers in an equal and non-discriminatory manner:
3.1.1 Pre-Order functions, e.g., TN Assignment, DD Reservation,
Address Validation, Product Availability, that are available on a
dial-up or dedicated basis using the Secure Integrated Gateway
System (SIGS).
3.1.2 Order functions that are available on a dial-up or dedicated
basis using CONNECT: Mail file transfer.
3.1.3 Repair functions, e.g., trouble report repair functions, to
allow DTI to determine status and close trouble reports.
3.1.4 Electronic transfer of DTI bill in electronic data 811
format.
3.2 DTI may migrate to fully interactive system to system interconnectivity.
GTE, with input from DTI and other carriers, shall provide general
interface specifications for electronic access to this functionality.
These specifications will be provided to enable DTI to design system
interface capabilities. Development will be in accordance with applicable
national standards committee guidelines. Such interfaces will be
available as expeditiously as possible.
3.3 All costs and expenses for any new or modified electronic interfaces
exclusively to meet DTI requirements that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI. Costs for
development of systems intended for common use by competing carriers will
be assessed based on a mutually agreed method of cost recovery.
3.4 DTI shall be responsible for modifying and connecting any of its
pre-ordering and ordering systems with GTE provided interfaces as
described in this Appendix.
4. GTE Initiated Electronic System Redesigns. GTE will not charge DTI when
GTE initiates its own electronic system redesigns/reconfigurations.
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APPENDIX J
SS7 SERVICES
ARTICLE 1.
DEFINITIONS
In addition to the definitions contained elsewhere in the Agreement to which
this Appendix J is attached and made a part, for purposes of this Appendix J
the following terms shall have the following meanings.
1.1 "A" Link: An access signaling link that connects SPs and/or SSPs to
STPs.
1.2 "B" Link: A bridge signaling link that connects two (2) sets or pairs of
STPs, not the STPs within a mated pair, but on the same hierarchical
level.
1.3 Compatibility Testing: Certification testing performed by
representatives of GTE and DTI to ensure proper interconnection of CCS
network facilities for accurate transmission of system signals and
messages. This certification testing shall be performed in accordance
with the following ANSI documents:
T1.234 Telecommunications - Signaling System Number 7 (SS7) - MTP
Levels 2 and 3 Compatibility Testing (ATIS)
T1.235 Telecommunications - Signaling System Number 7 (SS7) - SCCP
Class 0 Compatability Testing (ATIS)
T1.236 Telecommunications - Signaling System Number 7 (SS7) - ISDN
User Part Compatibility Testing (ATIS)
1.4 Service: The service described in Article 2 of this Appendix.
1.5 Signaling Link: An end-to-end high-capacity data link (56 kbps) that
transmits supervision and control signals from one network SS7 node to
another in a CCS network. The link type identifies the functionality of
the signaling link sets. The two link types associated with the Service
are "a" Links and "B" Links.
1.6 Signaling Point Code (SPC): A code that identifies the Signaling Point
address in the CCS network. Signaling Point Codes consist of three (3)
segments of three (3) digits each, identifying the network ID, network
cluster, and cluster member, respectively.
1.7 Signaling Point of Interface (SPOI): The point at which GTE hands off
signaling information to DTI.
ARTICLE 2.
SERVICE DESCRIPTION
2.1 Provision. Subject to the terms and conditions of this Appendix, GTE
agrees to provide the Service to DTI.
2.2 Interconnection. This Agreement is for DTI's interconnection with GTE at
GTE's STPs to support local exchange
services. DTI shall not submit signaling messages in support of
interexchange services.
2.3 Service. The "Service" consists of the following:
(a) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network is via an "a" Link connection between DTI's SP or SSP and
GTE's STP. The "a" Link connection is made by a
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dedicated 56 kbps channel between the SP or SSP and the STP. Any
connection from an SSP or an SP to an STP pair will have a link to
each individual STP (i.e., two (2) links). DTI and GTE shall
mutually agree upon the location of the SPOI.
(b) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network via a "B" Link connection between DTI's STPs and GTE's STPs.
The "B" Link connection is a dedicated 56 kbps channel.
Connections between two (2) pairs of STPs will have four (4)
connections; i.e., one (1) link from each individual STP to each
individual STP. DTI and GTE shall mutually agree upon the location
of the SPOI.
(c) Local and IntraLATA call set-up signaling, allowing DTI to
use the out-of-band trunk signaling provided by GTE's CCS/SS7
network to carry its calls on the intraLATA toll network.
(d) The Service shall include access to: (1) all switching
systems served by a given STP which have been converted to SS7
signaling, including switching systems owned by other local service
providers; (2) databases directly connected to a given STP, with the
exception of 800/888 databases which can be accessed through any
STP; (3) other local service provider STPs on an intraLATA basis;
and (4) other Third Party local service provider STPs on an
intraLATA basis.
(e) It is the responsibility of DTI to populate the "privacy
indicator" portion of all SS7 signaling messages forwarded to GTE's
network. GTE agrees to deliver the information forwarded by DTI in
the SS7 signaling message. DTI, by entering into this Agreement,
agrees to deliver "privacy indicator" information forwarded by GTE
in its signaling message.
(f) DTI acknowledges that call set-up times may be greater when
DTI employs intermediate access tandems (IATs) in its network.
(g) If selected on the order form attached to this Appendix, the
Service shall also include IXC call set-up signaling service (ISUP)
as described in Article 2.4 of this Appendix. Additional charges as
set forth in Exhibit A shall apply.
2.4 ISUP Service Charge. This is an optional service that allows DTI to
utilize SS7 signaling to an SS7 capable interexchange carrier (IXC) for
Feature Group D access service and other intraLATA interexchange services.
The ISUP service is a monthly charge.
(a) The rate for ISUP signaling is per connection in situations
when GTE does not provide any underlying call messages for DTI on
GTE's network trunks. The rate for ISUP signaling is shown in
Exhibit a.
(b) Where GTE has a mated pair of STPs and has CCS/SS7
interconnection facilities to an IXC within the same LATA, for
interexchange telecommunications services, GTE shall provide call
set-up signaling between DTI and the IXC.
(c) DTI agrees to provide to GTE such information as deemed
necessary by GTE for network planning in connection with this
offering and as may be requested by GTE from time to time.
(d) DTI must provide the Signaling Point Codes of the IXCs for
which it is providing call setup via GTE's SS7 signaling network, so
that GTE screening and translation tables can be updated.
2.5 Technical Specifications. The technical specifications for the Services
described above are defined in Bellcore TR-TSV-000905. GTE will provide
SS7 via OR-394-SS7 and/or OR-317-SS7 format(s).
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2.6 Other Services. If DTI desires to order SS7-related services other than
the Service, such services will be governed by separate agreements.
2.7 Applicable Traffic. The Service applies to the traffic of DTI and its
subtending LECs only. DTI must provide GTE with thirty (30) calendar
days' written notice and a letter of agency before the traffic of any
party other than DTI or its subtending LECs may be transmitted through
DTI's facilities on to GTE's SS7 network.
ARTICLE 3.
MANNER OF PROVISIONING
3.1 Link Facilities. The link facilities to GTE STPs in the same LATA can be
either:
(a) "a" Link sets from DTI's SP or SSP. A minimum of two (2)
links is required, one (1) from the SP or SSP to each STP; or,
(b) "B" Link sets from DTI's STPs that are connected to GTE's
mated pairs of STPs. A minimum of four (4) links is required
between the two (2) pairs of STPs.
3.2 Port Termination. An STP port termination is required for each 56 kbps
access link utilized for the Service. STP locations are set forth in the
National Exchange Carrier Association, Inc. (NECA) Tariff, F.C.C. No. 4.
3.3 Signaling Point Codes. GTE shall install all applicable Signaling Point
codes for each signaling link at each of GTE's interconnecting STPs.
3.4 Protocol. GTE shall provision the Service in accordance with ANSI T1.226
Telecommunications - Operations, Administration, Maintenance, and
Provisioning (OAM&P) -Management of functions for Signaling System No. 7
(SS7) Network Interconnections (ATIS) with the exception of references to
OMAP protocol elements. The Service cannot be established until
Compatibility Testing has been successfully completed between DTI and GTE.
3.5 56 kbps Channel. Unless DTI elects to provide such links, GTE shall
provide two (2) or four (4) 56 kbps circuits as link facilities at rates
set forth in Article 4 herein. If approved by GTE, DTI may utilize a 56
kbps channel of an intraLATA DS1 (1.544 mbps) facility, which is in place
at the time of ordering, as an "A" Link or a "B" Link, for the STP access
connection between the SPOI and GTE's STP. WHEN THIS OPTION IS CHOSEN,
DTI UNDERSTANDS AND ACCEPTS THAT THE SERVICE PERFORMANCE STANDARDS AS
OUTLINED IN BELLCORE DOCUMENT TR-TSV-000905 MAY NOT BE MET IN THE
PROVISION OF THE TOTAL SERVICE. If such a channel is not utilized, DTI
must order DS1 (1.544 Mbps) service.
3.6 Multiplexing. Where technically required, GTE shall provide multiplexing
arrangements to DTI at no charge.
3.7 Diversity. Where technically feasible and not unreasonably economically
burdensome, GTE agrees to allow interoffice and intraoffice diversity.
ARTICLE 4.
RATES AND CHARGES
4.1 Payment. DTI agrees to pay to GTE for the Service at the rates and
charges set forth in Exhibit A attached to this Appendix and made a part
hereof.
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4.2 Period. Subject to Article 4.3 below, the rates and charges shall remain
in effect and are firm for a period of twelve (12) months from the
effective date of this Appendix. Thereafter, GTE shall give DTI sixty
(60) calendar days' notice of any price change. If the new prices are not
acceptable to DTI, DTI may terminate this Appendix upon thirty (30)
calendar days' advance written notice without penalties for either Party.
4.3 Rate Basis. The rates are based upon rates and charges reflected in
GTE's approved CCS/SS7 interconnection tariffs. To the extent that tariff
rates are adjusted, rates and charges for similar rate elements in this
Appendix will be adjusted accordingly on the date the new tariff rates
become effective. If a state or federal regulatory agency requires, or
GTE elects, to offer the Service by tariff, the tariff shall supersede
this Appendix. If the Service becomes tariffed, DTI has the right to
terminate this Appendix upon sixty (60) calendar days' advance written
notice effective on the effective date of such tariff, without penalty to
either Party.
4.4 Mileage. Mileage is calculated on the airline distance between the
locations involved, using the V&H coordinates method, as set forth in the
National Exchange Carrier Association, Inc. Tariff, F.C.C. No. 4.
4.5 Rates and Charges. Rates and charges for each component of the Service
are described as follows:
(a) "A" Link connection - Charges for the "a" Link connection to
GTE's CCS/SS7 network consist of the STP port termination charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from DTI's SSP or
SP.
(2) DTI will lease facilities between its SSPs/SPs
and GTE's STPs.
(b) "B" Link connection - Charges for the "B" Link connection to
GTE's CCS/SS7 network consist of the STP port termination charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from DTI's STPs.
(2) DTI and GTE shall mutually agree upon the rates
for "B" Link interconnections within thirty (30) calendar days
of the execution of this Agreement.
(c) STP Interconnection nonrecurring charge - STP interconnection
nonrecurring charge shall apply for each "A" Link and "B" Link
interconnection to GTE's SS7 network.
4.6 Rearrangement. Charges for rearrangement of the Service that are not
specifically addressed will be determined by GTE on an individual case
basis.
4.7 Applicable Traffic. The rates apply only to the traffic of DTI and its
subtending LECs. Any traffic from any other party will be subject to
additional charges.
ARTICLE 5.
ORDERING THE SERVICE
5.1 Order. To order the Service, DTI shall submit a completed CCS/SS7 Order
Form to GTE. DTI may change its Service order by submitting a new Order
Form which shall be effective when executed by both Parties. Service
shall be implemented for DTI thirty (30) calendar days after the execution
of this Agreement by both Parties.
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5.2 Port Terminations. GTE shall reserve STP port terminations only upon
receipt of a fully executed copy of this Agreement and the Order Form
referred to in this Appendix. GTE shall reserve ports on a first come,
first served basis. Should DTI fail to use a port within sixty (60)
Business Days of availability, GTE may reassign the port and, DTI must
resubmit an Order Form for interconnection.
ARTICLE 6.
RESPONSIBILITIES OF GTE
6.1 Managing the Network. GTE is responsible for managing the network
provided by GTE as part of the Service and applying protective controls
which it can invoke as a result of occurrences including, but not limited
to, failure or overload of GTE or DTI facilities due to natural disasters,
mass calling or national security demands.
6.2 Performance Standards. GTE is responsible for meeting service
performance standards as outlined in Bellcore TR-TSV-000905 except as
otherwise provided herein.
6.3 Invoice. GTE shall include with the monthly invoice such data GTE and
DTI mutually agree is necessary for DTI to verify the accuracy of the
billing it receives from GTE for the Service.
ARTICLE 7.
RESPONSIBILITIES OF DTI
7.1 Signaling Link. DTI shall provision the signaling links from its
premises to the SPOIs in a manner technically compatible to the GTE
network.
7.2 Privacy Indicator. DTI shall populate the "privacy indicator" portion of
the CCS/SS7 initial address message forwarded to GTE's network for call
processing.
7.3 Accuracy of Information. DTI shall verify the accuracy of information
provided by DTI concerning the Service ordered by DTI.
7.4 Forecast. DTI shall furnish to GTE, at the time the Service is ordered
and annually thereafter, an updated three year forecast of usage for the
56 kbps channel and the STP port termination for each STP pair. The
forecast shall include total annual volume and busy hour busy month
volume. GTE shall utilize the forecast in its own efforts to project
further facility requirements.
7.5 Changes. DTI agrees to inform GTE in writing at least thirty (30)
Business Days in advance of any change in its use of the Service that
alters by ten percent (10%) or more for any thirty (30) day period the
volume of signaling transactions to be forwarded to GTE's CCS/SS7 network.
DTI will provide the reason for the change in volume by individual SS7
service.
ARTICLE 8.
SIGNALING POINT CODES
8.1 Interconnection. DTI may utilize either the GTE CCS/SS7 network SPC or
its own SPC for interconnection purposes when interconnecting its SPs or
SSPs at the "A" Link level. DTI shall utilize its own SPC when
interconnecting its STP at the "B" Link level. DTI agrees to obtain its
own initial SPC if it has short or long range plans to provide its own
STPs.
8.2 SPC. When the SPC is utilized, GTE shall be responsible for DTI code
assignment. When DTI obtains its own SPC, DTI shall be responsible for
code assignments and shall be responsible for notifying GTE and other
CCS/SS7 network providers of such assignments.
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8.3 SPC Change. Due to the complexities and potential DTI signaling network
downtime required for changing working SPCs, DTI agrees to give GTE a
written notice of an SPC change as soon as possible but no later than
thirty (30) Business Days prior to the effective date of the SPC change.
ARTICLE 9.
MONTHLY BILLING
Billing statements shall be rendered monthly by GTE to DTI. The monthly charge
shall be the total of all monthly rate element charges associated with the
Service. Payment to GTE for bills rendered to DTI shall be due thirty (30)
calendar days after receipt of the invoice and DTI agrees to pay all billed
amounts. Beginning the day after the due date of the bill, interest charges of
twelve per cent (12%) per annum or the maximum allowed by law, whichever is
less, shall be added to DTI's bill. Payments shall be applied to the oldest
outstanding amounts first.
ARTICLE 10.
LIABILITY AND INDEMNIFICATION
10.1 Release from Liability. Each Party releases the other from any liability
for loss or damage arising out of errors, interruptions, defects,
failures, delays, or malfunctions of the Service, including any and all
associated equipment and data processing systems, not caused by gross
negligence or willful misconduct. Any losses or damages for which either
Party is held liable under this Agreement shall in no event exceed the
amount of the charges for the Service during the period beginning at the
time notice of the error, interruption, defect, failure, or malfunction is
received, to the time Service is restored.
10.2 Limitation of Liability. IN ADDITION TO THE LIMITATION OF LIABILITY SET
FORTH AT SECTION 24.4 OF ARTICLE III OF THE AGREEMENT, NEITHER PARTY SHALL
BE LIABLE FOR ANY LOSS OF REVENUE OR PROFIT OR FOR ANY LOSS OR DAMAGE
ARISING OUT OF THIS AGREEMENT OR OUT OF THE USE OF THE CCS OR ANY OF THE
SERVICES PROVIDED UNDER THIS AGREEMENT THAT IS SUFFERED BY THE OTHER
PARTY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER OR NOT INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY SHALL BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
10.3 Third Parties. Each Party agrees to release, defend, indemnify, and hold
harmless the other Party from and against any and all losses, damages, or
other liability, including reasonable attorneys' fees, that it may incur
as a result of claims, demands, wrongful death actions, or other suits
brought by third parties, arising out of the use of the Service and
resulting from the gross negligence or willful misconduct by the
indemnifying Party, its employees, agents, or contractors in the
performance of this Agreement. In addition, to the extent that the
Parties' interests do not conflict, DTI shall defend GTE against all end
users' claims just as if DTI had provided such service to its end users
with its own employees. In any event, DTI shall assert its tariff
limitation of liability for the benefit of both GTE and DTI.
10.4 Infringement. Each Party agrees to release, defend, indemnify, and hold
harmless the other Party from and against any claim, demands or suit that
asserts any infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or indirectly, by the
indemnifying Party's employees or equipment associated with provision of
the Service. This includes, but is not limited to, suits arising from
disclosure of any customer-specific information associated with either the
originating or terminating numbers used to provision the Service.
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10.5 No Warranties. IN ADDITION TO THE DISCLAIMER SET FORTH AT SECTION 24.3
OF ARTICLE III OF THE AGREEMENT, NEITHER GTE NOR DTI MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD PARTY
CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES PROVIDED UNDER OR IN
CONNECTION WITH THIS APPENDIX, THAT THE SERVICES PROVIDED UNDER THIS
APPENDIX WILL BE ERROR FREE OR THAT THE FACILITIES WILL OPERATE WITHOUT
INTERRUPTION. GTE AND DTI DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OR
GUARANTEE OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR PURPOSE, ARISING
FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR FROM USAGES OF TRADE.
ARTICLE 11.
RESERVATION OF RIGHTS
11.1 Rights Reserved. By entering into this Appendix to the Agreement,
neither Party waives, releases or compromises any rights it may have to
argue, in any federal or state regulatory proceeding (or in any judicial
appeal following such a proceeding), in support of, or in opposition to
any position, including but not limited to: (a) Accounting for
deregulated (or detariffed) data base services; (b) removal from regulated
accounts of expenses and investment associated with deregulated (or
detariffed) data base services; and (c) any other issue pertinent to
regulation or deregulation of costs which were, are now, or may in the
future be, associated with the provisions of data base services. Each
Party expressly reserves all its rights in connection with such matters.
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EXHIBIT A
RATES AND CHARGES
for Interconnection at
GTE's - , STP
<TABLE>
<CAPTION>
RATES & CHARGES
Rate Element Nonrecurring Monthly
<S> <C> <C> <C>
1. STP Port Termination for an N/a N/a
"A" Link Per Port
2. STP Port Termination for a "B" N/a N/a
Link Per Port
3. 56 Kbps Digital Facility N/a N/a
Dedicated Switched Access
Transport Per Airline Mile
4. 56 Kbps Dedicated Switched N/a N/a
Access Line
5. 1.544 Mbps (DS1) High Capacity N/a N/a
Digital Facility Dedicated
Switched Access Transport Per
Airline Mile
6. 1.544 Mbps (DS1) Dedicated N/a N/a
Switched Access Line
7. Facility Charge for "B" Links N/a N/a
8. ISUP Charge per Interconnection N/a N/a
8.1 For ISUP Service an additional SCP charge shall apply per interconnection.
</TABLE>
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APPENDIX K
POLE ATTACHMENT AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE __________________ INCORPORATED,
a State of __________________________________ corporation having its
principal office at ________________ ("GTE"), and ***, a corporation of
the State of __________________, having its principal office at __________
("Licensee").
2. Definitions.
2.1 "GTE's poles" or "GTE pole(s)" means a pole or poles solely owned by GTE,
jointly owned by GTE and another entity, and space on poles obtained by
GTE through arrangements with the owner(s) thereof.
2.2 "Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities
used.
2.3 "Cable Television Services" means the transmission to subscribers of
off-the-air pickup of broadcast signals or the transmission, without
separate charge, of locally originated closed circuit television to the
subscribers of off-the-air service.
2.4 "Attachments" means the equipment reasonably required by Licensee to
provide its Telecommunications Services or Cable Television Services that
is placed on GTE's poles.
2.5 "Make-Ready Work" means all work, including, but not limited to,
rearrangement, removal, or transfer of existing attachments, placement,
repair, or replacement of poles, or any other changes required to
accommodate the Licensee's Attachments on a pole.
2.6 "Hazardous Materials" means (i) any substance, material or waste now or
hereafter defined or characterized as hazardous, extremely hazardous,
toxic or dangerous within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any
similar law, ordinance, statute, rule or regulation of any governmental
body or authority, (ii) any substance, material or waste now or hereafter
classified as a contaminant or pollutant under any law, ordinance,
statute, rule or regulation of any governmental body or authority or (iii)
any other substance, material or waste, the manufacture, processing,
distribution, use, treatment, storage, placement, disposal, removal or
transportation of which is now or hereafter subject to regulation under
any law, ordinance, statute, rule or regulation of any governmental body
or authority.
2.7 "Attachment Fee" means the fee assessed per pole and paid by Licensee to
place Attachments on GTE's poles.
3. Purpose.
3.1 Licensee represents to GTE that Licensee has a need to occupy, place and
maintain Attachments on GTE's poles for the purpose of providing
Telecommunications Services.
3.2 GTE agrees to permit Licensee to occupy, place and maintain its
Attachments on such GTE poles as GTE may allow pursuant to the terms of
this Agreement.
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4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space on
specified GTE poles Licensee's Attachments on the terms and conditions
set forth herein. Licensee shall have no further right, title, or other
interest in connection with GTE's poles. GTE shall have the right to
grant, renew or extend privileges to others not parties to this Agreement
to occupy, place or maintain Attachments on or otherwise use any or all
GTE poles. Nothing herein is intended to, nor should it be construed to
require GTE to construct or modify any facilities not needed for its own
service requirements. GTE grants this license in reliance on the
representation of Licensee that Licensee intends to provide
Telecommunications Services with the Attachments covered by this
Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue in
effect for consecutive one (1) year terms until either Party gives the
other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement shall
remain in effect for ninety (90) calendar days after such notice is
received, provided, that in no case shall the term be extended beyond
ninety (90) calendar days after the end of the current term.
6. Pole Attachment Requests (PARs).
6.1 Licensee shall submit a written Pole Attachment Request ("PAR") to GTE
identifying the GTE poles upon which it desires to place Attachments.
Each PAR shall be in a form specified by GTE and may be revised from time
to time by GTE. All PARs submitted to GTE shall be processed on a first
come, first served basis. GTE, in its sole judgment, will determine the
availability of space on the GTE pole(s) specified in the PAR and will
provide its response to the PAR within thirty (30) Business Days of its
submission. Upon approval of the PAR, GTE shall return one copy thereof
to Licensee bearing an endorsement acknowledging GTE's authorization. All
Attachments placed on GTE's poles pursuant to an approved PAR shall become
subject to all of the terms and conditions of this Agreement. Licensee
may submit subsequent PARs for approval by GTE as needed. GTE is under no
obligation to provide general information respecting the location and
availability of GTE poles, except as may be necessary to process a PAR.
No Attachment shall be placed on any GTE pole identified in a PAR until
that PAR has been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a PAR to compensate GTE for
the general administrative costs as well as the actual engineering costs
reasonably incurred. The fee for engineering costs shall be computed by
multiplying the fully loaded hourly rate for an engineer times the number
of hours reasonably required by each engineer to inspect the GTE poles
included in the PAR. GTE will charge its then current rates for
administrative and engineering costs, as may be changed from time to time
by GTE to remain consistent with prevailing costs.
6.3 Upon receiving an approved PAR, Licensee shall have the right, subject to
the terms of this License, to place and maintain the facilities described
in the PAR in the space designated on the GTE poles identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate Licensee's
Attachments, GTE shall notify Licensee of such fact and provide Licensee
with a good faith estimate of the total cost of such Make-Ready Work
needed to accommodate Licensee's Attachments. Within fifteen (15)
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days after receiving such notice from GTE, Licensee shall notify GTE
either (1) that Licensee shall pay all of the costs actually incurred to
perform the Make-Ready Work and shall pay the total estimated amount to
GTE at least ten (10) days prior to the date the Make-Ready Work is to
begin or (2) that it desires to cancel its PAR.
6.5 GTE shall not be responsible to Licensee for any loss sustained by
Licensee by reason of the refusal or failure of any other party with
attachments on GTE's poles to rearrange or modify its attachments as may
be required to accommodate Licensee's Facilities.
6.6 Licensee is not authorized and shall have no right to place facilities on
any GTE pole unless that GTE pole is identified in an approved PAR.
7. Availability of Information Regarding Space on Poles.
GTE will provide information regarding the availability of pole space
within thirty (30) Business Days of a written request by Licensee.
Because GTE will endeavor to determine available space as quickly as
possible, a shorter interval may be experienced for requests of a limited
scope where physical field verification is not necessary. In the event
the thirty (30) Business Day time frame cannot be met, GTE shall so
advise Licensee and shall seek a mutually satisfactory alternative
response date. No representation regarding the availability of space
shall be made in the absence of a physical field verification.
8. Authority to Place Attachments.
8.1 Before Licensee places any Attachments on GTE's poles pursuant to an
approved PAR, Licensee shall submit evidence satisfactory to GTE of its
authority to erect and maintain the facilities to be placed on GTE's poles
within the public streets, highways and other thoroughfares or on private
property. Licensee shall be solely responsible for obtaining all
rights-of-way, easements, licenses, authorizations, permits and consents
from federal, state and municipal authorities or private property owners
that may be required to place Attachments on GTE's poles. In the event
Licensee must obtain any additional easements, permits, approvals,
licenses and/or authorizations from any governmental authority or private
individual or entity in order to utilize GTE's poles under an approved
PAR, GTE shall, upon Licensee's request, provide written confirmation of
its consent to Licensee's utilization of poles in a particular location in
accordance with this Agreement, if needed by Licensee to obtain such
additional approvals or authorizations. GTE shall also provide maps or
drawings of its facilities' locations to the extent reasonably required by
such governmental authority or private individual or entity for purposes
of considering or granting Licensee's request to it for authority or
approval.
8.2 GTE shall not unreasonably intervene in or attempt to delay the granting
of any rights-of-way, easements, licenses, authorizations, permits and
consents from federal, state or municipal authorities or private property
owners that may be required for Licensee to place its Attachments on GTE's
poles.
8.3 If any right-of-way, easement, license, authorization, permit or consent
obtained by Licensee is subsequently revoked or denied for any reason,
Licensee's permission to attach to GTE's poles shall terminate immediately
and Licensee shall promptly remove its Attachments. Should Licensee fail
to remove its Attachments within one hundred twenty (120) days of
receiving notice to do so from GTE, GTE shall have the option to remove
all such Attachments and store them in a public warehouse or elsewhere at
the expense of and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming liable for any
loss or damages to Licensee occasioned thereby. All costs incurred by GTE
to remove Licensee's Attachments shall be reimbursed to GTE by Licensee
upon demand.
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8.4 Upon notice from GTE to Licensee that the cessation of the use of any one
or more of GTE's poles is necessary for reasons of safety or has been
directed by any federal, state or municipal authority, or private property
owner, permission to attach to such pole or poles shall terminate
immediately and Licensee promptly shall remove its Attachments. Should
Licensee fail to remove its Attachments within the time frame provided by
the requesting or directing party or one hundred twenty (120) days of
receiving notice to do so from GTE, whichever is less, GTE shall have the
option to remove all such Attachments and store them in a public warehouse
or elsewhere at the expense of and for the account of Licensee without GTE
being deemed guilty of trespass or conversion, and without GTE becoming
liable for any loss or damages to Licensee occasioned thereby. All costs
incurred by GTE to remove Licensee's Attachments shall be reimbursed to
GTE by Licensee upon demand by GTE.
9. Placement of Attachments.
9.1 Licensee shall, at its own expense, place and maintain its Attachments on
GTE's poles in accordance with (I) such requirements and specifications as
GTE shall from time to time prescribe in writing, (ii) all rules or orders
now in effect or that hereafter may be issued by any regulatory agency or
other authority having jurisdiction, and (iii) all currently applicable
requirements and specifications of the National Electrical Safety Code,
and the applicable rules and regulations of the Occupational Safety and
Health Act. Licensee agrees to comply, at its sole risk and expense, with
all specifications included in Exhibits ________ through _______ hereto, as
may be revised from time to time by GTE.
9.2 Licensee's Facilities shall be tagged at maximum intervals of 300 feet so
as to identify Licensee as the owner of the Facilities. The tags shall be
of sufficient size and lettering so as to be easily read from ground
level.
10. Failure of Licensee to Place Attachments.
Once Licensee has obtained an approved PAR, Licensee shall have sixty
(60) days from the date the PAR is approved to begin the placement of its
Attachments on the GTE poles covered by the PAR. If Licensee has not
begun placing its Attachments within that sixty (60) day period, Licensee
shall so advise GTE with a written explanation for the delay. If
Licensee fails to advise GTE of its delay, with a written explanation
therefor, or if Licensee fails to act in good faith by not making a bona
fide effort to begin placing its Attachments within the sixty (60) days
prescribed by this Section, the previously approved PAR shall be deemed
rescinded by GTE and Licensee shall have no further right to place
Attachments pursuant to that PAR.
11. Attachment Fees.
11.1 Licensee shall pay to GTE an Attachment Fee, as specified in Exhibit
hereto, for each GTE pole upon which Licensee obtains authorization to
place an Attachment. The Attachment Fee may be increased by GTE from time
to time as permitted by law upon sixty (60) days written notice to
Licensee.
11.2 Attachments Fees shall become due and payable on the date a PAR is
approved by GTE for all GTE poles identified in that PAR on a pro rata
basis until the end of the then current year and thereafter on an annual
basis within thirty (30) days of the date of a statement from GTE
specifying the fees to be paid. Any payment after thirty (30) days shall
bear interest at the rate of eighteen percent (18%) per annum or the
maximum rate allowed by law, whichever is less.
11.3 GTE shall maintain an inventory of the total number of GTE poles occupied
by Licensee based upon the cumulative number of poles specified in all
PARs approved by GTE. GTE may, at its
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option, conduct a physical inventory of Licensee's Attachments under this
Section. It shall be Licensee's sole responsibility to notify GTE of any
and all removals of Attachments from GTE's poles. Except as provided in
Section 18 of this Agreement in connection with the termination of this
Agreement, such notice shall be provided to GTE at least thirty (30) days
prior to the removal of the Attachments. Each Notice of Removal shall be
in a form specified by GTE and may be revised from time to time at GTE's
sole discretion. Licensee shall remain liable for Attachment Fees until
Licensee's Attachments have been physically removed from GTE's poles.
12. Modifications, Additions or Replacements to Existing Attachments.
12.1 Licensee shall not modify, add to or replace Facilities on any
pre-existing Attachment without first notifying GTE in writing of the
intended modification, addition or replacement at least thirty (30) days
prior to the date the activity is scheduled to begin. The required
notification shall include: (1) the date the activity is scheduled to
begin, (2) a description of the planned modification, addition or
replacement, (3) a representation that the modification, addition or
replacement will not require any space other than the space previously
designated for Licensee's Attachments, and (4) a representation that the
modification, addition or replacement will not impair the structural
integrity of the poles involved.
12.2 Should GTE determine that the modification, addition or replacement
specified by Licensee in its notice will require more space than that
allocated to Licensee or will require the reinforcement of, replacement of
or an addition of support equipment to the poles involved in order to
accommodate Licensee's modification, addition or replacement, GTE will so
notify Licensee, whereupon Licensee will be required to submit a PAR in
compliance with this Agreement in order to obtain authorization for the
modification, addition or replacement of its Attachments.
12.3 Access to GTE's poles for repairs, modifications, additions, or
replacements required in emergency situations shall be governed by Section
22 of this Agreement.
12.4 Should Licensee request GTE to expand capacity or purchase additional
plant, Licensee agrees to pay all costs.
13. Rearrangements to Accommodate Other Licensees.
Licensee acknowledges that at some point in the future it may become
necessary to rearrange Licensee's Facilities in order to create space to
accommodate the facilities of another licensee. Licensee agrees that in
such event Licensee will cooperate in good faith with such other licensee
to come to a mutually agreeable understanding regarding the manner in
which the rearrangement of Licensee's Facilities will be achieved.
14. Unauthorized Attachments.
14.1 The parties agree that because it would be impracticable and extremely
difficult to determine the actual amount of damages resulting from
Licensee's unauthorized Attachment(s), a charge equal to five (5) times
the amount of the then current Attachment Fee shall be paid by Licensee to
GTE for each unauthorized Attachment to a GTE pole. Such payment shall be
deemed liquidated damages and not a penalty. Licensee also shall pay GTE
an Attachment Fee for each unauthorized Attachment accruing from the date
the unauthorized Attachment was first placed on the GTE pole. In the
event that the date the unauthorized Attachment was first placed on a GTE
pole cannot be determined, such date shall be deemed the date of the last
physical inventory made in accordance with this Agreement or, if no
physical inventory has been conducted, the date the first PAR from
Licensee was approved in accordance with this Agreement. Licensee also
shall pay to GTE all costs incurred by GTE to rearrange any
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unauthorized Attachment(s) of Licensee if such rearrangement is required
to safeguard GTE's Attachment(s) or to accommodate the Attachment(s) of
another party whose Attachment(s) would not have required a rearrangement
but for the presence of Licensee's unauthorized Attachment(s). Licensee
shall also pay to GTE all costs incurred by GTE to reinforce, replace or
modify any GTE pole, which reinforcement, replacement or modification was
required as a result of the unauthorized Attachment of Licensee. The
Attachment Fee referenced in this subsection 14.1 shall be determined in
the same manner as such fee would have been determined if the attachment
had been authorized by GTE.
14.2 For purposes of this section, an unauthorized Attachment shall include,
but not be limited to:
14.2.1 An Attachment to a GTE pole which pole is not identified in any
PAR approved in accordance with this Agreement;
14.2.2 An Attachment that occupies more space than that allocated to
Licensee by GTE;
14.2.3 An Attachment that is not placed in accordance with the provisions
of this Agreement or the appropriate PAR issued pursuant to this
Agreement;
14.2.4 An addition or modification by Licensee to its pre-existing
Attachment(s) that impairs the structural integrity of the involved
GTE pole(s).
14.2.5 An Attachment that consists of facilities owned or controlled by,
and for the use of a party other than Licensee.
15. Surveys and Inspections of Pole Attachments.
15.1 Upon written notice to Licensee, the total number and exact location of
Licensee's Attachments on GTE's poles may be determined, at GTE's
discretion, through a survey to be made not more than once per calendar
year by GTE. If so requested, Licensee and/or any other entity owning or
jointly owning the poles with GTE may participate in the survey. The
costs incurred by GTE to conduct the survey shall be reimbursed to GTE by
Licensee upon demand by GTE. If the Attachments of more than one Licensee
are surveyed, each such Licensee shall contribute a proportionate share of
the costs reimbursed to GTE.
15.2 Apart from surveys conducted in accordance with this section, GTE shall
have the right to inspect any Attachment of Licensee on GTE's poles as
conditions may warrant upon written notice to Licensee. Licensee shall,
upon demand by GTE, reimburse GTE all costs incurred to conduct its
inspection. No joint survey or inspection, or lack thereof, by GTE shall
operate to relieve Licensee of any responsibility, obligation or liability
assumed under this Agreement.
16. Notice of Modification or Alteration of Poles by GTE.
16.1 In the event GTE plans to modify or alter any GTE pole(s) upon which
Licensee has Attachments, GTE shall provide Licensee notice of the
proposed modification or alteration at least thirty (30) days prior to the
time the proposed modification or alteration is scheduled to take place.
Should Licensee decide to modify or alter its Attachments on the GTE poles
to be modified or altered by GTE, Licensee shall so notify GTE in writing.
In such event, Licensee shall bear a proportionate share of the total
costs incurred by GTE to make such poles accessible to Licensee.
16.2 In the event GTE is required by a federal, state, or local authority to
move, replace or change the location of any GTE pole(s), Licensee shall
concurrently relocate Licensee's Attachments. GTE
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and each Licensee required to relocate its Attachments shall bear its own
costs for such relocation.
17. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
18. Default and Remedies.
18.1 The occurrence of any one of the following shall be deemed a Material
Default by Licensee under this Agreement:
18.1.1 Failure by Licensee to pay any fee or other sum required to be
paid under the terms of this Agreement and such default continues
for a period of ten (10) days after written notice thereof to
Licensee;
18.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this Agreement and
such default continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if such default is
not curable within such thirty (30) day period, the period will be
extended if Licensee commences to cure such default within such
thirty (30) day period and proceeds diligently thereafter to effect
such cure);
18.1.3 The filing of any tax or mechanic's lien against GTE's poles which
is not bonded or discharged within thirty (30) days of the date
Licensee receives notice that such lien has been filed;
18.1.4 Licensee's voluntary or involuntary bankruptcy;
18.1.5 Licensee's knowing use or maintenance of its Attachments in
violation of any law or regulation, or in aid of any unlawful act or
undertaking;
18.1.6 If any authorization which may be required of the Licensee by any
governmental or private authority for the placement, operation or
maintenance of Licensee's Attachments is denied or revoked.
18.2 In the event of a Material Default, GTE, without any further notice to
the Licensee (except where expressly provided for below or required by
applicable law) may do any one or more of the following:
18.2.1 Perform, on behalf and at the expense of Licensee, any obligation
of Licensee under this Agreement which Licensee has failed to
perform and of which GTE shall have given Licensee notice, the cost
of which performance shall be paid by Licensee to GTE upon demand;
18.2.2 Terminate this Agreement by giving notice of such termination to
Licensee and remove Licensee's Attachments and store them in a
public warehouse or elsewhere at the expense of and for the account
of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or damages
to Licensee occasioned thereby; or
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18.2.3 Exercise any other legal or equitable right or remedy which GTE
may have.
18.3 Any costs and expenses incurred by GTE (including, without limitation,
reasonable attorneys' fees) in enforcing this Agreement shall be repaid to
GTE by Licensee upon demand.
18.4 Upon termination of this Agreement by GTE because of a material default
by Licensee, Licensee shall remain liable to GTE for any and all fees,
other payments and damages which may be due or sustained prior to such
termination, all reasonable costs, fees and expenses, including, without
limitation, reasonable attorneys' fees incurred by GTE in pursuit of its
remedies hereunder, and additional liquidated damages which shall be an
amount equal to one full year of Pole Attachment fees.
18.5 All rights and remedies of each party set forth in this Agreement shall
be cumulative and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule of
court, or the common law, either at law or in equity, or both.
19. Indemnification.
19.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is related to
this Agreement or activities undertaken pursuant to this Agreement
(including, without limitation, the installation, construction, operation
or maintenance of Licensee's Attachments).
19.2 Licensee will further indemnify, defend and hold harmless GTE and GTE's
agents, officers, employees and assigns, from any and all losses, damages,
costs, expenses (including, without limitation, reasonable attorneys'
fees), statutory fines or penalties, actions or claims for personal injury
(including death), damage to property, or other damage or financial loss
of whatever nature in any way arising out of or connected with this
Agreement or activities undertaken pursuant to this Agreement (including,
without limitation, the installation, construction, operation or
maintenance of Licensee's Attachments), except to the extent caused by the
gross negligence or willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns. Licensee further indemnifies GTE from
subsequent taxes and fees that may be levied by municipalities ROWs in
association with these agreements. Such fees that are levied would be in
addition to the attachment/occupancy fees reflected in this Agreement.
Licensee expressly assumes all liability for actions brought against GTE
and GTE's agents, officers, employees and assigns, by Licensee's agents,
officers or employees and Licensee expressly waives any immunity from the
enforcement of this indemnification provision that might otherwise be
provided by workers' compensation law or by other state or federal laws.
19.3 Without limiting any of the foregoing, Licensee assumes all risk of, and
agrees to relieve GTE of any and all liability for, loss or damage (and
the consequences of loss or damage) to any Attachments placed on GTE's
poles and any other financial loss sustained by Licensee, whether caused
by fire, extended coverage perils, or other casualty, except to the extent
caused by the gross negligence or willful misconduct on the part of GTE or
GTE's agents, officers, employees and assigns.
19.4 Without limiting the foregoing, Licensee expressly agrees to indemnify,
defend and hold harmless GTE and GTE's agents, officers, employees and
assigns from any and all claims asserted by customers of Licensee in any
way arising out of or in connection with this Agreement or Licensee's
Attachments, except to the extent caused by the gross negligence or
willful misconduct on the part of GTE or GTE's agents, officers, employees
and assigns.
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19.5 Notwithstanding anything to the contrary in this Agreement, Licensee
further shall indemnify and hold harmless GTE, its agents, officers,
employees and assigns from and against any claims, liabilities, losses,
damages, fines, penalties and costs (including, without limitation,
reasonable attorneys' fees) whether foreseen or unforeseen, which the
indemnified parties suffer or incur because of: (I) any discharge of
Hazardous Waste resulting from acts or omissions of Licensee or the
Licensee's predecessor in interest; (ii) acts or omissions of the
Licensee, it agents, employees, contractors or representatives in
connection with any cleanup required by law, or (iii) failure of Licensee
to comply with Environmental, Safety and Health Laws.
19.6 In no event shall either party be liable to the other party for any
special, consequential or indirect damages (including, without limitation,
lost revenues and lost profits) arising out this Agreement or any
obligation arising hereunder, whether in an action for or arising out of
breach of contract, tort or otherwise.
19.7 Licensee shall indemnify, protect and hold harmless GTE from and against
any and all claims for libel and slander, copyright and/or patent
infringement arising directly or indirectly by reason of installation of
Licensee's equipment on GTE's poles pursuant to this Agreement.
20. Insurance.
20.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set forth in
Section 19 of this Agreement. Such insurance shall include, but not
be limited to, coverage against liability due to personal injury or
death of persons in the amount of $500,000 as to any one person and
$1,000,000 as to any one accident; coverage against liability due to
property damage in the amount of $500,000 as to each accident and
$500,000 aggregate; and coverage necessary to fully protect both it
and GTE from all claims under any worker's compensation laws that
may be applicable.
20.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The company
or companies issuing such insurance shall be approved by GTE and GTE
shall be named as an additional insured in each such policy.
Licensee shall submit to GTE certificates by each insurer to the
effect that the insurer has insured Licensee for all potential
liabilities of Licensee under this Agreement, and that it will not
cancel or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of non-payment of
premiums due, GTE shall have the option of paying any amount due and
Licensee shall forthwith reimburse GTE the full amount paid by GTE.
20.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising out of
or in any manner related, directly or indirectly, to the presence or
use of Licensee's Attachments.
20.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be subject
to GTE's approval, in the amount of ten thousand dollars ($10,000)
to guarantee the payment of any sums which may become due to GTE for
rentals, inspections or for work performed by GTE for the benefit of
Licensee under this Agreement, including the removal of Licensee's
equipment pursuant to any of the provisions hereof. All bonds must
specify that GTE be notified thirty (30) days prior to the
expiration or cancellation of the policy.
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21. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement shall
be borne by the Party upon which the obligation for payment is imposed
under applicable law, even if the obligation to collect and remit such
taxes is placed upon the other Party. The collecting Party shall charge
and collect from the obligated Party, and the obligated Party agrees to
pay to the collecting Party, all applicable taxes, except to the extent
that the obligated Party notifies the collecting Party and provides to
the collecting Party appropriate documentation as GTE requires that
qualifies the obligated Party for a full or partial exemption. Any such
taxes shall be shown as separate items on applicable billing documents
between the Parties. The obligated Party may contest the same in good
faith, at its own expense, and shall be entitled to the benefit of any
refund or recovery, provided that such Party shall not permit any lien to
exist on any asset of the other Party by reason of the contest. The
collecting Party shall cooperate in any such contest by the other Party.
The other Party will indemnify the collecting Party from any sales or use
taxes that may be subsequently levied on payments by the other Party by
the collecting Party.
22. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Attachments. While GTE shall not be
responsible for the repair of Licensee's Attachments that are damaged
(except by mutual written agreement), GTE shall nonetheless control
access to its poles if the restoration is to be achieved in an orderly
fashion.
22.1 Where GTE and Licensee are involved in emergency
restorations, access to GTE's poles will be controlled by GTE's
Maintenance District Manager or his/her on-site representative
according to the following guidelines:
22.1.1 Service Disruptions/Outages
(a) In the event of service disruptions
and/or outages, while exercising its right to first
access, GTE shall make all reasonable efforts to grant
access to as many other entities with Attachments as is
reasonably safe.
(b) Where simultaneous access is not
possible, access will be granted by GTE on a first come,
first served basis.
22.1.2 Service Affecting Emergencies
(a) In the event of service affecting
emergencies not resulting in service disruptions or
outages, while exercising its right to first access, GTE
shall make all reasonable efforts to grant access to as
many other entities with Attachments as is reasonably
safe.
(b) Where GTE is unable to grant
simultaneous access to all other entities with
Attachments, access will granted according to the level
of damage to the Attachments of each entity and the
likelihood that a given level of damage will result in
service disruption. Where the likelihood that a service
disruption will result is not clearly discernible,
access will be on a first come, first served basis.
22.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Attachments, or any action
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or failure to act by GTE, under this Section 22 shall not
constitute a basis for any claim by Licensee against GTE for any
damage to Licensee's Attachments or disruption of Licensee's
services, or any other direct or indirect damages of any kind
whatsoever incurred by Licensee.
23. Damage Suspected to Licensee's Facilities Only.
23.1 In the event Licensee receives information that Licensee's
Attachments are damaged, Licensee shall notify GTE of said damage at
a number to be provided later by GTE. This is a 24-hour, 7 days per
week notification number. Licensee shall provide GTE all
information known to it regarding the damage to Licensee's
Attachments.
23.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by telephone at
the Licensee's emergency telephone number. GTE shall provide
Licensee all information known to it regarding the damage to
Licensee's Attachments.
23.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's Attachments,
subject to the provisions of this Agreement.
23.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's Attachments, or any action or
failure to act by GTE, appropriately or inappropriately, under this
Section shall not be the basis for any claim by Licensee against GTE
for any damage to Licensee's Attachments or disruption of Licensee's
services, or any other direct or indirect damages of any kind
whatsoever incurred by Licensee and Licensee shall indemnify and
hold GTE harmless from any such claim.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any poles
or other GTE property used for Licensee's Attachments; provided, however,
that GTE shall condition any such sale, assignment or other disposition
subject to the rights granted to Licensee pursuant to this Agreement.
GTE shall promptly notify Licensee of any proposed sale, assignment or
other disposition of any poles or other GTE property used for Licensee's
Attachments.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee: ___________________________
___________________________
___________________________
To GTE: ___________________________
___________________________
___________________________
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Any notice given by personal delivery shall be deemed to have been given
on the day of actual delivery and, if given by registered or certified
mail, return receipt requested, on the date of receipt thereof and, if
given by facsimile transmission, on the day of transmittal thereof if
given during the normal business hours of the recipient and on the next
business day if not given during normal business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any of
term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition or
other provision of this Agreement.
27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify GTE
pursuant to this Agreement or (ii) a suit, action or proceeding to
compel either party to comply with the dispute resolution procedures
set forth in this section, the parties agree to use the following
procedure to resolve any dispute, controversy or claim arising out
of or relating to this Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute, controversy or claim arising
under this Agreement. The parties intend that these negotiations be
conducted by non-lawyer, business representatives. The substance of
the negotiations shall be left to the discretion of the
representatives. Upon mutual agreement, the representatives may
utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and
correspondence between the representatives for purposes of these
negotiations shall be treated as confidential, undertaken for
purposes of settlement, shall be exempt from discovery and
production, and shall not be admissible in the arbitration described
below or in any subsequent lawsuit without the concurrence of all
parties. Documents identified in or provided during such
negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request, the
dispute, controversy or claim shall be submitted to binding
arbitration by a single arbitrator pursuant to the rules of the
American Arbitration Association (AAA), except as hereinafter
provided. Discovery in any proceeding before the AAA shall be
controlled by the arbitrator and shall be permitted to the extent
set forth in this section. Parties may exchange, in any
combination, up to thirty-five (35) (none of which may contain
subparts) written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for
arbitration and shall be held in the city where GTE's local offices
are located. The arbitrator shall rule on the dispute, controversy
or claim by issuing a written opinion within thirty (30) days after
the close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the arbitrator
upon a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing procedures.
A party seeking discovery shall reimburse the responding
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party the cost of reproducing documents (to include search time
and reproduction time costs). The fees associated with any
arbitration, including the fees of the arbitrator, shall be
divided equally between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, each party
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (i) workers' compensation laws,
(ii) unemployment compensation laws, (iii) the Federal Social Security
Law, (iv) the Fair Labor Standards Act, and (v) all laws, regulations,
rules, guidelines, policies, orders, permits and approvals of any
governmental authority relating to environmental matters and/or
occupational safety.
29. Force Majeure.
Neither party shall have any liability for its delays or its failure in
performance due to fire, flood, explosion, pest damage, power failures,
strikes or labor disputes, acts of God, the Elements, war, civil
disturbances, acts of civil or military authorities or the public enemy,
inability to secure raw materials, transportation facilities, fuel or
energy shortages, or other cause beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole or in
part, without the prior written consent of GTE. An assignment,
transfer or sub-license of this Agreement by Licensee shall not
relieve Licensee of its obligations under this Agreement. Any
assignment attempted without the prior written consent of GTE shall
be void.
30.2 GTE shall have the right to assign this Agreement and to
assign its rights and delegate its obligations and liabilities under
this Agreement, either in whole or in part. GTE shall provide
notice to Licensee of any assignment which shall state the effective
date thereof. Upon the effective date and to the extent of the
assignment, GTE shall be released and discharged from all
obligations and liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall be
governed and construed under the laws of the State of _________________
without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations, guidelines, orders, or tariffs
that are currently in force or that may be prescribed by any federal,
state or local governmental authority. The parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to bring
them into compliance with such law, rule, regulation, guideline, order,
or tariff. Should any term of this Agreement be determined by a
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court or other entity with competent jurisdiction to be unenforceable,
all other terms of this Agreement shall remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and are
not intended to affect the meaning or interpretation of any part of this
Agreement.
34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
<TABLE>
<S> <C>
For GTE: For Licensee:
GTE
- ---------------------------------- -------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
</TABLE>
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EXHIBIT
ATTACHMENT FEES
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APPENDIX L
CONDUIT OCCUPANCY AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE ______________ INCORPORATED, a
State of _________________ corporation having its principal office at
("GTE"), and ***, a corporation of the State of _____________, having its
principal office at ______________________ ("Licensee").
2. Definitions.
2.1 "GTE's conduit(s)" or "GTE conduit(s)" means any reinforced
passage or opening in, on, under/over or through the ground capable
of containing communications facilities.
2.2 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.
2.3 "Cable Television Services" means the transmission to
subscribers of off-the-air pickup of broadcast signals or the
transmission, without separate charge, of locally originated closed
circuit television to the subscribers of off-the-air service.
2.4 "Conduit" or "Duct" means a single enclosed raceway used to
house Innerduct.
2.5 "Innerduct," unless otherwise specified or approved by GTE,
shall mean a single enclosed raceway 1" or 1-1/4" in diameter,
placed within duct and used for housing communications facilities.
2.6 "Facilities" means all facilities, including, but not limited
to, cables, equipment and associated hardware, owned and utilized by
the Licensee which occupy an innerduct.
2.7 "Make-Ready Work" means all work, including, but not limited
to, rearrangement, removal, or transfer of existing facilities,
placement, repair, or replacement of duct or innerduct, or any other
changes required to accommodate the Licensee's Facilities in a
conduit.
2.8 "Manholes" and "handholes" mean subsurface enclosures which
personnel may enter and use for the purpose of installing, operating
and maintaining communications facilities.
2.9 "Hazardous Materials" means (I) any substance, material or
waste now or hereafter defined or characterized as hazardous,
extremely hazardous, toxic or dangerous within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, or any similar law, ordinance, statute, rule or
regulation of any governmental body or authority, (ii) any
substance, material or waste now or hereafter classified as a
contaminant or pollutant under any law, ordinance, statute, rule or
regulation of any governmental body or authority or (iii) any other
substance, material or waste, the manufacture, processing,
distribution, use, treatment, storage, placement, disposal, removal
or transportation of which is now or hereafter subject to regulation
under any law, ordinance, statute, rule or regulation of any
governmental body or authority.
2.10 "Occupancy Fee" means the fee paid by Licensee to GTE per
linear foot for each innerduct occupied by Licensee's Facilities in
GTE's Conduit(s).
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3. Purpose.
Licensee represents to GTE that Licensee has a need to occupy, place and
maintain communications facilities within GTE's conduit(s) for the
purpose of providing Telecommunications Service. GTE agrees to permit
Licensee to occupy, place and maintain communications facilities within
GTE's conduit(s) as GTE may allow pursuant to the terms of this
Agreement.
4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space in
specified GTE conduits Licensee's Facilities on the terms and conditions
set forth herein. Licensee shall have no further right, title, or other
interest in connection with GTE's conduit(s). GTE shall have the right
to grant, renew or extend privileges to others not parties to this
Agreement to occupy, place and maintain facilities in or otherwise use
any or all of GTE's conduit(s). Nothing herein is intended to, nor
should it be construed to require GTE to construct or modify any
facilities not needed for its own service requirements. GTE grants this
license in reliance on the representation of Licensee that Licensee
intends to provide Telecommunications Service with Licensee's Facilities
covered by this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue in
effect for consecutive one (1) year terms until either Party gives the
other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement shall
remain in effect for ninety (90) calendar days after such notice is
received, provided, that in no case shall the term be extended beyond
ninety (90) calendar days after the end of the current term.
6. Conduit Occupancy Requests.
6.1 Upon execution of this Agreement, Licensee shall have the
right to submit a written Conduit Occupancy Request ("COR") to GTE
specifying the GTE conduits in which it desires to place its
Facilities. Each COR shall be in a form specified by GTE, which
form may be revised from time to time by GTE. CORs received by GTE
shall be processed on a first come, first served basis. GTE will
determine the availability of space for Licensee's Facilities in the
GTE conduit(s) specified in the COR within thirty (30) Business Days
of its submission. Upon approval of the COR, GTE shall return a
copy thereof to Licensee bearing an endorsement acknowledging GTE's
authorization. All of Licensee's Facilities placed in GTE's
conduit(s) pursuant to an approved COR shall become subject to all
of the terms and conditions of this Agreement. Licensee may submit
subsequent CORs for approval by GTE as needed. All of Licensee's
Facilities shall be placed in innerduct unless otherwise approved by
GTE. No facilities of any kind shall be placed in any GTE
conduit(s) identified in a COR until that COR has been approved by
GTE.
6.2 Licensee shall pay GTE a fee for processing a COR to
compensate GTE for the general administrative costs as well as the
actual engineering costs reasonably incurred. The fee for
engineering costs shall be computed by multiplying the fully loaded
hourly rate for an engineer times the number of hours reasonably
required by each engineer to inspect the GTE conduits included in
the COR. GTE will charge its then current rates for
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administrative and engineering costs, as may be changed from time to
time by GTE to remain consistent with prevailing costs.
6.3 Upon receiving an approved COR, Licensee shall have the right,
subject to the terms of this Agreement, to place and maintain
Licensee's Facilities described in the COR in the innerducts of the
GTE conduit(s) identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate
Licensee's Facilities, GTE shall notify Licensee of such fact and
provide Licensee with an estimate of the total cost of such
Make-Ready Work. Within fifteen (15) days after receiving such
notice from GTE, Licensee shall notify GTE either (1) that Licensee
shall pay all of the costs actually incurred to perform the
Make-Ready Work and shall pay the total estimated amount to GTE at
least ten (10) days prior to the date the Make-Ready Work is to
begin or (2) that it desires to cancel its COR.
6.5 Nothing herein shall confer any right upon Licensee to place power
cables or related power equipment in GTE Conduit(s) or Manholes.
Licensee shall place equipment of this nature in its own pull boxes
outside of GTE's Conduit(s) or Manholes. Cable connectors or
splicing devices shall not be used by Licensee in GTE's Conduit(s)
or innerducts.
7. Availability of Conduit Maps.
Existing conduit maps will be made available for viewing by Licensee for
the purpose of pre-order planning at the GTE area engineering offices
during normal business hours, subject to reasonable advance notification.
While a formal written request will not be required in connection with
the first request by Licensee to view conduit maps, GTE reserves the
right to refuse any subsequent viewing request or require written
justification for the request if Licensee has demonstrated that it does
not have a good faith intention to submit a COR. If the availability of
specific point-to-point conduits can be determined at the time of viewing
conduit maps, maps reflecting such point-to-point conduits may be made
available for copying. Licensee shall pay to GTE a fee for making such
copies available sufficient to cover the general administrative costs
incurred. IN MAKING CONDUIT MAPS AVAILABLE, GTE WILL BE MAKING NO
EXPRESS OR IMPLIED WARRANTY REGARDING THEIR ACCURACY OTHER THAN THAT THEY
ARE THE SAME CONDUIT MAPS USED BY GTE IN ITS DAY-TO-DAY OPERATIONS.
8. Availability of Information Regarding Space In Conduits.
GTE will provide information regarding the availability of conduit space
within thirty (30) Business Days of a written request by Licensee.
Because GTE will endeavor to determine available space as quickly as
possible, a shorter interval may be experienced for requests of a limited
scope where physical field verification is not necessary. In the event
the thirty (30) Business Day time frame cannot be met, GTE shall so
advise Licensee and shall seek a mutually satisfactory alternative
response date. No representation regarding the availability of space
shall be made in the absence of a physical field verification.
9. Authority to Place Licensee's Facilities.
9.1 Before Licensee places any of Licensee's Facilities in GTE's
conduit(s) pursuant to an approved COR, Licensee, upon request,
shall submit sufficient evidence to GTE of its authority to maintain
the Facilities to be placed in GTE's conduit(s) within the public
streets, highways and other thoroughfares or on private property.
Licensee shall be solely responsible for obtaining all licenses,
authorizations, permits and consents from federal,
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state and municipal authorities or private property owners that may
be required to place and maintain Licensee's Facilities in GTE's
conduit(s).
9.2 GTE shall not attempt to prevent or delay the granting of any
rights-of-way, easements, licenses, authorizations, permits and
consents from any federal, state or municipal authorities, or
private property owners that may be required by Licensee to place
Licensee's Facilities in GTE's conduit(s).
9.3 If any right-of-way, easement, license, authorization, permit
or consent obtained by Licensee is subsequently revoked or denied
for any reason, Licensee's permission to occupy GTE's conduit(s)
shall terminate immediately and Licensee shall promptly remove
Licensee's Facilities. Should Licensee fail to remove Licensee's
Facilities within thirty (30) days of receiving notice to do so from
GTE, GTE shall have the option to remove Licensee's Facilities and
store them in a public warehouse or elsewhere at the expense of and
for the account of Licensee without GTE being deemed guilty of
trespass or conversion, and without GTE becoming liable for any loss
or damages to Licensee occasioned thereby. All costs incurred by
GTE to remove Licensee's Facilities shall be reimbursed to GTE by
Licensee upon demand.
9.4 Upon notice from GTE to Licensee that the cessation of the
use of any portion of GTE's conduit(s) has been ordered or directed
by any federal, state or municipal authority, or private property
owner, Licensee's permission to occupy such GTE conduit(s) shall
terminate immediately and Licensee promptly shall remove Licensee's
Facilities. Should Licensee fail to remove Licensee's Facilities
within thirty (30) days of receiving notice to do so from GTE, GTE
shall have the option to remove Licensee's Facilities and store them
in a public warehouse or elsewhere at the expense of and for the
account of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or damages
to Licensee occasioned thereby. All costs incurred by GTE to remove
Licensee's Facilities shall be reimbursed to GTE by Licensee upon
demand by GTE.
10. Placement of Licensee's Facilities.
10.1 Licensee shall, at its sole expense, place and maintain
Licensee's Facilities in GTE's conduit(s) in accordance with (I)
such requirements and specifications as GTE shall from time to time
prescribe in writing, (ii) all rules or orders now in effect or that
hereafter may be issued by any regulatory agency or other authority
having jurisdiction, and (iii) all currently applicable requirements
and specifications of the National Electrical Safety Code, and the
applicable rules and regulations of the Occupational Safety And
Health Act. Licensee agrees to comply, at its sole risk and
expense, with all specifications included in Exhibits______
through_________hereto, as may be revised from time to time by GTE.
10.2 Licensee's Facilities shall be tagged at each manhole so as
to identify Licensee as the owner of the Facilities. The tags shall
be of sufficient size and lettering so as to be easily read.
11. Failure of Licensee to Occupy Conduit Space.
Upon approval of a COR, Licensee shall have sixty (60) days in which to
begin the placement of Licensee's Facilities in the GTE conduit(s)
covered by the COR. If Licensee has not begun placing its Facilities
within that sixty (60) day period, Licensee shall so advise GTE with a
written explanation for the delay. If Licensee fails to advise GTE of
its delay, with a written explanation
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therefor, or if Licensee fails to act in good faith by not making a bona
fide effort to begin placing its Facilities within the sixty (60) days
prescribed by this Section, the previously approved COR shall be deemed
rescinded by GTE and Licensee shall have no further right to place
Licensee's Facilities pursuant to that COR.
12. Occupancy Fees.
12.1 Licensee shall pay to GTE an Occupancy Fee, as specified in
Exhibit_________hereto, for each linear foot of innerduct occupied
by Licensee's Facilities in GTE's conduit(s). If Licensee's
Facilities occupy more than one innerduct, a separate Occupancy Fee
shall be paid by Licensee for each innerduct occupied. The
Occupancy Fee specified in Exhibit_________hereto is the fee
applicable to 1" or 1-1/4" diameter innerduct. GTE reserves the
right to charge a higher fee for innerduct of greater diameter. The
Occupancy Fee may be increased by GTE from time to time as permitted
by law upon sixty (60) days written notice to Licensee.
12.2 Occupancy Fees shall become due and payable on the date a COR
is approved by GTE for all GTE innerducts identified in that COR on
a pro rata basis until the end of the calendar year and thereafter
on an annual basis within thirty (30) days of the receipt of a
statement from GTE specifying the fees to be paid. Any payment
after thirty (30) days shall bear interest at the rate of eighteen
percent (18%) per annum or the maximum rate allowed by law,
whichever is less.
12.3 GTE shall maintain an inventory of the total linear footage
of innerduct occupied by Licensee's Facilities in GTE's conduit(s)
based upon the cumulative linear footage per innerduct from all CORs
approved by GTE. GTE may, at its option, conduct a physical
inventory of Licensee's Facilities for purposes of determining the
Occupancy Fees to be paid by Licensee under this section. It shall
be Licensee's sole responsibility to notify GTE of any and all
removals of Licensee's Facilities from GTE's conduit(s). Written
notice of such removals (unless they are covered by Section 17 of
this Agreement) shall be provided to GTE at least thirty (30) days
prior to the removal. Each Notice of Removal shall be in a form
specified by GTE. Licensee shall remain liable for all Occupancy
Fees until Licensee's Facilities have been physically removed from
GTE's conduits.
13. Modifications, Additions or Replacements of Licensee's Facilities.
13.1 Licensee shall not modify, add to or replace Licensee's
Facilities in any GTE conduit(s) without first notifying GTE in
writing of the intended modification, addition or replacement at
least thirty (30) days prior to the date the activity is scheduled
to begin. The required notification shall include: (1) the date
the activity is scheduled to begin, (2) a description of the planned
modification, addition or replacement, (3) a representation that the
modification, addition or replacement will not require any space
other than the space previously designated for Licensee's
Facilities, and (4) a representation that the modification, addition
or replacement will not impair the structural integrity of the GTE
conduit(s) involved.
13.2 Should GTE determine that the modification, addition or
replacement specified by Licensee in its notice will require more
space than that allocated to Licensee or will require any
modification, replacement or reinforcement of the GTE conduit(s)
involved in order to accommodate Licensee's modification, addition
or replacement, GTE will so notify Licensee, whereupon Licensee
shall be required to submit a COR in compliance with this Agreement
in order to obtain authorization for the modification, addition or
replacement of Licensee's Facilities.
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13.3 Access to GTE's conduit(s) for repairs, modifications,
additions, or replacements required in emergency situations shall be
governed by the provisions of Section 21 of this Agreement.
14. Unauthorized Occupancy of GTE Conduit.
14.1 It is agreed that a charge equal to five (5) times the amount
of the then current Occupancy Fee shall be paid by Licensee to GTE
for each unauthorized occupancy of GTE's conduit(s) by Licensee.
Such payment shall be deemed liquidated damages and not a penalty.
Licensee also shall pay GTE an Occupancy Fee for each unauthorized
occupancy accruing from the date the unauthorized occupancy first
began. In the event that the date the unauthorized occupancy first
began cannot be determined, such date shall be deemed the date of
the last physical inventory made in accordance with this Agreement
or, if no physical inventory has been conducted, the date the first
COR from Licensee was approved in accordance with this Agreement.
Licensee also shall pay to GTE all costs incurred by GTE to
rearrange Licensee's Facilities that are unauthorized if such
rearrangement is required to safeguard GTE's facilities or to
accommodate the facilities of another party whose facilities would
not have required a rearrangement but for the presence of Licensee's
unauthorized facilities. Licensee also shall pay to GTE all costs
incurred by GTE to reinforce, replace or modify any GTE conduit(s),
which reinforcement, replacement or modification is required as a
result of the unauthorized occupancy by Licensee. The Occupancy Fee
referenced in this subsection 14.1 shall be determined in the same
manner as such a fee would have been determined if the occupancy had
been authorized by GTE.
14.2 For purposes of this section, an unauthorized occupancy shall
include, but not be limited to:
14.2.1 The presence of Licensee's Facilities in any GTE conduit
which conduit is not identified in any COR approved in
accordance with this Agreement;
14.2.2 The presence of Licensee's Facilities in any GTE conduit
that occupies more space than that allocated to Licensee by
GTE;
14.2.3 Licensee's Facilities that are not placed in accordance with
the provisions of this Agreement or the appropriate COR issued
pursuant to this Agreement;
14.2.4 An addition or modification by Licensee to its pre-existing
Facilities in any GTE conduit that impairs the structural
integrity of that GTE conduit.
14.2.5 The presence of facilities in GTE's conduit(s) placed by
Licensee that are owned or controlled by and for the use of a
party other than Licensee.
15. Modification or Alteration GTE Conduits.
15.1 In the event GTE plans to modify or alter any GTE conduit(s)
that house Licensee's Facilities, GTE shall provide Licensee notice
of the proposed modification or alteration at least fourteen (14)
days prior to the time the proposed modification or alteration is
scheduled to take place. Should Licensee decide to modify or alter
Licensee's Facilities in the GTE conduit(s) to be modified or
altered by GTE, Licensee shall so notify GTE in
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writing. In such event, Licensee shall bear a proportionate share of
the total costs incurred by GTE to make the GTE conduit(s)
accessible. Licensee's proportionate share of the total cost shall
be based on the ratio of the amount of new space occupied by Licensee
to the total amount of new space occupied by all of the parties
joining in the modification.
15.2 In the event GTE moves, replaces or changes the location,
alignment or grade of GTE's conduit(s) ("relocation") for reasons
beyond GTE's control, Licensee concurrently shall relocate
Licensee's Facilities. Licensee shall be solely responsible for the
costs of the relocation of Licensee's Facilities.
16. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
17. Default and Remedies.
17.1 The occurrence of any one of the following shall be deemed a
Material Default by Licensee under this Agreement:
17.1.1 Failure by Licensee to pay any fee or other sum required to be
paid under the terms of this Agreement and such default continues
for a period of five (5) days after written notice thereof to
Licensee;
17.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this Agreement and
such default continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if such default is
not curable within such thirty (30) day period, the period will be
extended if Licensee commences to cure such default within such
thirty (30) day period and proceeds diligently thereafter to effect
such cure);
17.1.3 The filing of any tax or mechanic's lien against any GTE
conduit(s) which is not bonded or discharged within thirty (30) days
of the date Licensee receives notice that such lien has been filed;
17.1.4 Licensee's voluntary or involuntary bankruptcy;
17.1.5 Licensee's knowing use or maintenance of Licensee's Facilities in
violation of any law or regulation, or in aid of any unlawful act or
undertaking;
17.1.6 If any authorization which may be required of the Licensee by any
governmental or private authority for the placement, operation or
maintenance of Licensee's Facilities is denied or revoked.
17.2 In the event of a Material Default, GTE, without any further
notice to the Licensee (except where expressly provided for below or
required by applicable law) may do any one or more of the following:
17.2.1 Perform, on behalf and at the expense of Licensee, any
obligation of Licensee under this Agreement which Licensee
has failed to perform and of which GTE shall have given
Licensee notice, the cost of which performance shall be paid
by Licensee to GTE upon demand;
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17.2.2 Terminate this Agreement by giving notice of such
termination to Licensee and remove Licensee's Facilities and
store them in a public warehouse or elsewhere at the expense
of and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming
liable for any loss or damages to Licensee occasioned
thereby; or
17.2.3 Exercise any other legal or equitable right or remedy which
GTE may have.
17.3 Any costs and expenses incurred by GTE (including, without
limitation, reasonable attorneys' fees) in enforcing this Agreement
shall be paid to GTE by Licensee upon demand.
17.4 Upon termination of this Agreement by GTE, Licensee shall remain
liable to GTE for any and all fees, other payments and damages which
may be due or sustained prior to such termination, all reasonable
costs, fees and expenses, including, without limitation, reasonable
attorneys' fees incurred by GTE in pursuit of its remedies
hereunder, and additional liquidated damages which shall be an
amount equal to one full year of Occupancy Fees.
17.5 All rights and remedies of GTE set forth in this Agreement shall be
cumulative and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule
of court, or the common law, either at law or in equity, or both.
18. Indemnification.
18.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is
related to this Agreement or activities undertaken pursuant to this
Agreement (including, without limitation, the installation,
construction, operation or maintenance of Licensee's Facilities).
18.2 Licensee will further indemnify, defend and hold harmless GTE and
GTE's agents, officers, employees and assigns, from any and all
losses, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees), statutory fines or penalties, actions
or claims for personal injury (including death), damage to property,
or other damage or financial loss of whatever nature in any way
arising out of or connected with this Agreement or activities
undertaken pursuant to this Agreement (including, without
limitation, the installation, construction, operation or maintenance
of Licensee's Facilities), except to the extent caused by the
negligence or willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns. Licensee further indemnifies GTE
from subsequent taxes and fees that may be levied by municipalities
ROWs in association with these agreements. Such fees that are
levied would be in addition to the attachment/occupancy fees
reflected in this Agreement. Licensee expressly assumes all
liability for actions brought against GTE and GTE's agents,
officers, employees and assigns, by Licensee's agents, officers or
employees and Licensee expressly waives any immunity from the
enforcement of this indemnification provision that might otherwise
be provided by workers' compensation law or by other state or
federal laws.
18.3 Without limiting any of the foregoing, Licensee assumes all risk
of, and agrees to relieve GTE of any and all liability for, loss or
damage (and the consequences of loss or damage) to any of
Licensee's Facilities placed in any GTE conduit(s) and any other
financial loss sustained by Licensee, whether caused by fire,
extended coverage perils, or other casualty,
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except to the extent caused by the negligence or willful misconduct
on the part of GTE or GTE's agents, officers, employees and
assigns.
18.4 Without limiting the foregoing, Licensee expressly agrees to
indemnify, defend and hold harmless GTE and GTE's agents, officers,
employees and assigns from any and all claims asserted by customers
of Licensee in any way arising out of or in connection with this
Agreement or Licensee's Attachments, except to the extent caused by
the negligence or willful misconduct on the part of GTE or GTE's
agents, officers, employees and assigns.
18.5 Notwithstanding anything to the contrary in this Agreement,
Licensee further shall indemnify and hold harmless GTE, its agents,
officers, employees and assigns from and against any claims,
liabilities, losses, damages, fines, penalties and costs (including,
without limitation, reasonable attorneys' fees) whether foreseen or
unforeseen, which the indemnified parties suffer or incur because
of: (i) any discharge of Hazardous Waste resulting from acts or
omissions of Licensee or the Licensee's predecessor in interest;
(ii) acts or omissions of the Licensee, it agents, employees,
contractors or representatives in connection with any cleanup
required by law, or (iii) failure of Licensee to comply with
Environmental, Safety and Health Laws.
18.6 In no event shall GTE be liable to Licensee for any special,
consequential or indirect damages (including, without limitation,
lost revenues and lost profits) arising out this Agreement or any
obligation arising hereunder, whether in an action for or arising
out of breach of contract, tort or otherwise.
18.7 Licensee shall indemnify, protect and hold harmless GTE from
and against any and all claims for libel and slander, copyright
and/or patent infringement arising directly or indirectly by reason
of installation of Licensee's equipment in GTE's Ducts pursuant to
this Agreement.
19. Insurance.
19.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set forth in
Section 18 of this Agreement. Such insurance shall include, but not
be limited to, coverage against liability due to personal injury or
death of persons in the amount of $500,000 as to any one person and
$1,000,000 as to any one accident; coverage against liability due to
property damage in the amount of $500,000 as to each accident and
$500,000 aggregate; and coverage necessary to fully protect both it
and GTE from all claims under any worker's compensation laws that
may be applicable.
19.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The company
or companies issuing such insurance shall be approved by GTE and GTE
shall be named as an additional insured in each such policy.
Licensee shall submit to GTE certificates by each insurer to the
effect that the insurer has insured Licensee for all potential
liabilities of Licensee under this Agreement, and that it will not
cancel or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of non-payment of
premiums due, GTE shall have the option of paying any amount due and
Licensee shall forthwith reimburse GTE the full amount paid by GTE.
19.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising out of
or in any manner related, directly or indirectly, to the presence or
use of Licensee's Facilities.
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19.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be subject
to GTE's approval, in the amount of ten thousand dollars ($10,000)
to guarantee the payment of any sums which may become due to GTE for
rentals, inspections or for work performed by GTE for the benefit of
Licensee under this Agreement, including the removal of Licensee's
equipment pursuant to any of the provisions hereof. All bonds must
specify that the GTE be notified thirty (30) days prior to the
expiration or cancellation of the policy.
20. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement shall
be borne by the Party upon which the obligation for payment is imposed
under applicable law, even if the obligation to collect and remit such
taxes is placed upon the other Party. The collecting Party shall charge
and collect from the obligated Party, and the obligated Party agrees to
pay to the collecting Party, all applicable taxes, except to the extent
that the obligated Party notifies the collecting Party and provides to the
collecting Party appropriate documentation as GTE requires that qualifies
the obligated Party for a full or partial exemption. Any such taxes
shall be shown as separate items on applicable billing documents between
the Parties. The obligated Party may contest the same in good faith, at
its own expense, and shall be entitled to the benefit of any refund or
recovery, provided that such Party shall not permit any lien to exist on
any asset of the other Party by reason of the contest. The collecting
Party shall cooperate in any such contest by the other Party. The other
Party will indemnify the collecting Party from any sales or use taxes
that may be subsequently levied on payments by the other Party by the
collecting Party.
21. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Facilities in GTE's conduit(s). While GTE
shall not be responsible for the repair of Licensee's Facilities that are
damaged (except by mutual written agreement), GTE shall nonetheless
control access to its Conduits if the restoration is to be achieved in an
orderly fashion.
21.1 Where GTE and Licensee are involved in emergency restorations,
access to GTE's conduit(s) will be controlled by GTE's Maintenance
District Manager or his/her on-site representative according to the
following guidelines:
21.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or outages,
while exercising its right to first access, GTE shall
make all reasonable efforts to grant access to as many
other entities with facilities in GTE's conduit(s) as
is reasonably safe.
(b) Where simultaneous access is not possible, access will
be granted by GTE on a first come, first served basis.
21.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies not
resulting in service disruptions or outages, while
exercising its right to first access, GTE shall make
all reasonable efforts to grant access to as many other
entities with facilities in GTE's conduit(s) as is
reasonably safe.
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(b) Where GTE is unable to grant simultaneous access to all
other entities with facilities in GTE's conduit(s),
access will granted according to the level of damage to
the facilities of each entity and the likelihood that a
given level of damage will result in service disruption.
Where the likelihood that a service disruption will
result is not clearly discernible, access will be on a
first come, first served basis.
21.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's Facilities, or any action or
failure to act by GTE under this Section 21 shall not constitute a
basis for any claim by Licensee against GTE for any damage to
Licensee's Facilities or disruption of Licensee's services, or any
other direct or indirect damages of any kind whatsoever incurred by
Licensee.
22. Damage Suspected to Licensee's Facilities Only.
22.1 In the event Licensee receives information that Licensee's
Facilities are damaged, Licensee shall notify GTE of said damage at
[--TELEPHONE NUMBER--]. This is a 24-hour, 7 days per week
notification number. Licensee shall provide GTE all information
known to it regarding the damage to Licensee's Facilities.
22.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by telephone at
the Licensee's emergency telephone number. GTE shall provide
Licensee all information known to it regarding the damage to
Licensee's Facilities.
22.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's Facilities,
subject to the provisions of this Agreement.
22.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's facilities, or any action or
failure to act by GTE, appropriately or inappropriately, under this
Section shall not be the basis for any claim by Licensee against GTE
for any damage to Licensee's Facilities or disruption of Licensee's
services, or any other direct or indirect damages of any kind
whatsoever incurred by Licensee and Licensee shall indemnify and
hold GTE harmless from any such claim.
23. Access to GTE's Manholes/Handholes.
23.1 GTE will allow Licensee to audit manholes/handholes that are
included in any COR submitted to GTE to confirm usability. Licensee
shall give GTE at least fourteen (14) days advance written notice of
its desire to audit and shall obtain all authorizations from
appropriate authorities required to open the manholes/handholes.
GTE shall have the right to have a GTE employee or agent present
when its manholes/handholes are being opened. Such GTE employee or
agent shall have the authority to suspend Licensee's activities in
and around GTE's manholes/handholes if, in the sole discretion of
said employee or agent, any hazardous conditions arise or any unsafe
practices are being followed by Licensee's employees, agents, or
contractors. Licensee agrees to reimburse GTE the cost of having
GTE's employee or agent present. Such charge shall be GTE's fully
loaded labor rates then in effect.
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23.2 For purposes other than to audit usability, GTE's manholes/handholes
shall be opened only as permitted by GTE and only after Licensee has
obtained all necessary authorizations from appropriate authorities to
open manholes/handholes and conduct work operations therein. GTE
shall have the right to have a GTE employee or agent present at any
site at which its manholes/handholes are being opened. Such GTE
employee or agent shall have the authority to suspend Licensee's work
operations in and around GTE's manholes/handholes if, in the sole
discretion of said employee or agent, any hazardous conditions arise
or any unsafe practices are being followed by Licensee's employees,
agents, or contractors. Licensee agrees to reimburse GTE the cost of
having GTE's employee or agent present. Such charge shall be GTE's
fully loaded labor rates then in effect. The presence of GTE's
authorized employee or agent shall not relieve Licensee of its
responsibility to conduct all of its work operations in and around
GTE's conduit(s) in a safe and workmanlike manner, in accordance with
the terms of this Agreement.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities; provided, however, that GTE shall condition any such sale,
assignment or other disposition subject to the rights granted to Licensee
pursuant to this Agreement. GTE shall promptly notify Licensee of any
proposed sale, assignment or other disposition of any GTE conduit(s) or
other GTE property used in connection with Licensee's Facilities.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee: __________________________
__________________________
__________________________
To GTE: __________________________
__________________________
__________________________
Any notice given by personal delivery shall be deemed to have been given
on the day of actual delivery and, if given by registered or certified
mail, return receipt requested, on the date of receipt thereof and, if
given by facsimile transmission, on the day of transmittal thereof if
given during the normal business hours of the recipient and on the next
business day if not given during normal business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any of
term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition or
other provision of this Agreement.
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27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify GTE
pursuant to this Agreement or (ii) a suit, action or proceeding to
compel either party to comply with the dispute resolution procedures
set forth in this section, the parties agree to use the following
procedure to resolve any dispute, controversy or claim arising out
of or relating to this Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute, controversy or claim arising
under this Agreement. The parties intend that these negotiations be
conducted by non-lawyer, business representatives. The substance of
the negotiations shall be left to the discretion of the
representatives. Upon mutual agreement, the representatives may
utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and
correspondence between the representatives for purposes of these
negotiations shall be treated as confidential, undertaken for
purposes of settlement, shall be exempt from discovery and
production, and shall not be admissible in the arbitration described
below or in any subsequent lawsuit without the concurrence of all
parties. Documents identified in or provided during such
negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request, the
dispute, controversy or claim shall be submitted to binding
arbitration by a single arbitrator pursuant to the rules of the
American Arbitration Association (AAA), except as hereinafter
provided. Discovery in any proceeding before the AAA shall be
controlled by the arbitrator and shall be permitted to the extent
set forth in this section. Parties may exchange, in any
combination, up to thirty-five (35) (none of which may contain
subparts) written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for
arbitration and shall be held in the city where GTE's local offices
are located. The arbitrator shall rule on the dispute, controversy
or claim by issuing a written opinion within thirty (30) days after
the close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the arbitrator
upon a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing procedures.
A party seeking discovery shall reimburse the responding party the
cost of reproducing documents (to include search time and
reproduction time costs). The fees associated with any arbitration,
including the fees of the arbitrator, shall be divided equally
between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, Licensee
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (I) workers' compensation laws,
(ii) unemployment compensation laws, (iii) the Federal Social Security
Law, (iv) the Fair Labor Standards Act, and (v) all laws, regulations,
rules, guidelines, policies, orders, permits and
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approvals of any governmental authority relating to environmental matters
and/or occupational safety.
29. Force Majeure.
Except for payment of the Occupancy Fees and other amounts payable under
this Agreement, neither party shall have any liability for its delays or
its failure in performance due to fire, flood, explosion, pest damage,
power failures, strikes or labor disputes, acts of God, the Elements,
war, civil disturbances, acts of civil or military authorities or the
public enemy, inability to secure raw materials, transportation
facilities, fuel or energy shortages, or other cause beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole or in
part, without the prior written consent of GTE. An assignment,
transfer or sub-license of this Agreement by Licensee shall not
relieve Licensee of its obligations under this Agreement. Any
assignment attempted without the prior written consent of GTE shall
be void.
30.2 GTE shall have the right to assign this Agreement and to
assign its rights and delegate its obligations and liabilities under
this Agreement, either in whole or in part. GTE shall provide
notice to Licensee of any assignment which shall state the effective
date thereof. Upon the effective date and to the extent of the
assignment, GTE shall be released and discharged from all
obligations and liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall be
governed and construed under the laws of the State of ________________
without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations or guidelines that subsequently
may be prescribed by any federal, state or local governmental authority.
To the extent required by any such subsequently prescribed law, rule,
regulation or guideline, the parties agree to modify, in writing, the
affected term(s) and condition(s) of this Agreement to bring them into
compliance with such law, rule, regulation or guideline. Should any term
of this Agreement be determined by a court or other entity with competent
jurisdiction to be unenforceable, all other terms of this Agreement shall
remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and are
not intended to affect the meaning or interpretation of any part of this
Agreement.
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34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
<TABLE>
<S> <C>
For GTE: For Licensee:
GTE
- ---------------------------------- -------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
</TABLE>
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EXHIBIT _____
OCCUPANCY FEES
L-16
<PAGE> 190
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION
1. This document describes the reciprocal compensation arrangements between
DTI and GTE for Local Tariff, Toll and Switched Access Services. The
Parties shall compensate each other for transport and termination of such
traffic at the rates provided in Appendix D and/or the appropriate
Parties' Switched Access Tariff.
2. Compensation for Call Termination
A. Reciprocal compensation does not apply in a resale
environment.
B. The following compensation terms shall apply in all cases
where DTI purchases GTE's unbundled Local Switching:
1. For local intra-switch calls between lines
connected to GTE's switch where DTI has purchased GTE's
unbundled Local Switching, the Parties agree to impose no call
termination charges on each other. GTE's Local Switching
charge will apply as described below where the call is:
(a) Originated by DTI's customer and completed to a GTE
customer:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to DTI.
(b) Originated by DTI's customer and completed to the
customer of a Third Party LEC (not affiliated with DTI)
using GTE's unbundled Local Switching:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to
DTI.
(c) Originated by DTI's customer and completed to another
DTI's customer using GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to
DTI.
(d) Originated by a GTE customer and terminated to DTI's
customer using GTE's unbundled Local Switching.
(1) No Local Switching charge will apply.
(e) Originated by the customer of a Third Party LEC (not
affiliated with DTI) using GTE's unbundled Local
Switching and terminated to DTI's customers using
GTE's unbundled Local Switching.
(1) No Local Switching charge will apply to DTI.
2. For Local inter-switch calls where DTI has purchased GTE's
unbundled Local Switching.
GTEs charges will apply to DTI described below where the call is:
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(a) Originated from DTI's end-user customer using GTE's
unbundled Local Switching and completed to a GTE
customer.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(3) (For call termination): Charges for local
interconnection/call termination, when applicable.
(b) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to a Third Party LEC (not
affiliated with DTI) customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the originating Office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(c) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to the interconnected network of
a Third Party LEC (not affiliated with DTI).
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport, and mileage shall be measured
between the originating office and the POI of the
Third Party's network.
(d) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(3) (For use of the local switch): Local Switching
charge at the terminating office.
(d) Originated by a GTE customer and terminated to DTI's
customer using GTE's unbundled Local Switching.
(1) (For use at local switch): Local Switching Charge
at the terminating office.
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(2) (For call termination): DTI shall charge GTE for
local interconnection/call termination, when
applicable.
(f) Originated by a customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local
Switching and terminated to DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
(g) Originated by a customer of the interconnected network of
a third-party LEC (not affiliated with DTI) and
terminated to DTI's customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
3. For intraLATA toll calls where DTI has purchased GTE's unbundled Local
Switching, charges per Unbundled Network Element pricing shall apply as
follows:
a. Originated by DTI's customer and completed to a GTE customer.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC (Residual Interconnection Charge) at
the originating office.
2. Shared transport charge between the two offices
will apply when DTI uses GTE's transport.
3. (For call termination): End Office Switching
charge at the terminating office (Switched Access Rate).
4. RIC and CCLC at the terminating office.
B. Originated by DTI's customer and completed to the customer of
a third-party LEC (not affiliated with DTI) using GTE's unbundled
Local Switching in a distant end office.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the originating office.
2. Shared transport charge between the two offices
will apply when DTI uses GTE's transport.
C. Originated by DTI customer and completed to the network of a
third-party LEC (not affiliated with DTI) interconnected with GTE's
network.
1. (For use of the local switch): Local Switching
charge, plus RIC and CCLC, at the originating office.
2. Common transport charge will apply when DTI uses
GTE's transport, and mileage shall be measured between the
originating office and the POI of the Third Party's network.
3. Tandem Switching, where applicable.
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D. Originated by DTI's customer and completed by another of
DTI's customers being served through GTE's unbundled Local Switching
in a distant office.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the originating office.
2. Shared transport charge between the two offices
will apply when DTI uses GTE's transport.
3. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the terminating office.
E. Originated by a GTE customer and terminated to DTI's customer
using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the terminating office.
2. (For call termination): DTI will charge GTE
Local Switching at the terminating office (Switched Access
Rate).
3. (For call termination): DTI will charge GTE NIC
and CCLC at the terminating office.
F. Originated by the customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local Switching in a
distant end office and terminated to DTI's customer using GTE's
unbundled Local Switching.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the terminating office.
G. Originated by a customer of the network of a third-party LEC
(not affiliated with DTI) interconnected with GTE's network and
terminated to DTI's customer using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching
charge plus RIC and CCLC at the terminating office.
4. For intrastate Switched Access calls where DTI's is using GTE's unbundled
Local Switching for calls originated from or terminated to an IXC for
completion:
a. For calls originated from DTI's customer to DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching
charge at the terminating office.
2. Originating RIC and CCLC.
3. GTE will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
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4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
B. For calls originating from DTI's customer to an IXC's switch
not affiliated with DTI.
1. (For use of the local switch): DTI's customer to
an IXC's switch not affiliated with DTI.
2. Originating RIC and CCLC.
3. GTE shall charge the non-affiliated IXC for the
following originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge the non-affiliated IXC for the
following Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
C. For calls terminating to DTI's end-user customer from DTI's
own IXC switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching
charge at the terminating office.
2. Terminating RIC and CCLC.
3. GTE will charge DTI's IXC (affiliate) the
following Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC (affiliate) for the
following Switched Access elements on a meet-point basis:
(a) Terminating RIC and CCLC.
(b) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch
not affiliated with DTI.
1. (For use of the local switch): Local Switching
charge at the terminating office.
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2. Terminating RIC and CCLC.
3. GTE shall charge the IXC for the following
terminating Switched Access on a meet point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC for the following Switched
Access elements on a meet-point basis:
(a) Terminating RIC and CCLC;
(b) Local Switching.
5. For interstate Switched Access calls where DTI is using GTE's unbundled
Local Switching for calls originated from or terminated to an IXC for
completion:
a. For calls originated from DTI's customer to DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching
charge at the originating office.
2. Originating Residual Interconnection Charge (RIC)
and CCL.
3. GTE shall charge DTI's IXC affiliate for the
following originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(C) Local Switching.
B. For calls originated from DTI's customer to an IXC's switch
not affiliated to DTI.
1. (For use of the local switch): Local Switching
charge at the terminating office.
2. Originating RIC and CCLC.
3. GTE shall charge the IXC for the following
originating Switched Access on a meet-point basis:
(a) Local Transport;
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(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access
elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
C. For calls terminating to DTI's customer for DTI's own IXC switch (or
that of an affiliate) for completion.
1. (For use of the local switch): Local Switching
charge at the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge DTI's IXC (affiliate) the
following Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch
not affiliated with DTI.
1. (For use of the local switch): Local Switching
charge at the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge the non-affiliated IXC for the
following terminating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access
elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
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APPENDIX 46A
GTE TERMS
Pursuant to Section 46 of Article III of the GTE/Digital Teleport, Inc.
Interconnection Agreement, and subject to all the terms and conditions of that
Section, each of the following rates or terms may be replaced or supplemented
by the correlative rate or term set forth in the Arbitrating CLEC Terms listed
in Appendix 46, as and when provided in Section 46 and only until, as long as,
and under the conditions prescribed by Section 46.
1. Substitute the Avoided Cost Discount in Appendix F with the resale
discount rates(s) that may be indicated in Appendix 46B.
2. Substitute the list of services excluded from resale under Section 2.2 of
Article VI to remove those services to be made available for resale that
may be indicated in Appendix 46B.
3. Substitute the list of services available for resale but not at a
discount under Section 2.3 if Article VI to remove those services to be
made available for resale at a discount that may be indicated in Appendix
46B.
4. Substitute the rates for transport and termination of traffic in Appendix
D with the rates that may be indicated in Appendix 46B.
5. Substitute the prices for unbundled elements in Appendix G with prices
that may be indicated in Appendix 46B.
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APPENDIX 46B
ARBITRATING CLEC TERMS
Pursuant to Section 46 of Article III of the GTE/Digital Teleport, Inc.
Interconnection Agreement, and subject to all of the terms and conditions
thereof, and after notice as called for in Section 46, the following terms as
written in the "Arbitrating CLEC" Agreement referred to in Section 46 will be
substituted for the GTE Terms which are set out in Appendix 46A as and when
Section 46 calls for them to be substituted.
When the identity of the Arbitrating CLEC Agreement is established pursuant to
the provisions of Section 46, the parties shall modify this Appendix by
replacing the descriptions of subjects below with the specific rates and terms
of the Arbitrating CLEC Agreement that describes those precise points.
1. The resale discount percentages(s) ordered by the arbitrator to apply to
the services that will be provided under Article VI of this Agreement for
resale at a discount.
2. The services that were ordered by the arbitrator to be made available for
resale which would otherwise be excluded from available resale services
under Article VI, Section 2.2 of this Agreement.
3. The services that were ordered by the arbitrator to be made available for
resale at a discount which would otherwise be made available but not at a
discount under Article VI, Section 2.3 of this Agreement.
4. The rates for transport and termination of traffic ordered by the
arbitrator to apply to the services that will be provided under Article V
of this agreement.
5. The rates for unbundled elements ordered by the arbitrator to apply to
the services that will be provided under Article VII of this Agreement.
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<PAGE> 1
EXHIBIT 10.24
INTERCONNECTION, RESALE AND UNBUNDLING AGREEMENT
BETWEEN
GTE SOUTHWEST INCORPORATED
GTE MIDWEST INCORPORATED
GTE ARKANSAS INCORPORATED
AND
DIGITAL TELEPORT, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
SCOPE AND INTENT OF AGREEMENT..........................................................................I-1
ARTICLE II
DEFINITIONS...........................................................................................II-1
1. General Definitions...................................................................................II-1
1.1 "ACCESS SERVICE REQUEST"............................................................II-1
1.2 "ACT"...............................................................................II-1
1.3 "AFFILIATE".........................................................................II-1
1.4 "AMA"...............................................................................II-1
1.5 "APPLICABLE LAW"....................................................................II-1
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM (ALI/DMS)"
....................................................................................II-1
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI"..........................................II-1
1.8 "BELLCORE"..........................................................................II-1
1.9 "BILL-AND-KEEP ARRANGEMENT".........................................................II-1
1.10 "BONA FIDE REQUEST (BFR)"...........................................................II-2
1.11 "BUSINESS DAY"......................................................................II-2
1.12 "CENTRAL OFFICE SWITCH".............................................................II-2
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS)....................................II-2
1.14 "CLLI CODES"........................................................................II-2
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS)...........................................II-2
1.16 "COMMISSION"........................................................................II-2
1.17 "COMMON CHANNEL SIGNALING" OR "CCS".................................................II-2
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC).........................................II-2
1.19 "COMPLIANCE"........................................................................II-2
1.20 "CUSTOMER"..........................................................................II-2
1.21 "CUSTOMER USAGE DATA"...............................................................II-2
1.22 "DS-1"..............................................................................II-2
1.23 "DS-3"..............................................................................II-3
1.24 "ELECTRONIC FILE TRANSFER"..........................................................II-3
1.25 "EMR"...............................................................................II-3
1.26 "E-911 SERVICE".....................................................................II-3
1.27 "EXCHANGE SERVICE"..................................................................II-3
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE".........................................II-3
1.29 "FACILITY"..........................................................................II-3
1.30 "FCC"...............................................................................II-3
1.31 "GENERATOR".........................................................................II-3
1.32 "GTOC"..............................................................................II-3
1.33 "GUIDE".............................................................................II-3
1.34 "HAZARDOUS CHEMICAL"................................................................II-3
1.35 "HAZARDOUS WASTE"...................................................................II-4
1.36 "IMMINENT DANGER"...................................................................II-4
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC)...........................................II-4
1.38 "INTERIM NUMBER PORTABILITY (INP)"..................................................II-4
1.39 "INTERCONNECTION POINT" ("IP")......................................................II-4
1.40 "ISDN USER PART (ISUP)".............................................................II-4
1.41 "IXC" OR "LNTEREXCHANGE CARRIER"....................................................II-4
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY"............................II-4
1.43 "LATA"..............................................................................II-4
1.44 "LINE INFORMATION DATA BASE (LIDB)".................................................II-4
</TABLE>
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<TABLE>
<S> <C>
1.45 "LINE SIDE".........................................................................II-4
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC"...................................................II-4
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG"............................................II-5
1.48 "LOCAL NUMBER PORTABILITY (LNP)"....................................................II-5
1.49 "LOCAL TRAFFIC".....................................................................II-5
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME"..................................................II-5
1.51 "MEET-POINT BILLING" OR "MPB".......................................................II-5
1.52 "MECAB".............................................................................II-5
1.53 "MECOD".............................................................................II-5
1.54 "MID-SPAN FIBER MEET"...............................................................II-5
1.55 "NANP"..............................................................................II-5
1.56 "NETWORK ELEMENT"...................................................................II-5
1.57 "NID" OR "NETWORK INTERFACE DEVICE".................................................II-6
1.58 "NUMBERING PLAN AREA" OR "NPA"......................................................II-6
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE"...............................II-6
1.60 "911 SERVICE".......................................................................II-6
1.61 "OWNER AND OPERATOR"................................................................II-6
1.62 "POI"...............................................................................II-6
1.63 "POLE ATTACHMENT"...................................................................II-6
1.64 "PROVIDER"..........................................................................II-6
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP"...........................................II-6
1.66 "RATE CENTER".......................................................................II-6
1.67 "RIGHT-OF-WAY" OR "ROW".............................................................II-7
1.68 "ROUTING POINT".....................................................................II-7
1.69 "SERVICE CONTROL POINT" OR "SCP"....................................................II-7
1.70 "SERVICE SWITCHING POINT" OR "SSP"..................................................II-7
1.71 "SIGNALING POINT" OR "SP"...........................................................II-7
1.72 "SIGNALING SYSTEM 7" OR "SS7".......................................................II-7
1.73 "SIGNAL TRANSFER POINT" OR "STP"....................................................II-7
1.74 "SUBSIDIARY"........................................................................II-7
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET"............................................II-7
1.76 "SWITCHED ACCESS SERVICE"...........................................................II-7
1.77 "TELECOMMUNICATIONS SERVICES".......................................................II-7
1.78 "THIRD PARTY CONTAMINATION".........................................................II-8
1.79 "TRUNK SIDE"........................................................................II-8
1.80 "UNDEFINED TERMS"...................................................................II-8
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES")....................................II-8
1.82 "WIRE CENTER".......................................................................II-8
ARTICLE III
GENERAL PROVISIONS...................................................................................III-1
1. Scope of General Provisions..........................................................................III-1
2. Term and Termination.................................................................................III-1
2.1 Term...............................................................................III-1
2.2 Post-Termination Arrangements......................................................III-1
2.3 Termination Upon Default...........................................................III-1
2.4 Termination Upon Sale..............................................................III-1
2.5 Liability upon Termination.........................................................III-1
3. Amendments...........................................................................................III-2
4. Assignment...........................................................................................III-2
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5. Authority............................................................................................III-2
6. Responsibility for Payment...........................................................................III-2
7. Billing and Payment..................................................................................III-2
7.1 Dispute............................................................................III-2
7.2 Late Payment Charge................................................................III-2
7.3 Due Date...........................................................................III-2
7.4 Audits.............................................................................III-2
8. Binding Effect.......................................................................................III-2
9. Capacity Planning and Forecasting....................................................................III-3
10. Compliance with Laws and Regulations.................................................................III-3
11. Confidential Information.............................................................................III-3
11.1 Identification.....................................................................III-3
11.2 Handling...........................................................................III-3
11.3 Exceptions.........................................................................III-4
11.4 Survival...........................................................................III-4
12. Consent..............................................................................................III-4
13. Cooperation on Fraud Minimization....................................................................III-4
14. Dispute Resolution...................................................................................III-4
14.1 Alternative to Litigation..........................................................III-4
14.2 Negotiations.......................................................................III-4
14.3 Arbitration........................................................................III-5
14.4 Expedited Arbitration Procedures...................................................III-5
14.5 Costs..............................................................................III-5
14.6 Continuous Service.................................................................III-5
15. Entire Agreement.....................................................................................III-5
16. Expenses.............................................................................................III-6
17. Force Majeure........................................................................................III-6
18. Good Faith Performance...............................................................................III-6
19. Governing Law........................................................................................III-6
20. Standard Practices...................................................................................III-6
21. Headings.............................................................................................III-6
22. Independent Contractor Relationship..................................................................III-6
23. Law Enforcement Interface............................................................................III-6
24. Liability and Indemnity..............................................................................III-7
24.1 Indemnification....................................................................III-7
24.2 End User and Content-Related Claims................................................III-7
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24.3 DISCLAIMER.........................................................................III-7
24.4 Limitation of Liability............................................................III-8
24.5 Intellectual Property..............................................................III-8
25. Multiple Counterparts................................................................................III-8
26. No Offer.............................................................................................III-8
27. No Third Party Beneficiaries.........................................................................III-8
28. Notices..............................................................................................III-8
29. Protection...........................................................................................III-9
29.1 Impairment of Service..............................................................III-9
29.2 Resolution.........................................................................III-9
30. Publicity............................................................................................III-9
31. Regulatory Agency Control............................................................................III-9
32. Changes in Legal Requirements........................................................................III-9
33. Effective Date.......................................................................................III-9
34. Regulatory Matters..................................................................................III-10
35. Rule of Construction................................................................................III-10
36. Section References..................................................................................III-10
37. Service Standards...................................................................................III-10
37.1 ..................................................................................III-10
37.2 ..................................................................................III-10
37.3 ..................................................................................III-10
38. Severability........................................................................................III-10
39. Subcontractors......................................................................................III-10
40. Subsequent Law......................................................................................III-10
41. Taxes...............................................................................................III-10
42. Trademarks and Trade Names..........................................................................III-11
43. Waiver..............................................................................................III-11
44. Environmental Responsibility........................................................................III-11
45. TBD Prices..........................................................................................III-12
46. Amendment of Certain Rates, Terms and Conditions....................................................III-13
</TABLE>
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ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS ...............................................................................IV-1
1. General...............................................................................................IV-1
2. Liability of GTE......................................................................................IV-1
2.1 Inapplicability of Tariff Liability.................................................IV-1
2.2 DTI Tariffs or Contracts............................................................IV-1
2.3 No Liability for Errors.............................................................IV-1
3. Unauthorized Changes..................................................................................IV-1
3.1 Procedures..........................................................................IV-1
3.2 Option to Restrict Changes Without Evidence of Authorization........................IV-2
4. Impact of Payment of Charges on Service...............................................................IV-2
5. Unlawful Use of Service...............................................................................IV-2
6. Timing of Messages....................................................................................IV-3
7. Procedures For Preordering, Ordering, Provisioning, Etc...............................................IV-3
8. Customer Contacts.....................................................................................IV-3
ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC...............................................V-1
1. Services Covered by This Article.......................................................................V-1
1.1 Types of Services....................................................................V-1
1.2 Service Locations for Interconnection Services and Facilities........................V-1
1.3 Additional Services or Service Locations.............................................V-1
2. Billing and Rates......................................................................................V-1
2.1 Rates and Charges....................................................................V-1
2.2 Billing..............................................................................V-1
3. Transport and Termination of Traffic...................................................................V-1
3.1 Traffic to be Exchanged..............................................................V-1
3.2 Compensation For Exchange Of Traffic.................................................V-2
3.3 Tandem Switching Traffic.............................................................V-3
3.4 Inter-Tandem Switching...............................................................V-3
4. Direct Network Interconnection.........................................................................V-3
4.1 Network Interconnection Architecture.................................................V-3
4.2 Compensation.........................................................................V-4
4.3 Trunking Requirements................................................................V-4
4.4 Network Redesigns Initiated by GTE...................................................V-6
4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection...................................V-6
5. Indirect Network Interconnection.......................................................................V-6
6. Number Resources.......................................................................................V-6
6.1 Number Assignment....................................................................V-6
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6.2 Rate Centers.........................................................................V-6
6.3 Routing Points.......................................................................V-6
6.4 Code and Numbers Administration......................................................V-6
6.5 Programming Switches..........................................................................V-7
7. Interim Number Portability (INP).......................................................................V-7
8. Meet-Point Billing.....................................................................................V-7
8.1 Meet-Point Arrangements.......................................................................V-7
8.2 Compensation..................................................................................V-8
9. Common Channel Signaling...............................................................................V-8
9.1 Service Description...........................................................................V-8
9.2 Signaling Parameters..........................................................................V-8
9.3 Privacy Indicators............................................................................V-8
9.4 Connection Through STP........................................................................V-8
9.5 Third Party Signaling Providers...............................................................V-8
9.6 Multi-Frequency Signaling.....................................................................V-8
10. Service Quality and Performance........................................................................V-9
11. Network Outages........................................................................................V-9
ARTICLE VI
RESALE OF SERVICES....................................................................................VI-1
1. General...............................................................................................VI-1
2. Terms and Conditions..................................................................................VI-1
2.1 Quality and Performance......................................................................VI-1
2.2 Restrictions on Resale.......................................................................VI-1
2.3 Restrictions on Discount of Retail Services..................................................VI-1
2.4 Resale to Other Carriers.....................................................................VI-2
3. Ordering and Billing..................................................................................VI-2
3.1 Local Service Request........................................................................VI-2
3.2 Certificate of Operating Authority...........................................................VI-2
3.3 Letter of Authorization......................................................................VI-2
3.4 Directory Assistance Listings................................................................VI-2
3.5 Nonrecurring Charges.........................................................................VI-2
3.6 Transfers Between DTI and Another Reseller of GTE Services...................................VI-2
3.7 Local Calling Detail.........................................................................VI-2
3.8 Procedures...................................................................................VI-2
3.9 LIDB.........................................................................................VI-2
3.10 "OLN"........................................................................................VI-2
4. Maintenance...........................................................................................VI-3
4.1 Maintenance, Testing and Repair..............................................................VI-3
4.2 Specifics and Procedures for Maintenance.....................................................VI-3
5.1 Description of Local Exchange Services Available for Resale..................................VI-3
5.2 List of Services Available for Resale........................................................VI-3
5.3 Rates........................................................................................VI-3
5.4 Grandfathered Services.......................................................................VI-4
5.5 Access.......................................................................................VI-4
5.6 Operator Services (OS) and Directory Assistance (DA).........................................VI-4
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ARTICLE VII
UNBUNDLED NETWORK ELEMENTS...........................................................................VII-1
1. General..............................................................................................VII-1
2. Unbundled Network Elements...........................................................................VII-1
2.1 Categories..................................................................................VII-1
2.2 Prices......................................................................................VII-1
2.3 Interconnection to Unbundled Elements.......................................................VII-1
2.4 Service Quality.............................................................................VII-2
3. Network Interface Device.............................................................................VII-2
3.1 Direct Connection...........................................................................VII-2
3.2 NID to NID Connection.......................................................................VII-2
3.3 Removal of Cable Pairs......................................................................VII-2
3.4 Maintenance.................................................................................VII-3
4. Loop Elements........................................................................................VII-3
4.1 Service Description.........................................................................VII-3
4.2 Categories of Loops.........................................................................VII-3
4.3 Conditioned Loops...........................................................................VII-3
4.4 Features, Functions, Attributes.............................................................VII-4
4.5 Digital Loop Carrier........................................................................VII-4
4.6 Unbundled Loop Facility Certification.......................................................VII-4
4.7 Unbundled Loop Facility Notification........................................................VII-5
4.8 Subloops....................................................................................VII-5
5. Port and Local Switching Elements....................................................................VII-5
5.1 Port........................................................................................VII-5
5.2 Ports Available as Unbundled Network Elements...............................................VII-5
5.3 Port Prices.................................................................................VII-6
5.4 ............................................................................................VII-6
Local Switching......................................................................................VII-6
5.5 Compliance with Section.....................................................................VII-6
6. Transport Facility...................................................................................VII-6
6.1 Service Description.........................................................................VII-6
6.2 Categories/Types............................................................................VII-6
7. SS7 Transport and Signaling..........................................................................VII-6
7.1 ............................................................................................VII-6
8. LIDB Services........................................................................................VII-6
9. Database 800-Type Services...........................................................................VII-7
10. Data Switching.......................................................................................VII-7
10.1 Access......................................................................................VII-7
10.2 Nondiscrimination...........................................................................VII-7
10.3 Testing, Monitoring, Administration and Maintenance.........................................VII-7
11. Digital Cross Connect System (DCS)...................................................................VII-7
11.1 Access......................................................................................VII-7
11.2 Optional Characteristics....................................................................VII-7
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11.3 Alternate Provisioning......................................................................VII-7
11.4 Elements....................................................................................VII-7
11.5 Capabilities................................................................................VII-7
11.6 Protection and Performance..................................................................VII-7
11.7 Provisioning, Administration and Maintenance................................................VII-7
12. Operator Services (OS) and Directory Assistance (DA).................................................VII-8
12.1 Customized Routing..........................................................................VII-8
13. Advanced Intelligent Network Access (AIN)............................................................VII-8
14. Nondiscrimination Provision and Support..............................................................VII-9
15. Provisioning Intervals...............................................................................VII-9
16. Directory Assistance Listing.........................................................................VII-9
ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE
ARRANGEMENTS........................................................................................VIII-1
1. Bona Fide Request Process...........................................................................VIII-1
1.1 Intent.....................................................................................VIII-1
1.2 Process....................................................................................VIII-1
2. Transfer of Service Announcements...................................................................VIII-1
3. Misdirected Calls...................................................................................VIII-1
3.1 ...........................................................................................VIII-2
3.2 ...........................................................................................VIII-2
4. 911/E911 Arrangements...............................................................................VIII-2
4.1 Description of Service.....................................................................VIII-2
4.2 Transport..................................................................................VIII-2
4.3 Cooperation and Level of Performance.......................................................VIII-2
4.4 Basic 911 and E911 General Requirements....................................................VIII-2
4.5 Compensation...............................................................................VIII-6
5. Information Services Traffic........................................................................VIII-6
5.1 Routing....................................................................................VIII-6
5.2 Billing and Collection and Information Service Provider (ISP) Remuneration.................VIII-6
5.3 900-976 Call Blocking......................................................................VIII-7
5.4 Miscellaneous..............................................................................VIII-7
6. Telephone Relay Service.............................................................................VIII-7
7. Directory Assistance (DA) and Operator Services (OS)................................................VIII-7
7.1 Directory Assistance Calls.................................................................VIII-7
7.2 Operator Services Calls....................................................................VIII-7
8. Directory Assistance Listings Information...........................................................VIII-8
8.1 ...........................................................................................VIII-8
8.2 ...........................................................................................VIII-8
8.3 ...........................................................................................VIII-8
9. Directory Listings and Directory Distribution.......................................................VIII-8
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10. Busy Line Verification and Busy Line Verification Interrupt.........................................VIII-8
11. SAG.................................................................................................VIII-9
12. Dialing Format Changes..............................................................................VIII-9
13. Operational Support Systems (OSS)...................................................................VIII-9
ARTICLE IX
COLLOCATION...........................................................................................IX-1
1. Physical Collocation..................................................................................IX-1
1.1 Space Planning...............................................................................IX-1
1.2 Connection to Customer Loops and Ports.......................................................IX-1
1.3 Connection to Other Collocated Carriers......................................................IX-1
1.4 Choice of Vendor.............................................................................IX-1
1.5 Monitoring...................................................................................IX-2
1.6 Phone Service................................................................................IX-2
1.7 Intraoffice Diversity........................................................................IX-2
1.8 DTI Proprietary Information..................................................................IX-2
1.9 Notification of Modifications................................................................IX-2
1.10 Drawings.....................................................................................IX-2
1.11 Construction of Space........................................................................IX-2
1.12 Connection Equipment.........................................................................IX-3
1.13 Access to DTI Collocation Space..............................................................IX-3
2. Virtual Collocation...................................................................................IX-4
2.1 Existing Virtual Collocation.................................................................IX-4
2.2 Conversion from Physical to Virtual..........................................................IX-4
2.3 Vendors......................................................................................IX-4
2.4 Inspection...................................................................................IX-4
ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY.....................................................X-1
APPENDIX A
GTE PERFORMANCE MEASURES (PM)..........................................................................A-1
APPENDIX B
SERVICE MATRIX.........................................................................................B-1
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES AND
FACILITIES AGREEMENT...................................................................................C-1
APPENDIX D
RATES AND CHARGES FOR TRANSPORT AND TERMINATION
OF TRAFFIC.............................................................................................D-1
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF...............................................E-1
APPENDIX F
SERVICES AVAILABLE FOR RESALE..........................................................................F-1
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APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS..........................................................................G-1
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS............................................................H-1
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE................................................I-1
APPENDIX J
SS7 SERVICES...........................................................................................J-1
APPENDIX K
POLE ATTACHMENT AGREEMENT..............................................................................K-1
APPENDIX L
CONDUIT OCCUPANCY AGREEMENT............................................................................L-1
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION...........................................................M-1
APPENDIX 46A
GTE TERMS..............................................................................................N-1
APPENDIX 46B
OTHERCLEC TERMS........................................................................................O-1
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This Interconnection, Resale and Unbundling Agreement (the "Agreement"), is made
effective as of ____________, 199_, by and between GTE Southwest
Incorporated/GTE Midwest Incorporated/GTE Arkansas Incorporated, with its
address for purposes of this Agreement at 600 Hidden Ridge Drive, Irving, Texas
75038 ("GTE"), and Digital Teleport, Inc., in its capacity as a certified
provider of local dial-tone service ("DTI"), with its address for this Agreement
at 11111 Dorsett Road, St. Louis, Missouri 63043 (GTE and DTI being referred to
collectively as the "Parties" and individually as a "Party"). This Agreement
covers services in the State of Arkansas only (the "State").
WHEREAS, interconnection between competing Local Exchange Carriers ("LECs") is
necessary and desirable for the mutual exchange and termination of traffic
originating on each LEC's network; and
WHEREAS, the Parties desire to exchange such traffic and related signaling in a
technically and economically efficient manner at defined and mutually agreed
upon interconnection points; and
WHEREAS, the Parties wish to enter into an agreement to interconnect their
respective telecommunications networks on terms that are fair and equitable to
both Parties; and
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes
specific obligations on LECs with respect to the interconnection of their
networks, resale of their telecommunications services, access to their poles,
ducts, conduits and rights-of-way and, in certain cases, the offering of certain
unbundled network elements and physical collocation of equipment in LEC
premises;
WHEREAS, GTE is entering, under protest, into certain aspects of this Agreement
that incorporate adverse results from the arbitrated agreements approved or
which may be approved by the Commission in this state and is doing so in order
to avoid the expense of arbitration while at the same time preserving its legal
positions, rights and remedies.
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, GTE and DTI hereby covenant and agree as follows:
<PAGE> 13
ARTICLE I
SCOPE AND INTENT OF AGREEMENT
Pursuant to this Agreement, the Parties will extend certain arrangements to one
another within each area in which they both operate within the State for
purposes of interconnection and the exchange of traffic between their respective
end user customers, and reciprocal access to poles, ducts, conduits and
rights-of-way. This Agreement also governs the purchase by DTI of certain
telecommunications services provided by GTE in its franchise areas for resale by
DTI, the purchase by DTI of certain unbundled network elements from GTE, and the
terms and conditions of the collocation of certain equipment of DTI in the
premises of GTE. This Agreement is an integrated package that reflects a
balancing of interests critical to the Parties. This Agreement will be submitted
to the Arkansas Public Service Commission ("the Commission") for approval. The
Parties agree that their entrance into this Agreement is without prejudice to
and does not waive any positions they may have taken previously, or may take in
the future, in any legislative, regulatory, judicial or other public forum
addressing any matters, including matters related to the same types of
arrangements and/or matters related to GTE's cost recovery covered in this
Agreement. DTI agrees to negotiate reciprocal terms and conditions with GTE
based on this Agreement. GTE's execution of this Agreement is not a concession
or waiver in any manner concerning its position that certain of the rates, terms
and conditions contained herein are unlawful, illegal and improper.
The services and facilities to be provided to DTI by GTE in satisfaction of this
Agreement may be provided pursuant to GTE tariffs and then current practices.
Should such services and facilities be modified by tariff or by Order, including
any modifications resulting from other Commission proceedings, federal court
review or other judicial action, such modifications will be deemed to
automatically supersede any rates and terms and conditions of this Agreement.
GTE will provide notification to DTI before such a tariff becomes effective, and
DTI may provide input on such proposed tariff. The Parties shall cooperate with
one another for the purpose of incorporating required modifications into this
Agreement.
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ARTICLE II
DEFINITIONS
1. General Definitions. Except as otherwise specified herein, the
following definitions shall apply to all Articles and Appendices
contained in this Agreement. Additional definitions that are specific
to the matters covered in a particular Article may appear in that
Article. To the extent that there may be any conflict between a
definition set forth in this Article II and any definition in a
specific Article or Appendix, the definition set forth in the specific
Article or Appendix shall control with respect to that Article or
Appendix.
1.1 "ACCESS SERVICE REQUEST" (ASR) means an industry standard form
used by the Parties to add, establish, change or disconnect
services or trunks for the purposes of Interconnection.
1.2 "ACT" means the Telecommunications Act of 1996, Public Law
104-104 of the 104th United States Congress effective February
8, 1996.
1.3 "AFFILIATE" of a Party means a person, corporation or other
legal entity that, directly or indirectly, owns or controls a
Party, or is owned or controlled by, or is under common
ownership or control with a Party.
1.4 "AMA" means the Automated Message Accounting structure
inherent in switch technology that initially records
telecommunication message information. AMA format is contained
in the Automated Message Accounting document, published by
Bellcore as GR-1100-CORE which defines the industry standard
for message recording.
1.5 "APPLICABLE LAW" shall mean all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders,
permits, and approvals of any Governmental Authority, which
apply or relate to the subject matter of this Agreement.
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM
(ALI/DMS)" means the emergency services (E911/911) database
containing customer location information (including name,
address, telephone number, and sometimes special information
from the local service provider) used to process subscriber
access records into Automatic Location Identification (ALI)
records. From this database, records are forwarded to GTE's
ALI Gateway for downloading by local ALI database systems to
be available for retrieval in response to ANI from a 9-1-1
call. Also, from this database, GTE will upload to its
selective routers the selective router ALI (SR/ALI) which is
used to determine to which Public Safety Answering Point
("PSAP") to route the call.
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" refers to the
number transmitted through the network identifying the calling
party.
1.8 "BELLCORE" means an organization owned jointly by the Bell
regional holding companies and that may in the future be owned
partially or totally by other persons, that conducts research
and development projects for its owners, including development
of new telecommunications services. Bellcore also provides
certain centralized technical and management services for the
regional holding companies and also provides generic
requirements for the telecommunications industry for products,
services and technologies.
1.9 "BILL-AND-KEEP ARRANGEMENT" means a compensation arrangement
whereby the Parties do not render bills to each other for the
termination of local traffic specified in this Agreement and
whereby the Parties terminate local exchange traffic
originating from end-
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<PAGE> 15
users served by the networks of the other Party without
explicit charging among or between said carriers for such
traffic exchange.
1.10 "BONA FIDE REQUEST (BFR)" process is intended to be used when
requesting customized Service Orders for certain services,
features, capabilities or functionality defined and agreed
upon by the Parties as services to be ordered as Bona Fide
Requests.
1.11 "BUSINESS DAY" shall mean Monday through Friday, except for
holidays on which the U.S. mail is not delivered.
1.12 "CENTRAL OFFICE SWITCH" means a switch used to provide
telecommunications services including (I) "End Office
Switches" which are Class 5 switches from which end user
Exchange Services are directly connected and offered, and (ii)
"Tandem Office Switches" which are Class 4 switches which are
used to connect and switch trunk circuits between and among
central office switches. Central office switches may be
employed as combination end office/tandem office switches
(combination Class 5/Class 4).
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the
billing record and clearing house transport system that the
Regional Bell Operating Companies ("RBOCs") and other
incumbent LECs use to efficiently exchange out collects and in
collects as well as Carrier Access Billing System ("CABS")
records.
1.14 "CLLI CODES" means Common Language Location Identifier Codes.
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means a radio
communication service between mobile stations or receivers and
land stations, or by mobile stations communicating among
themselves that is provided for profit and that makes
interconnected service available to the public or to such
classes of eligible users as to be effectively available to a
substantial portion of the public.
1.16 "COMMISSION" means the Arkansas Public Service Commission.
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" means a high-speed
specialized packet-switched communications network that is
separate (out-of-band) from the public packet-switched and
message networks. CCS carries addressed signaling messages for
individual trunk circuits and/or database-related services
between Signaling Points in the CCS network using SS7
signaling protocol.
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) means any company
or person authorized to provide local exchange services in
competition with an ILEC.
1.19 "COMPLIANCE" means environmental and safety laws and
regulations are based upon a federal regulatory framework,
with certain responsibilities delegated to the States. An
environmental/safety compliance program may include review of
applicable laws/regulations, development of written
procedures, training of employees and auditing.
1.20 "CUSTOMER" may mean GTE or DTI depending on the context and
which Party is receiving the service from the other Party.
1.21 "CUSTOMER USAGE DATA" means that the local telecommunications
services usage data of a CLEC customer, measured in minutes,
sub-minute increments, message units, or otherwise, that is
recorded and exchanged by the Parties.
1.22 "DS-1" is a digital signal rate of 1.544 Mbps.
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1.23 "DS-3" is a digital signal rate of 44.736 Mbps.
1.24 "ELECTRONIC FILE TRANSFER" refers to a system or process which
utilizes an electronic format and protocol to send/receive
data files.
1.25 "EMR" means the Exchange Message Record which is an industry
standard record used to exchange telecommunications message
information among CLECs for billable, nonbillable, sample,
settlement and study data. EMR format is defined in
BR-010-200-010 CRIS Exchange Message Record, published by
Bellcore and which defines the industry standard for exchange
message records.
1.26 "E-911 SERVICE" is a method of routing 911 calls to a Public
Service Answering Point that uses a customer location database
to determine the location to which a call should be routed.
E-9-1-1 service includes the forwarding of the caller's
Automatic Number Identification (ANI) to the PSAP where the
ANI is used to retrieve and display the Automatic Location
Identification (ALI) on a terminal screen at the answering
Attendant's position. It usually includes selective routing.
1.27 "EXCHANGE SERVICE" refers to all basic access line services,
or any other services offered to end users which provide end
users with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications
network ("PSTN"), and which enable such end users to place or
receive calls to all other stations on the PSTN.
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" means a service
that provides interconnecting carriers with the capability to
terminate basic fiber optic transmission facilities, including
optical terminating equipment and multiplexers, at GTE's wire
centers and access tandems and interconnect those facilities
with the facilities of GTE. Microwave is available on a
case-by-case basis where feasible.
1.29 "FACILITY" means all buildings, equipment, structures and
other items located on a single site or contiguous or adjacent
sites owned or operated by the same persons or person as used
in Article III, Section 44.
1.30 "FCC" means the Federal Communications Commission.
1.31 "GENERATOR" means under Resource Conservation Recovery Act
(RCRA), the person whose act produces a hazardous waste (40
CFR 261) or whose act first causes a hazardous waste to become
subject to regulation. The generator is legally responsible
for the proper management and disposal of hazardous wastes in
accordance with regulations.
1.32 "GTOC" means GTE Telephone Operating Company.
1.33 "GUIDE" means the GTE Open Market Transition Order/Processing
Guide/ALEC Customer Guide, which contains GTE's operating
procedures for ordering, provisioning, trouble reporting and
repair for resold services and unbundled elements. Except as
specifically provided otherwise in this Agreement, service
ordering, provisioning, billing and maintenance shall be
governed by the "Guide" which may be amended from time to time
by GTE as needed.
1.34 "HAZARDOUS CHEMICAL" means as defined in the U.S. Occupational
Safety and Health (OSHA) hazard communication standard (29 CFR
1910.1200), any chemical which is a health hazard or physical
hazard.
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1.35 "HAZARDOUS WASTE" means as described in Resource Conservation
Recovery Act (RCRA), a solid waste(s) which may cause, or
significantly contribute to an increase in mortality or
illness or pose a substantial hazard to human health or the
environment when improperly treated, stored, transported or
disposed of or otherwise managed because of its quantity,
concentration or physical or chemical characteristics.
1.36 "IMMINENT DANGER" means as described in the Occupational
Safety and Health Act and expanded for environmental matters,
any conditions or practices at a facility which are such that
a danger exists which could reasonably be expected to cause
death or serious harm or significant damage to the environment
or natural resources.
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) means any local
exchange carrier that was as of February 8,1996, deemed to be
a member of the Exchange Carrier Association as set forth in
47 C.F.R. s.69.601(b) of the FCC's regulations.
1.38 "INTERIM NUMBER PORTABILITY (INP)" means the delivery of LNP
capabilities, from a customer standpoint in terms of call
completion, with as little impairment of functioning, quality,
reliability, and convenience as possible and from a carrier
standpoint in terms of compensation, through the use of
existing and available call routing, forwarding, and
addressing capabilities.
1.39 "INTERCONNECTION POINT" ("IP") means the physical point on the
network where the two parties interconnect. The "IP" is the
demarcation point between ownership of the transmission
facility.
1.40 "ISDN USER PART (ISUP)" means a part of the SS7 protocol that
defines call setup messages and call takedown messages.
1.41 "IXC" OR "INTEREXCHANGE CARRIER" means a telecommunications
service provider authorized by the FCC to provide interstate
long distance communications services between LATAs and are
authorized by the State to provide inter- and/or intraLATA
long distance communications services within the State.
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" means
the physical connection of separate pieces of equipment,
transmission facilities, etc., within, between and among
networks, for the transmission and routing of exchange service
and exchange access.
1.43 "LATA" means Local Access and Transport Area. A LATA denotes a
geographic area for the provision and administration of
communications service; i.e., intraLATA or interLATA.
1.44 "LINE INFORMATION DATA BASE (LIDB)" means one or all, as the
context may require, of the Line Information databases owned
individually by GTE and other entities which provide, among
other things, calling card validation functionality for
telephone line number cards issued by GTE and other entities.
A LIDB also contains validation data for collect and third
number-billed calls; i.e., Billed Number Screening.
1.45 "LINE SIDE" refers to an end office switch connection that has
been programmed to treat the circuit as a local line connected
to an ordinary telephone station set. Line side connections
offer only those transmission and signaling features
appropriate for a connection between an end office and an
ordinary telephone set.
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" means any company certified
by the Commission to provide local exchange telecommunications
service. This includes the Parties to this Agreement.
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1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" means the Bellcore
reference customarily used to identify NPA-NXX routing and
homing information, as well as network element and equipment
designation.
1.48 "LOCAL NUMBER PORTABILITY (LNP)" means the ability of users of
telecommunications services to retain, at the same location,
existing telecommunications numbers without impairment of
quality, reliability, or convenience when switching from one
telecommunications carrier to another.
1.49 "LOCAL TRAFFIC" means traffic that is originated by an end
user of one Party and terminates to the end user of the other
Party within GTE's then current local serving area, including
mandatory local calling scope arrangements. A mandatory local
calling scope arrangement is an arrangement that provides end
users a local calling scope, Extended Area Service ("EAS"),
beyond their basic exchange serving area. Local Traffic does
not include optional local calling scopes (i.e., optional rate
packages that permit the end user to choose a local calling
scope beyond their basic exchange serving area for an
additional fee), referred to hereafter as "optional EAS."
Local Traffic excludes Information Service Provider ("ISP")
traffic (e.g., Internet, paging, 900-976, etc.).
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" means the distribution
frame used to interconnect cable pairs and line trunk
equipment terminating on a switching system.
1.51 "MEET-POINT BILLING" OR "MPB" refers to an arrangement whereby
two LECs jointly provide the transport element of a switched
access service to one of the LEC's end office switches, with
each LEC receiving an appropriate share of the transport
element revenues as defined by their effective access tariffs.
1.52 "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 Telecommunications Industry Solutions ("ATIS").
The MECAB document, published by Bellcore as Special Report
SR-BDS-000983, contains the recommended guidelines for the
billing of an access service provided by two or more LECs, or
by one LEC in two or more states within a single LATA.
1.53 "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 under the auspices 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, establish methods for processing orders for
access service which is to be provided by two or more LECs.
1.54 "MID-SPAN FIBER MEET" means an Interconnection architecture
whereby two carriers' fiber transmission facilities meet at a
mutually agreed-upon POI.
1.55 "NANP" means the "North American Numbering Plan", the system
of telephone numbering employed in the United States, Canada,
and the Caribbean countries that employ NPA 809.
1.56 "NETWORK ELEMENT" means a facility or equipment used in the
provision of a telecommunications service. Network Element
includes features, functions, and capabilities that are
provided by means of such facility or equipment, including
subscriber
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numbers, databases, signaling systems, and information
sufficient for billing and collection or used in the
transmission, routing, or other provision of a
telecommunications service.
1.57 "NID" OR "NETWORK INTERFACE DEVICE" means the point of
demarcation between the end user's inside wiring and GTE's
facilities.
1.58 "NUMBERING PLAN AREA" OR "NPA" is also sometimes referred to
as an area code. This is the three digit indicator which is
defined by the "A", "B", and "C" digits of each 10-digit
telephone number within the NANP. Each NPA contains 800
possible NXX Codes. There are two general categories of NPA,
"Geographic NPAs" and "Non-Geographic NPAs". A Geographic NPA
is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with
services provided within that geographic area. A
Non-Geographic NPA, also known as a "Service Access Code" or
"SAC Code" is typically associated with a specialized
telecommunications service which may be provided across
multiple geographic NPA areas. 800, 900, 700, and 888 are
examples of Non-Geographic NPAs.
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" is the
three digit switch entity indicator which is defined by the
"D", "E", and "F" digits of a 10-digit telephone number within
the NANP. Each NXX Code contains 10,000 station numbers.
1.60 "911 SERVICE" means a universal telephone number which gives
the public direct access to the PSAP. Basic 911 service
collects 911 calls from one or more local exchange switches
that serve a geographic area. The calls are then sent to the
correct authority designated to receive such calls.
1.61 "OWNER AND OPERATOR" means as used in OSHA regulations, owner
is the legal entity, including a lessee, which exercises
control over management and record keeping functions relating
to a building or facility. As used in the Resource
Conservation and Recovery Act (RCRA), operator means the
person responsible for the overall (or part of the) operations
of a facility.
1.62 "POI" means Point of Interconnection designated for routing of
local interconnection trunks.
1.63 "POLE ATTACHMENT" has the meaning as set forth in Article X
and Appendix K of this Agreement.
1.64 "PROVIDER" may mean GTE or DTI depending on the context and
which Party is providing the service to the other Party.
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" means an answering
location for 9-1-1 calls originating in a given area. A PSAP
may be designated as Primary or Secondary, which refers to the
order in which calls are directed for answering. Primary PSAPs
respond first; Secondary PSAPs receive calls on a transfer
basis only, and generally serve as a centralized answering
location for a particular type of emergency call. PSAPs are
staffed by employees of Emergency Response Agencies ("ERAs")
such as police, fire or emergency medical agencies or by
employees of a common bureau serving a group of such entities.
1.66 "RATE CENTER" means the specific geographic point and
corresponding geographic area that are associated with one or
more particular NPA-NXX Codes that have been assigned to a LEC
for its provision of Exchange Services. The geographic point
is identified by a specific Vertical and Horizontal (V&H)
coordinate that is used to calculate distance-
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sensitive end user traffic to/from the particular NPA-NXXs
associated with the specific Rate Center.
1.67 "RIGHT-OF-WAY" OR "ROW" means the right to use the land or
other property of another party to place poles, conduits,
cables, other structures and equipment, or to provide passage
to access such structures and equipment. A ROW may run under,
on, or above public or private property (including air space
above public or private property) and may include the right to
use discrete space in buildings, building complexes, or other
locations.
1.68 "ROUTING POINT" denotes a location that a LEC has designated
on its network as the homing (routing) point for traffic that
terminates to Exchange Services provided by the LEC that bear
a certain NPA-NXX designation. The Routing Point is used to
calculate airline mileage for the distance-sensitive transport
element charges of Switched Access Services. Pursuant to
Bellcore Practice BR795-100-100, the Routing Point may be an
end office location, or a "LEC Consortium Point of
Interconnection." The Routing Point must be in the same LATA
as the associated NPA-NXX.
1.69 "SERVICE CONTROL POINT" OR "SCP" is the node in the signaling
network to which informational requests for service handling,
such as routing, are directed and processed. The SCP is a real
time database system that, based on a query from the SSP,
performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue
call processing.
1.70 "SERVICE SWITCHING POINT" OR "SSP" means a Signaling Point
that can launch queries to databases and receive/interpret
responses used to provide specific customer services.
1.71 "SIGNALING POINT" OR "SP" means a node in the CCS network that
originates and/or receives signaling messages, or transfers
signaling messages from one signaling link to another, or
both.
1.72 "SIGNALING SYSTEM 7" OR "SS7" means the signaling protocol,
Version 7, of the CCS network, based upon American National
Standards Institute ("ANSI") standards.
1.73 "SIGNAL TRANSFER POINT" OR "STP" means a packet switch in the
CCS network that is used to route signaling messages among
SSPs, SCPs and other STPs in order to set up calls and to
query databases for advanced services. GTE's network includes
mated pairs of local and regional STPs. STPs are provided in
pairs for redundancy. GTE STPs conform to ANSI T1.111-8
standards.
1.74 "SUBSIDIARY" of a Party means a corporation or other legal
entity that is majority owned by such Party.
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" means synchronous
electrical ("STS") or optical channel ("OC") connections
between LECs.
1.76 "SWITCHED ACCESS SERVICE" means the offering of facilities for
the purpose of the origination or termination of traffic to or
from Exchange Service customers in a given area pursuant to a
switched access tariff. Switched Access Services include:
Feature Group A, Feature Group B. Feature Group C, Feature
Group D, 800 access and 900 access services.
1.77 "TELECOMMUNICATIONS SERVICES" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
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1.78 "THIRD PARTY CONTAMINATION" means environmental pollution that
is not generated by the LEC or DTI but results from off-site
activities impacting a facility.
1.79 "TRUNK SIDE" refers to a central office switch connection that
is capable of, and has been programmed to treat the circuit
as, connecting to another switching entity, for example, to
another central office switch. Trunk side connections offer
those transmission and signaling features appropriate for the
connection of switching entities and cannot be used for the
direct connection of ordinary telephone station sets.
1.80 "UNDEFINED TERMS" means the Parties acknowledge that terms may
appear in this Agreement which are not defined and agree that
any such terms shall be construed in accordance with their
customary usage in the telecommunications industry as of the
effective date of this Agreement.
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") means
vertical services and switch functionalities provided by GTE,
including: Automatic Call Back; Automatic Recall; Call
Forwarding Busy Line/Don't Answer; Call Forwarding Don't
Answer; Call Forwarding Variable; Call Forwarding - Busy Line;
Call Trace; Call Waiting; Call Number Delivery Blocking Per
Call; Calling Number Blocking Per Line; Cancel Call Waiting;
Distinctive Ringing/Call Waiting; Incoming Call Line
Identification Delivery; Selective Call Forward; Selective
Call Rejection; Speed Calling; and Three Way Calling/Call
Transfer.
1.82 "WIRE CENTER" means a building or space within a building that
serves as an aggregation point on a LEC's network, where
transmission facilities and circuits are connected or
switched. "Wire center" can also denote a building in which
one or more Central Offices, used for the provision of
exchange services and access services, are located.
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ARTICLE III
GENERAL PROVISIONS
1. Scope of General Provisions. Except as may otherwise be set forth in a
particular Article or Appendix of this Agreement, in which case the
provisions of such Article or Appendix shall control, these General
Provisions apply to all Articles and Appendices of this Agreement.
2. Term and Termination.
2.1 Term. Subject to the termination provisions contained in this
Agreement, the term of this Agreement shall be two (2) years
from the effective date referenced in the first paragraph of
this Agreement and shall continue in effect for consecutive
one (1) year terms until either Party gives the other Party at
least ninety (90) calendar days written notice of termination,
which termination shall be effective at the end of the
then-current term. In the event notice is given less than 90
calendar days prior to the end of the current term, this
Agreement shall remain in effect for 90 calendar days after
such notice is received, provided, that in no case shall the
term be extended beyond 90 calendar days after the end of the
current term.
2.2 Post-Termination Arrangements. Except in the case of
termination as a result of either Party's default or a
termination upon sale, for service arrangements made available
under this Agreement and existing at the time of termination,
those arrangements may continue without interruption (a) under
a new agreement voluntarily executed by the Parties; (b)
standard terms and conditions approved and made generally
effective by the Commission, if any; (c) tariff terms and
conditions made generally available to all CLECs; or (d) any
rights under Section 252(I) of the Act.
2.3 Termination Upon Default. Either Party may terminate this
Agreement in whole or in part in the event of a default by the
other Party; provided however, that the non-defaulting Party
notifies the defaulting party in writing of the alleged
default and that the defaulting Party does not cure the
alleged default within sixty (60) calendar days of receipt of
written notice thereof. Default is defined to include:
(a) A Party's insolvency or the initiation of bankruptcy or
receivership proceedings by or against the Party; or
(b) A Party's refusal or failure in any material respect properly
to perform its obligations under this Agreement, or the
violation any of the material terms or conditions of this
Agreement.
2.4 Termination Upon Sale. Notwithstanding anything to the
contrary contained herein, a Party may terminate this
Agreement as to a specific operating area or portion thereof
of such Party if such Party sells or otherwise transfers the
area or portion thereof. The Party shall provide the other
Party with at least ninety (90) calendar days' prior written
notice of such termination, which shall be effective on the
date specified in the notice. Notwithstanding termination of
this Agreement as to a specific operating area, this Agreement
shall remain in full force and effect in the remaining
operating areas.
2.5 Liability upon Termination. Termination of this Agreement, or
any part hereof, for any cause shall not release either Party
from any liability which at the time of termination had
already accrued to the other Party or which thereafter accrues
in any respect to any act or omission occurring prior to the
termination or from an obligation which is expressly stated in
this Agreement to survive termination.
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3. Amendments. Any amendment, modification, or supplement to this
Agreement must be in writing and signed by an authorized representative
of each Party. The term "this Agreement" shall include future
amendments, modifications, and supplements.
4. Assignment. Any assignment by either Party of any right, obligation, or
duty, in whole or in part, or of any interest, without the written
consent of the other Party shall be void, except that either Party may
assign all of its rights, and delegate its obligations, liabilities and
duties under this Agreement, either in whole or in part, to any entity
that is, or that was immediately preceding such assignment, a
Subsidiary or Affiliate of that Party without consent, but with written
notification. The effectiveness of an assignment shall be conditioned
upon the assignee's written assumption of the rights, obligations, and
duties of the assigning Party.
5. Authority. Each person whose signature appears on this Agreement
represents and warrants that he or she has authority to bind the Party
on whose behalf he or she has executed this Agreement.
6. Responsibility for Payment. All charges for Services provided under
this Agreement will be billed to DTI, including all applicable taxes
and surcharges. In addition, the End User Common Line (EUCL) Charge
from GTOC Tariff FCC No. 1 is applicable to Resold Services. DTI is
responsible for payment of charges billed regardless of any billing
arrangements or situation between DTI and its end user customer.
7. Billing and Payment. Except as provided elsewhere in this Agreement and
where applicable, in conformance with MECAB and MECOD guidelines, DTI
and GTE agree to exchange all information to accurately, reliably, and
properly bill for features, functions and services rendered under this
Agreement.
7.1 Dispute. If one Party disputes a billing statement issued by
the other Party, the billed Party shall notify Provider in
writing regarding the nature and the basis of the dispute
within six (6) months of the statement date or the dispute
shall be waived. The Parties shall diligently work toward
resolution of all billing issues.
7.2 Late Payment Charge. If any undisputed amount due on the
billing statement is not received by Provider on the payment
due date, Provider may charge, and Customer agrees to pay, at
Provider's option, interest on the past due balance at a rate
equal to the lesser of the interest rates set forth in the
applicable GTE/Contel state access tariffs or the GTOC/GSTC
FCC No. 1 tariff, one and one-half percent (1 1/2%) per month
or the maximum nonusurious rate of interest under applicable
law. Late payment charges shall be included on the next
statement.
7.3 Due Date. Payment is due 30 calendar days from the bill date.
7.4 Audits. Either Party may conduct an audit of the other Party's
books and records pertaining to the Services provided under
this Agreement, no more frequently than once per twelve (12)
month period, to evaluate the other Party's accuracy of
billing, data and invoicing in accordance with this Agreement.
Any audit shall be performed as follows: (I) following at
least thirty (30) Business Days' prior written notice to the
audited Party; (ii) subject to the reasonable scheduling
requirements and limitations of the audited Party; (iii) at
the auditing Party's sole cost and expense; (iv) of a
reasonable scope and duration; (v) in a manner so as not to
interfere with the audited Party's business operations; and
(vi) in compliance with the audited Party's security rules.
8. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the
Parties.
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9. Capacity Planning and Forecasting. Within thirty (30) days from the
Effective Date of this Agreement, the Parties agree to have met and
developed joint planning and forecasting responsibilities which are
applicable to Local Services, including Features, Network Elements,
INP, Interconnection Services, Collocation, Poles, Conduits and Rights
of Way (ROW). Such responsibilities shall include but are not limited
to the following:
(a) The Parties will establish periodic reviews of network and
technology plans and will notify one another no later than six (6)
months in advance of changes that would impact either Party's provision
of services.
(b) DTI will furnish to GTE information that provides for state-wide
annual forecasts of order activity, in-service quantity forecasts, and
facility/demand forecasts.
(c) The Parties will develop joint forecasting responsibilities for
traffic utilization over trunk groups and yearly forecasted trunk
quantities.
(d) DTI shall notify GTE promptly of changes to current forecasts
(increase or decrease) that generate a shift in the demand curve for
the following forecasting period.
10. Compliance with Laws and Regulations. Each Party shall comply with all
federal, state, and local statutes, regulations, rules, ordinances,
judicial decisions, and administrative rulings applicable to its
performance under this Agreement.
11. Confidential Information.
11.1 Identification. Either Party may disclose to the other
proprietary or confidential customer, technical, or business
information in written, graphic, oral or other tangible or
intangible forms ("Confidential Information"). In order for
information to be considered Confidential Information under
this Agreement, it must be marked "Confidential" or
"Proprietary," or bear a marking of similar import. Orally or
visually disclosed information shall be deemed Confidential
Information only if contemporaneously identified as such and
reduced to writing and delivered to the other Party with a
statement or marking of confidentially within thirty (30)
calendar days after oral or visual disclosure.
Notwithstanding the foregoing, preorders and all orders for Services or
network elements placed by DTI pursuant to this Agreement, and
information that would constitute customer proprietary network
information of DTI end user customers pursuant to the Act and the rules
and regulations of the FCC, as well as recorded usage information with
respect to DTI end users, whether disclosed by DTI to GTE or otherwise
acquired by GTE in the course of its performance under this Agreement,
and where GTE is the NANP Number Plan Administrator, DTI information
submitted to GTE in connection with such responsibilities shall be
deemed Confidential Information of DTI for all purposes under this
Agreement whether or not specifically marked or designated as
confidential or proprietary.
11.2 Handling. In order to protect such Confidential Information
from improper disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain
the exclusive property of the source;
(b) To limit access to such Confidential Information to authorized
employees who have a need to know the Confidential Information
for performance of this Agreement;
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(c) To keep such Confidential Information confidential and to use
the same level of care to prevent disclosure or unauthorized
use of the received Confidential Information as it exercises
in protecting its own Confidential Information of a similar
nature;
(d) Not to copy, publish, or disclose such Confidential
Information to others or authorize anyone else to copy,
publish, or disclose such Confidential Information to others
without the prior written approval of the source;
(e) To return promptly any copies of such Confidential
Information to the source at its request; and
(f) To use such Confidential Information only for purposes of
fulfilling work or services performed hereunder and for other
purposes only upon such terms as may be agreed upon between
the Parties in writing.
11.3 Exceptions. These obligations shall not apply to any
Confidential Information that was legally in the recipient's
possession prior to receipt from the source, was received in
good faith from a Third Party not subject to a confidential
obligation to the source, now is or later becomes publicly
known through no breach of confidential obligation by the
recipient, was developed by the recipient without the
developing persons having access to any of the Confidential
Information received in confidence from the source, or that is
required to be disclosed pursuant to subpoena or other process
issued by a court or administrative agency having appropriate
jurisdiction, provided, however, that the recipient shall give
prior notice to the source and shall reasonably cooperate if
the source deems it necessary to seek protective arrangements.
11.4 Survival. The obligation of confidentiality and use with
respect to Confidential Information disclosed by one Party to
the other shall survive any termination of this Agreement for
a period of three (3) years from the date of the initial
disclosure of the Confidential Information.
12. Consent. Where consent, approval, or mutual agreement is required of a
Party, it shall not be unreasonably withheld or delayed.
13. Cooperation on Fraud Minimization. DTI assumes responsibility for all
fraud associated with its end user customers and accounts. GTE shall
have no responsibility for, nor is it required to investigate or make
adjustments to DTI's account in cases of fraud. The Parties agree that
they shall cooperate with one another to resolve cases of fraud. The
Parties' fraud minimization procedures are to be cost effective and
implemented so as not to unduly burden or harm one Party as compared to
the other.
14. Dispute Resolution.
14.1 Alternative to Litigation. Except as provided under Section
252 of the Act with respect to the approval of this Agreement
by the Commission, the Parties desire to resolve disputes
arising out of or relating to this Agreement without
litigation. Accordingly, except for action seeking a temporary
restraining order or an injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute
resolution process, the Parties agree to use the following
alternative dispute resolution procedures as their sole remedy
with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
14.2 Negotiations. At the written request of a Party, each Party
will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute
arising out of or relating to this Agreement. The Parties
intend that these negotiations be
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conducted by non-lawyer, business representatives. The
location, format, frequency, duration, and conclusion of these
discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such
as mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these
negotiations shall be treated as confidential information
developed for purposes of settlement, exempt from discovery,
and shall not be admissible in the arbitration described below
or in any lawsuit without the concurrence of all Parties.
Documents identified in or provided with such communications,
which are not prepared for purposes of the negotiations, are
not so exempted and may, if otherwise discoverable, be
discovered or otherwise admissible, be admitted in evidence,
in the arbitration or lawsuit.
14.3 Arbitration. If the negotiations do not resolve the dispute
within sixty (60) Business Days of the initial written
request, the dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association except that the
Parties may select an arbitrator outside American Arbitration
Association rules upon mutual agreement. A Party may demand
such arbitration in accordance with the procedures set out in
those rules. Discovery shall be controlled by the arbitrator
and shall be permitted to the extent set out in this section.
Each Party may submit in writing to a Party, and that Party
shall so respond to, a maximum of any combination of
thirty-five (35) (none of which may have subparts) of the
following: interrogatories, demands to produce documents, or
requests for admission. Each Party is also entitled to take
the oral deposition of one individual of another Party.
Additional discovery may be permitted upon mutual agreement of
the Parties. The arbitration hearing shall be commenced within
sixty (60) Business Days of the demand for arbitration. The
arbitration shall be held in a mutually agreeable city. The
arbitrator shall control the scheduling so as to process the
matter expeditiously. The Parties may submit written briefs.
The arbitrator shall rule on the dispute by issuing a written
opinion within thirty (30) Business Days after the close of
hearings. The times specified in this section may be extended
upon mutual agreement of the Parties or by the arbitrator upon
a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having
jurisdiction.
14.4 Expedited Arbitration Procedures. If the issue to be resolved
through the negotiations referenced in Section 14.2 directly
and materially affects service to either Party's end user
customers, then the period of resolution of the dispute
through negotiations before the dispute is to be submitted to
binding arbitration shall be five (5) Business Days. Once such
a service affecting dispute is submitted to arbitration, the
arbitration shall be conducted pursuant to the expedited
procedures rules of the Commercial Arbitration Rules of the
American Arbitration Association (i.e., rules 53 through 57).
14.5 Costs. Each Party shall bear its own costs of these
procedures. A Party seeking discovery shall reimburse the
responding Party the costs of production of documents
(including search time and reproduction costs). The Parties
shall equally split the fees of the arbitration and the
arbitrator.
14.6 Continuous Service. The Parties shall continue providing
services to each other during the pendency of any dispute
resolution procedure, and the Parties shall continue to
perform their obligations (including making payments in
accordance with Article IV, Section 4) in accordance with this
Agreement.
15. Entire Agreement. This Agreement constitutes the entire agreement of
the Parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements, negotiations, proposals, and
representations, whether written or oral, and all contemporaneous oral
agreements, negotiations, proposals, and representations concerning
such subject matter. No
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representations, understandings, agreements, or warranties, expressed
or implied, have been made or relied upon in the making of this
Agreement other than those specifically set forth herein.
16. Expenses. Except as specifically set out in this Agreement, each Party
shall be solely responsible for its own expenses involved in all
activities related to the subject of this Agreement.
17. Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood, earthquake or
likes acts of God, wars, revolution, civil commotion, explosion, acts
of public enemy, embargo, acts of the government in its sovereign
capacity, labor difficulties, including without limitation, strikes,
slowdowns, picketing, or boycotts, unavailability of equipment from
vendor, changes requested by Customer, or any other circumstances
beyond the reasonable control and without the fault or negligence of
the Party affected, the Party affected, upon giving prompt notice to
the other Party, shall be excused from such performance on a day-to-day
basis to the extent of such prevention, restriction, or interference
(and the other Party shall likewise be excused from performance of its
obligations on a day-to-day basis until the delay, restriction or
interference has ceased); provided however, that the Party so affected
shall use diligent efforts to avoid or remove such causes of
nonperformance and both Parties shall proceed whenever such causes are
removed or cease.
18. Good Faith Performance. In the performance of their obligations under
this Agreement, the Parties shall act in good faith. In situations in
which notice, consent, approval or similar action by a Party is
permitted or required by any provision of this Agreement, such action
shall not be unreasonably delayed, withheld or conditioned.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the state where the Services are
provided or the facilities reside and shall be subject to the exclusive
jurisdiction of the courts therein.
20. Standard Practices. The Parties acknowledge that GTE shall be adopting
some industry standard approaches and/or establishing its own standard
approaches to various requirements hereunder applicable to DTI industry
which may be added in the Guide. DTI agrees that GTE may implement such
approaches to satisfy any GTE obligations under this Agreement. A copy
is attached hereto as Appendix A and is incorporated by reference into
this Agreement.
21. Headings. The headings in this Agreement are inserted for convenience
and identification only and shall not be considered in the
interpretation of this Agreement.
22. Independent Contractor Relationship. The persons provided by each
Party shall be solely that Party's employees and shall be under the
sole and exclusive direction and control of that Party. They shall not
be considered employees of the other Party for any purpose. Each Party
shall remain an independent contractor with respect to the other and
shall be responsible for compliance with all laws, rules and
regulations involving, but not limited to, employment of labor, hours
of labor, health and safety, working conditions and payment of wages.
Each Party shall also be responsible for payment of taxes, including
federal, state and municipal taxes, chargeable or assessed with respect
to its employees, such as Social Security, unemployment, workers'
compensation, disability insurance, and federal and state withholding.
Each Party shall indemnify the other for any loss, damage, liability,
claim, demand, or penalty that may be sustained by reason of its
failure to comply with this provision.
23. Law Enforcement Interface.
23.1 Except to the extent not available in connection with GTE's
operation of its own business, GTE shall provide seven day a
week/twenty-four hour a day assistance to law enforcement
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<PAGE> 28
persons for emergency traps, assistance involving emergency
traces and emergency information retrieval on customer invoked
CLASS services, including, without limitation, call traces
requested by DTI.
23.2 GTE agrees to work jointly with DTI in security matters to
support law enforcement agency requirements for taps, traces,
court orders, etc. Charges for providing such services for DTI
Customers will be billed to DTI.
23.3 GTE will, in non emergency situations, inform the requesting
law enforcement agencies that the end-user to be wire tapped,
traced, etc. is a DTI Customer and shall refer them to DTI.
24. Liability and Indemnity.
24.1 Indemnification. Subject to the limitations set forth in
Section 24.4 of this Article III, each Party agrees to
release, indemnify, defend, and hold harmless the other Party
from all losses, claims, demands, damages, expenses, suits, or
other actions, or any liability whatsoever, including, but not
limited to, costs and attorney's fees, whether suffered, made,
instituted, or asserted by any other party or person, for
invasion of privacy, personal injury to or death of any person
or persons, or for losses, damages, or destruction of
property, whether or not owned by others, proximately caused
by the indemnifying Party's negligence or willful misconduct,
regardless of form of action. The indemnified Party agrees to
notify the other Party promptly, in writing, of any written
claims, lawsuits, or demands for which it is claimed that the
indemnifying Party is responsible under this Section and to
cooperate in every reasonable way to facilitate defense or
settlement of claims. The indemnifying Party shall have
complete control over defense of the case and over the terms
of any proposed settlement or compromise thereof. The
indemnifying Party shall not be liable under this Section for
settlement by the indemnified Party or any claim, lawsuit, or
demand, if the indemnifying Party has not approved the
settlement in advance, unless the indemnifying Party has had
the defense of the claim, lawsuit, or demand tendered to it in
writing and has failed to assume such defense. In the event of
such failure to assume defense, the indemnifying Party shall
be liable for any reasonable settlement made by the
indemnified Party without approval of the indemnifying Party.
24.2 End User and Content-Related Claims. Each Party agrees to
release, indemnify, defend, and hold harmless the other Party,
its affiliates, and any third-party provider or operator of
facilities involved in the provision of Services, Unbundled
Network Elements or Facilities under this Agreement
(collectively, the "Indemnified Party") from all losses,
claims, demands, damages, expenses, suits, or other actions,
or any liability whatsoever, including, but not limited to,
costs and attorney's fees, suffered, made, instituted, or
asserted by either Party's end users against an Indemnified
Party arising from Services, Unbundled Network Elements or
Facilities. Each Party further agrees to release, indemnify,
defend, and hold harmless the Indemnified Party from all
losses, claims, demands, damages, expenses, suits, or other
actions, or any liability whatsoever, including, but not
limited to, costs and attorney's fees, suffered, made,
instituted, or asserted by any Third Party against an
Indemnified Party arising from or in any way related to actual
or alleged defamation, libel, slander, interference with or
misappropriation of proprietary or creative right, or any
other injury to any person or property arising out of content
transmitted by the Indemnified Party or such Party's end
users, or any other act or omission of the Indemnified Party
or such Party's end users.
24.3 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY
IN THIS AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR
WARRANTIES TO CUSTOMER CONCERNING THE SPECIFIC QUALITY OF ANY
SERVICES, UNBUNDLED NETWORK ELEMENTS OR FACILITIES PROVIDED
UNDER THIS
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<PAGE> 29
AGREEMENT. PROVIDER DISCLAIMS, WITHOUT LIMITATION, ANY
WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING, OR FROM USAGES OF TRADE.
24.4 Limitation of Liability. Each Party's liability, whether in
contract, tort or otherwise, shall be limited to direct
damages, which shall not exceed the monthly charges for the
Services, Unbundled Network Elements or facilities for the
month during which the claim of liability arose. Under no
circumstance shall either Party be responsible or liable for
indirect, incidental, or consequential damages, including, but
not limited to, economic loss or lost business or profits,
damages arising from the use or performance of equipment or
software, or the loss of use of software or equipment, or
accessories attached thereto, delay, error, or loss of data.
Should either Party provide advice, make recommendations, or
supply other analysis related to the Services, unbundled
network elements or facilities described in this Agreement,
this limitation of liability shall apply to provision of such
advice, recommendations, and analysis.
24.5 Intellectual Property. Neither Party shall have any obligation
to defend, indemnify or hold harmless, or acquire any license
or right for the benefit of, or owe any other obligation or
have any liability to, the other based on or arising from any
claim, demand, or proceeding by any Third Party alleging or
asserting that the use of any circuit, apparatus, or system,
or the use of any software, or the performance of any service
or method, or the provision or use of any facilities by either
Party under this Agreement constitutes direct or contributory
infringement, or misuse or misappropriation of any patent,
copyright, trademark, trade secret, or any other proprietary
or intellectual property right of any Third Party.
25. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which shall together constitute but one and the same document.
26. No Offer. This Agreement will be effective only upon execution and
delivery by both Parties and approval by the Commission in accordance
with Section 252 of the Act.
27. No Third Party Beneficiaries. Except as may be specifically set forth
in this Agreement, this Agreement does not provide and shall not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other right or privilege.
28. 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 U.S.
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.
Upon prior immediate oral agreement of the parties' designated
recipients identified below, notice may also be provided by facsimile,
internet or electronic messaging system, which shall be effective if
sent before 5:00 p.m. on that day, or if sent after 5:00 p.m. it will
be effective on the next Business Day following the date sent. 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:
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<PAGE> 30
If to GTE: GTE Central
Attention: State Director, External Affairs
1000 GTE Drive
Building "A"
Wentzville, Missouri 63385
Facsimile number: (616) 727-1686
Internet Address:
If to DTI: Digital Teleport, Inc.
Attention: J.W. Sheehy, Vice President, I.C. Support
11111 Dorsett Road
St. Louis, Missouri 63043
Facsimile number: (314) 253-6699
Internet Address:
29. Protection.
29.1 Impairment of Service. The characteristics and methods of
operation of any circuits, facilities or equipment of either
Party connected with the services, facilities or equipment of
the other Party pursuant to this Agreement shall not interfere
with or impair service over any facilities of the other Party,
its affiliated companies, or its connecting and concurring
carriers involved in its services, cause damage to their
plant, violate any applicable law or regulation regarding the
invasion of privacy of any communications carried over the
Party's facilities or create hazards to the employees of
either Party or to the public (each hereinafter referred to as
an "Impairment of Service").
29.2 Resolution. If either Party causes an Impairment in Service,
the Party whose network or service is being impaired (the
"Impaired Party") shall promptly notify the Party causing the
Impairment of Service (the "Impairing Party") of the nature
and location of the problem and that, unless promptly
rectified, a temporary discontinuance of the use of any
circuit, facility or equipment may be required. The Impairing
Party and the Impaired Party agree to work together to attempt
to promptly resolve the Impairment of Service. If the
Impairing Party is unable to promptly remedy the Impairment of
Service, then the Impaired Party may at its option temporarily
discontinue the use of the affected circuit, facility or
equipment.
30. Publicity. Any news release, public announcement, advertising, or any
form of publicity pertaining to this Agreement, provision of Services,
Unbundled Network Elements or Facilities pursuant to it, or association
of the Parties with respect to provision of the services described in
this Agreement shall be subject to prior written approval of both GTE
and DTI.
31. Regulatory Agency Control. This Agreement shall at all times be subject
to changes, modifications, orders, and rulings by the Federal
Communications Commission and/or the applicable state regulatory
commission to the extent the substance of this Agreement is or becomes
subject to the jurisdiction of such agency.
32. Changes in Legal Requirements. GTE and DTI further agree that the terms
and conditions of this Agreement were composed in order to effectuate
the legal requirements in effect at the time the Agreement was
produced. Any modifications to those requirements will be deemed to
automatically supersede any terms and conditions of this Agreement.
33. Effective Date. If this Agreement or changes or modifications thereto
are subject to approval of a regulatory agency, the "effective date" of
this Agreement for such purposes will be ten (10) Business Days after
such approval or in the event this Agreement is developed in whole or
in part through arbitration, sixty (60) Business Days after such
approval. Such date (i.e., ten (10) or, if
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<PAGE> 31
arbitrated, sixty (60) Business Days after the approval) shall become
the "effective date" of this Agreement for all purposes.
34. Regulatory Matters. Each Party shall be responsible for obtaining and
keeping in effect all their own FCC, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement.
35. Rule of Construction. No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
36. Section References. Except as otherwise specified, references within an
Article of this Agreement to a Section refer to Sections within that
same Article.
37. Service Standards.
37.1 The Parties shall meet applicable quality of local service
standards imposed by the Commission and will provide a level
of services to each other under this Agreement in compliance
with the nondiscrimination requirements of the Act.
37.2 GTE and DTI agree to implement the performance measures
defined in Appendix A.
37.3 The Parties will alert each other to any network events that
can result or have resulted in service interruption, blocked
calls, and/or changes in network performance.
38. Severability. If any provision of this Agreement is held by a court
or regulatory agency of competent jurisdiction to be unenforceable, the
rest of the Agreement shall remain in full force and effect and shall
not be affected unless removal of that provision results, in the
opinion of either Party, in a material change to this Agreement. If a
material change as described in this paragraph occurs as a result of
action by a court or regulatory agency, the Parties shall negotiate in
good faith for replacement language. If replacement language cannot be
agreed upon within a reasonable period, either Party may terminate this
Agreement without penalty or liability for such termination upon
written notice to the other Party.
39. Subcontractors. Provider may enter into subcontracts with third parties
or affiliates for the performance of any of Provider's duties or
obligations under this Agreement.
40. Subsequent Law. The terms and conditions of this Agreement shall be
subject to any and all applicable laws, rules, or regulations that
subsequently may be prescribed by any federal, state or local
governmental authority. To the extent required by any such subsequently
prescribed law, rule, or regulation, the Parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to
bring them into compliance with such law, rule, or regulation.
41. Taxes. Any state or local excise, sales, or use taxes (excluding any
taxes levied on income) resulting from the performance of this
Agreement shall be borne by the Party upon which the obligation for
payment is imposed under applicable law, even if the obligation to
collect and remit such taxes is placed upon the other Party. The
collecting Party shall charge and collect from the obligated Party, and
the obligated Party agrees to pay to the collecting Party, all
applicable taxes, except to the extent that the obligated Party
notifies the collecting Party and provides to the collecting Party
appropriate documentation as GTE requires that qualifies the obligated
Party for a full or partial exemption. Any such taxes shall be shown as
separate items on applicable billing documents between the Parties. The
obligated Party may contest the same in good faith, at its own expense,
and shall be entitled to the benefit of any refund or recovery,
provided that such Party shall not permit any lien to exist on any
asset of the other Party by reason of the contest. The collecting Party
shall cooperate in any such contest by the other Party. The other Party
will
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<PAGE> 32
indemnify the collecting Party from any sales or use taxes that may be
subsequently levied on payments by the other Party by the collecting
Party.
41.1 Tax - A charge which is statutorily imposed by the state or
local jurisdiction and is either (a) imposed on the seller
with the seller having the right or responsibility to pass the
charge(s) on to the purchaser and the seller is responsible
for remitting the charge(s) to the state or local jurisdiction
or (b) imposed on the purchaser with the seller having an
obligation to collect the charge(s) from the purchaser and
remit the charge(s) to the state or local jurisdiction.
Taxes shall include but not be limited to: federal excise tax,
state/local sales and use tax, state/local utility user tax,
state/local telecommunication excise tax, state/local gross receipts
tax, and local school taxes. Taxes shall not include income,
income-like, gross receipts on the revenue of a provider, or property
taxes. Taxes shall not include payroll withholding taxes unless
specifically required by statute or ordinance.
41.2 Fees/Regulatory Surcharges - A charge imposed by a regulatory
authority, other agency, or resulting from a contractual
obligation, in which the seller is responsible or required to
collect the fee/surcharge from the purchaser and the seller is
responsible for remitting the charge to the regulatory
authority, other agency, or contracting party.
Fees/Regulatory Surcharges shall include but not be limited to
E911/911, E311/311, franchise fees, Lifeline, hearing impaired, and
Commission surcharges.
42. Trademarks and Trade Names. Except as specifically set out in this
Agreement, 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 any purpose whatsoever.
43. Waiver. The failure of either Party to insist upon the performance of
any provision of this Agreement, or to exercise any right or privilege
granted to it under this Agreement, shall not be construed as a waiver
of such provision or any provisions of this Agreement, and the same
shall continue in full force and effect.
44. Environmental Responsibility.
44.1 GTE and DTI agree to comply with applicable federal, state and
local environmental and safety laws and regulations including
U.S. Environmental Protection Agency (EPA) regulations issued
under the Clean Air Act, Clean Water Act, Resource
Conservation and Recovery Act, Comprehensive Environmental
Response, Compensation and Liability Act, Superfund Amendments
and Reauthorization Act and the Toxic Substances Control Act
and OSHA regulations issued under the Occupational Safety and
Health Act of 1970. Each Party has the responsibility to
notify the other if Compliance inspections occur and/or
citations are issued that impact any aspect of this Agreement
such as occurring on a LEC Facility or involving DTI potential
employee exposure.
44.2 GTE and DTI shall provide notice of known and recognized
physical hazards or hazardous chemicals that must include
providing Material Safety Data Sheets (MSDSs) for materials
existing on site or brought on site to the Facility. Each
Party is required to provide specific notice for potential
imminent danger conditions which could include, but is not
limited to, a defective utility pole or significant petroleum
contamination in a manhole.
44.3 GTE will make available additional environmental control or
safety procedures for DTI to review and follow when working at
a GTE Facility. Providing these procedures, beyond government
regulatory Compliance requirements, is the decision of GTE.
These
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<PAGE> 33
practices/procedures will represent the regular work practices
required to be followed by the employees and contractors of
GTE for safety and environmental protection.
44.4 Any materials brought, used or remaining at the Facility by
DTI are owned by DTI. DTI will indemnify GTE for these
materials. No substantial new safety or environmental hazards
can be created or new hazardous materials can be used at a GTE
Facility. DTI must demonstrate adequate emergency response
capabilities for its materials used or remaining at the GTE
Facility.
44.5 When Third Party contamination is discovered at a GTE
Facility, the Party uncovering the condition must notify the
proper safety or environmental authority, if required under
applicable laws or regulations. DTI must also notify GTE of
Third Party contamination it discovers at GTE facilities. The
cost causer (requiring access) will become the generator, as
owner or operator, of any waste materials such as petroleum
contaminated water, sewage or manhole sediment.
Notwithstanding Section 24 and Section 44.9 of this Article
III, the cost causer (requiring access) shall indemnify the
other Party hereunder.
44.6 DTI should obtain and use its own environmental permits, if
necessary. If GTE's permit or EPA identification number must
be used, DTI must comply with all of GTE's environmental
processes including environmental "best management practices
(BMP)" and/or selection of disposition vendors and disposal
sites.
44.7 DTI visitors must comply with GTE security, fire safety,
safety, environmental and building practices/codes including
equivalent employee training when working in GTE facilities.
44.8 GTE and DTI shall coordinate plans or information required to
be submitted to government agencies, such as emergency
response plans and community reporting. If fees are associated
with filing, GTE and DTI must develop a cost sharing
procedure.
44.9 Notwithstanding Section 23, with respect to environmental
responsibility under this Section 44, GTE and DTI shall
indemnify, defend and hold harmless the other party from and
against any claims (including, without limitation, Third Party
claims for personal injury or real or personal property
damage), judgments, damages (including direct and indirect
damage, and punitive damages), penalties, fines, forfeitures,
cost, liabilities, interest and losses proximately caused by
the indemnifying Party's negligent or willful misconduct
regardless of form, or in connection with the violation or
alleged violation of any applicable requirement with respect
to the presence or alleged presence of contamination arising
out of the indemnifying party's acts or omissions concerning
its operations at the Facility.
44.10 Activities impacting safety or the environment of a Right of
Way must be harmonized with the specific agreement and the
relationship between GTE and the private land owner. This
could include limitations on equipment access due to
environmental conditions (e.g., wetland area with equipment
restrictions).
45. TBD Prices. Numerous provisions in this Agreement and its Attachments
refer to pricing principles. If a provision references prices in an
Attachment and there are no corresponding prices in such Attachment,
such price shall be considered "To Be Determined" (TBD). With respect
to all TBD prices, prior to DTI ordering any such TBD item, the Parties
shall meet and confer to establish a price. If the Parties are unable
to reach agreement on a price for such item, an interim price shall be
set for such item that is equal to the price for the nearest analogous
item for which a price has been established (for example, if there is
not an established price for a nonrecurring charge (NRC) for a specific
network element, the Parties would use the NRC for the most analogous
retail service for which there is an established price). Any interim
prices so set shall be subject to modification by any subsequent
decision of the Commission. If an interim price is different from the
rate subsequently established by the Commission, any underpayment
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shall be paid by DTI to GTE, and any overpayment shall be refunded by
GTE to DTI, within 45 Business Days after the establishment of the
price by the Commission.
46. Amendment of Certain Rates, Terms and Conditions. The Parties agree as
follows with respect to modification of the rates, terms and conditions
initially provided for herein:
The rates, terms and conditions that are specified in Appendix 46A (the
"GTE Terms") may be replaced by the rates, terms and conditions from
the GTE/OtherCLEC Interconnection, Resale and Unbundling Agreement (the
"OtherCLEC Agreement"), respectively, that are specified in Appendix
46B (the "OtherCLEC Terms") if and when the OtherCLEC Agreement becomes
effective after approval by order of the Commission in Case No.____.The
rates, terms and conditions that are specified in Appendix 46B (the
OtherCLEC Terms) shall not take effect for purposes of this Agreement
until thirty (30) days following GTE's receipt of written notice of
DTI's election to replace the specified GTE Terms with the specified
OtherCLEC Terms, which notice may be given no earlier than the date the
OtherCLEC Agreement is approved by the Commission and effective. GTE
and DTI agree that if the OtherCLEC Terms are deemed to be unlawful, or
are stayed, enjoined or otherwise modified, in whole or in part, by a
court or commission of competent jurisdiction, then this Agreement
shall be deemed to have been amended accordingly, by modification of
the OtherCLEC Terms or, as appropriate, the substitution of GTE Terms
for all stayed or enjoined OtherCLEC Terms, and such amendment shall be
effective retroactive to the Effective Date of the OtherCLEC Terms.
GTE and DTI further agree that the terms and conditions of this
Agreement reflect certain requirements of the FCC's First Report and
Order in CC Docket No. 96-98. The terms and conditions of this
Agreement shall be subject to any and all actions by any court or other
governmental authority that invalidate, stay, vacate or otherwise
modify the FCC's First Report and Order, in whole or in part
("subsequent action"). To the extent warranted by any such subsequent
action, the Parties agree that this Agreement shall be deemed to have
been modified accordingly as in the first paragraph of this Section 46.
The Parties agree to immediately apply any effected terms and
conditions, including any in other sections and articles of this
Agreement consistent with such subsequent action, and within a
reasonable time incorporate such modified terms and conditions in
writing into this Agreement. If the OtherCLEC Terms are affected by
such subsequent action and GTE determines they cannot be consistently
applied therewith, the GTE Terms shall apply. DTI acknowledges that GTE
may seek to enforce such subsequent action before a commission or court
of competent jurisdiction. GTE does not waive any position regarding
the illegality or inappropriateness of the FCC's First Report and
Order.
The rates, terms and conditions (including rates which may be
applicable under true-up) specified in both the GTE Terms and the
OtherCLEC Terms are further subject to amendment, retroactive to the
Effective Date of the Agreement, to provide for charges or rate
adjustments resulting from future Commission or other proceedings,
including but not limited to any generic proceeding to determine GTE's
unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's
end user surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
If the Commission (or any other commission or federal or state court)
in reviewing this Agreement pursuant to applicable state or federal
laws, including Section 252(e) of the Telecommunications Act of 1996,
deletes or modifies in any way this Section 46, then the Parties agree
that they will reopen negotiations within ten (10) days after receipt
of the final decision making such deletion or modification in order to
attempt to craft the new provision that will provide substantially the
same protections to GTE and DTI as this Section 46. If the Parties
cannot reach agreement on such a provision within twenty (20) calendar
days thereafter, the Parties agree that this entire Agreement is void
and will not become effective, and DTI agrees to withdraw this
Agreement from consideration by the Commission (or any other commission
or federal or state court). In such
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event, each Party shall have 25 days following the close of the 20-day
negotiation period within which to file a petition for arbitration
before the Commission under Section 252(e) of the Telecommunications
Act of 1996 of the issues that remain in dispute under this paragra
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ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS
1. General. General regulations, terms and conditions governing rate
applications, technical parameters, service availability, definitions
and feature interactions, as described in the appropriate GTE
intrastate local, toll and access tariffs, apply to retail services
made available by GTE to DTI for resale and unbundled network elements
provided by GTE to DTI, when appropriate, unless otherwise specified in
this Agreement. As applied to services or network elements offered
under this Agreement, the term "Customer" contained in the GTE Retail
Tariff shall be deemed to mean "DTI" as defined in this Agreement.
2. Liability of GTE.
2.1 Inapplicability of Tariff Liability. GTE's general liability,
as described in the GTE Retail Tariff, does not extend to
DTI's customers or any other Third Party. Liability of GTE to
DTI resulting from any and all causes arising out of services,
facilities, network elements or any other items relating to
this Agreement shall be governed by the liability provisions
contained in this Agreement and no other liability whatsoever
shall attach to GTE. GTE shall be liable for the individual
services, facilities or elements that it separately provides
to DTI and shall not be liable for the integration of
components combined by DTI.
2.2 DTI Tariffs or Contracts. DTI shall, in its tariffs or other
contracts for services provided to its end users using
services, facilities or network elements obtained from GTE,
provide that in no case shall GTE be liable to DTI's end users
or any third parties for any indirect, special or
consequential damages, including, but not limited to, economic
loss or lost business or profits, whether foreseeable or not,
and regardless of notification by DTI of the possibility of
such damages and DTI shall indemnify and hold GTE harmless
from any and all claims, demands, causes of action and
liabilities based on any reason whatsoever from its customers
as provided in this Agreement. Nothing in this Agreement shall
be deemed to create a third party beneficiary relationship
with DTI's end users.
2.3 No Liability for Errors. GTE is not liable for mistakes that
appear in GTE's listings, 911 and other information databases,
or for incorrect referrals of end users to DTI for any ongoing
DTI service, sales or repair inquiries, and with respect to
such mistakes or incorrect referrals, DTI shall indemnify and
hold GTE harmless from any and all claims, demands, causes of
action and liabilities whatsoever, including costs, expenses
and reasonable attorney's fees incurred on account thereof, by
third parties, including DTI's end users or employees. For
purposes of this Section 2.3, mistakes and incorrect referrals
shall not include matters arising out of the willful
misconduct of GTE or its employees or agents.
3. Unauthorized Changes.
3.1 Procedures. If DTI submits an order for resold services or
unbundled elements under this Agreement in order to provide
service to an end user that at the time the order is submitted
is obtaining its local services from GTE or another LEC using
GTE resold services or unbundled elements, and the end user
notifies GTE that the end user did not authorize DTI to
provide local exchange services to the end user, DTI must
provide GTE with written documentation of authorization from
that end user within thirty (30) Business Days of notification
by GTE. If DTI cannot provide written documentation of
authorization within such time frame, DTI must within three
(3) Business Days thereafter:
(a) notify GTE to change the end user back to the LEC providing
service to the end user before the change to DTI was made; and
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(b) provide any end user information and billing records DTI has
obtained relating to the end user to the LEC previously
serving the end user; and
(c) notify the end user and GTE that the change back to the
previous LEC has been made.
Furthermore, GTE will bill DTI fifty dollars ($50.00) per affected line
to compensate GTE for switching the end user back to the original LEC.
3.2 Option to Restrict Changes Without Evidence of Authorization.
DTI's or GTE's end users may request GTE to permit changes of
their provider of local exchange services only upon end user
written notification to GTE that the end user wishes to change
the end user's provider of local exchange services. In such a
situation, GTE will not change an end user's provider of local
exchange services without such written notification.
4. Impact of Payment of Charges on Service. DTI is solely responsible
for the payment of all charges for all services, facilities and
elements furnished under this Agreement, including, but not limited to,
calls originated or accepted at its or its end users' service
locations. If DTI fails to pay when due any and all charges billed to
DTI under this Agreement, including any late payment charges
(collectively, "Unpaid Charges"), and any or all such charges remain
unpaid more than forty-five (45) Business Days after the due date of
such Unpaid Charges excepting previously disputed charges for which DTI
may withhold payment, GTE shall notify DTI in writing that it must pay
all Unpaid Charges to GTE within seven (7) Business Days. If DTI
disputes the billed charges, it shall, within said seven (7) day
period, inform GTE in writing of which portion of the Unpaid Charges it
disputes, including the specific details and reasons for the dispute,
unless such reasons have been previously provided, and shall
immediately pay to GTE all undisputed charges. If DTI and GTE are
unable, within thirty (30) Business Days thereafter, to resolve issues
related to the disputed charges, then either DTI or GTE may file a
request for arbitration under Article III of this Agreement to resolve
those issues. Upon resolution of any dispute hereunder, if DTI owes
payment it shall make such payment to GTE with any late payment charge
under Article III, Section 7.2, from the original payment due date. If
DTI owes no payment, but has previously paid GTE such disputed payment,
then GTE shall credit such payment including any late payment charges.
If DTI fails to pay any undisputed Unpaid Charges, DTI shall, at its
sole expense, within five (5) Business Days notify its end users that
their service may be disconnected for DTI's failure to pay Unpaid
Charges, and that its end users must select a new provider of local
exchange services. If DTI fails to provide such notification or any of
DTI's end users fail to select a new provider of services within the
applicable time period, GTE will provide local exchange services to
DTI's end users under GTE's applicable end user tariff at the then
current charges for the services being provided. In this circumstance,
otherwise applicable service establishment charges will not apply to
DTI's end user, but will be assessed to DTI. GTE may discontinue
service to DTI upon failure to pay undisputed charges as provided in
this Section 4, and shall have no liability to DTI or DTI's end users
in the event of such disconnection.
5. Unlawful Use of Service. Services, facilities or unbundled elements
provided by GTE pursuant to this Agreement shall not be used by DTI or
its end users for any purpose in violation of law. DTI, and not GTE,
shall be responsible to ensure that DTI and its end users use of
services, facilities or unbundled elements provided hereunder comply at
all times with all applicable laws. GTE may refuse to furnish service
to DTI or disconnect particular services, facilities or unbundled
elements provided under this Agreement to DTI or, as appropriate, DTI's
end user when (i) an order is issued by a court of competent
jurisdiction finding that probable cause exists to believe that the use
made or to be made of the service, facilities or unbundled elements is
prohibited by law or (ii) GTE is notified in writing by a law
enforcement agency acting within its jurisdiction that any facility
furnished by GTE is being used or will be used for the purpose of
transmitting or receiving gambling information in interstate or foreign
commerce in violation of law. Termination of service shall take place
after reasonable notice is provided to DTI, or as ordered by the court.
If facilities have been physically disconnected by law enforcement
officials at the premises where
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located, and if there is not presented to GTE the written finding of a
court, then upon request of DTI and agreement to pay restoral of
service charges and other applicable service charges, GTE shall
promptly restore such service.
6. Timing of Messages. With respect to GTE resold measured rate local
service(s), chargeable time begins when a connection is established
between the calling station and the called station. Chargeable time
ends when the calling station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the calling station
does not, chargeable time ends when the network connection is released
by automatic timing equipment in the network. Timing of messages
applicable to GTE's Port and Local Switching element (usage sensitive
services) will be recorded based on originating and terminating access.
7. Procedures For Preordering, Ordering, Provisioning, Etc. Certain
procedures for preordering, ordering, provisioning, maintenance and
billing and electronic interfaces for many of these functions are
described in Appendix I. All costs and expenses for any new or modified
electronic interfaces DTI requires that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI pursuant to
Appendix I. The schedule for implementation of any new or modified
electronic interfaces will be developed by GTE according to industry
standards and will be based upon the amount of work needed to design,
test and implement the new or modified interface.
8. Customer Contacts. Except as otherwise provided in this Agreement or
as agreed to in a separate writing by DTI, DTI shall provide the
exclusive interface with DTI's end user customers in connection with
the marketing or offering of DTI services. Except as otherwise provided
in this Agreement, in those instances in which GTE personnel are
required pursuant to this Agreement to interface directly with DTI's
end users, such personnel shall not identify themselves as representing
GTE. All forms, business cards or other business materials furnished by
GTE to DTI end users shall bear no corporate name, logo, trademark or
trade name other than DTI's. In no event shall GTE personnel acting on
behalf of DTI pursuant to this Agreement provide information to DTI end
users about GTE products or services.
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ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC
1. Services Covered by This Article.
1.1 Types of Services. This Article governs the provision of
internetwork facilities (i.e., physical interconnection
services and facilities), meet point billing by GTE to DTI or
by DTI to GTE and the transport and termination and billing of
Local, IntraLATA Toll, optional EAS traffic and jointly
provided Interexchange Carrier Access between GTE and DTI. The
services and facilities described in this Article shall be
referred to in this Article V as the "Services."
1.2 Service Locations for Interconnection Services and Facilities.
Appendix B, Service Matrix, attached to this Agreement and
made a part hereof, sets forth the Services and each location
in the State where a Service shall be provided (the "Service
Locations") and the Interconnection Point ("IP") for such
Services.
1.3 Additional Services or Service Locations. If, during the term
of this Agreement, the parties determine that additional
services are needed in the State, or existing Services will be
offered in new locations in the State, the Parties shall
execute an amendment to this Agreement substantially in the
form of Appendix C attached to this Agreement and made a part
hereof, incorporating the additional locations and/or any
additional terms necessary for the additional services. Upon
the effective date of the amendment, and continuing through
the remaining term of this Agreement, the new services shall
be deemed part of the Services provided pursuant to this
Article and/or the new locations shall be deemed part of the
Service Locations.
2. Billing and Rates.
2.1 Rates and Charges. Customer agrees to pay to Provider the
rates and charges for the Services set forth in the applicable
appendices to this Agreement. GTE's rates and charges are set
forth in Appendix D attached to this Agreement and made a part
hereof. DTI's separate rates and charges are also set forth in
Appendix D attached hereto and made a part hereof.
2.2 Billing. Provider shall render to Customer a bill for
interconnection services on a current basis. Charges for
physical facilities and other nonusage sensitive charges shall
be billed in advance, except for charges and credits
associated with the initial or final bills. Usage sensitive
charges, such as charges for termination of Local Traffic,
shall be billed in arrears. DTI is required to order trunks
pursuant to Section 4.3.3 of this Article. Charges for traffic
that has been routed over a jurisdictionally inappropriate
trunk group (e.g., local traffic carried over trunks used for
Switched Access Traffic) may be adjusted to reflect the
appropriate compensation arrangement and may be handled as a
post-billing adjustment to bills rendered. Additional matters
relating to billing are included in Appendix I attached to
this Agreement and made a part hereof.
3. Transport and Termination of Traffic.
3.1 Traffic to be Exchanged. The Parties shall reciprocally
terminate Local, IntraLATA Toll, optional EAS and jointly
provided Interexchange Carrier Traffic originating on each
other's networks utilizing either Direct or Indirect Network
Interconnections as provided in Section 4 or Section 5 herein.
To this end, the Parties agree that there will be
interoperability between their networks. The Parties agree to
exchange traffic associated with Third-Party LECs, CLECs and
Wireless Service Providers pursuant to the compensation
arrangement specified in Section 3.3 herein. Only traffic
originated by or terminating to the Parties' end
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user customers is to be exchanged. In addition, the Parties
will notify each other of any anticipated change in traffic to
be exchanged (e.g., traffic type, volume).
3.2 Compensation For Exchange Of Traffic.
3.2.1 Mutual Compensation. The Parties shall compensate
each other for the exchange of Local Traffic in
accordance with Section 3.2.2 of this Article. The
Parties will develop an initial factor representative
of the share of traffic exempt from local
compensation. This factor will be updated quarterly
in like manner or as the Parties otherwise agree.
Once the traffic that is exempt from local
compensation can be measured, the actual exempt
traffic will be used rather than the above factor.
Charges for the transport and termination of
intraLATA toll and interexchange traffic shall be in
accordance with the Parties' respective intrastate or
interstate access tariffs, as appropriate.
3.2.2 Bill-and-Keep. The Parties shall assume that Local
Traffic is roughly balanced between the parties
unless traffic studies indicate otherwise.
Accordingly, the Parties agree to use a Bill-and-Keep
Arrangement with respect to termination of Local
Traffic only. Either Party may request that a traffic
study be performed no more frequently than once a
quarter. Should such traffic study indicate, in the
aggregate, that either Party is terminating more than
60 percent of the Parties' total terminated minutes
for Local Traffic, either Party may notify the other
that mutual compensation will commence pursuant to
the rates set forth in Appendix D of this Agreement
and following such notice it shall begin
and continue for the duration of the Term of this
Agreement unless otherwise agreed. To account for ISP
traffic, the Parties will negotiate an initial
factor(s) representative of the proportionate share
of traffic exempt from local compensation. This
factor will be updated quarterly in a like manner or
as the Parties otherwise agree. Once the traffic that
is exempt from local compensation can be measured,
the actual exempt traffic will be used rather than
the above factor. Nothing in this Section 3.2.2 shall
be interpreted to (i) change compensation set forth
in this Agreement for traffic or services other than
Local Traffic, including but not limited to
internetwork facilities, access traffic or wireless
traffic, or (ii) allow either Party to aggregate
traffic other than Local Traffic for the purpose of
compensation under the Bill-and-Keep Arrangement
described in this Section 3.2.2, except as set forth
in Section 3.1 above.
3.2.3 Sharing of Access Charges on Calls to Ported
Numbers. Until permanent number portability is
implemented, the Parties agree that switched access
termination to a ported number will be billed by the
party providing interim number portability and that
the party billing the switched access will share the
switched access revenue with the other party. After
permanent number portability is implemented, the
Parties agree to renegotiate sharing of access
charges to ported numbers in accordance with
permanent number portability requirements. In lieu
of actual measurements of minutes and/exchange of
billing records for this traffic the Parties agree
that the Party providing the ported number will pay
the other Party the rate per line/per month as
specified in Appendix E.
(a) The number of lines/talk paths per ported
number that are subject to compensation will
be determined at the time the end user
customer's local service is changed from one
party to the other. The number of lines per
number eligible for the shared revenue
arrangement described in this section will
be limited to the number of lines in service
on the date of conversion plus a 10% growth
margin. After conversion the number of lines
per number available for compensation can
only be increased by mutual consent of the
parties.
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(b) The Parties agree that the compensation rate
in paragraph 3.3.3 may change as a result of
changes in access rates, traffic volume or
for other reasons and agree to renegotiate
the rate if a significant event occurs. At a
minimum, the parties agree to reevaluate the
rate on an annual basis.
(c) The Parties agree that terminating switched
access calls ported via interim number
portability may appear to the receiving
party to be a local call and that the
implementation of reciprocal compensation
for terminating local calls may result in
overcompensation for ported switched access
calls. Therefore, the Parties agree to
renegotiate the terminating shared access
compensation rate if reciprocal compensation
for local calls is implemented.
3.3 Tandem Switching Traffic. The Parties will provide tandem
switching for traffic between the Parties' end offices
subtending each other's access tandem, as well as for traffic
between either Party's end users and any Third Party which is
interconnected to the other Party's access tandems as follows:
3.3.1 The originating Party will compensate the tandem
Party for each minute of originated tandem switched
traffic which terminates to Third Party (e.g., other
CLEC, ILEC, or wireless service provider). The
applicable rate for this charge is identified in
Appendix D.
3.3.2 The originating Party also assumes responsibility for
compensation to the company which terminates the
call.
3.4 Inter-Tandem Switching. The Parties will only use inter-tandem
switching for the transport and termination of local/EAS or
intraLATA toll traffic originating on each other's network at
and after such time as either (I) DTI has agreed to and fully
implemented an existing intraLATA toll compensation mechanism
such as IntraLATA Terminating Access Compensation (ITAC) or a
functional equivalent thereof or (ii) generally accepted
industry signaling standards and AMA record standards support
the recognition of multiple tandem switching events.
4. Direct Network Interconnection.
4.1 Network Interconnection Architecture. DTI may interconnect
with GTE at any of the minimum technically feasible points
required by the FCC. Interconnection at additional points will
be reviewed on an individual case basis. Where the Parties
mutually agree following a Bona Fide Request to directly
interconnect their respective networks, interconnection will
be as specified in the following subsections. The "IPs" shall
be set forth in Appendix B attached to this Agreement and made
a part hereof. Based on the configuration, the installation
timeline will vary considerably, however, GTE will work with
DTI in all circumstances to install "IPs" within 120 calendar
days absent extenuating circumstances. Internetwork connection
and protocol must be based on industry standards developed
consistent with Section 256 of the Telecommunications Act of
1996.
4.1.1 Subject to mutual agreement, the Parties may use the
following types of network facility interconnection,
using such interface media as are (I) appropriate to
support the type of interconnection requested and
(ii) available at the facility at which
interconnection is requested. For each "IP" set forth
in Appendix B, the Parties shall specify the type of
interconnection used at that "IP."
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(a) A Mid-Span Fiber Meet within an existing GTE
exchange area whereby the Parties mutually
agree to jointly plan and engineer their
facility "IP" at a designated manhole or
junction location. The "IP" is the
demarcation between ownership of the fiber
transmission facility. Each party is
individually responsible for its incurred
costs in establishing this arrangement.
(b) A Virtual or Physical EIS arrangement at a
GTE wire center subject to the rates, terms,
and conditions contained in GTE's applicable
tariffs.
(c) A Special Access arrangement and/or Switched
Transport terminating at a GTE wire center
subject to the rates, terms, and conditions
contained in GTE's applicable tariffs. These
facilities will meet the standards set forth
in such tariffs.
4.1.2 Virtual and Physical EIS arrangements are governed by
appropriate GTE tariffs, except as provided in
Article IX, Section 1.3.
4.1.3 The Parties will mutually designate at least one POI
on GTE's network within each GTE local calling area
for the routing of Local Traffic. Recording and
billing of traffic routed over these facilities shall
be as provided in Section 3.4 of this Article.
4.2 Compensation. The Parties agree to the following compensation
for internetwork facilities, depending on facility type.
4.2.1 Mid-Span Fiber Meet: GTE will charge special access
(flat rated) transport from the applicable intrastate
access tariff and will rate charges between the "IP"
and GTE's interconnection switch. Charges will be
reduced to reflect the proportionate share of the
facility that is used for transport of traffic
originated by GTE. DTI will charge flat rated
transport to GTE for DTI facilities used by GTE at
their tariffed rates or as mutually agreed, not to
exceed GTE rates. DTI will apply charges based on the
lesser of; (i) the airline mileage from the "IP" to
the DTI switch; or (ii) the airline mileage from the
GTE switch to the serving area boundary.
4.2.2 Collocation: GTE will charge Virtual or Physical EIS
rates from the applicable GTE tariff. DTI will charge
GTE flat rated transport at their tariffed rates or
as mutually agreed, not to exceed GTE rates, to
reflect the proportionate share of the facility that
is used for transport of traffic originated by GTE.
DTI will apply charges based on the lesser of; (l)
the airline mileage from the "IP" to the DTI switch;
or (ii) two (2) times the airline mileage from the
GTE switch to the serving area boundary.
4.2.3 Special Access and/or Switched Access: GTE will
charge special access and/or switched access rates
from the applicable GTE intrastate access tariff.
Charges will be reduced to reflect the proportionate
share of the facility that is used for transport of
traffic originated by GTE. The Parties will negotiate
an initial factor representative of the proportionate
share of the facilities. This factor will be updated
quarterly in like manner or as the Parties otherwise
agree.
4.3 Trunking Requirements.
4.3.1 The Parties agree to establish trunk groups of
sufficient capacity from the interconnecting
facilities such that trunking is available to any
switching center designated by either Party,
including end offices, tandems, 911 routing switches,
and directory assistance/operator service switches.
The Parties will mutually agree where one-way or
two-way trunking will be available. The Parties may
use two-way
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trunks for delivery of local traffic or either Party
may elect to provision its own one-way trunks for
delivery of local traffic to the other Party. If a
Party elects to provision its own one-way trunks,
that Party will be responsible for its own expenses
associated with the trunks.
4.3.2 DTI shall make available to GTE trunks over which GTE
shall terminate to end users of DTI-provided Exchange
Services, Local Traffic and intraLATA toll or
optional EAS traffic originated from end users of
GTE-provided Exchange Service.
4.3.3 DTI and GTE shall, where applicable, make
reciprocally available, by mutual agreement, the
required trunk groups to handle different traffic
types. DTI and GTE will support the provisioning of
trunk groups that carry combined or separate Local
Traffic and intraLATA toll and optional EAS traffic.
GTE requires separate trunk groups from DTI to
originate and terminate interLATA calls and to
provide Switched Access Service to IXCs. To the
extent DTI desires to have any Interexchange Carriers
(IC) originate or terminate traffic to DTI, DTI will
arrange for such IC to issue an ASR to GTE
instructing GTE to route such traffic over the
appropriate IC trunk group. Until GTE receives and
processes such ASR, the traffic will not be routed.
4.3.3.1 Each Party agrees to route traffic only
over the proper jurisdictional trunk
group.
4.3.3.2 Each Party shall only deliver traffic over
the local interconnection trunk groups to
the other Party's access tandem for those
publicly-dialable NXX Codes served by end
offices that directly subtend the access
tandem or to those wireless service
providers that directly subtend the access
tandem.
4.3.3.3 Neither party shall route Switched Access
Service traffic over local interconnection
trunks, or local traffic over Switched
Access Service trunks.
4.3.4 DTI and GTE will reciprocally provide Percent Local
Usage (PLU) factors to each other on a quarterly
basis to identify the proper jurisdiction of each
call type that is carried over the required trunks.
4.3.5 Reciprocal traffic exchange arrangement trunk
connections shall be made at a DS-1 or multiple DS-1
level, DS-3, (SONET where technically available) and
shall be jointly-engineered to an objective P.01
grade of service.
4.3.6 DTI and GTE agree to use diligent efforts to develop
and agree on a Joint Interconnection Grooming Plan
prescribing standards to ensure that the reciprocal
traffic exchange arrangement trunk groups are
maintained at consistent P.01 or better grades of
service. Such plan shall also include mutually-agreed
upon default standards for the configuration of all
segregated trunk groups.
4.3.7 Signaling System 7 (SS7) Common Channel Signaling
will be used to the extent that such technology is
available.
4.3.8 The Parties agree to offer and provide to each other
B8ZS Extended Superframe Format ("ESF") facilities,
where available, capable of voice and data traffic
transmission.
4.3.9 The Parties will support intercompany 64kbps clear
channel where available.
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4.4 Network Redesigns Initiated by GTE. GTE will not charge DTI
when GTE initiates its own network redesigns/reconfigurations.
4.5 Interconnection Calling and Called Scopes for the Access
Tandem Interconnection and the End Office Interconnection.
4.5.1 GTE Access Tandem Interconnection calling scope
(originating and terminating) is to those GTE end
offices which subtend the GTE access tandem to which
the connection is made except as provided for in
Section 3.3 of this Article V.
4.5.2 GTE End Office Interconnection calling scope
(originating and terminating) is only to the end
office to which the connection is made.
5. Indirect Network Interconnection. Neither Party shall deliver traffic
destined to terminate at the other Party's end office via another LEC's
end office. In addition, neither Party shall deliver traffic destined
to terminate at an end office subtending the other Party's access
tandem via another LEC's access tandem until such time as compensation
arrangements have been established in accordance with this Article V,
Sections 3.1 and 3.4.
6. Number Resources.
6.1 Number Assignment. Nothing in this Agreement shall be
construed to, in any manner, limit or otherwise adversely
impact DTI's right to employ or to request and be assigned any
NANP number resources including, but not limited to, Central
Office (NXX) Codes pursuant to the Central Office Code
Assignment Guidelines. Any request for numbering resources by
DTI shall be made directly to the NANP Number Plan
Administrator. Except with respect to those areas in which GTE
is the NANP Number Plan Administrator, GTE shall not be
responsible for the requesting or assignment of number
resources to DTI. The Parties agree that disputes arising from
numbering assignment shall be arbitrated by the NANP Number
Plan Administrator. DTI shall not request number resources to
be assigned to any GTE switching entity.
6.1.1 Each Party shall be responsible for notifying its
customers of any changes in numbering or dialing
arrangements to include changes such as the
introduction of new NPAs or new NXX codes. Each Party
is responsible for administering NXX codes assigned
to it.
6.2 Rate Centers. For purposes of compensation between the Parties
and the ability of GTE to appropriately apply its toll tariff
to its end user customers, DTI shall adopt the Rate Center
areas and Rate Center points that the Commission has approved
for the incumbent LEC and shall assign whole NPA-NXX codes to
each Rate Center.
6.3 Routing Points. DTI will also designate a Routing Point for
each assigned NXX code. DTI may designate one location within
each Rate Center as a Routing Point for the NPA-NXX associated
with that Rate Center; alternatively DTI may designate a
single location within one Rate Center to serve as the Routing
Point for all the NPA-NXXs associated with that Rate Center
and with one or more other Rate Centers served by DTI within
an existing GTE exchange area and LATA.
6.4 Code and Numbers Administration. The Parties will comply with
code administration requirements as prescribed by the FCC, the
Commission, and accepted industry guidelines. Where GTE is the
NANP Number Plan Administrator, GTE will administer number
resources, and charge for such administration in accord with
applicable rules and regulations. GTE will administer
numbering resources in a competitively neutral manner, and
process requests for NXX codes in a timely manner and in
accord with industry standards. The Parties shall protect DTI
proprietary information that may be submitted to
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GTE in connection with GTE's responsibilities as NANP Number
Plan Administrator in accordance with Article III, Section 11
of this Agreement.
6.5 Programming Switches. It shall be the responsibility of each
Party to program and update its own switches and network
systems pursuant to the Local Exchange Routing Guide ("LERG")
guidelines to recognize and route traffic to the other Party's
assigned NXX codes at all times. Neither Party shall impose
any fees or charges whatsoever on the other Party for such
activities.
7. Interim Number Portability (INP). Each Party shall provide the other
Party with INP for the purpose of allowing end user customers to change
service-providing Parties without changing their telephone number. GTE
shall provide its INP to DTI using remote call forwarding ("RCF"). The
GTE rates for INP service using RCF are set out in Appendix E attached
to this Agreement and made a part hereof. If DTI wishes to use Direct
Inward Dialing ("DID") to provide INP to its end users, DTI may
purchase DID service from GTE at the rate specified in the appropriate
GTE tariff. DTI shall provide INP to GTE at the rates specified for DTI
in Appendix E.
8. Meet-Point Billing.
8.1 Meet-Point Arrangements.
8.1.1 The Parties may mutually establish Meet-Point Billing ("MPB")
arrangements in order to provide Switched Access Services to
Access Service customers via a GTE access tandem in accordance
with the MPB guidelines adopted by and contained in the
Ordering and Billing Forum's MECAB and MECOD documents, except
as modified herein and as described in Section 3.2.3 for
Interim Portability.
8.1.2 Except in instances of capacity limitations, GTE shall permit
and enable DTI to sub-tend the GTE access tandem(s) nearest to
the DTI Rating Point(s) associated with the NPA-NXX(s) to/from
which the Switched Access Services are homed. In instances of
capacity limitation at a given access tandem, DTI shall be
allowed to subtend the next-nearest GTE access tandem in which
sufficient capacity is available.
8.1.3 Interconnection for the MPB arrangement shall occur at the
"IP".
8.1.4 Common Channel Signaling shall be utilized in conjunction with
MPB arrangements to the extent such signaling is resident in
the GTE access tandem switch.
8.1.5 DTI and GTE will use diligent efforts, individually and
collectively, to maintain provisions in their respective
federal and state access tariffs, and/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.
8.1.6 As detailed in the MECAB document, DTI and GTE will, in a
timely fashion, exchange all information necessary to
accurately, reliably and promptly bill Access Service
customers for Switched Access Services traffic jointly handled
by DTI and GTE via the meet-point arrangement. Information
shall be exchanged in Electronic Message Record ("EMR")
format, on magnetic tape or via a mutually acceptable
electronic file transfer protocol.
8.1.7 DTI and GTE shall work cooperatively to coordinate rendering
of Meet-Point bills to customers, and shall reciprocally
provide each other usage data and related information at the
appropriate charge.
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8.2 Compensation.
8.2.1 Initially, billing to Access Service customers for the
Switched Access Services jointly provided by DTI and GTE via
the MPB arrangement shall be according to the multiple-bill
method as described in the MECAB guidelines. This means each
Party will bill the portion of service they provided at their
appropriate tariff, or price list.
8.2.2 Subsequently, DTI and GTE may mutually agree to implement one
of the following options for billing to third parties for the
Switched Access Services jointly provided by DTI and GTE via
the MPB arrangement: single-bill/single tariff method,
single-bill/multiple tariff method, or to continue the
multiple-bill method. Should either Party prefer to change
among these billing methods, that Party shall notify the other
Party of such a request in writing, ninety (90) Business Days
in advance of the date on which such change is desired to be
implemented, such changes then may be made in accordance with
MECAB guidelines and if the Parties mutually agree, the change
will be made.
9. Common Channel Signaling.
9.1 Service Description. The Parties will provide Common Channel Signaling
("CCS") to one another via Signaling System 7 ("SS7") network
interconnection, where and as available, in the manner specified in FCC
Order 95-187, in conjunction with all traffic exchange trunk groups.
SS7 signaling and transport services shall be provided by GTE in
accordance with the terms and conditions of this Section 9 of this
Article and Appendix J attached to this Agreement and made a part
hereof. The Parties will cooperate on the exchange of all appropriate
SS7 messages for local and intraLATA call set-up signaling, including
ISUP and Transaction Capabilities Application Part ("TCAP") messages to
facilitate full interoperability of all CLASS Features and functions
between their respective networks. Any other SS7 message services to be
provided using TCAP messages (such as data base queries) will be
jointly negotiated and agreed upon.
9.2 Signaling Parameters. All SS7 signaling parameters will be provided in
conjunction with traffic exchange trunk groups, where and as available.
These parameters include Automatic Number Identification ("ANI"),
Calling Party Number ("CPN"), Privacy Indicator, calling party category
information, originating line information, charge number, etc. Also
included are all parameters relating to network signaling information,
such as Carrier Information Parameter ("CIP"), wherever such
information is needed for call routing or billing. GTE will provide SS7
via GR-394-SS7 and/or GR-317-SS7 format(s).
9.3 Privacy Indicators. Each Party will honor all privacy indicators as
required under applicable law.
9.4 Connection Through STP. DTI must interconnect with the GTE STP(s)
serving the LATA in which the traffic exchange trunk groups are
interconnected. Additionally, all interconnection to GTE's 800/888
database and GTE's LIDB shall, consistent with this section and
Appendix J attached hereto, take place only through appropriate STP
pairs.
9.5 Third Party Signaling Providers. DTI may choose a third-party SS7
signaling provider to transport messages to and from the GTE SS7
network. In that event, that third-party provider must present a letter
of agency to GTE, prior to the testing of the interconnection,
authorizing the Third Party to act on behalf of DTI in transporting SS7
messages to and from GTE. The third-party provider must interconnect
with the GTE STP(s) serving the LATA in which the traffic exchange
trunk groups are interconnected.
9.6 Multi-Frequency Signaling. In the case where CCS is not available, in
band Multi-Frequency ("MF"), wink start, E & M channel associated
signaling with ANI will be provided by the Parties. Network signaling
information, such as CIC/OZZ, will be provided wherever such
information is needed for call routing or billing.
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10. Service Quality and Performance. Each Party shall provide Services
under this Article to the other Party that are equal in quality to that
the Party provides to itself, its Affiliates or any other entity.
"Equal in quality" shall mean that the Service will meet the same
technical criteria and performance standards that the providing Party
uses within its own network for the same Service at the same location
under the same terms and conditions.
11. Network Outages. GTE shall work with DTI to establish reciprocal
responsibilities for managing network outages and reporting. Each party
shall be responsible for network outage as a result of termination of
its equipment in GTE wire center or access tandem. DTI shall be
responsible for notifying GTE of significant outages which could impact
or degrade GTE switches and services.
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ARTICLE VI
RESALE OF SERVICES
1. General. The purpose of this Article VI is to define the Exchange
Services and related Vertical Features and other Services (collectively
referred to for purposes of this Article VI as the "Services") that may
be purchased from GTE and resold by DTI and the terms and conditions
applicable to such resold Services. Except as specifically provided
otherwise in this Agreement, provisioning of Exchange Services for
resale will be governed by the GTE Guide. GTE will make available to
DTI for resale any Telecommunications Service that GTE currently
offers, or may offer hereafter, on a retail basis to subscribers that
are not telecommunications carriers, except as qualified by Section 2.2
below.
2. Terms and Conditions.
2.1 Quality and Performance. GTE shall provide Services to DTI that are
equal in quality and performance standards to the same Services
provided by GTE to its own end user customers.
2.2 Restrictions on Resale. The following restrictions shall apply to the
resale of retail services by DTI.
2.2.1 DTI shall not resell Basic Exchange Residential Service.
2.2.2 DTI shall not resell to one class of customers a service that is
offered by GTE only to another class of customers in accordance
with State requirements (e.g., R-1 to B-1, disabled services or
Lifeline services to non-qualifying customers).
2.2.3 DTI shall not resell public pay telephone lines.
2.2.4 DTI shall not resell semi-public pay telephone lines.
2.3 Restrictions on Discount of Retail Services. The discount specified in
Section 5.3 herein shall apply to all retail services except for the
following:
2.3.1 DTI shall resell services that are provided at a volume
discount in accordance with terms and conditions of applicable
tariff. DTI shall not aggregate end user traffic in order to
qualify for volume discount.
2.3.2 DTI shall resell ICB/Contract services without a discount and
only to end user customers that already have such services.
2.3.3 DTI shall resell COCOT coin or coinless line but no discount
applies.
2.3.4 DTI shall resell Lifeline services and services for the disabled
but no discount shall apply and they shall only be resold to end
user customers who qualify under GTE's tariffs and
state/Commission rules, orders and regulations.
2.3.5 DTI shall resell special access but no discount applies.
2.3.6 DTI shall resell Operator Services and Directory Assistance as
specified in Section 5.6 herein however no discount applies.
2.3.7 DTI shall resell promotional offerings that are ninety (90) days
or less in duration without a discount.
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<PAGE> 49
2.4 Resale to Other Carriers. Services available for resale may not be used
by DTI to provide access to the local network as an alternative to
tariffed switched and special access by other carriers, including, but
not limited to; interexchange carriers, wireless carriers, competitive
access providers, or other retail telecommunications providers.
3. Ordering and Billing.
3.1 Local Service Request. Orders for resale of Services will be placed
utilizing a standard Local Service Request ("LSR") form. GTE will
continue to participate in industry forums for developing service
order/disconnect order formats and will incorporate appropriate
industry standards. A complete and accurate LSR (containing the
requisite end user information as described in the Guide) must be
provided by DTI before a request can be processed.
3.2 Certificate of Operating Authority. When ordering, DTI must represent
and warrant to GTE that it is a certified provider of local dial-tone
service. DTI will provide a copy of its Certificate of Operating
Authority or other evidence of its status to GTE upon request.
3.3 Letter of Authorization. A Letter of Authorization ("LOA") will be
required before resold Services will be provided in cases in which the
subscriber currently receives Exchange Service from GTE or from a local
service provider other than DTI. Such LOA may be a blanket LOA or such
other form as agreed upon between GTE and DTI. GTE will not release
information to DTI on GTE end user customer accounts unless DTI first
provides to GTE a written LOA, signed by the end user customer,
authorizing the release of such information to DTI or if state or
federal law provides otherwise, in accordance with such law.
3.4 Directory Assistance Listings. GTE shall include a DTI customer listing
in its Directory Assistance database as part of the Local Service
Request ("LSR") process. GTE will honor DTI Customer's preferences for
listing status, including non-published and unlisted, as noted on the
LSR and will enter the listing in the GTE database which is used to
perform Directory Assistance functions as it appears on the LSR.
3.5 Nonrecurring Charges. DTI shall be responsible for the payment of all
nonrecurring charges ("NRCs") applicable to resold Services (e.g.,
installation, changes, ordering charges) in accordance with the
appropriate tariff. No discount applies to nonrecurring charges.
3.6 Transfers Between DTI and Another Reseller of GTE Services. When DTI
has obtained an end user customer from another reseller of GTE
services, DTI will inform GTE of the transfer by submitting a standard
LSR to GTE.
3.7 Local Calling Detail. Except for those Services and in those areas
where measured rate local service is available to end users, monthly
billing to DTI does not include local calling detail. However, DTI may
request and GTE shall consider developing the capabilities to provide
local calling detail in those areas where measured local service is not
available for a mutually agreeable charge.
3.8 Procedures. An overview of the procedures for preordering, ordering,
provisioning and billing for resold services are outlined in Appendix
I, attached hereto and made a part hereof.
3.9 LIDB. For resale services, GTE's service order will generate updates to
the LIDB for validation of calling card, collect, and third number
billed calls.
3.10 "OLN". Upon request, GTE will update the database to provide
Originating Line Number ("OLN") Screening which indicates to an
operator the acceptable billing methods for calls originating from the
calling number (e.g., penal institutions, COCOTS).
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<PAGE> 50
4. Maintenance.
4.1 Maintenance, Testing and Repair. GTE will provide repair and
maintenance services to DTI and its end user customers for resold
Services in accordance with the same standards and charges used for
such services provided to GTE end user customers. GTE will not initiate
a maintenance call or take action in response to a trouble report from
a DTI end user until such time as trouble is reported to GTE by DTI.
DTI must provide to GTE all end user information necessary for the
installation, repair and servicing of any facilities used for resold
Services according to the procedures described in the Guide.
4.2 Specifics and Procedures for Maintenance. An overview of the procedures
for maintenance of resold services and additional matters agreed to by
the Parties concerning maintenance are set forth in Appendix I.
5. Services Available for Resale.
5.1 Description of Local Exchange Services Available for Resale. Resold
basic Exchange Service includes, but is not limited to, the following
elements:
(a) Voice Grade Local Exchange Access Line - includes a telephone
number and dial tone.
(b) Local Calling - at local usage measured rates if applicable to the
end user customer.
(c) Access to long distance carriers
(d) E-911 Emergency Dialing
(e) Access to Service Access Codes - e.g., 800, 888, 900
(f) Use of AIN Services (those currently available to end users)
(g) End User Private Line Services
(h) Listing of telephone number in appropriate "white pages" directory;
and
(i) Copy of "White Pages" and "Yellow Pages" directories for the
appropriate GTE service area
5.2 List of Services Available for Resale. The type of Services listed on
Appendix F, attached hereto and made a part of this Agreement, are
available for resale by DTI. Subject to the limitations on resale
enumerated in this Article, any new services that GTE offers in the
future at retail to customers who are not telecommunications carriers
shall also be available to DTI for resale under the same terms and
conditions contained in this Agreement. Additional regulations, terms
and conditions relating to the type of Services listed on Appendix F
can be found in the appropriate intrastate local, toll and access
tariffs. Terms, conditions and other matters concerning rate
applications, technical parameters, provisioning capability,
definitions and feature interactions contained in such tariffs are
applicable to the type of Services offered under this Agreement and are
incorporated herein by reference. Modifications to Services listed on
Appendix F shall be provided to DTI in accordance with GTE's practices
and procedures.
5.3 Rates. The prices charged to DTI for Local Services shall be calculated
as follows:
(1) Avoided Cost Discount of 11.93% shall apply to all retail services
except those services listed in Section 2.2 and Section 2.3 herein.
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<PAGE> 51
(2) The discount dollar amount calculated under Step 1 above will be
deducted from the retail rate.
(3) The resulting rate is a Wholesale Rate.
(4) This discount dollar amount in Step 2 above shall not change during
the Term of this Agreement, even though GTE may change its retail
rates.
5.4 Grandfathered Services. Services identified in GTE Tariffs as
grandfathered in any manner are available for resale only to end user
customers that already have such grandfathered service. An existing end
user customer may not move a grandfathered service to a new service
location.
5.5 Access. GTE retains all revenue due from other carriers for access to
GTE facilities, including both switched and special access charges.
5.6 Operator Services (OS) and Directory Assistance (DA). Where GTE
provides access to GTE Operator Services for local and toll assistance
(for example, call completion, busy line verification and emergency
interruption) and Directory Assistance (e.g., 411 calls routed to GTE's
DA operator centers) as an element of Exchange Services offered for
resale, DTI will be billed in accordance with Appendix F. GTE will
provide its existing OS and DA to a DTI at the same quality and in a
nondiscriminatory manner as the service GTE's end users receive.
5.6.1 Where Customized Routing is available (pursuant to Article VII,
Section 12.1), GTE will offer unbranded OS and DA or rebranded
OS and DA with the DTI brand. GTE will provide such unbranding
or rebranding on a switch-by-switch basis, subject to capability
and capacity limitations. Upon receipt of an order for
unbranding or rebranding, GTE will implement within 90 Business
Days when technically capable.
5.6.2 DTI will be billed for unbranding or rebranding and Customized
Routing. Upon written request from DTI, GTE will provide DTI
with terms and conditions for providing Customized Routing and
branding, plus the applicable charges. In addition, a port and
dedicated trunk facilities are required as specified in Article
VII, Section 12.1.4.
5.6.3 For those offices that DTI has requested GTE to rebrand and/or
unbrand OS and DA, GTE will provide it using live operators
where GTE performs its own OS and DA service and where handled
by automated systems. If GTE uses a Third Party contractor to
provide OS or DA, GTE will not provide branding nor will GTE
negotiate it with a Third Party on behalf of DTI. DTI must
negotiate with the Third Party. In these instances, DTI will
need to purchase customized routing to differentiate OS/DA
traffic between GTE's and a Third Party.
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ARTICLE VII
UNBUNDLED NETWORK ELEMENTS
1. General. The purpose of this Article VII is to define the unbundled
network elements that may be leased by DTI from GTE. Unless otherwise
specified in this Agreement, provisioning of unbundled network
arrangements will be governed with the GTE Customer Guide for DTI
Establishment of Services - Resale and Unbundling (the "Guide").
Additional procedures for preordering, ordering, provisioning and
billing of unbundled network elements are outlined in Appendix I.
2. Unbundled Network Elements.
2.1 Categories. There are several separate categories of Network Components
that shall be provided as unbundled network elements by GTE:
(a) Network Interface Device or NID
(b) Loop Elements
(c) Port and Local Switching Elements
(d) Transport Elements
(e) Signaling Elements
(f) Data Switching
(g) Digital Cross Connect System (DCS)
2.2 Prices. Individual unbundled network elements and prices are identified
on Appendix G attached to this Agreement and made a part hereof, or
under the appropriate GTE tariff as referenced in this Article.
Nonrecurring charges relating to unbundled elements are also listed on
Appendix G.
2.2.1 Reciprocal Compensation Arrangements for Call Termination.
Reciprocal compensation arrangements for call termination shall
be as provided in Appendix M attached hereto.
2.3 Interconnection to Unbundled Elements. DTI may lease and interconnect
to whichever of these unbundled network elements DTI chooses, and
subject to technical feasibility, may combine these unbundled elements
with any facilities or services that DTI may itself provide subject to
the following:
2.3.1 Interconnection shall be achieved via expanded
interconnection/collocation arrangements DTI shall maintain at
the wire center at which the unbundled services are resident.
2.3.2 DTI may order transport pursuant to Section 6 below as follows:
(a) From the wire center at which the unbundled elements
(e.g., loop, port) are located to the GTE wire center
where DTI has established an
interconnection/collocation arrangement.
(b) Directly from the DTI switch to a GTE wire center and
connect to unbundled loops. Applicable charges would be
transport, transport termination, multiplexing,
loop/port connector and loop.
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<PAGE> 53
2.3.3 Each loop or port element shall be delivered to DTI collocation
arrangement over a loop/port connector applicable to the
unbundled services as listed on Appendix G.
2.3.4 DTI shall combine unbundled network elements with its own
facilities. GTE has no obligation to combine any network
elements for DTI. DTI may not combine such network elements to
provide solely interexchange service or solely access service to
an interexchange carrier.
2.4 Service Quality. To the degree reasonably possible, all service
attributes, grades-of-service and installation, maintenance and repair
intervals which apply to the bundled service will apply to unbundled
network elements. Notwithstanding the foregoing, GTE shall not be
responsible for impacts on service attributes, grades of service, etc.,
resulting from DTI's specific use of or modification to any unbundled
network element.
3. Network Interface Device.
3.1 Direct Connection. DTI shall be permitted to connect its own Loop
directly to GTE's Network Interface Device or NID in cases in which DTI
uses its own facilities to provide local service to an end user
formerly served by GTE, as long as such direct connection does not
adversely affect GTE's network. In order to minimize any such adverse
effects, DTI shall follow the procedures in Sections 3.1.1 and 3.1.2
below.
3.1.1 When connecting its own loop facility directly to GTE's NID for
a residence or business customer, DTI must make a clean cut on
the GTE drop wire at the NID so that no bare wire is exposed.
DTI shall not remove or disconnect GTE's drop wire from the NID
or take any other action that might cause GTE's drop wire to be
left lying on the ground.
3.1.2 At multi-tenant customer locations, DTI must remove the jumper
wire from the distribution block (i.e. the NID) to the GTE cable
termination block. If DTI cannot gain access to the cable
termination block, DTI must make a clean cut at the closest
point to the cable termination block. At DTl's request and
discretion, GTE will determine the cable pair to be removed at
the NID in multi-tenant locations. DTI will compensate GTE for
the trip charge necessary to identify the cable pair to be
removed.
3.1.3 GTE agrees to offer NIDs for lease to DTI but not for sale. DTI
may remove GTE identification from any NID which it connects to
a DTI loop, but DTI may not place its own identification on such
NID.
3.1.4 GTE Loop elements leased by DTI will be required to terminate
only on a GTE NID. If DTI leasing a GTE loop wants a DTI NID,
they will also be required to lease a GTE NID for the direct
loop termination and effect a NID to NID connection.
3.2 NID to NID Connection. Rather than connecting its loop directly to
GTE's NID, DTI may also elect to install its own NID and effect a NID
to NID connection to gain access to the end user's inside wiring.
3.2.1 DTI that provides its own loop facilities may elect to move all
inside wire terminated on a GTE NID to one provided by DTI. In
this instance, a NID to NID connection will not be required.
DTI, or the end user premise owner, can elect to leave the GTE
disconnected NID in place, or to remove the GTE NID from the
premise and dispose of it entirely.
3.3 Removal of Cable Pairs. Removal of existing cable pairs required for
DTI to terminate service is the responsibility of DTI.
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<PAGE> 54
3.4 Maintenance. When DTI provides its own loop and connects directly to
GTE's NID, GTE does not have the capability to perform remote
maintenance. DTI can perform routine maintenance via its loop and
inform GTE once the trouble has been isolated to the NID and GTE will
repair (or replace) the NID, or, at DTI's option, it can make a NID to
NID connection, using the GTE NID only to gain access to the inside
wire at the customer location.
4. Loop Elements.
4.1 Service Description. a "Loop" is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or
group of channels on such facility) which extends from a Main
Distribution Frame ("MDF') or functionally comparable piece of
equipment in a GTE end office or wire center to a demarcation or
connector block in/at a subscriber's premises. Traditionally, Loops
were provisioned as 2-wire or 4-wire copper pairs running from the end
office MDF to the customer premises. However, a loop may be provided
via other media, including radio frequencies, as a channel on a high
capacity feeder/distribution facility which may, in turn, be
distributed from a node location to the subscriber premises via a
copper or coaxial drop facility, etc.
4.2 Categories of Loops. There are six general categories of loops:
4.2.1 "2-wire analog voice grade" loops will support analog
transmission of 300-3000 Hz, repeat loop start or ground start
seizure and disconnect in one direction (toward the end office
switch), and repeat ringing in the other direction (toward the
end user). This loop is commonly used for local dial tone
service;
4.2.2 "4-wire analog voice grade" loops conform to the characteristics
of a 2-wire voice grade loop and, in addition, can support the
simultaneous independent transmission of information in both
directions;
4.2.3 "2-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 2-wire
digital loops shall be the price for the basic 2-wire loop plus
the loop facility NRC to recover the cost of the special
provisioning.
4.2.4 "4-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 4-wire
digital loops shall be the price for the basic 4-wire loop plus
the loop facility NRC to recover the cost of the special
provisioning.
4.2.5 "DS-1" loops will support a digital transmission rate of 1.544
Mbps. The DS-1 loop will have no bridge taps or load coils and
will employ special line treatment. DS-1 loops will include span
line repeaters where required, office terminating repeaters, and
DSX cross connects. Prices for DS-1 grade loops are the prices
set forth in the appropriate GTE intrastate special access
tariff.
4.2.6 "DS-3" loops will support the transmission of isochronous
bipolar serial data at a rate of 44.736 Mbps. This DS-3 type of
loop provides the equivalent of 28 DS-1 channels and shall
include the electronics at either end.
4.3 Conditioned Loops. DTI may also require that the loops ordered above be
conditioned in order for them to provide the end-user service. Examples
of this type of conditioning are: Type C, Type DA, Improved C, Clear
Channel, etc. The price for such a conditioned loops shall be the
applicable charge as provided in the appropriate GTE intrastate special
access tariff.
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<PAGE> 55
4.4 Features, Functions, Attributes. To the degree reasonably possible, all
transport-based features, functions, service attributes,
grades-of-service, installation, maintenance and repair intervals that
apply to the bundled services will apply to unbundled loops.
4.4.1 GTE will not perform routine testing of the unbundled loop for
maintenance purposes. DTI will be required to provision a loop
testing device either in its central office (switch location),
Network Control Center or in its collocation arrangement to test
the unbundled loop. GTE will perform repair and maintenance once
trouble is identified by DTI.
4.4.2 All Loop facilities furnished by GTE on the premises of DTI's
end users and up to the network interface or functional
equivalent are the property of GTE. GTE must have access to all
such facilities for network management purposes. GTE employees
and agents may enter said premises at any reasonable hour to
test and inspect such facilities in connection with such
purposes or, upon termination or cancellation of the Loop
facility, to remove such facility.
4.4.3 GTE will provide loop transmission characteristics to DTI end
users which are equal to those provided to GTE end users.
4.4.4 If DTI leases loops which are conditioned to transmit digital
signals, as a part of that conditioning, GTE will test the loop
and provide recorded test results to DTI. In maintenance and
repair cases, if loop tests are taken, GTE will provide any
recorded readings to DTI at time the trouble ticket is closed in
the same manner as GTE provides to itself and its end users.
4.5 Dial Loop Carrier. Where GTE utilizes integrated digital loop carrier
("IDLC")1 technology to provision the Loop element, GTE will take the
necessary affirmative steps to provide unbundled Loops. The basic Loop
provided will support voice grade services. Loop capabilities beyond
voice grade (i.e., ISDN, ADSL, etc.) will be provided under the terms
and conditions, and at the prices indicated in Section 4.3.
4.5.1 GTE will permit DTI to collocate digital loop carriers and
associated equipment in conjunction with collocation
arrangements DTI maintains at a GTE wire center for the purpose
of interconnecting to unbundled Loop elements.
4.6 Unbundled Loop Facility Certification.
4.6.1 Before deploying any service enhancing copper cable technology
(e.g., HDSL, ISDN, etc.) over unbundled 2-wire analog voice
grade loops leased from GTE, DTI shall notify GTE of such
intentions to enable GTE to assess the loop transport facilities
to determine whether there are any existing copper cable loop
transport technologies (e.g., analog carrier, etc.) deployed
within the same cable sheath that would be interfered with if
DTI deployed the proposed service enhancing copper cable
technology. If there are existing copper cable loop transport
technologies already deployed within the same cable sheath, or
if GTE already has existing near term (within 18 months of the
date of facility certification) plans to deploy copper cable
loop transport technologies that would be interfered with as
described above, GTE will so inform DTI and DTI shall not be
permitted to deploy such service enhancing copper cable
technologies. GTE will charge DTI the applicable engineering
time and labor costs to perform the certification.
- --------
(1) See Bellcore TR-TSY-000008, Digital Interface Between the SLC-96 Digital
Loop Carrier System and Local Digital Switch and TR-TSY-000303, Integrated
Digital Loop Carrier (IDLC) Requirements, Objectives and Interface.
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<PAGE> 56
4.6.2 If DTI fails to notify GTE of its plans to deploy service
enhancing copper cable technology and obtain prior certification
from GTE of the facilities, if DTI's deployment of such
technology is determined to have caused interference with
existing or planned copper cable loop transport technologies
deployed by GTE in the same cable sheath, DTI will immediately
remove such service enhancing copper cable technology and shall
reimburse GTE for all incurred expense related to this
interference.
4.7 Unbundled Loop Facility Notification.
4.7.1 GTE reserves the right to deploy within its network at its sole
discretion any and all copper cable loop transport technologies.
If GTE plans to deploy copper cable loop transport technology
within a cable sheath in which such technology was not
previously deployed, GTE will provide notice to DTI of such
planned deployment, indicating all service enhancing copper
cable technologies that would cause interference with the
technology to be deployed, or that would be interfered with by
the deployment of such technology. Such notice will be provided
at least ninety (90) Business Days in advance of the planned
deployment. If DTI has deployed any technologies within the same
cable sheath that would interfere with, or be interfered with,
by the technology GTE plans to deploy, the parties will work
together to resolve the situation.
4.8 Subloops.
4.8.1 GTE will provide as separate items the loop distribution, loop
concentrator and loop feeder on a case-by-case basis pursuant to
a Bona Fide Request ("BFR").
4.8.2 GTE will design and construct loop access facilities (including
loop feeders and loop concentration/multiplexing systems) in
accordance with standard industry practices as reflected in
applicable tariffs and/or as agreed to by GTE and DTI.
4.8.3 Transport for loop concentrators/multiplexers services not
supported by embedded technologies will be provided pursuant to
applicable tariffs or as individually agreed upon by GTE and
DTI. The Parties understand that embedded loop
concentrators/multiplexers are not necessarily capable of
providing advanced and/or digital services.
4.8.4 GTE will provide loop transmission characteristics as specified
in Section 4.4.3 herein.
5. Port and Local Switching Elements.
5.1 Port. Port is an unbundled component of Exchange Service that provides
for the interconnection of individual loops or trunks to the switching
components of GTE's network. In general, it is a line card or trunk
card and associated peripheral equipment on GTE end office switch that
serves as the hardware termination for the end user's Exchange Service
on that switch and generates dial tone and provides the end user access
to the public switched telecommunications network. The port does not
include such features and functions which are provided as part of Local
Switching. Each line-side port is typically associated with one (or
more) telephone number(s), which serve as the end user's network
address.
5.2 Ports Available as Unbundled Network Elements. There are four types of
Ports available as unbundled network elements;
5.2.1 "2-wire analog line" Port is a line side switch connection
employed to provide basic residential and business type Exchange
Service.
5.2.2 "2-wire ISDN digital line" Port is a Basic Rate Interface (BRI)
line side switch connection employed to provide ISDN Exchange
Services.
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5.2.3 "DS-1 digital trunk" Port is a direct inward dialing (DID)
trunk side switch connection employed to provide the
equivalent of 24 analog incoming trunk type Exchange Services.
5.2.4 "4-wire ISDN digital DS-1 trunk" Port is a Primary Rate
Interface (PRI) trunk side switch connection employed to
provide the ISDN Exchange Services
5.3 Port Prices. Prices for 2-wire analog and DS-1 Ports are listed in
Appendix G. 2-wire ISDN line side Ports and 4-wire ISDN trunk side
Ports shall be provided at a price agreed to by the Parties.
5.4 Local Switching. Local switching provides the basic switching functions
to originate, route and terminate traffic and any signaling deployed in
the switch. Vertical features are optional services provided through
software programming in the switch which can be added on a per-feature
basis with applicable rate. GTE will offer only those features and
functions currently available to the particular platform used (e.g.,
DMS, 5ESS, GTD5). Any feature or function which is not available, but
the switch is capable of providing, may be requested via the BFR
process. DTI will be responsible for bearing any costs incurred by GTE
in making such feature/function available, including Right-to-Use (RTU)
fees. The rates for Local Switching and Vertical Features are listed in
Appendix G.
5.4.1 DTI must purchase Local Switching with the line-side Port or
trunk-side Port, if applicable.
5.5 Compliance with Section 2.3. DTI shall only order unbundled elements in
accordance with Section 2.3 herein and it will be the responsibility of
DTI to make arrangements for the delivery of interexchange traffic and
routing of traffic over interoffice transmission facilities, if
applicable.
6. Transport Facility.
6.1 Service Description. Transport is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or
group of channels on such facility) which extends from a Main
Distribution Frame (MDF) or functionally comparable piece of equipment
in a GTE end office or access tandem to either (l) another MDF or
functionally comparable piece of equipment in a GTE end office or
access tandem, or (ii) a meet point with transport facilities of DTI or
another carrier. Transport may be provided over a variety of media,
including, but not limited to, copper cables, radio frequencies or
channels on a high capacity facility.
6.1.1 Tandem Switching Capability. GTE will provide tandem switching
capability at GTE access tandems for traffic between DTI and GTE
end offices subtending the GTE access tandem and for traffic
between DTI and non-GTE end offices subtending GTE access
tandems. GTE will provide the features and functions that are
centralized in tandem switches including but not limited to call
recording, the routing of calls to operator services when
technically feasible, and signaling conversion features.
6.2 Categories/Types. Unbundled transport is provided under rates, terms
and conditions of the applicable GTE access tariff or local private
line tariff.
7. SS7 Transport and Signaling. SS7 signaling and transport services in
support of DTI's local exchange services shall be provided in
accordance with the terms and conditions of Appendix I attached to this
Agreement and made a part hereof.
7.1 GTE will provide interconnection with its SS7 at the STPs but not at
other points.
8. LIDB Services. Access to GTE's LIDB shall be provided in accordance
with the rates, terms and conditions of GTE's switched access tariff,
GTOC Tariff FCC No. 1, Section 8.
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9. Database 800-Type Services. Access to GTE's 800-Type database (i.e.,
888, 877) shall be provided in accordance with the rates, terms and
conditions of GTE's switched access tariff, GTOC Tariff FCC No. 1,
Section 8.
10. Data Switching.
10.1 Access. GTE will provide unbundled access to GTE data switches to DTI
at the user network interface ("UNI") and network to network interface
("NNI") level subject to mutual agreement on technical standards.
10.2 Nondiscrimination. Data switching features and functionalities provided
to DTI will be without discrimination with respect to the way GTE
provides them to GTE end users. In the event of overflow or congestion
conditions on the data switching network, DTI's data traffic carried on
GTE facilities will be equal priority to GTE data traffic.
10.3 Testing, Monitoring, Administration and Maintenance. Testing,
monitoring, administration and maintenance will be performed by GTE in
a nondiscriminatory manner.
11. Dial Cross Connect System (DCS).
11.1 Access. GTE will provide unbundled access to the DCS element, which
shall provide automated cross-connection (with CNC), facility grooming,
bridging (MJU-digital), point to multipoint connections (DMB-analog),
broadcast and automated facility test capabilities. These
functionalities will be provided consistent with that which is provided
to GTE end users. DTI shall submit a Bona Fide Request to GTE
specifying these functionalities.
11.2 Optional Characteristics. The DCS element may include multiplexing,
format conversion, signaling conversion and manual cross connection
wiring.
11.3 Alternate Provisioning. Where no automated DCS capability exists, the
cross connection function will be provided manually by GTE through the
combination of DSX patch panels and D4 banks or DS0 (or higher
capacity) equipment.
11.4 Elements. DTI will have access to the following DCS elements:
(a) DS0 with DS1 interface (CNC)
(b) DS1/VT1.5 with DS1, DS3 and SONET interfaces (CNC and Titan 5500)
11.5 Capabilities. The DCS elements will provide the following capabilities:
(a) Real-time configuration (with CNC)
(b) Real-time access to integrated test equipment (with React and
Customer Service)
(c) SONET asynchronous gateway functionality (with Titan 5500 only)
(d) Compliance with Bellcore and industry standards.
11.6 Protection and Performance. The unbundled DCS elements provided to DTI
will have equipment/interface protection, redundant power supply and/or
battery backup and performance/availability consistent with that
provided to GTE end users.
11.7 Provisioning, Administration and Maintenance. GTE will provide
provisioning, administration and maintenance of the DCS elements the
same level as GTE provides to itself as well as real time
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access to performance monitoring and alarm data affecting DTI traffic
(with CNC). GTE is not required to keep software updated to the
"current available release" in every instance.
12. Operator Services (OS) and Directory Assistance (DA). GTE will provide
OS and DA to DTI in accordance with the terms set forth as follows:
12.0.1 Where Customized Routing is available, GTE will offer unbranded
OS and DA or rebranded OS and DA with the DTI brand. GTE will
provide such unbranding or rebranding on a switch-by-switch
basis, subject to capability and capacity limitations. Upon
receipt of an order for unbranding or rebranding, GTE will
implement within 90 Business Days when technically capable.
12.0.2 DTI will be billed an element charge for OS and DA and a charge
for unbranding or rebranding and Customized Routing as set forth
in Section 12.1.2. In addition, charges specified in Section
12.1.4 will apply.
12.0.3 For those offices that DTI has requested GTE to rebrand and/or
unbrand OS and DA, GTE will provide it using live operators
where GTE performs its own OS and DA service and where handled
by automated systems. If GTE uses a Third Party contractor to
provide OS or DA, GTE will not provide branding nor will GTE
negotiate it with a Third Party on behalf of DTI. DTI must
negotiate with the Third Party. In these instances, DTI will
need to purchase customized routing to differentiate OS/DA
traffic between GTE's and a Third Party.
12.1 Customized Routing. Where technically feasible and upon receipt of
written request from DTI, GTE agrees to provide customized routing for
the following types of calls:
0-
0+Local
0+411
1+411
0+HNPA-555-1212 (intraLATA, only when
intraLATA presubscription is not available)
1+HNPA-555-1212 (intraLATA, only when
intraLATA presubscription is not available)
12.1.1 GTE will provide DTI a list of switches that can provide
customized routing using line class codes or similar method
(regardless of current capacity limitations). DTI will return a
list of these switches ranked in priority order. GTE will return
to DTI a schedule for customized routing in the switches with
existing capabilities and capacity.
12.1.2 Upon written request from DTI, GTE will provide DTI with
applicable charges, and terms and conditions, for providing OS
and DA, branding, and Customized Routing.
12.1.3 Subject to the above provisions, GTE will choose the method of
implementing customized routing of OS and DA calls.
12.1.4 The use of customized routing will require the purchase of a
trunk side port and dedicated facilities between the GTE end
office and the designated OS/DA platform. The rates for these
elements will be billed in accordance with Appendix G.
13. Advanced Intelligent Network Access (AIN). GTE will provide DTI access
to GTE AIN functionality from GTE's AIN SCP via GTE's local switch or
DTI's local switch.
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14. Nondiscrimination Provision and Support. GTE agrees to provide
unbundled network elements in a timely manner considering the need and
volume of requests. GTE will provide unbundled network elements in a
non-discriminatory manner and shall provide power to such elements on
the same basis as GTE provides to itself.
15. Provisioning Intervals. GTE agrees to provide unbundled network
elements in a timely manner considering the need and volume of
requests, pursuant to agreed upon service provisioning intervals.
16. Directory Assistance Listing. When DTI orders an unbundled port, a
Directory Service Request (DSR) must be submitted to have the listing
included in GTE's Directory Assistance database. The applicable
ordering charge will be applied for processing the DSR.
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ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS
1. Bona Fide Request Process.
1.1 Intent. The Bona Fide Request process is intended to be used when DTI
requests customized Service Orders for certain services, features,
capabilities or functionality defined and agreed upon by the Parties as
services to be ordered as Bona Fide Requests.
1.2 Process.
1.2.1 A Bona Fide Request shall be submitted in writing by DTI and shall
specifically identify the need to include technical requirements, space
requirements and/or other such specifications that clearly define the
request such that GTE has sufficient information to analyze and prepare
a response.
1.2.2 Although not expected to do so, DTI may cancel a Bona Fide Request in
writing at any time prior to DTI and GTE agreeing to price and
availability. GTE will then cease analysis of the request.
1.2.3 Within two (2) Business Days of its receipt, GTE shall acknowledge in
writing the receipt of the Bona Fide Request and identify a single
point of contact and any additional information needed to process the
request.
1.2.4 Except under extraordinary circumstances, within ten (10) Business Days
of its receipt of a Bona Fide Request, GTE shall provide a proposed
price and availability date, or it will provide an explanation as to
why GTE elects not to meet DTI's request. If extraordinary
circumstances prevail, GTE will inform DTI as soon as it realizes that
it cannot meet the ten (10) Business Day response due date. DTI and GTE
will then determine a mutually agreeable date for receipt of the
request.
1.2.5 Unless DTI agrees otherwise, all proposed prices shall be consistent
with the pricing principles of the Act, FCC and/or the Commission.
Payments for services purchased under a Bona Fide Request will be made
upon delivery, unless otherwise agreed to by DTI, in accordance with
the applicable provisions of the Agreement.
1.2.6 Upon affirmative response from GTE, DTI will submit in writing its
acceptance or rejection of GTE's proposal. If at any time an agreement
cannot be reached as to the terms and conditions or price of the
request GTE agrees to meet, the Dispute resolution procedures described
in Article III herein may be used by a Party to reach a resolution.
2. Transfer of Service Announcements. For services other than GTE resold
and ported number services, when an end user customer transfers service
from one Party to the other Party, and does not retain its original
telephone number, the Party formerly providing service to the end user
will provide, upon request and if such service is provided to its own
customers, a referral announcement on the original telephone number.
This announcement will provide the new number of the customer and will
remain in effect for the same time period this service is provided to
GTE's own end users. For GTE resold and ported number services, GTE
shall provide an intercept referral on behalf of DTI.
3. Misdirected Calls. The Parties will employ the following procedures for
handling any misdirected calls (e.g., Business office, repair bureau,
etc.).
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3.1 To the extent the correct provider can be determined, each Party will
refer misdirected calls to the proper provider of local exchange
service. When referring such calls, both Parties agree to do so in a
courteous manner, at no charge.
3.2 For misdirected repair calls, the Parties will provide their respective
repair bureau contact number to each other on a reciprocal basis and
provide the end user the correct contact number.
3.3 In responding to misdirected calls, neither Party shall make
disparaging remarks about each other, nor shall they use these calls as
a basis for internal referrals or to solicit end users or to market
services.
4. 911/E911 Arrangements.
4.1 Description of Service. DTI will install a minimum of two (2) dedicated
trunks to GTE's 911/E911 selective routers (i.e., 911 tandem offices)
that serve the areas in which DTI provides Exchange Services, for the
provision of 911/E911 services and for access to all subtending PSAPs.
The dedicated trunks shall be, at a minimum, DS-0 level trunks
configured as a 2-wire analog interface or as part of a digital (1.544
Mbps) interface in which all circuits are dedicated to 9-1-1 traffic.
Either configuration shall use CAMA type signaling with multifrequency
("MF") tones that will deliver ANI with the voice portion of the call.
GTE will provide DTI with the appropriate CLLI codes and specifications
of the tandem office serving area or the location of the primary PSAP
when there is no 911 routing in that 911 district. If a DTI central
office serves end users in an area served by more than one (1) GTE
911/E911 selective router, DTI will install a minimum of two (2)
dedicated trunks in accordance with this Section to each of such
911/E911 selective routers or primary PSAP.
4.2 Transport. If DTI desires to obtain transport from GTE to the GTE 911
selective routers, DTI may purchase such transport from GTE at the
rates set forth in Appendix H.
4.3 Cooperation and Level of Performance. The Parties agree to provide
access to 911/E911 in a manner that is transparent to the end user. The
Parties will work together to facilitate the prompt, reliable and
efficient interconnection of DTI's systems to the 911/E911 platforms,
with a level of performance that will provide the same grade of service
as that which GTE provides to its own end users. To this end, GTE will
provide documentation to DTI showing the correlation of its rate
centers to its E911 tandems at rates set forth in Appendix H.
4.4 Basic 911 and E911 General Requirements:
4.4.1 Basic 911 and E911 provides a caller access to the appropriate
emergency service bureau by dialing a 3-digit universal
telephone number (911).
4.4.2 Where GTE has a 911 selective router installed in the network
serving the 911 district, GTE shall use subscriber data
derived from the Automatic Location Identification/Database
Management System (ALI/DMS) to selectively route the 911 call
to the Public Safety Answering Point (PSAP) responsible for
the caller's location.
4.4.3 All requirements for E911 also apply to the use of SS7 as a
type of signaling used on the interconnection trunks from the
local switch to an end office or a selective router.
4.4.4 Basic 911 and E911 functions provided to DTI shall be at least
at parity with the support and services that GTE provides to
its subscribers for such similar functionality.
4.4.5 Basic 911 and E911 access from Local Switching shall be
provided to DTI in accordance with the following:
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4.4.5.1 GTE and DTI shall conform to all state regulations concerning
emergency services.
4.4.5.2 For E911, both DTI and GTE shall use their respective service
order processes to update access line subscriber data for
transmission to the database management systems. Validation
will be done via MSAG comparison listed in Section 4.4.5.5.
4.4.5.3 If legally required by the appropriate jurisdiction, GTE shall
provide or overflow 911 traffic to be routed to GTE Operator
Services or, at DTI's discretion, directly to DTI Operator
Services.
4.4.5.4 Basic 911 and E911 access from the DTI local switch shall be
provided from GTE to DTI in accordance with the following:
4.4.5.4.1 If required by DTI and technically feasible, GTE
shall interconnect direct trunks from the DTI
network to the E911 PSAP, or to the E911 selective
routers as designated by DTI. Such trunks may
alternatively be provided by DTI.
4.4.5.4.2 In government jurisdictions where GTE has
obligations under existing Agreements as the
primary provider of the 911 System to the county
(i.e., "lead telco"), DTI shall participate in the
provision of the 911 System as follows:
4.4.5.4.2.1 Each Party shall be responsible for
those portions of the 911 System for
which it has control, including any
necessary maintenance to each Party's
portion of the 911 System.
4.4.5.4.2.2 DTI and GTE recognize that the lead
telco in a 911 district has the
responsibility of maintaining the ALI
database for that district. Each
company will provide its access line
subscriber records to the database
organization of that lead telco. DTI
and GTE will be responsible for
correcting errors when notified by
either the 911 district or its
customer, and then submitting the
corrections to the lead telco. Lead
telco database responsibilities are
covered in Section 4.4.5.5 of this
Article.
4.4.5.4.2.3 DTI shall have the right to verify the
accuracy of information regarding DTI
customers in the ALI database using
methods and procedures mutually agreed
to by the Parties. The fee for this
service shall be determined based upon
the agreed upon solution.
4.4.5.4.3 If a Third Party is the primary service provider
to a 911 district, DTI shall negotiate separately
with such Third Party with regard to the provision
of 911 service to the agency. All relations
between such Third Party and DTI are totally
separate from this Agreement and GTE makes no
representations on behalf of the Third Party.
4.4.5.4.4 If DTI or Affiliate is the primary service
provider to a 911 district, DTI and GTE shall
negotiate the specific provisions necessary for
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providing 911 service to the agency and shall
include such provisions in an amendment to this
Agreement.
4.4.5.4.5 Interconnection and database access shall be at
rates as set forth in Appendix H.
4.4.5.4.6 GTE shall comply with established, competitively
neutral intervals for installation of facilities,
including any collocation facilities, diversity
requirements, etc.
4.4.5.4.7 In a resale situation, where it may be appropriate
for GTE to update the ALI database, GTE shall
update such database with DTI data in an interval
no less than is experienced by GTE subscribers, or
than for other carriers, whichever is faster, at
no additional cost.
4.4.5.5 The following are Basic 911 and E911 Database Requirements:
4.4.5.5.1 The ALI database shall be managed by GTE, but is
the property of GTE and any participating LEC or
DTI which provides their records to GTE.
4.4.5.5.2 Copies of the MSAG shall be provided within five
(5) business days after the date the request is
received and provided on diskette or paper copy at
the rates set forth in Appendix H.
4.4.5.5.3 DTI shall be solely responsible for providing DTI
database records to GTE for inclusion in GTE's ALI
database on a timely basis.
4.4.5.5.4 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database
information related to DTI end users. GTE shall
work cooperatively with DTI to ensure the accuracy
of the data transfer by verifying it against the
Master Street Address Guide ("MSAG"). GTE shall
accept electronically transmitted files or
magnetic tape that conform to National Emergency
Number Association ("NENA") Version #2 format.
4.4.5.5.5 DTI shall assign an E911 database coordinator
charged with the responsibility of forwarding DTI
end user ALI record information to GTE or via a
third-party entity, charged with the
responsibility of ALI record transfer. DTI assumes
all responsibility for the accuracy of the data
that DTI provides to GTE.
4.4.5.5.6 GTE shall update the database within one (1)
business day of receiving the data from DTI. If
GTE detects an error in the DTI provided data, the
data shall be returned to DTI within one day from
when it was provided to GTE. DTI shall respond to
requests from GTE to make corrections to database
record errors by uploading corrected records
within one day. Manual entry shall be allowed only
in the event that the system is not functioning
properly.
4.4.5.5.7 GTE agrees to treat all data on DTI subscribers
provided under this Agreement as strictly
confidential and to use data on DTI subscribers
only for the purpose of providing E911 services.
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4.4.5.5.8 GTE shall adopt use of a Carrier Code (NENA
standard five-character field) on all ALI records
received from DTI. The Carrier Code will be used
to identify the carrier of record in NP
configurations. The NENA Carrier Code for DTI is
"DTI"; the NENA Carrier Code for GTE is "GTE."
4.4.5.6 GTE and DTI will comply with the following requirements for
network performance, maintenance and trouble notification.
4.4.5.6.1 Equipment and circuits used for 911 shall be
monitored at all times. Monitoring of circuits
shall be done to the individual trunk level.
Monitoring shall be conducted by GTE for trunks
between the selective router and all associated
PSAPs.
4.4.5.6.2 Repair service shall begin immediately upon report
of a malfunction. Repair service includes testing
and diagnostic service from a remote location,
dispatch of or in-person visit(s) of personnel.
Where an on-site technician is determined to be
required, a technician will be dispatched without
delay.
4.4.5.6.3 GTE shall notify DTI forty-eight (48) hours in
advance of any scheduled testing or maintenance
affecting DTI 911 service. GTE shall provide
notification as soon as possible of any
unscheduled outage affecting DTI 911 service.
4.4.5.6.4 All 911 trunks must be capable of transporting
Baudot Code necessary to support the use of
Telecommunications Devices for the Deaf
("TTY/TDDs").
4.4.5.7 Basic 911 and E911 Additional Requirements
4.4.5.7.1 All DTI lines that have been ported via INP shall
reach the correct PSAP when 911 is dialed. Where
GTE is the lead telco and provides the ALI, the
ALI record will contain both the DTI number and
GTE ported number. The PSAP attendant shall see
both numbers where the PSAP is using a standard
ALI display screen and the PSAP extracts both
numbers from the data that is sent. GTE shall
cooperate with DTI to ensure that 911 service is
fully available to all DTI end users whose
telephone numbers have been ported from GTE,
consistent with State provisions.
4.4.5.7.2 DTI and GTE shall be responsible for reporting all
errors, defects and malfunctions to one another.
GTE and DTI shall provide each other with a point
of contact for reporting errors, defects, and
malfunctions in the service and shall also provide
escalation contacts.
4.4.5.7.3 DTI may enter into subcontracts with third
parties, including DTI Affiliates, for the
performance of any of DTI's duties and obligations
stated herein.
4.4.5.7.4 Where GTE is the lead telco, GTE shall provide DTI
with notification of any pending selective router
moves within at least ninety (90) days in
advance..
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4.4.5.7.5 Where GTE is the lead telco, GTE
shall establish a process for the
management of NPA splits by
populating the ALI database with the
appropriate new NPA codes.
4.4.5.7.6 Where GTE is the lead telco, GTE
shall provide the ability for
DTI to update 911 database with end
user information for lines that have
been ported via INP or LNP.
4.4.6 Basic 911 and E911 Information Exchanges and interfaces. Where
GTE is the lead telco:
4.4.6.1 GTE shall provide DTI access to the ALI Gateway
which interfaces to the ALI/DMS database. GTE
shall provide error reports from the ALI/DMS
database to DTI within one (1) day after DTI
inputs information into the ALI/DMS database.
Alternately, DTI may utilize GTE or a Third Party
entity to enter subscriber information into the
database on a demand basis, and validate
subscriber information on a demand basis. The
rates are set forth in Appendix H.
4.4.6.2 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database
information related to DTI end users. GTE shall
work cooperatively with DTI to ensure the accuracy
of the data transfer by verifying it against the
Master Street Address Guide ("MSAG"). GTE shall
accept electronically transmitted files or
magnetic tape that conform to National Emergency
Number Association ("NENA") Version #2 format.
4.4.6.3 Updates to MSAG. Upon receipt of an error
recording an DTI subscriber's address from GTE,
and where GTE is the lead telco, it shall be the
responsibility of DTI to ensure that the address
of each of its end users is included in the Master
Street Address Guide ("MSAG") via information
provided on DTI's Local Service Request ("LSR") or
via a separate feed established by DTI pursuant to
Section 4.4.5.7 of this Article.
4.4.6.4 The ALI database shall be managed by GTE, but is
the property of GTE and all participating
telephone companies. The interface between the
E911 Switch or Tandem and the ALI/DMS database for
DTI subscriber shall meet industry standards.
4.5 Compensation. In situations in which GTE is responsible for maintenance
of the 911/E911 database and can be compensated for maintaining DTI's
information by the municipality, GTE will seek such compensation from
the mulicipality. GTE will seek compensation from DTI only if, and to
the extent, that GTE is unable to obtain such compensation from the
municipality. GTE shall charge DTI a portion of the cost of the shared
911/E911 selective router as set forth in Appendix H.
5. Information Services Traffic.
5.1 Routing. Each Party shall route traffic for Information Services (i.e.
900-976, Internet, weather lines, sports providers, etc.) which
originates on its network to the appropriate Information Service
Platform.
5.2 Billing and Collection and Information Service Provider (ISP)
Remuneration.
5.2.1 In the event GTE performs switching of ISP traffic associated
with resale or unbundled network elements for DTI, GTE shall
provide to DTI GTE's standard call detail records
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so as to allow DTI to bill its end users. GTE shall not be
responsible or liable to DTI or ISP for Billing and Collection
and/or any receivables of Information Service Providers.
5.2.2 Notwithstanding and in addition to Article III, Section 24,
GTE shall be indemnified and held harmless by CLEC from and
against any and all suits, actions, losses, damages, claims,
or liability of any character, type, or description, including
all expenses of litigation and court cost which may arise as a
result of the provisions contained in this Article VIII,
Section 5.2.1 supra. The indemnity contained in this section
shall survive the termination of this Agreement, for whatever
reason.
5.2.3 GTE agrees to notify DTI in writing within ten (10) working
days, by registered or certified mail at DTI's address of any
claim made against GTE on the obligations indemnified against
pursuant to this Article VIII, Section 5.
5.2.4 It is understood and agreed that the indemnity provided for in
this Article VIII, Section 5 is to be interpreted and enforced
so as to provide indemnification of liability to GTE to the
fullest extent now or hereafter permitted by law.
5.3 900-976 Call Blocking. GTE shall not unilaterally block 900-976 traffic
in which GTE performs switching associated with resale or unbundled
network elements. GTE will block 900-976 traffic when requested to do
so, in writing, by DTI. DTI shall be responsible for all cost
associated with the 900-976 call blocking request. GTE reserves the
right to block any and all calls which may harm or damage its network.
5.4 Miscellaneous. GTE reserves the right to provide to any Information
Service Provider a list of any and all Telecommunications Providers
doing business with GTE.
6. Telephone Relay Service. Local and intraLATA Telephone Relay Service
("TRS") enables deaf, hearing-impaired, or speech-impaired TRS users to
reach other telephone users. With respect to resold services, DTI's end
users will have access to the state authorized TRS provider to the
extent required by the Commission, including any applicable
compensation surcharges.
7. Directory Assistance (DA) and Operator Services (OS). Where DTI is
providing local service with its own switch, upon DTI's request GTE
will provide to DTI rebranded or unbranded directory assistance
services and/or operator services pursuant to separate contracts to be
negotiated in good faith between the Parties. If DTI so requests
directory assistance services and/or operator services, such contracts
shall provide for the following:
7.1 Directory Assistance Calls. GTE directory assistance centers shall
provide number and addresses to DTI end users in the same manner that
number and addresses are provided to GTE end users. If information is
provided by an automated response unit ("ARU"), such information shall
be repeated twice in the same manner in which it is provided to GTE end
users. Where available, GTE will provide call completion to DTI end
users in the same manner that call completion is provided to GTE end
users. GTE will provide its existing services to DTI end users
consistent with the service provided to GTE end users.
7.2 Operator Services Calls. GTE operator services provided to DTI end
users shall be provided in the same manner GTE operator services are
provided to GTE end users. In accordance with GTE practices and at GTE
rates, GTE will offer to DTI end users collect, person-to-person,
station-to-station calling, Third Party billing, emergency call
assistance, calling card services, credit for calls, time and charges,
notification of the length of call, and real time rating. GTE operators
shall also have the ability to quote DTI rates upon request but only if
there is appropriate cost recovery to GTE and to the extent it can be
provided within the technical limitations of GTE's switches. GTE will
provide its existing services to DTI end users consistent with the
service GTE provides to its own end users.
VIII-7
<PAGE> 68
8. Directory Assistance Listings Information. GTE will include listings in
its directory assistance database for DTI end users in the same
geographic area as GTE provides directory assistance for GTE end users
as specified in Article VI, Section 3.4.
8.1 GTE shall provide to DTI, at DTI's request, for purposes of DTI
providing DTI-branded directory assistance services to its local
customers, within sixty (60) Business Days after an order for such tape
is received, all published DA listings for that specific state via
magnetic tape. Such listings will be Confidential Information under
this Agreement and DTI will use the listings only for its directory
assistance services to its end users. If DTI uses a Third Party
directory assistance service to its end users, DTI will ensure that
such Third Party likewise treats the listings as Confidential
Information under this Agreement, and uses them only for such directory
assistance. Changes to the DA Listing Information shall be updated on a
daily basis through the same means used to transmit the initial list.
DA Listing Information provided shall indicate whether the customer is
a residence or business customer. The rate to be paid by DTI to GTE
will be reasonable and mutually agreed upon.
8.2 The Parties will not release DA Listing Information that includes the
other Party's end user information to Third Parties without the other
Party's written approval. The other Party will inform the Releasing
Party if it desires to have the Releasing Party provide the other
Party's DA Listing Information to the Third Party, in which case, the
Releasing Party shall provide the other Party's DA Listing Information
at the same time as the Releasing Party provides the Releasing Party's
DA Listing Information to the Third Party. The rate to be paid by the
Releasing Party to the other Party shall be no more than the direct
costs of compiling such information. The other Party shall be
responsible for billing the Third Party.
8.3 The Parties will work together to identify and develop procedures for
database error corrections.
9. Directory Listings and Directory Distribution. DTI will be required to
negotiate a separate agreement for directory listings and directory
distribution, except as set forth below, with GTE's directory
publication company.
Listings. DTI agrees to supply GTE on a regularly scheduled basis, at
no charge, and in a mutually agreed upon format (e.g. Ordering and
Billing Forum developed), all listing information for DTI's subscribers
who wish to be listed in any GTE published directory for the relevant
operating area. Listing information will consist of names, addresses
(including city, state and zip code) and telephone numbers. Nothing in
this Agreement shall require GTE to publish a directory where it would
not otherwise do so.
Listing inclusion in a given directory will be in accordance with GTE's
solely determined directory configuration, scope, and schedules, and
listings will be treated in the same manner as GTE's listings.
Distribution. Upon directory publication, GTE will arrange for the
initial distribution of the directory to service subscribers in the
directory coverage area at no charge.
DTI will supply GTE in a timely manner with all required subscriber
mailing information including non-listed and non-published subscriber
mailing information, to enable GTE to perform its distribution
responsibilities.
10. Busy Line Verification and Busy Line Verification Interrupt. Each Party
shall establish procedures whereby its operator assistance bureau will
coordinate with the operator assistance bureau of the other Party to
provide Busy Line Verification ("BLV") and Busy Line Verification and
Interrupt ("BLVI") services on calls between their respective end
users. Each Party shall route BLV and BLVI inquiries over separate
inward operator services trunks. Each Party's operator assistance
bureau will only verify and/or interrupt the call and will not complete
the call of the end user
VIII-8
<PAGE> 69
initiating the BLV or BLVI. Each Party shall charge the other for the
BLV and BLVI services at the rates contained in Appendix F, or if there
is no applicable rate listed in Appendix F, at the rates in their
respective tariffs.
11. SAG. GTE will provide to DTI upon request the Street Address Guide at a
reasonable charge. Two companion files will be provided with the SAG
which lists all services and features at all LSOs, and lists services
and features that are available in a specific LSO.
12. Dialing Format Changes. GTE will provide reasonable notification to DTI
of changes to local dialing format, i.e., 7 to 10 digit, by end office.
13. Operational Support Systems (OSS). GTE shall provide OSS functions to
DTI for ordering, provisioning and billing that are generally available
as described in Appendix I attached to this Agreement. DTI shall pay
GTE for access to GTE's OSS functions consistent with processes defined
in Appendix I.
VIII-9
<PAGE> 70
ARTICLE IX
COLLOCATION
1. Physical Collocation. GTE shall provide to DTI physical collocation of
equipment pursuant to 47 CFR s.51.323 necessary for interconnection
or for access to unbundled network elements, provided that GTE
may provide virtual collocation in place of physical collocation,
or in some cases deny a particular collocation request entirely
if GTE demonstrates that physical collocation, or perhaps
even virtual collocation, is not practical because of technical
reasons or space limitations, as provided in Section 251 (c)(6) of the
Act. GTE will work with DTI to install collocation arrangements within
120 calendar days absent extenuating circumstances, GTE will provide
such collocation for purposes of interconnection or access to
unbundled network elements pursuant to the terms and conditions in the
applicable federal and state EIS tariffs.
1.1 Space Planning. In addition to such provisions for space planning and
reservation as may be set forth in the applicable GTE federal and state
EIS tariffs, the parties agree to the following terms and conditions.
1.1.1 GTE has the right to reserve space within its central offices for
its own use based on a 5-year planning horizon.
1.1.2 GTE will notify DTI if it plans to build an addition to a central
office where DTI has collocated facilities, if such addition
would result in a material increase of space available for
collocation.
1.1.3 Should DTI submit to GTE a two-year forecast for space planning
for collocated facilities in a central office, GTE will, in good
faith, consider and discuss such forecast with DTI when
considering space planning or utilization decisions for such
central office; provided, however that any final space planning
or utilization decision shall be made by GTE in its sole
discretion in light of GTE requirements.
1.1.4 Subject to technical feasibility and space limitations, GTE will
make available at applicable federal and state EIS tariffs such
intraoffice facilities as may be necessary to accommodate
projected volumes of DTI traffic.
1.2 Connection to Customer Loops and Ports. Facilities for cross-connection
to unbundled loops and ports shall be provided under the applicable GTE
federal tariff for Special Access Cross Connect, until such time as a
local tariff applicable to the facilities used for such
cross-connection is filed.
1.3 Connection to Other Collocated Carriers. Subject to technical
feasibility and space limitations, DTI may interconnect with other
carriers collocated at a GTE central office at which DTI has collocated
facilities; provided, however, that DTI and such other carriers must be
collocated at the GTE central office for the primary purpose of
interconnecting with GTE or accessing GTE's unbundled network elements.
If DTI wants to interconnect with other carriers collocated at a GTE
central office, DTI must provide GTE with thirty Business Days' prior
written notice, during which time GTE may elect to provide the
facilities necessary to accomplish such interconnection. DTI and the
other collocated carriers may provide the necessary interconnection
facilities only if GTE elects not to provide such facilities or fails
to so elect within the thirty day notice period. If GTE elects to
provide interconnection facilities under this section, GTE will provide
this cross connection under the GTE federal tariff for Special Access
Cross Connect, until such time as a local tariff applicable to the
facilities used for such interconnection facilities is filed.
1.4 Choice of Vendor. DTI may use the vendor of its choice to install,
maintain and repair equipment within DTI's collocated space. Access by
the employees, agents or contractors of such vendor
IX-1
<PAGE> 71
shall be subject to the same restrictions on access by employees,
agents or contractors of DTI imposed under the applicable GTE federal
and state EIS tariffs, including but not limited to certification and
approval by GTE.
1.5 Monitoring. Subject to technical feasibility and space limitations, DTI
may extend its own facilities for remote monitoring of its collocated
equipment to its collocated space. DTI may request that GTE provide the
facilities necessary for such remote monitoring, at which time GTE and
DTI will negotiate in good faith the price, terms and conditions of
remote monitoring by GTE.
1.6 Phone Service. Upon ordering collocated space, DTI may order that its
collocation cage be provided with plain old telephone service (POTS)
commencing at such time as GTE has completed construction of the
collocated space. DTI shall pay separately for any ordered POTS
service.
1.7 Intraoffice Diversity. At DTI's request, GTE will provide diversity for
ingress/egress fiber and power cables where such diversity is available
and subject to technical feasibility and space limitations.
1.8 DTI Proprietary Information. GTE will protect all DTI proprietary
information to the extent required under non-disclosure agreements
existing as of the date GTE completes construction of a physical
collocation space at DTl's request.
1.9 Notification of Modifications. GTE will notify DTI of modifications to
collocation space in accord with the terms of applicable GTE state and
federal EIS tariffs. Additionally, GTE shall notify DTI when major
upgrades are made to the power plants supporting DTI's collocation
space. The following shall constitute such major upgrades:
(a) replacement of a rectifier;
(b) addition or replacement of a new fusing module;
(c) addition or replacement of a power distribution unit frame; or
(d) addition or replacement of modular rectifiers.
1.10 Drawings. When DTI orders collocated space, GTE and DTI will hold a
GTE/Customer meeting in accord with applicable GTE state and federal
EIS tariffs. At such meeting, GTE will provide such drawings of GTE's
central office facility as may be necessary to adequately depict DTI's
proposed collocation space.
1.11 Construction of Space. GTE will construct DTI's collocation space in
accord with the terms and conditions set forth in the applicable GTE
state and federal EIS tariff. Additionally, GTE agrees to the following
terms and conditions regarding construction of collocated space:
1.11.1 Space will be constructed in 100 square foot increments,
and shall be designed so as to prevent unauthorized access.
1.11.2 a standard 100 square foot cage shall have the following
standard features:
(a) eight-foot high, nine gauge chain link panels;
(b) three of the panels listed at (a) above shall measure
eight by ten feet, the fourth panel shall measure eight
by seven feet;
IX-2
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(c) the door to the cage shall measure eight by three feet
and shall also consist of nine gauge chain link;
(d) the cage shall be provided with one padlock set, with
GTE retaining one master key;
(e) one ac electrical outlet;
(f) one charger circuit system;
(g) one electrical sub-panel;
(h) such additional lighting as may be necessary;
(l) one fire detection requirement evaluation;
(j) grounding for the cage consistent with COEI.
1.11.3 Modifications to the standard configuration set forth in
Section 1.11.2 can be made on an individual case basis. If
modifications are agreed upon and made by the Parties, GTE
will work with DTI to implement such additional
modifications as may be necessary to ensure that DTI's
collocated space is protected from unauthorized access.
1.11.4 At such time as construction of DTl's collocation space is
approximately 50 percent completed, GTE will give DTI
notification, and such notification shall include scheduled
completion and turnover dates.
1.11.5 Upon completion of construction of collocated space, GTE
will conduct a walk through of the collocated space with
DTI. Should DTI note any deviations from the plan agreed
upon by GTE and DTI at the customer meeting, and if such
deviations were not requested by DTI or not required by law,
GTE shall correct such deviations at its own expense within
5 Business Days.
1.12 Connection Equipment. DTI may provision equipment for the connection
of DTI termination equipment to GTE equipment using either of the
following methods:
1.12.1 DTI may extend an electrical or optical cable from the
terminal within DTI's collocation cage and terminate that
cable at GTE's network.
1.12.2 DTI may install a patch panel within its collocation cage
and then hand the cabling to GTE to extend to and have GTE
terminate that cable at GTE's network.
1.13 Access to DTI Collocation Space. The terms and conditions of access to
DTI's collocation space shall be as set forth in applicable GTE state
and federal EIS tariffs. Additionally, GTE agrees that the following
terms and conditions shall apply to access:
1.13.1 GTE shall implement adequate measures to control access to
collocation cages.
1.13.2 Collocation space shall comply with all applicable fire and
safety codes.
1.13.3 Doors with removable hinges or inadequate strength shall be
monitored by an alarm connected to a manned site. All other
alarms monitoring DTI collocation space provided by GTE
shall also be connected to a manned site. DTI may, at its
option, provide its own intrusion alarms for its collocated
space.
IX-3
<PAGE> 73
1.13.4 GTE shall control janitorial access to collocation cages,
and restrict such access to approved and certified
employees, agents or contractors.
1.13.5 GTE shall establish procedures for access to collocation
cages by GTE and non-GTE emergency personnel, and shall not
allow access by security guards unless such access comports
with this section and is otherwise allowed under applicable
GTE state and federal EIS tariffs.
1.13.6 GTE shall retain a master key to DTI's collocation space for
use only in event of emergency as detailed in applicable GTE
state and federal tariffs. At DTI's option, the Parties
shall review key control procedures no more frequently than
once in any twelve month period. At any time, DTI may elect
to change keys if it suspects key control has been lost,
provided, however, that GTE will be provided with a master
key in accord with this section.
1.13.7 Not more frequently than once a year, DTI may audit the
security and access procedures and equipment applicable to
its collocated space and the central office housing the
collocation space. Access by personnel necessary to conduct
such an audit shall be limited as set forth in applicable
GTE state and federal EIS tariffs. Should DTI identify
deficiencies in security and access procedures and equipment
as a result of such audit, the cost, terms and conditions of
the correction of such deficiencies shall be negotiated in
good faith between the parties.
2. Virtual Collocation. Subject to Section 1 of this Article IX, GTE will
provide virtual collocation for purposes of interconnection or access
to unbundled network elements pursuant to the terms and conditions in
the applicable GTE federal and state EIS tariffs. In addition, GTE
agrees that the terms and conditions set forth in this Section 2 of
this Article IX, shall apply to virtual collocation provided to DTI.
2.1 Existing Virtual Collocation. If, on the effective date of this
Agreement, DTI is virtually collocated in a GTE premise, DTI may (I)
elect to retain its virtual collocation arrangement in that premise or
(ii) unless it is not practical for technical reasons or because of
space limitations, convert its virtual collocation arrangement at that
premise to physical collocation. If DTI elects the latter option, DTI's
request shall be treated as a new physical collocation request and DTI
shall pay GTE at the applicable tariff rates for construction and
rearrangement of DTI's equipment as well as all applicable tariffed
physical collocation recurring charges.
2.2 Conversion from Physical to Virtual. Unless it is not practical for
technical reasons or because of space limitations, DTI may convert a
physical collocation arrangement to a virtual collocation arrangement.
DTI's request to do so shall be treated as a new virtual collocation
request and DTI shall pay GTE at the applicable tariff rates for
construction and rearrangement of DTI's equipment as well as all
applicable tariffed virtual collocation recurring charges. If DTI
elects to change to a virtual collocation arrangement pursuant to this
section, GTE will not refund previous payments for physical collocation
received from DTI.
2.3 Vendors. Choice of vendors for equipment used for virtual collocation
shall be under the terms and conditions set forth in the applicable GTE
federal and state EIS tariff. Upon request by DTI, GTE shall provide a
list of locally qualified vendors approved for the type of equipment to
be collocated.
2.4 Inspection. Upon provision of virtual collocation by GTE, the Parties
shall agree on a mutually acceptable schedule whereby DTI may inspect
the equipment in its virtual collocation space.
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ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY
To the extent required by the Act, GTE and DTI shall each afford to the other
access to the poles, ducts, conduits and rights of way it owns or controls on
terms, conditions and prices comparable to those offered to any other entity
pursuant to each Parties tariffs and/or standard agreements. Accordingly, GTE
and DTI shall execute pole attachment and conduit occupancy agreements in the
form set forth in Appendices I and J.
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<PAGE> 75
IN WITNESS WHEREOF, each Party has executed this Agreement to be effective as of
the date first above written.
GTE SOUTHWEST INCORPORATED
GTE MIDWEST INCORPORATED DIGITAL TELEPORT, INC.
GTE ARKANSAS INCORPORATED
By /s/ Connie Nicholas By /s/ J. W. Sheehy
----------------------------- -------------------------------
Name Connie E. Nicholas Name J. W. Sheehy
--------------------------- -----------------------------
Title Assistant Vice President
Wholesale Markets-
Interconnection Title Vice President IC Support
--------------------------- ----------------------------
Date November 7, 1997 Date 10/20/97
--------------------------- -----------------------------
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<PAGE> 76
APPENDIX A
GTE PERFORMANCE MEASURES (PM)
Pursuant to Article III of this Agreement, the following terms and conditions
shall apply regarding the performance measures set forth in this Appendix A. The
Parties recognize that these performance measures are new and evolving, and as
further evolution is made by GTE, the parties will discuss the changed
procedures, including new standard processes and procedures, if any, for the
purpose of applying them to and incorporating them in this Agreement.
GTE'S PERFORMANCE MEASURES (PMs) as set forth in this Appendix implement
standards to measure the quality of services supplied by GTE with respect to
pre-ordering, order/provisioning, maintenance and billing that is equivalent in
equality to what GTE provides to itself. GTE's PMs contain measures for both GTE
and DTI with the measures for DTI being considered an essential element for GTE
meeting customer expectations.
GTE's PMs are conditioned upon a 150 order per month minimum requirement as
described below for Service Units, as a threshold for providing Financial
Incentives for certain PMs. The 150 order per month requirement for Service
Units was developed to provide a statistically valid sample size to measure
GTE's performance for DTI in relationship to the level of performance GTE
provides to its own customers. Service Units are defined to include unbundled
loops, unbundled ports, resold local service lines, INP ported numbers, and
interconnection trunks.
GTE will begin recording of performance data in the first full month in which it
receives the first official order from DTI. GTE's report of performance measures
to DTI, however, will begin after 6 months of data recording; i.e., for data
recorded in the seventh full month. Each month's report will then be reported as
a rolling 3-month result (i.e., July's report will actually include May, June,
July data). The calculation of DTI performance will be based on this 3 month
rolling average of actual performance unless otherwise specified.
Reporting will be available monthly, or at a longer interval, as requested by
DTI. The details of report delivery shall be agreed upon between DTI and the
appropriate GTE Account Management group.
FORECASTING PERFORMANCE MEASUREMENT - GTE's PMs are conditioned upon the
requirement, as described more fully below, that DTI submit timely and accurate
forecasts. The Forecasting PM includes provisions that measure the accuracy of
DTl's forecast by comparing forecasted Service Units to ordered Service Units
for the same period.
DTI shall furnish a quarterly forecast of service order volumes and quantities
of resold local services, unbundled network elements, and interconnection trunks
on a State-wide basis, identifying these volumes/quantities by month, for each
month included in the quarter. These forecasts shall be received by GTE at least
one month before the beginning of the quarter covered by the forecast. Should
the first month of the next quarterly forecast be greater than ten (10%) percent
of the last month of the current quarterly forecast, DTI shall notify GTE
promptly of the increased order volume. Notification shall be made to the
appropriate GTE Account Management group in order to allow sufficient "lead
time" to ensure staffing levels are available to support the increased order
volumes.
DTI must agree to comply with the requirements of the Forecasting PM as the
basis for the application of Financial Incentives described below. If DTI
chooses not to comply with the Forecasting PM, Financial Incentives will not
apply. For purposes of applying Financial Incentives the accuracy of forecasts
will be determined at the state level.
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<PAGE> 77
The measurement and reporting of GTE's PMs will still be available as stated
above regardless of DTI's election for the Forecasting PM.
FINANCIAL INCENTIVES - When DTI agrees to the Forecasting PM described above,
Financial Incentives will begin concurrently with reporting of individual DTI
performance data except as specified below for the
Pre-Ordering/Ordering/Provisioning and Interconnection PMs.
Financial Incentives will apply to Maintenance/Repair PMs without restriction
other than DTI's participation in the Forecasting PM.
Financial Incentives will apply to Pre-Ordering/Ordering/Provisioning and
Interconnection PMs subject to DTI's participation in the Forecasting PM and the
required per month ordering threshold. DTI must place a 150 orders per month
minimum for Service Units, by state, for three (3) consecutive months (hereafter
the "150-order requirement"). Once DTI's order volume reaches the "150-order
requirement", a ninety (90) day grace period will begin wherein data will be
accumulated and reviewed. At the end of that ninety (90) day grace period,
applicable Financial Incentives shall apply. The three (3) consecutive months
and the subsequent ninety (90) day grace period may be concurrent with all or
part of the beginning six (6) month period after recording of official data
begins, between initial order activity and the implementation of performance
reporting (i.e., month 7 data).
For purposes of applying Financial Incentives to the Forecasting PM, if DTI's
actual order activity for Service Units in a given month is below the forecast
for that month by more than 10%, Financial Incentives will apply only to the
incremental Service Units that were forecasted but not ordered; i.e., the
difference between the actual quantity ordered and the quantity which reflects
the forecast less 10%.
For purposes of applying Financial Incentives to the
Pre-ordering/Ordering/Provisioning and Interconnection PM, if DTI's actual order
activity for Service Units in a given month exceeds the forecast for that month
by more than 10%, Financial Incentives will not apply.
Average Non-Recurring Charges - The averages are calculated by dividing the sum
of all non-recurring charges applied to service orders issued by DTI to GTE by
the total number of orders or the total number of Service Units ordered. These
calculations will be made by service activity and service category: Business
(Single/Multi-line, Centranet, PBX, Trunks), Residence, etc. The average
Non-Recurring Charges will be separately calculated for field work and non-field
work orders. These averages and a weighting factor for field and non-field work
will be calculated during a study period to be mutually agreed between the
Parties. The initial average Non-Recurring Charge calculation will occur within
three (3) months of DTI's initial issuance of official orders. The average
Non-Recurring Charge shall be recalculated annually as mutually agreed between
the Parties.
Average Recurring Charges - The averages are calculated by
dividing the sum of all recurring charges applied to service orders issued by
DTI to GTE by the total number of orders or Service Units ordered. These
averages will be calculated during a study period to be mutually agreed between
the Parties. These calculations will be made by service activity and service
category, Business, Residence, etc. The initial average Recurring Charge
calculation will occur within three (3) months of DTI's initial issuance of
official orders. The average Recurring Charges shall be recalculated annually as
mutually agreed between the Parties.
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<PAGE> 78
GTE PERFORMANCE MEASURES WITH FINANCIAL INCENTIVES
PRE-ORDERING/ORDERING/PROVISIONING
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE National Prompt transmission 85% of CSR's sent 5% of average NRC
of Customer Service to DTI by the close incurred by DTI for
Record (CSR) of business on the number of CSR's
Information business day for which the
following receipt Quality Standard is
of request not met in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
2 GTE National Prompt transmission 85% of LSC's sent 20% of average NRC
of Local Service to DTI by the close incurred by DTI for
Confirmation (LSC) of business on the lines ordered
business day for which GTE failed
following receipt to meet the Quality
of request Standard in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
3 GTE State Due Date commitments Percent of DTI Waiver of the
met customer install, average NRC
transfer, and installation charges
change service for the number of
orders for which lines by which GTE
service is fails to meet the
installed by close Quality Standard in
of business on the the reported month
committed due date
is not more than
2.5% below the
percent of GTE
customer install,
transfer, and
change service
orders
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-3
<PAGE> 79
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4 GTE State % reporting trouble Percent of DTI One month's average
within 30 days of customer install, MRC per trouble
the date installed transfer, and report exceeding the
change service Quality Standard in
orders which are the reported month
followed by a (not to exceed one
customer trouble month's credit per
report within 30 customer line month)
days of service
order completion
date is not more
than 2.5% worse
than the percent
GTE customer
install, transfer,
and change service
orders which are
followed by a
customer trouble
report within 30
days of service
order completion
- ---------------------------------------------------------------------------------------------------------------------
5 GTE State Service Order 80% of LSR's Payment by DTI to
discrepancy: LSR's initiated by DTI's GTE equal to 20% of
issued without do not contain an the average NRC
material errors order discrepancy installation charges
or error: 90% in for the number of
12 months. Final lines which DTI
target - 95% fails to meet the
Quality Standard in
the reported month
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-4
<PAGE> 80
INTERCONNECTION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Trunk orders Percent of trunk Waiver of 100% of
completed on or orders by DTI average NRC for
before the Committed completed by GTE on trunks ordered for
Due Date or before the which GTE failed to
commitment date is meet the Quality
not more than 10% Standard in the
below the percent reported month
of FG B/D Switched
access orders by
all ordering
companies completed
by GTE on or before
the commitment date
- ---------------------------------------------------------------------------------------------------------------------
2 GTE National Firm Order Percent of trunk Waiver of 20%
Confirmation (FOC) orders by DTI average of average
on time delivery completed by GTE on NRC installation for
or before the trunks for which GTE
commitment date is failed to meet the
not more than 5% Quality Standard in
below the percent the reported month
of FG B/D Switched
access by all
ordering companies
for which GTE sends
FOC (within 5 days,
or longer, as
requested by DTI)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-5
<PAGE> 81
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
3 DTI National Service Order 80% of ASR's Charge equal to 20%
discrepancy: ASR's initiated by DTI do of average NRC
issued without not contain installation of
material errors material error or trunks ordered for
result in which DTI failed to
discrepancy; 90% in meet the Quality
12 months. Final Standard in the
target 95% reported month
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
A-6
<PAGE> 82
MAINTENANCE/REPAIR
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Percent Commitments Percent of DTI One month's flat
Met customer Network rate average MRC per
trouble reports line out of service
where commitment for which Quality
was meet more than Standard is not met
2.5% worse than the in the reported month
percent of GTE's
customer Network
trouble reports
where commitment
was met (excluding
reports which are
cleared CPE, DTI
customer error)
- ---------------------------------------------------------------------------------------------------------------------
2 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed hours/ line OOS for which
Designed minutes for OOS DTI Quality Standard is
customer Network not met in the
trouble reports reported month
divided by total
number OOS customer
Network trouble
reports) for DTI
customers is more
than 10% of the
average repair time
for GTE customers
(includes only
"Designed" services)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-7
<PAGE> 83
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
3 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed line OOS for which
Non-Designed hours/minutes for Quality Standard is
OOS DTI customer not met in the
Network trouble reported month
reports divided by
total number OOS
customer Network
trouble reports)
for DTI customers
is more than 10% of
the average repair
time for GTE
customers (includes
only POTS and
circuits which do
not require a
design)
- -------------------------------------------------------------------------------------------------------------------
4 GTE State Percent reports per Percent of DTI Within six (6)
100 (Failure customers making months of effective
Frequency) trouble reports date, GTE will have
(total number of established a
DTI customer minimum access line
Network trouble threshold.
reports divided by
the total access
lines multiplied by
100) is not worse
than .5 percent One month's flat
points of the rate average MRC per
percentage of GTE line OOS for which
customers making Quality Standard is
trouble reports not met in the
reported month.
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
A-8
<PAGE> 84
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE(PM) STANDARD INCENTIVE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5 GTE State Percent repeat Percent of DTI One month's flat
reports in 30 days customer repeat rate average MRC per
trouble reports line OOS for which
(total number of Quality Standard is
DTI customer not met in the
Network trouble reported month
reports which had a
previous Network
trouble report
within the last 30
days divided by the
total of customer
Network trouble
reports multiplied
by 100) is not more
than 2.5% worse
than the percent of
GTE customer repeat
trouble reports
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
**NOTE: OUTAGE CREDITS: LOCAL SERVICE AND UNBUNDLED NETWORK ELEMENTS: OUTAGE
CREDITS APPLY TO INTERRUPTIONS OF LOCAL SERVICES AND UNBUNDLED NETWORK ELEMENTS
IN ACCORDANCE WITH APPLICABLE STATE PUBLIC SERVICE COMMISSION REQUIREMENTS. IF A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED, DTI WILL BE ENTITLED
TO OUTAGE CREDITS. AN INTERRUPTION PERIOD BEGINS WHEN DTI REPORTS TO GTE THAT A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED (OR GTE HAS KNOWLEDGE
THAT AN INTERRUPTION HAS OCCURRED THROUGH SERVICE MONITORING OR OTHER MEANS). AN
INTERRUPTION PERIOD ENDS WHEN THE LOCAL SERVICE IS REPAIRED AND RETURNED TO DTI.
A LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS CONSIDERED TO BE INTERRUPTED
WHEN THERE HAS BEEN A LOSS OF CONTINUITY, THE LOCAL SERVICE OR UNBUNDLED NETWORK
ELEMENT DOES NOT OPERATE IN ACCORDANCE WITH THE APPLICABLE SERVICE STANDARDS, OR
IT IS OTHERWISE UNAVAILABLE FOR USE BY DTI. THIS DEFINITION IS NOT INTENDED TO
CONFLICT WITH STATE PUBLIC UTILITY COMMISSION REQUIREMENTS.
A-9
<PAGE> 85
FORECASTING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASUREMENT(PM) STANDARD INCENTIVE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 DTI State Service Units Volume of DTI's 20% of the average
requirements Service Units NRC for the number
accurately forecast requirements in a of service units
all volumes for each month is not below the forecast
month contained in greater than 10% when the actual
the quarterly report. below the amount volumes are
forecast by DTI in greater than
it's most recent 10% and less than
quarterly forecast or equal to 30%
(which shall have under forecast.
been made not 40% of the average NRC
later than 30 days for the number of
prior to the service units below
quarter in the forecast when
question) the actual volumes
are greater than 30%
and less than or
equal to 40% under
the forecast. 50%
of the average NRC
for the number of
service units below
the forecast when
the actual volumes
are over 40% under
the forecast
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
A-10
<PAGE> 86
APPENDIX B
SERVICE MATRIX
Date
--------------
<TABLE>
<CAPTION>
Service Location IP Services
(identified by tandem serving area) (identified by CLLI code) (identified by _______________)
- --------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
TO BE DETERMINED TO BE DETERMINED TO BE DETERMINED
</TABLE>
B-1
<PAGE> 87
<TABLE>
<CAPTION>
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC GENERAL EXCHANGE TARIFF
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITI0N POSITION RATE COST RATE
- -- -- --- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 6 Basic Local Rate Schedules:
Schedule "A" Improved Exchanges/Rate Group 1 (1-3000)
AR GTE 6 Business One Party MRC Yes Yes $32.20 $3.84 $28.36
AR GTE 6 Business Manual Trunk MRC Yes Yes $40.05 $4.78 $35.27
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $40.05 $4.78 $35.27
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $40.05 $4.78 $35.27
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $40.05 $4.78 $35.27
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $32.20 N/A $32.20
AR GTE 6 Coin Line MRC Yes No $37.75 N/A $37.75
AR GTE 6 Residence One Party MRC No No $15.25 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $15.25 N/A N/A
6 Schedule "A" Improved Exchanges/Rate
Group II (3001-18,000)
AR GTE 6 Business One Party MRC Yes Yes $36.20 $4.32 $31.88
AR GTE 6 Business Manual Trunk MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Coin Line MRC Yes No $41.75 N/A $41.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $36.20 N/A $36.20
AR GTE 6 Residence One Party MRC No No $16.90 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $16.90 N/A N/A
6 Schedule "A" Improved Exchanges /J A C K S O N V I L L E
AR GTE 6 Business One Party MRC Yes Yes $36.20 $4.32 $31.88
AR GTE 6 Business Manual Trunk MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $45.75 $5.46 $40.29
AR GTE 6 Residence One Party MRC No No $16.90 N/A N/A
AR GTE 6 Coin Line MRC Yes No $41.75 N/A $41.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $36.20 N/A $36.20
AR GTE 6 Residence Manual Trunk MRC No No $16.90 N/A N/A
6 Schedule "B" Unimproved Exchanges/
Rate Group 1 (1-3000) Inside Rate
AR GTE 6 Business One Party MRC Yes Yes $28.20 $3.36 $24.84
AR GTE 6 Business Manual Trunk MRC Yes Yes $35.35 $4.22 $31.13
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Coin Line MRC Yes No $33.75 N/A $33.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $36.20 N/A $36.20
AR GTE 6 Residence One Party MRC No No $11.25 N/A N/A
</TABLE>
Page 1
<PAGE> 88
<TABLE>
<CAPTION>
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 6 Residence Manual Trunk MRC No No $11.25 N/A N/A
AR GTE 6 Schedule "B" Unimproved Exc./Rate Group II
(3001-18,000) Inside Rate Base Area
AR GTE 6 Business One Party MRC Yes Yes $32.20 $3.84 $28.36
AR GTE 6 Business Manual Trunk MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Coin Line MRC Yes No $37.75 N/A $37.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $32.20 N/A $32.20
AR GTE 6 Residence One Party MRC No No $12.90 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $12.90 N/A N/A
6 Schedule "B" Unimproved Exchanges /
J A C K S O N V I L L E/Inside Rate Base Area
AR GTE 6 Business One Party MRC Yes Yes $32.20 $3.84 $28.36
AR GTE 6 Business Manual Trunk MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Coin Line MRC Yes No $37.75 N/A $37.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $32.20 N/A $32.20
AR GTE 6 Residence One Party MRC No No $12.90 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $12.90 N/A N/A
6 Schedule "B" Unimproved Exchanges/
Rate Group 1 (1-3000) Outside Rate
AR GTE 6 Business One Party MRC Yes Yes $28.20 $3.36 $24.84
AR GTE 6 Business Manual Trunk MRC Yes Yes $35.35 $4.22 $31.13
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $44.25 $5.28 $38.97
AR GTE 6 Business Four Party Rural MRC Yes Yes $29.20 $3.48 $25.72
AR GTE 6 Coin Line MRC Yes No $33.75 N/A $33.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $28.20 N/A $28.20
AR GTE 6 Residence One Party MRC No No $11.25 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $11.25 N/A N/A
AR GTE 6 Residence Two Party MRC No No $9.65 N/A N/A
6 Schedule "B" Unimproved Exc./Rate Group II
(3001-18,000) Outside Rate Base Area
AR GTE 6 Business One Party MRC Yes Yes $32.20 $3.84 $28.36
</TABLE>
Page 2
<PAGE> 89
<TABLE>
<CAPTION>
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 6 Business Manual Trunk MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $54.75 $6.53 $48.22
AR GTE 6 Business Four Party Rural MRC Yes Yes $33.45 $3.99 $29.46
AR GTE 6 Coin Line MRC Yes No $37.75 N/A $37.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $32.20 N/A $32.20
AR GTE 6 Residence One Party MRC No No $12.90 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $12.90 N/A N/A
AR GTE 6 Residence Two Party MRC No No $11.00 N/A N/A
6 Schedule "B" Unimproved Exchanges /
J A C K S O N V I L L E/Outside R
AR GTE 6 Business One Party MRC Yes Yes $32.20 $3.84 $28.36
AR GTE 6 Business Manual Trunk MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $40.25 $4.80 $35.45
AR GTE 6 Business Four Party Rural MRC Yes Yes $33.45 $3.99 $29.46
AR GTE 6 Coin Line MRC Yes No $37.75 N/A $37.75
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $32.20 N/A $32.20
AR GTE 6 Residence One Party MRC No No $12.90 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $12.90 N/A N/A
AR GTE 6 Residence Two Party MRC No No $11.00 N/A N/A
6 EXTENDED AREA SERVICE RATES
6 Schedule "A" Improved Exchanges/Rate Group 1
(1-3000) EAS
AR GTE 6 Business Service MRC Yes Yes $ 8.75 $1.04 $ 7.71
AR GTE 6 Residence Service MRC No No $ 3.40 N/A N/A
6 Schedule "A" Improved Exchanges/Rate Group II
(3001-18,000) EAS
AR GTE 6 Business Service MRC Yes Yes $10.50 $1.25 $ 9.25
AR GTE 6 Residence Service MRC No No $ 3.75 N/A N/A
6 Schedule "A" Improved Exchanges /
J A C K S O N V I L L E EAS
AR GTE 6 Business Service MRC Yes Yes $13.50 $1.61 $11.89
AR GTE 6 Residence Service MRC No No $ 5.75 N/A N/A
6 Schedule "B" Unimproved Exchanges/Rate Group 1
(1-3000) Inside Rate Base Area EAS
AR GTE 6 Business One Party MRC Yes Yes $ 8.15 $0.97 $ 7.18
AR GTE 6 Business Manual Trunk MRC Yes Yes $10.15 $1.21 $ 8.94
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $13.80 $1.65 $12.15
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $13.80 $1.65 $12.15
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $13.80 $1.65 $12.15
AR GTE 6 Coin Line MRC Yes No $13.70 N/A $13.70
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $ 8.15 N/A $ 8.15
AR GTE 6 Residence One Party MRC No No $ 3.25 N/A N/A
</TABLE>
Page 3
<PAGE> 90
<TABLE>
<CAPTION>
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTON TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 6 Residence Manual Trunk MRC No No $ 4.05 N/A N/A
AR GTE 6 Residence Four Party Rural MRC No No $ 3.90 N/A N/A
6 Schedule "B" Unimproved Exchanges/
Rate Group II (3001-18000)
Inside Rate Base Area EAS
AR GTE 6 Business One Party MRC Yes Yes $ 9.25 $1.10 $ 8.15
AR GTE 6 Business Manual Trunk MRC Yes Yes $11.60 $1.38 $10.22
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $15.75 $1.88 $13.87
AR GTE 6 Business Automatic Trunk/One Way In MRC Yes Yes $15.75 $1.88 $13.87
AR GTE 6 Business Automatic Trunk/One Way Out MRC Yes Yes $15.75 $1.88 $13.87
AR GTE 6 Coin Line MRC Yes No $14.80 N/A $14.80
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $ 9.25 N/A $ 9.25
AR GTE 6 Residence One Party MRC No No $ 3.55 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $ 4.65 N/A N/A
AR GTE 6 Residence Four Party Rural MRC No No $ 4.40 N/A N/A
6 Schedule "B" Unimproved Exchanges/
Rate Group JACKSONVILLE
AR GTE 6 Business One Party MRC Yes Yes $10.60 $1.26 $ 9.34
AR GTE 6 Business Manual Trunk MRC Yes Yes $16.40 $1.96 $14.44
AR GTE 6 Business Automatic Trunk/Two Way MRC Yes Yes $16.40 $1.96 $14.44
AR GTE 6 Business Automatic/One Way In MRC Yes Yes $16.40 $1.96 $14.44
AR GTE 6 Business Automatic/One Way Out MRC Yes Yes $16.40 $1.96 $14.44
AR GTE 6 Coin Line MRC Yes No $16.15 N/A $16.15
AR GTE 6 Residence One Party MRC No No $ 5.75 N/A N/A
AR GTE 6 Residence Manual Trunk MRC No No $ 5.75 N/A N/A
AR GTE 6 Customer Owned Pay Telephone MRC Yes No $10.60 N/A $10.60
AR GTE 6 Residence Four Party Rural MRC No No $ 6.05 N/A N/A
AR GTE 6 CENTRAL OFFICE OPERATOR ACCESS TRUNKS MRC Yes No $35.00 N/A $35.00
AR GTE 6 DIGITAL CENTRAL OFFICE ADDITIVE MRC Yes No $ 2.50 N/A $ 2.50
AR GTE 8 RETURNED CHECKS NRC NRC No No $15.00 N/A N/A
AR GTE 8 MULTIPLE COPIES OF CUSTOMER BILLS/PER BILL MRC No No $ 1.00 N/A N/A
AR GTE 12 DIRECTORY LISTINGS
AR GTE 12 Regular Extra Listing - Residential - Each MRC No No $ 1.10 N/A N/A
AR GTE 12 Regular Extra Listing - Business - Each MRC No No $ 1.50 N/A N/A
AR GTE 12 Alternate Call No. Listings - Residential - Each MRC No No $ 1.10 N/A N/A
AR GTE 12 Alternate Call No. Listings - Business - Each MRC No No $ 1.50 N/A N/A
AR GTE 12 Duplicate Listings - Residential MRC No No $ 1.10 N/A N/A
AR GTE 12 Duplicate Listings - Business MRC No No $ 1.50 N/A N/A
AR GTE 12 Extra Lines of information, each line MRC No No $ 1.50 N/A N/A
</TABLE>
Page 4
<PAGE> 91
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DEPARTMENT TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------ ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 12 Foreign Listings - Residential MRC No No $1.10 N/A N/A
AR GTE 12 Foreign Listings - Business MRC No No $1.50 N/A N/A
AR GTE 12 Nonlisted Service, each MRC No No $1.60 N/A N/A
AR GTE 12 Nonpublished Service, each MRC No No $1.60 N/A N/A
AR GTE 12 Residence Family Plan Directory Listing Svc. MRC No No $1.10 N/A N/A
AR GTE 13 SERVICE CHARGES
AR GTE 13 Primary Svc. Ord. Chg.-Each - Residence NRC No No $22.00 N/A N/A
AR GTE 13 Primary Svc. Ord. Chg.-Each - Bus & Coin NRC No No $22.00 N/A N/A
AR GTE 13 Primary Svc. Ord. Chg.-Each - key lines/trks NRC No No $22.00 N/A N/A
AR GTE 13 Secondary Svc. Ord. Chg.-Each - Residence NRC No No $12.00 N/A N/A
AR GTE 13 Secondary Svc. Ord. Chg.-Each - Business NRC No No $12.00 N/A N/A
AR GTE 13 Secondary Svc. Ord. Chg.-Each - key/lns/trks NRC Yes No $12.00 N/A $12.00
AR GTE 13 Line Connect Chg.-Each - Residence NRC Yes No $14.70 N/A $14.70
AR GTE 13 Line Connect Chg.-Each - Business and Coin NRC Yes No $14.70 N/A $14.70
AR GTE 13 Line Connect Chg.-Each - Key Lns/trks NRC Yes No $14.70 N/A $14.70
AR GTE 13 Trip Charge, Each - Residence NRC Yes No $20.00 N/A $20.00
AR GTE 13 Trip Charge, Each - Bus & Coin NRC Yes No $21.50 N/A $21.50
AR GTE 13 Trip Charge, Each - Key Lines and Trunks NRC Yes No $21.50 N/A $21.50
14 MISCELLANEOUS SVCS. AND EQUIPMENT
14
14 Automatic Ringdown Circuit
AR GTE 14 One way or two way automatic signalling NRC Yes No $20.00 N/A $20.00
AR GTE 14 One way or two way automatic signalling MRC Yes Yes $11.75 $1.40 $10.35
14
14 Conference Fire Reporting Systems
AR GTE 14 Fire Reporting Line MRC Yes No $27.25 N/A $27.25
AR GTE 14 Each Additional Station bridged in C.O. MRC Yes No $1.60 N/A $1.60
14
14 Fire Reporting System - Tellabs
AR GTE 14 Level A/Single Payment Option NRC Yes No $6,565.00 N/A $6,565.00
AR GTE 14 Level A/5 Year Contract MRC Yes No $137.00 N/A $137.00
AR GTE 14 Level B MRC Yes No $58.28 N/A $58.28
AR GTE 14 Each Additional Level A - Single Pymt. NRC Yes No $400.00 N/A $400.00
AR GTE 14 Each Additional Level A - 5 Yr. contract MRC Yes No $8.35 N/A $8.35
AR GTE 14 Each Additional Level B MRC Yes No $2.45 N/A $2.45
14 Mileage Charges
AR GTE 14 One-pty stations, PBX, PABX trunks, each MRC Yes Yes $1.25 $0.15 $1.10
AR GTE 14 Two-party stations, each MRC Yes Yes $0.95 $0.11 $0.84
14
14 Verification - Operator
AR GTE 14 Line verify - each occurrence MRC Yes No $1.50 N/A $1.50
14
</TABLE>
Page 5
<PAGE> 92
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 14 Reserved Telephone Number - Each - Bus MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 14 Reserved Telephone Number - Each - res MRC Yes Yes $5.00 $0.60 $4.40
14 Special Billing Numbers
AR GTE 14 Increments of 1-25 numbers MRC No No $3.15 N/A N/A
14
14 Interrupt - Local Operator
AR GTE 14 Each NRC Yes No $2.50 N/A $2.50
14 Individuline Service
AR GTE 14 Residence NRC NRC Yes No $25.00 N/A $25.00
AR GTE 14 Residence MRC MRC Yes Yes $1.50 $0.18 $1.32
AR GTE 14 Business NRC NRC Yes No $50.00 N/A $50.00
AR GTE 14 Business MRC MRC Yes Yes $3.50 $0.42 $3.08
14 900 Call Restriction
AR GTE 14 Per line equipped (Business only) NRC NRC Yes No $8.00 N/A $8.00
14
14 Dial DATALINK Service
AR GTE 14 Business MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 14 Business NRC Yes No $25.00 N/A $25.00
AR GTE 14 Residence MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 14 Residence NRC Yes No $25.00 N/A $25.00
14 Operator Assisted Local Calls (Svc. Chgs.)
AR GTE 14 Customer Dialed Calling Card USAGE Yes No $0.35 N/A $0.35
AR GTE 14 Opr Station to Station - Opr. sent paid,
collect, third no, cre. card USAGE Yes No $0.90 N/A $0.90
AR GTE 14 Person to Person USAGE Yes No $2.50 N/A $2.50
14
14 Direct Inward Dialing Service
AR GTE 14 DID Trunk Terminations (Per Trunk) MRC MRC Yes Yes $25.00 $2.98 $22.02
AR GTE 14 DID Trunk Terminations (Per Trunk) NRC NRC Yes No $150.00 N/A $150.00
AR GTE 14 DID Station Numbers-Block of 20 mrc MRC Yes Yes $8.00 $0.95 $7.05
AR GTE 14 DID Station Numbers-Block of 100 mrc MRC Yes Yes $22.00 $2.62 $19.38
14 Service Performance Guarantee
AR GTE 14 Business NRC No No $100.00 N/A N/A
AR GTE 14 Residence NRC No No $25.00 N/A N/A
14 Call Restriction Services
14 Toll Blocking Service
AR GTE 14 Toll blocking option 1 mrc MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 14 Toll blocking option 1 nrc NRC Yes No $10.00 N/A $10.00
AR GTE 14 Toll blocking Option 2 mrc MRC Yes Yes $3.00 $0.36 $2.64
</TABLE>
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GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 14 Toll blocking Option 2 nrc NRC Yes No $10.00 N/A $10.00
14 Billed Number Screening Service
AR GTE 14 Option 1 - collect/3rd No. bill - per line/trunk n NRC Yes No $10.00 N/A $10.00
AR GTE 14 Option 1 - collect/3rd No. bill - per line/trunk m MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 14 Option 2 - Third no. billing - per line/trunk n NRC Yes No $10.00 N/A $10.00
AR GTE 14 Option 2 - Third no. billing - per line/trunk m MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 14 Option 3 - Collect Billing - per line/trunk - n NRC Yes No $10.00 N/A $10.00
AR GTE 14 Option 3 - Collect Billing - per line/trunk - m MRC Yes Yes $3.00 $0.36 $2.64
14 Selective Class of Call Screening
AR GTE 14 Per line equipped MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 14 Per line equipped NRC Yes No $10.00 N/A $10.00
AR GTE 14 Per trunk equipped n NRC Yes No $10.00 N/A $10.00
AR GTE 14 Per trunk equipped m MRC Yes Yes $10.00 $1.19 $8.81
15 ADDITIONAL EXCHANGE ACCESS FACILITIES
AR GTE 15 Mileage Rates - per 1/4mile MRC Yes Yes $1.30 $0.16 $1.14
15 Off Premises PABX Stations & additional locatns
15 Special Loop Treatment
AR GTE 15 Loop Extender - each NRC Yes No $25.00 N/A $25.00
AR GTE 15 Loop Extender - each MRC Yes Yes $5.35 $0.64 $4.71
AR GTE 15 Bridge Lifter, each NRC Yes No $3.00 N/A $3.00
AR GTE 15 Bridge Lifter, each MRC Yes Yes $0.40 $0.05 $0.35
AR GTE 15 VF Repeater - Each NRC Yes No $25.00 N/A $25.00
AR GTE 15 VF Repeater - Each MRC Yes Yes $10.25 $1.22 $9.03
AR GTE 15 Long Line adapter - Each NRC Yes No $25.00 N/A $25.00
AR GTE 15 Long Line adapter - Each MRC Yes Yes $8.75 $1.04 $7.71
15
15 Bells-(Ringers)
AR GTE 15 Loop Extender - each NRC Yes No $25.00 N/A $25.00
AR GTE 15 Loop Extender - each MRC Yes Yes $5.35 $0.64 $4.71
AR GTE 15 Bridge Lifter, each NRC Yes No $3.00 N/A $3.00
AR GTE 15 Bridge Lifter, each MRC Yes Yes $0.40 $0.05 $0.35
AR GTE 15 VF Repeater - Each NRC Yes No $25.00 N/A $25.00
AR GTE 15 VF Repeater - Each MRC Yes Yes $10.25 $1.22 $9.03
AR GTE 15 Long Line adapter - Each NRC Yes No $25.00 N/A $25.00
AR GTE 15 Long Line adapter - Each MRC Yes Yes $8.75 $1.04 $7.71
15 Conference Bridge
AR GTE 15 20 lines mrc MRC Yes Yes $110.00 $13.12 $96.88
AR GTE 15 20 lines - 3 yr. minimum terminating liability NRC Yes No $3,500.00 N/A $3,500.00
AR GTE 15 Line equipment per line NRC Yes No $25.00 N/A $25.00
AR GTE 15 Line equipment per line MRC Yes Yes $10.65 $1.27 $9.38
</TABLE>
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RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ---- -------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
15 Tie Lines - INTRAexch. Mileage - Between Pts.
AR GTE 15 Between points - same bldg. NRC Yes No $12.00 N/A $12.00
AR GTE 15 Between points - same bldg. MRC Yes Yes $ 1.60 $0.19 $ 1.41
AR GTE 15 Between points - diff. bldg. - same premise NRC Yes No $12.00 N/A $12.00
AR GTE 15 Between points - diff. bldg. - same premise MRC Yes Yes $ 1.60 $0.19 $ 1.41
AR GTE 15 Not same prem.-Per1/4mi. NRC Yes No $12.00 N/A $12.00
AR GTE 15 Not same prem.-Per1/4mi. - Min.Mth.Chg.$3.00 MRC Yes Yes $ 1.60 $0.19 $ 1.41
16 Custom Calling Vertical Services:
AR GTE 16 TOUCH CALL LN CHRG BUS 1-PTY PER LINE MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG BUS 2-PTY PER LINE MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG BUS 4-PTY PER LINE MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG KEY SYS PER LN MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG PBX PER TRK MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG RES 1-PTY PER LN MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG RES 2-PTY PER LN MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 TOUCH CALL LN CHRG RES 4-PTY PER LN MRC Yes Yes $ 2.00 $0.24 $ 1.76
AR GTE 16 Rotary Hunt Line Service (Per Line) MRC Yes Yes $ 3.00 $0.36 $ 2.64
AR GTE 16 Call Waiting - Business MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Call Waiting - Residence MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Call Forwarding - Business MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Call Forwarding - Residence MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Call Forwarding Multipath - Business MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Call Forwarding Multipath - Residence MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Speed Call 8 - Business MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Speed Call 8 - Residence MRC Yes Yes $ 2.50 $0.30 $ 2.20
AR GTE 16 Speed Call 30 - Business MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Speed Call 30 - Residence MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Three Way Calling - One Feature - Business MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Three Way Calling - One Feature - Residence MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Last Number Redial and Saved-Number Redial - Business (GF) MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Last Number Redial and Saved-Number Redial - Residence (GF) MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Call Forward/Busy/No Answer - Business (Variable) MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Call Forward/Busy/No Answer - Residence (Variable) MRC Yes Yes $ 3.50 $0.42 $ 3.08
AR GTE 16 Smart Ring - One Feature-Business MRC Yes Yes $ 6.00 $0.72 $ 5.28
AR GTE 16 Smart Ring - One Feature - Residence MRC Yes Yes $ 6.00 $0.72 $ 5.28
AR GTE 16 Fixed Call Forwarding/Busy - Business MRC Yes Yes $ 1.25 $0.15 $ 1.10
AR GTE 16 Fixed Call Forwarding/Busy - Residence MRC Yes Yes $ 1.25 $0.15 $ 1.10
AR GTE 16 Fixed Call Forwarding/No Answer - Business MRC Yes Yes $ 1.25 $0.15 $ 1.10
AR GTE 16 Fixed Call Forwarding/No Answer - Residence MRC Yes Yes $ 1.25 $0.15 $ 1.10
AR GTE 16 Fixed Call Forwarding/Busy/No Answer - Business MRC Yes Yes $ 1.50 $0.18 $ 1.32
AR GTE 16 Fixed Call Forwarding/Busy/No Answer - Residence MRC Yes Yes $ 1.50 $0.18 $ 1.32
</TABLE>
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RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COSTS RATE
- -- -- --- ------------------- ---- -------- -------- ---- ----- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 16 SMARTER Package - Business MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 SMARTER Package - Residence (GF) MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 SMARTEST Package - Business MRC Yes Yes $7.00 $0.84 $6.16
AR GTE 16 SMARTEST Package - Residence (GF) MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Smart Ring with a Pac - Business MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 Smart Ring with a Pac - Residence (GF) MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 Remote Call Forwarding - BUS/RES - first access path MRC Yes Yes $16.00 $1.91 $14.09
AR GTE 16 Remote Call Forwarding - BUS/RES - 2nd access path MRC Yes Yes $16.00 $1.91 $14.09
16 TEL-TEEN SERVICE CUSTOM FEATURE PACKAGES (GF)
AR GTE 16 Touch Call, Three-Way Calling, Speed Call 8, Toll Control (GF) MRC Yes Yes $3.50 $0.42 $3.08
AR GTE 16 Touch Call, Call Waiting, Speed Call 8, Toll Control (GF) MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 Touch Call, Three-Way Calling, Toll Control (GF) MRC Yes Yes $2.00 $0.24 $1.76
AR GTE 16 Touch Call, Call Waiting, Speed Call 8 (GF) MRC Yes Yes $3.00 $0.36 $2.64
CLASS Vertical Services:
AR GTE 16 Automatic Busy Redial - Business MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Automatic Busy Redial - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 Automatic Call Return - Business MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Automatic Call Return - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 Call Trace - Business MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Call Trace - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 Call Block - Business MRC Yes Yes $4.00 $0.48 $3.52
AR GTE 16 Call Block - Residence MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 Special Call Acceptance - Business MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 Special Call Acceptance - Residence MRC Yes Yes $2.00 $0.24 $1.76
AR GTE 16 Special Call Forwarding - Business MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Special Call Forwarding - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 Special Call Waiting - Business (GF) MRC Yes Yes $6.00 $0.72 $5.28
AR GTE 16 Special Call Waiting - Residence (GF) MRC Yes Yes $5.00 $0.60 $4.40
AR GTE 16 VIP Alert - Business MRC Yes Yes $4.00 $0.48 $3.52
AR GTE 16 VIP Alert - Residence MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 16 SmartCall Pak 4400 - Residence (GF) MRC Yes Yes $8.75 $1.04 $7.71
AR GTE 16 SmartCall Pak 4900 - Residence (GF) MRC Yes Yes $13.25 $1.58 $11.67
AR GTE 16 Caller ID Number - Business MRC Yes Yes $7.95 $0.95 $7.00
AR GTE 16 Caller ID Number - Residence MRC Yes Yes $5.95 $0.71 $5.24
AR GTE 16 Selective Blocking - Business MRC Yes Yes $0.00 $0.00 $0.00
AR GTE 16 Selective Blocking - Residence MRC Yes Yes $0.00 $0.00 $0.00
AR GTE 16 Complete Blocking - Residence MRC Yes Yes $0.00 $0.00 $0.00
AR GTE 16 Complete Blocking - Business MRC Yes Yes $0.00 $0.00 $0.00
AR GTE 16 Caller ID name and number (Residence) MRC Yes Yes $6.90 $0.82 $6.08
AR GTE 16 Caller ID name and number (Business) MRC Yes Yes $8.95 $1.07 $7.88
AR GTE 16 Anonymous Caller Rejection (Residence) MRC Yes Yes $1.00 $0.12 $0.88
AR GTE 16 Anonymous Caller Rejection (Business) MRC Yes Yes $1.00 $0.12 $0.88
19 FOREIGN EXCHANGE SERVICE
</TABLE>
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GTE SOUTHWEST INC. GENREAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- --- --- --- ------------------- ------ -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 19 Four Wire Channel Terminal Equipment NRC Yes No $10.00 N/A $10.00
AR GTE 19 Four Wire Channel Terminal Equipment MRC Yes Yes $50.00 $5.97 $44.04
19 FOREIGN SWITCHING OFFICE SERVICE
AR GTE 19 First 1/4 mi. or fraction MRC Yes Yes $2.00 $0.24 $1.76
AR GTE 19 Each additional 1/4 mi. or fraction MRC Yes Yes $1.00 $0.12 $0.88
AR GTE 20 INTRAEXCHANGE PRIVATE LINE SVC. & CHANNELS
AR GTE 20 FULL PERIOD SERVICE
AR GTE 20 Common Battery Service
AR GTE 20 Diff. prem. airline, 0-3/4 mi. per channel NRC Yes No $7.50 N/A $7.50
AR GTE 20 Diff. prem. airline, 0-3/4 mi. per channel MRC Yes No $13.50 N/A $13.50
AR GTE 20 Each add. 1/4 mi. or fraction MRC Yes No $4.50 N/A $4.50
AR GTE 20 Between bldgs.-same prem., airline 0-1200 ft.
per channel NRC Yes No $7.50 N/A $7.50
AR GTE 20 Between bldgs.-same prem., airline 0-1200 ft.
per channel MRC Yes No $4.60 N/A $4.60
AR GTE 20 Each add. 300 feet or fraction MRC Yes No $1.15 N/A $1.15
AR GTE 20 Within same bldg. including 2 pts. of term. each MRC Yes No $2.25 N/A $2.25
AR GTE 20 Additional pts. - same bldg., each NRC Yes No $3.75 N/A $3.75
AR GTE 20 Additional pts. - same bldg., each MRC Yes No $1.15 N/A $1.15
Magneto Service
BETWEEN BLDGS. INCLUDING ONE PT. OF TERM. AT EACH END.
AR GTE 20 Diff. prem., airline, 0-3/4 mi. per channel NRC Yes No $7.50 N/A $7.50
AR GTE 20 Diff. prem., airline, 0-3/4 mi. per channel MRC Yes No $6.75 N/A $6.75
AR GTE 20 Each additional 1/4 or fraction MRC Yes No $2.25 N/A $2.25
AR GTE 20 BETWEEN BUILDINGS-SAME PREMISES, AIRLINE
AR GTE 20 0-1200 feet per channel NRC Yes No $7.50 N/A $7.50
AR GTE 20 0-1200 feet per channel MRC Yes No $2.40 N/A $2.40
AR GTE 20 Each Additional 300 feet or fraction MRC Yes No $0.60 N/A $0.60
AR GTE 20 Within same building, including two points of
termination, each. NRC Yes No $7.50 N/A $7.50
AR GTE 20 Within same building, including two points of
termination, each. MRC Yes No $2.25 N/A $2.25
20 Channels for Miscellaneous Services
AR GTE 20 Grade 1 Simplex per channel -0-4/4 mile NRC Yes No $7.50 N/A $7.50
AR GTE 20 Grade 1 Simples per channel -0-4/4 mile MRC Yes No $9.00 N/A $9.00
AR GTE 20 Grade 1 Simplex Each additional 1/4 mile
or fraction MRC Yes No $2.65 N/A $2.65
AR GTE 20 Grade 1 Duplex 0-2/4 mile NRC Yes No $7.50 N/A $7.50
AR GTE 20 Grade 1 Duplex 0-1/4 mile MRC Yes No $6.80 N/A $6.80
AR GTE 20 Grade 1 Duplex Each additional 1/4 mile
or fraction MRC Yes No $3.40 N/A $3.40
AR GTE 20 Grade 2 Simplex per channel -0-4/4 mile NRC Yes No $7.50 N/A $7.50
AR GTE 20 Grade 2 Simplex per channel -0-4/4 mile MRC Yes No $9.00 N/A $9.00
</TABLE>
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RESALE PRODUCTS & SERVICES
GTE SOUTHWEST GENERAL EXCHANGE TARIFF
<TABLE>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 20 Grade 2 Simplex Each additional 1/4 mile or fraction MRC Yes No $2.25 N/A $2.25
AR GTE 20 Grade 2 Duplex 0-2/4 mile NRC Yes No $7.50 N/A $7.50
AR GTE 20 Grade 2 Duplex 0-1/4 mile MRC Yes No $6.80 N/A $6.80
AR GTE 20 Grade 2 Duplex Each additional1/4mile or fraction MRC Yes No $3.40 N/A $3.40
AR GTE 20 Grade 3 Simplex 0-3/4 mi. MRC Yes No $7.50 N/A $7.50
AR GTE 20 Grade 3 Simplex 0-3/4 mi. NRC Yes No $6.75 N/A $6.75
AR GTE 20 Grade 3 Simplex Each add.1/4mi. or fraction MRC Yes No $2.25 N/A $2.25
20 Local Channels
AR GTE 20 Music station to music customer 0-3/4mile NRC Yes No $7.50 N/A $7.50
AR GTE 20 Music station to music customer 0-3/4mile MRC Yes No $6.75 N/A $6.75
AR GTE 20 Music Each add.1/4mi. or fraction thereof NRC Yes No $2.25 N/A $2.25
AR GTE 20 Channel from bridging cust. to music cust.
per1/4mi. or fraction NRC Yes No $7.50 N/A $7.50
AR GTE 20 Channel from bridging cust. to music cust.
per1/4mi. or fraction NRC Yes No $2.25 N/A $2.25
AR GTE 20 Equilizing charge per channel NRC Yes No $15.00 N/A $15.00
AR GTE 20 Bridge amplifier - accomodate 50 terminals NRC Yes No $7.50 N/A $7.50
AR GTE 20 Bridge amplifier - accomodate 50 terminals MRC Yes No $70.50 N/A $70.50
AR GTE 20 Bridge amplifier - accomodate 100 terminals NRC Yes No $7.50 N/A $7.50
AR GTE 20 Bridge amplifier - accomodate 100 terminals MRC Yes No $70.50 N/A $70.50
AR GTE 20 Bridge amplifier - accomodate 150 terminals NRC Yes No $7.50 N/A $7.50
AR GTE 20 Bridge amplifier - accomodate 150 terminals MRC Yes No $79.75 N/A $79.75
21 MOBILE TELEPHONE SERVICE
AR GTE 21 Base Station Service, per unit MRC Yes Yes $11.50 $1.37 $10.13
AR GTE 21 Local exchange access per unit (see Sec. 13
for svc. ord. charges NRC Yes No sec 13 N/A $0.00
AR GTE 21 Local msg. chg. - First 5 min. or frac thereafter USAGE Yes Yes $0.50 $0.06 $0.44
AR GTE 21 Each minute thereafter USAGE Yes Yes $0.10 $0.01 $0.09
DIRECTORY ASSISTANCE SERVICE
AR GTE 38 Customer Dialed Calling Card USAGE Yes No $0.35 N/A $0.35
AR GTE 38 All other (Opr.assist sent paid,third no.,
credit card) USAGE Yes No $0.90 N/A $0.90
AR GTE 38 One call allowance; Additional calls USAGE Yes No $0.40 N/A $0.40
AR GTE 38 Directory Connect Plus Service USAGE Yes No $0.50 N/A $0.50
22 SWITCHED DATA CUSTOMER LINE SERVICES
AR GTE 22 SW Data Cust Ln Svcs - Low Speed Single Ln. MRC Yes Yes $50.00 $5.97 $44.04
AR GTE 22 SW Data Cust Ln Svcs - Low Speed Single Ln.
INSTALL NRC NRC Yes No $50.00 N/A $50.00
AR GTE 22 SW Data Cust Ln Svcs - Low Speed CentraNet MRC Yes Yes $50.00 $5.97 $44.04
AR GTE 22 SW Data Cust Ln Svcs - Low Speed CentraNet
INSTALL NRC NRC Yes No $50.00 N/A $50.00
AR GTE 22 SW Data Cust Ln Svcs - High Speed Single Ln. MRC Yes Yes $50.00 $5.97 $44.04
AR GTE 22 SW Data Cust Ln Svcs - High Speed Single Ln.
INSTALL NRC NRC Yes No $12.00 N/A $12.00
AR GTE 22 SW Data Cust Ln Svcs - High Speed CentraNet MRC Yes Yes $50.00 $5.97 $44.04
AR GTE 22 SW Data Cust Ln Svcs - High Speed CentraNet
INSTALL NRC NRC Yes No $15.00 N/A $15.00
AR GTE 22 Central Office Termination MRC Yes Yes $150.00 $17.90 $132.11
AR GTE 22 Central Office Termination INSTALL NRC NRC Yes No $125.00 N/A $125.00
</TABLE>
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GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ------- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 22 Central Office Channelization MRC Yes Yes $5.00 $0.60 $4.40
22 Optional Services
AR GTE 22 Data Direct Connect MRC Yes Yes $1.00 $0.12 $0.88
AR GTE 22 Data Closed User Group MRC Yes Yes $1.00 $0.12 $0.88
AR GTE 22 Voice Option MRC Yes Yes $0.00 $0.00
AR GTE 22 Feature Package Data 1000 MRC Yes Yes $3.00 $0.36 $2.64
AR GTE 22 Software Reconfiguration NRC NRC Yes No $12.75 N/A $12.75
Switched Data Network Usage
AR GTE 22 Local call setup Usage Yes Yes $0.02 $0.00 $0.02
AR GTE 22 Each add. mou - local Usage Yes Yes $0.01 $0.00 $0.01
AR GTE 22 Band A 1-10 Airline Mi. Set up Usage Yes Yes $0.03 $0.00 $0.03
AR GTE 22 Band B 11-16 Airline Mi. Set up Usage Yes Yes $0.04 $0.00 $0.04
AR GTE 22 Band C 17-22 Airline Mi. Set up Usage Yes Yes $0.05 $0.01 $0.04
AR GTE 22 Band D 23-30 Airline Mi. Set up Usage Yes Yes $0.06 $0.01 $0.05
AR GTE 22 Band E 31-40 Airline Mi. Set up Usage Yes Yes $0.07 $0.01 $0.06
AR GTE 22 Band A 1-10 Airline Mi. each min Usage Yes Yes $0.03 $0.00 $0.03
AR GTE 22 Band B 11-16 Airline Mi. each min Usage Yes Yes $0.05 $0.01 $0.04
AR GTE 22 Band C 17-22 Airline Mi. each min Usage Yes Yes $0.08 $0.01 $0.07
AR GTE 22 Band D 23-30 Airline Mi. each min Usage Yes Yes $0.09 $0.01 $0.08
AR GTE 22 Band E 31-40 Airline Mi. each min Usage Yes Yes $0.011 $0.01 $0.10
SWITCHED DAT NETWORK USAGE WITH 40% DISCOUNT
AR GTE 22 Local call setup Usage Yes Yes $0.012 $0.001 $0.011
AR GTE 22 Each add. mou - local Usage Yes Yes $0.006 $0.001 $0.005
AR GTE 22 Band A 1-10 Airline Mi. Set up Usage Yes Yes $0.018 $0.002 $0.016
AR GTE 22 Band B 11-16 Airline Mi. Set up Usage Yes Yes $0.024 $0.003 $0.021
AR GTE 22 Band C 17-22 Airline Mi. Set up Usage Yes Yes $0.030 $0.004 $0.026
AR GTE 22 Band D 23-30 Airline Mi. Set up Usage Yes Yes $0.036 $0.004 $0.032
AR GTE 22 Band E 31-40 Airline Mi. Set up Usage Yes Yes $0.042 $0.005 $0.037
AR GTE 22 Band A 1-10 Airline Mi. each min Usage Yes Yes $0.018 $0.002 $0.016
AR GTE 22 Band B 11-16 Airline Mi. each min Usage Yes Yes $0.030 $0.004 $0.026
AR GTE 22 Band C 17-22 Airline Mi. each min Usage Yes Yes $0.048 $0.006 $0.042
AR GTE 22 Band D 23-30 Airline Mi. each min Usage Yes Yes $0.054 $0.006 $0.048
AR GTE 22 Band E 31-40 Airline Mi. each min Usage Yes Yes $0.066 $0.008 $0.058
AR GTE 23 ANSWER SUPERVISION - PER LINE MRC Yes No $5.55 N/A $5.55
26 TELEPHONE SERVICE PRIORITY (TSP) SYSTEM
AR GTE 26 Establishment per access line/circuit NRC Yes No $14.50 N/A $14.50
AR GTE 26 Restoration priority per access line
or circuit MRC Yes Yes $4.90 $0.58 $4.32
27 ANNOUNCEMENT SYSTEM SERVICE
AR GTE 27 Digit -Eater Trunk per trunk NRC Yes No $200.00 N/A $200.00
27 Digit -Eater MRC Yes Yes $4.50 $0.54 $3.96
</TABLE>
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<PAGE> 99
<TABLE>
<CAPTION>
GTE ARKANSAS SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------- -------- -------- ----- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
28 NETWORK SERVICES
AR GTE 28 Cust. Controllable Ring per end user line arranged MRC Yes Yes $ 1.00 $ 0.12 $ 0.88
AR GTE 28 Data Link per link arranged NRC Yes No $500.00 N/A $500.00
AR GTE 28 Data Link per link arranged MRC Yes Yes $300.00 $35.79 $264.21
AR GTE 28 Five Feature Package per end user Line arranged MRC Yes Yes $ 2.75 $ 0.33 $ 2.42
AR GTE 28 Forwarded Call Information Intraoffice per end user
line arranged MRC Yes Yes $ 1.00 $ 0.12 $ 0.88
AR GTE 28 Msg. Waiting Indication-Audible Per end user line arranged MRC Yes Yes $ 0.50 $ 0.06 $ 0.44
AR GTE 28 Msg. Waiting Audible Ring Burst per end user line arranged MRC Yes Yes $ 1.50 $ 0.18 $ 1.32
AR GTE 28 3 svc. pac - Fixed Call Fwd, Bus/No ans, Msg. wait, Fwd.
Call Info. MRC Yes Yes $ 2.00 $ 0.24 $ 1.76
AR GTE 28 Queuing per Line or trunk arranged MRC Yes Yes $ 1.50 $ 0.18 $ 1.32
AR GTE 28 User Transfer per ln or trunk arranged MRC Yes Yes $ 1.50 $ 0.18 $ 1.32
47 Centranet Service
AR GTE 47 Svc. Chgs. - 3-25 lines -line connection chg NRC Yes No $ 6.30 N/A $ 6.30
AR GTE 47 Svc. Chgs. - 26-50 lines -line connection chg NRC Yes No $ 3.09 N/A $ 3.09
AR GTE 47 Svc. Chgs. - 51-100 lines -line connection chg NRC Yes No $ 2.32 N/A $ 2.32
47 Centranet Service Line
AR GTE 47 Month to Month - 3-25 lns, per line MRC Yes Yes $ 16.75 $ 2.00 $ 14.75
AR GTE 47 Month to Month - 26-50 lns, per line MRC Yes Yes $ 16.50 $ 1.97 $ 14.53
AR GTE 47 12 mo. contract - 51-100 lns per line MRC Yes Yes $ 16.25 $ 1.94 $ 14.31
AR GTE 47 36 mo. contract 51-100 lns per line MRC Yes Yes $ 16.00 $ 1.91 $ 14.09
47 Centranet Network Access Connection
AR GTE 47 Rate Group I MRC Yes No $ 28.64 N/A $ 28.64
AR GTE 47 Rate Group II MRC Yes No $ 33.74 N/A $ 33.74
AR GTE 47 Rate Group III MRC Yes No $ 35.09 N/A $ 35.09
AR GTE 47 Feature Series 1000 per line MRC Yes Yes $ 2.00 $ 0.24 $ 1.76
AR GTE 47 Feature Series 2000 per line MRC Yes Yes $ 2.30 $ 0.27 $ 2.03
AR GTE 47 Feature Series 3000 per line MRC Yes Yes $ 2.50 $ 0.30 $ 2.20
47 Centranet System Features
AR GTE 47 Attendant Data Link Console Interface MRC Yes Yes $ 90.00 $10.74 $ 79.26
AR GTE 47 Attendant Flexible Night Answer MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Attendant Identification Multiple Directory Numbers MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Attendant Non-Data Link console Interface MRC Yes Yes $ 35.00 $ 4.18 $ 30.82
AR GTE 47 Attendant Pre-Determined Night Answer (PNA) MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Attendant Universal Night Answer (UNA) MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Authorization code MRC Yes Yes $ 1.00 $ 0.12 $ 0.88
AR GTE 47 automatic Route Selection MRC Yes Yes $175.00 $20.88 $154.12
</TABLE>
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<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 47 Code Call Access MRC Yes Yes $ 25.00 $ 2.98 $ 22.02
AR GTE 47 Conference Call, 8 port MRC Yes Yes $ 60.00 $ 7.16 $ 52.84
AR GTE 47 Dictation Access and Control MRC Yes Yes $ 25.00 $ 2.98 $ 22.02
AR GTE 47 Fx Access MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 47 Limited Automatic Call distribution, per Group MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Music on hold MRC Yes Yes $ 25.00 $ 2.98 $ 22.02
AR GTE 47 Paging/Public Address Access MRC Yes Yes $ 25.00 $ 2.98 $ 22.02
AR GTE 47 Pilot Number MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Preferential Hunting per line MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Priority queuing MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Proprietary Set Interface MRC Yes Yes $ 5.00 $ 0.60 $ 4.40
AR GTE 47 Pseudo Number MRC Yes Yes $ 6.00 $ 0.72 $ 5.28
AR GTE 47 Recorded Announcement MRC Yes Yes $ 50.00 $ 5.97 $ 44.04
AR GTE 47 Speed Call 30 (System) MRC Yes Yes $ 0.25 $ 0.03 $ 0.22
AR GTE 47 Station Message Detail Recording, per line MRC Yes Yes $ 0.30 $ 0.04 $ 0.26
AR GTE 47 Stop hunt MRC Yes Yes $ 1.00 $ 0.12 $ 0.88
AR GTE 47 Terminal Make Busy MRC Yes Yes $ 1.25 $ 0.15 $ 1.10
AR GTE 47 Tie Facility Access MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 47 T1 access MRC Yes Yes $100.00 $ 11.93 $ 88.07
AR GTE 47 WATS Access MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 47 800 Service MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
47 Centranet Data Base Changes
AR GTE 47 Major Software Additions -Add Customized Dialing plan NRC Yes No $100.00 N/A $100.00
AR GTE 47 Major Software Additions -Add Cust. Requested DataBase profile NRC Yes No $100.00 N/A $100.00
AR GTE 47 Routine - Change Trunk Group NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Routine - Change non-Data-Link Attendant NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Routine Change Customer Recording NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Routine Change - ARS Translations NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Routine Changer Translations Tables NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Other data base additions/changes NRC Yes No $ 50.00 N/A $ 50.00
AR GTE 47 Minor Software Changes
AR GTE 47 Change subgroup NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Hunt Groups NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 ACD hunt group NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Simulated Facility Group NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Queuing groups NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Night Answer NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Paging/Public Address/code Calling NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Conference Calling NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Remote Access Directory Number NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Authorization Code Validation NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Music on hold Access NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Dictation Link Access NRC Yes No $ 25.00 N/A $ 25.00
AR GTE 47 Standard Recording NRC Yes No $ 25.00 N/A $ 25.00
</TABLE>
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GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S><C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 47 Extended Pick up Code NRC Yes No $25.00 N/A $25.00
AR GTE 47 Executive Busy Override NRC Yes No $25.00 N/A $25.00
AR GTE 47 Add Line Features NRC Yes No $25.00 N/A $25.00
G R A N D F A T H E R E D S E R V I C E S
6 Schedule "B" Unimproved Exc./Rate Group II
(3001 -18,000) Inside Rate Base Area
AR GTE 6 Residence Two Party MRC No No $ 9.65 N/A N/A
6 Schedule "B" Unimproved Exc./Rate Group II
(3001 -18,000) Inside Rate Base Area
AR GTE 6 Residence Two Party MRC No No $11.00 N/A N/A
6 Schedule "B" Unimproved Exchanges / JACKSONVILLE/
Inside Rate Base Area
AR GTE 6 Residence Two Party MRC No No $11.00 N/A N/A
6 Schedule "B" Unimproved Exchanges/Rate Group 1
(1-3000) Outside Rat
AR GTE 6 Residence Four Party Rural MRC No No $11.65 N/A N/A
6 Schedule "B" Unimproved Exc./Rate Group II
(3001 -18,000) Outside Rate Base Area
AR GTE 6 Residence Four Party Rural MRC No No $13.40 N/A N/A
6 Schedule "B" Unimproved Exchanges/
JACKSONVILLE/Outside R
AR GTE 6 Residence Four Party Rural MRC No No $13.40 N/A N/A
6 EXTENDED AREA SERVICE RATES
6 Schedule "B" Unimproved Exchanges/Rate Group 1
(1-3000) Inside Rate Base Area EAS
AR GTE 6 Business Four Party Rural MRC Yes Yes $ 9.75 $ 1.16 $ 8.59
AR GTE 6 Residence Two Party MRC No No $ 2.75 N/A N/A
6 Schedule "B" Unimproved Exchanges/Rate Group II
(3001-18000) Inside Rate Base Area EAS
AR GTE 6 Business Four Party Rural MRC Yes Yes $11.10 $ 1.32 $ 9.78
AR GTE 6 Residence Two Party MRC No No $ 3.15 N/A N/A
6 Schedule "B" Unimproved Exchanges/Rate Group
JACKSONVILLE
AR GTE 6 Residence Two Party MRC No No $ 4.95 N/A N/A
AR GTE 16 Standard Pac-call wait, call fwd per line - bus. MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 16 Standard Pac-call wait, call fwd per line - res MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 16 Standard Pac-call wait, speed call 8 per line - bus MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 16 Standard Pac-call wait, speed call 8 per line - res MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 16 Standard Pac-call wait, speed call 30 per line - bus MRC Yes Yes $ 4.00 $ 0.48 $ 3.52
AR GTE 16 Standard Pac-call wait, speed call 30 per line - res MRC Yes Yes $ 4.00 $ 0.48 $ 3.52
AR GTE 16 Standard Pac-call fwd, speed call 8 per line - bus MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
AR GTE 16 Standard Pac-call fwd, speed call 8 per line - res MRC Yes Yes $ 3.00 $ 0.36 $ 2.64
</TABLE>
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RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE 16 Standard Pac-call fwd, speed call 30 per line - bus MRC Yes Yes $4.00 $0.48 $ 3.52
AR GTE 16 Standard Pac-call fwd, speed call 30 per line - res MRC Yes Yes $4.00 $0.48 $ 3.52
AR GTE 16 Deluxe Pac-call wait, call fwd, speed call 8 per line - bus MRC Yes Yes $5.00 $0.60 $ 4.40
AR GTE 16 Deluxe Pac-call wait, call fwd, speed call 8 per line - res MRC Yes Yes $5.00 $0.60 $ 4.40
AR GTE 16 Deluxe Pac-call wait, call fwd, speed call 30 per line - bus MRC Yes Yes $6.00 $0.72 $ 5.28
AR GTE 16 Deluxe Pac-call wait, call fwd, speed call 30 per line - res MRC Yes Yes $6.00 $0.72 $ 5.28
AR GTE 16 Smart Call Pak -call wait, Call fwd, per line - bus MRC Yes Yes $5.00 $0.60 $ 4.40
AR GTE 16 Smart Call Pak -call wait, Call fwd, per line - res MRC Yes Yes $4.00 $0.48 $ 3.52
</TABLE>
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GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SWB PRIVATE LINE TARIFF
IntraLATA Interexchange Private Lines
2 Series 100
Type 102
AR GTE Local Channel, ea NRC Yes No $225.00 N/A $225.00
AR GTE Local Channel, ea MRC Yes No $22.00 N/A $22.00
AR GTE Interoffice Channel, ea mi MRC Yes No $4.00 N/A $4.00
AR GTE Interoffice Channel Terminal, per channel MRC Yes No $14.25 N/A $14.25
2 IX Channel
AR GTE 0 to 250 mi ea mi MRC Yes No $5.75 N/A $5.75
AR GTE Ea additional mi over 250 MRC Yes No $3.90 N/A $3.90
AR GTE IX Channel Terminal ea, 2 required per IX channel MRC Yes No $10.75 N/A $10.75
2 Series 200
Type 250
Interoffice Channel
AR GTE Half-duplex MRC Yes No $5.00 N/A $5.00
AR GTE Duplex MRC Yes No $8.00 N/A $8.00
2 Interoffice Channel Terminal, per terminal
AR GTE Half-duplex MRC Yes No $2.60 N/A $2.60
AR GTE Duplex MRC Yes No $2.60 N/A $2.60
IX Channel, ea mi
Half-duplex
AR GTE 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
AR GTE Ea additional mi over 250 MRC Yes No $4.70 N/A $4.70
Duplex
AR GTE 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
Ea additional mi over 250
IX Channel Terminal
AR GTE Half-duplex MRC Yes No $53.00 N/A $53.00
AR GTE Duplex MRC Yes No $55.00 N/A $55.00
2 Type 251
Interoffice Channel
AR GTE Half-duplex MRC Yes No $5.00 N/A $5.00
AR GTE Duplex MRC Yes No $8.00 N/A $8.00
2 Interoffice Channel Terminal
AR GTE Half-duplex MRC Yes No $2.60 N/A $2.60
AR GTE Duplex MRC Yes No $2.60 N/A $2.60
IX Channel, ea
Half-duplex
AR GTE 0 to 250 mi, ea mi MRC Yes No $2.90 N/A $2.90
AR GTE Ea additional mi over 250 MRC Yes No $2.90 N/A $2.90
Duplex
AR GTE 0 to 250 mi, ea mi MRC Yes No $2.90 N/A $2.90
Ea additianl mi over 250 $2.90
</TABLE>
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<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ ------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
IX Channel Terminal
AR GTE Half-duplex MRC Yes No $47.00 N/A $47.00
AR GTE Duplex MRC Yes No $47.00 N/A $47.00
2 Series 400
Local Channel, ea
AR GTE Type 414B MRC Yes No $66.00 N/A $66.00
AR GTE Type 414B NRC Yes No $590.00 N/A $590.00
AR GTE Type 414C NRC Yes No $445.00 N/A $445.00
AR GTE Type 415 MRC Yes No $21.00 N/A $21.00
AR GTE Type 415 NRC Yes No $155.00 N/A $155.00
AR GTE Type 417A MRC Yes No $35.50 N/A $35.50
AR GTE Type 417A NRC Yes No $360.00 N/A $360.00
AR GTE Type 417B MRC Yes No $35.50 N/A $35.50
AR GTE Type 417B NRC Yes No $410.00 N/A $410.00
AR GTE Type 420 MRC Yes No $52.00 N/A $52.00
AR GTE Type 420 NRC Yes No $290.00 N/A $290.00
AR GTE Type 422 MRC Yes No $51.00 N/A $51.00
AR GTE Type 422 NRC Yes No $295.00 N/A $295.00
AR GTE Type 423 MRC Yes No $21.00 N/A $21.00
AR GTE Type 423 NRC Yes No $270.00 N/A $270.00
AR GTE Type 424 MRC Yes No $53.00 N/A $53.00
AR GTE Type 424 NRC Yes No $340.00 N/A $340.00
AR GTE Type 425 MRC Yes No $38.00 N/A $38.00
AR GTE Type 425 NRC Yes No $280.00 N/A $280.00
AR GTE Type 428 MRC Yes No $23.50 N/A $23.50
AR GTE Type 428 NRC Yes No $260.00 N/A $260.00
AR GTE Type 432 MRC Yes No $47.00 N/A $47.00
AR GTE Type 432 NRC Yes No $470.00 N/A $470.00
AR GTE Type 435 MRC Yes No $54.00 N/A $54.00
AR GTE Type 435 NRC Yes No $260.00 N/A $260.00
AR GTE Type 442 MRC Yes No $21.75 N/A $21.75
AR GTE Type 442 NRC Yes No $265.00 N/A $265.00
AR GTE Type 443 MRC Yes No $57.00 N/A $57.00
AR GTE Type 443 NRC Yes No $275.00 N/A $275.00
AR GTE 2 Interoffice Channel ea mi MRC Yes No $7.75 N/A $7.75
AR GTE Interoffice Channel Terminal,
per terminal MRC Yes No $3.20 N/A $3.20
IX Channel, per mile
AR GTE 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
AR GTE Ea additional mi over 250 MRC Yes No $3.20 N/A $3.20
2 IX Channel Terminal, per Terminal,
2 required per ch.
AR GTE Type 414B MRC Yes No $33.00 N/A $33.00
AR GTE Type 414C MRC Yes No $33.00 N/A $33.00
AR GTE Type 417A MRC Yes No $33.00 N/A $33.00
AR GTE Type 417B MRC Yes No $33.00 N/A $33.00
AR GTE Type 420 MRC Yes No $33.00 N/A $33.00
</TABLE>
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<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE Type 422 MRC Yes No $33.00 N/A $33.00
AR GTE Type 423 MRC Yes No $33.00 N/A $33.00
AR GTE Type 424 MRC Yes No $33.00 N/A $33.00
AR GTE Type 425 MRC Yes No $33.00 N/A $33.00
AR GTE Type 428 MRC Yes No $33.00 N/A $33.00
AR GTE Type 432 MRC Yes No $33.00 N/A $33.00
AR GTE Type 435 MRC Yes No $33.00 N/A $33.00
AR GTE Type 442 MRC Yes No $33.00 N/A $33.00
AR GTE Type 443 MRC Yes No $33.00 N/A $33.00
AR GTE 2 Bridging Charge, (Multi-point Serv.)
per channel bridged MRC Yes No $9.50 N/A $9.50
2 Signaling Arrangements
IX IntraLATA
AR GTE Manual (J1B) MRC Yes No $20.75 N/A $20.75
AR GTE Manual (J1B) NRC Yes No $75.00 N/A $75.00
AR GTE Automatic (J1A) MRC Yes No $15.00 N/A $15.00
AR GTE Automatic (J1A) NRC Yes No $75.00 N/A $75.00
2 E & M Type Signaling
AR GTE Type 420 MRC Yes No $12.25 N/A $12.25
AR GTE Type 420 NRC Yes No $75.00 N/A $75.00
AR GTE Type 422 MRC Yes No $12.25 N/A $12.25
AR GTE Type 422 NRC Yes No $75.00 N/A $75.00
AR GTE Type 423 MRC Yes No $23.00 N/A $23.00
AR GTE Type 423 NRC Yes No $75.00 N/A $75.00
AR GTE Type 424 MRC Yes No $12.50 N/A $12.50
AR GTE Type 424 NRC Yes No $75.00 N/A $75.00
AR GTE Type 425 MRC Yes No $27.50 N/A $27.50
AR GTE Type 425 NRC Yes No $75.00 N/A $75.00
AR GTE Type 428 MRC Yes No $14.25 N/A $14.25
AR GTE Type 428 NRC Yes No $75.00 N/A $75.00
AR GTE Type 435 MRC Yes No $14.25 N/A $14.25
AR GTE Type 435 NRC Yes No $75.00 N/A $75.00
Loop Signaling, capable of 900
ohms or more
AR GTE Type 420 MRC Yes No $12.25 N/A $12.25
AR GTE Type 420 NRC Yes No $75.00 N/A $75.00
AR GTE Type 422 MRC Yes No $8.25 N/A $8.25
AR GTE Type 422 NRC Yes No $75.00 N/A $75.00
AR GTE Type 423 MRC Yes No $8.75 N/A $8.75
AR GTE Type 423 NRC Yes No $75.00 N/A $75.00
AR GTE Type 435 MRC Yes No $7.50 N/A $7.50
AR GTE Type 435 NRC Yes No $75.00 N/A $75.00
Loop Signaling, capable of less
than 900 ohms
AR GTE Type 420 MRC Yes No $18.50 N/A $18.50
AR GTE Type 420 NRC Yes No $75.00 N/A $75.00
AR GTE Type 422 MRC Yes No $15.25 N/A $15.25
AR GTE Type 422 NRC Yes No $75.00 N/A $75.00
</TABLE>
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<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
St Co Sec Service Description Type Position Position Rate Cost Rate
- -- --- --- ------------------- ------ ------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE Type 423 MRC Yes No $10.50 N/A $10.50
AR GTE Type 423 NRC Yes No $75.00 N/A $75.00
AR GTE Type 435 MRC Yes No $12.00 N/A $12.00
AR GTE Type 435 NRC Yes No $75.00 N/A $75.00
AR GTE Type A, resistance in the range of 0-199 ohms MRC Yes No $6.25 N/A $6.25
AR GTE Type A, resistance in the range of 0-199 ohms NRC Yes No $75.00 N/A $75.00
AR GTE Type B, resistance in the range of 200 to 899 ohms MRC Yes No $3.80 N/A $3.80
AR GTE Type B, resistance in the range of 200 to 899 ohms NRC Yes No $75.00 N/A $75.00
AR GTE Type C, resistance of 900 ohms or more MRC Yes No $1.50 N/A $1.50
AR GTE Type C, resistance of 900 ohms or more NRC Yes No $75.00 N/A $75.00
</TABLE>
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<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
St Co Sec Service Description Type Position Position Rate Cost Rate
- -- --- --- ------------------- ------ ------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ST CO Tariff GTE Long Distance Telecommunications Services:
IntraLATA Two Point Service:
Day Rate:
Initial Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.10 $0.01 $0.09
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.12 $0.01 $0.11
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.15 $0.02 $0.13
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.18 $0.02 $0.16
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.23 $0.03 $0.20
Each Additional Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.08 $0.01 $0.07
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.10 $0.01 $0.09
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.12 $0.01 $0.11
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.15 $0.02 $0.13
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.18 $0.02 $0.16
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.20 $0.02 $0.18
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.22 $0.03 $0.19
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.23 $0.03 $0.20
Evening Rate:
Initial Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.0831 $0.0099 $0.0732
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.0997 $0.0119 $0.0878
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.1246 $0.0149 $0.1097
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.1496 $0.0178 $0.1318
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
Each Additional Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.0665 $0.0079 $0.0586
</TABLE>
Page 21
<PAGE> 108
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.0831 $0.0099 $0.0732
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.0997 $0.0119 $0.0878
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.1246 $0.0149 $0.1097
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.1496 $0.0178 $0.1318
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.1662 $0.0198 $0.1464
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.1828 $0.0218 $0.1610
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
Night/Weekend Rate:
Initial Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.0550 $0.0066 $0.0484
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.0660 $0.0079 $0.0581
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.0825 $0.0098 $0.0727
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.0990 $0.0118 $0.0872
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
Each Additional Minute:
AR GTE .D.MTS 1 to 8 Miles USAGE Yes Yes $0.0440 $0.0052 $0.0388
AR GTE .D.MTS 9 to 12 Miles USAGE Yes Yes $0.0550 $0.0066 $0.0484
AR GTE .D.MTS 13 to 16 Miles USAGE Yes Yes $0.0660 $0.0079 $0.0581
AR GTE .D.MTS 17 to 21 Miles USAGE Yes Yes $0.0825 $0.0098 $0.0727
AR GTE .D.MTS 22 to 26 Miles USAGE Yes Yes $0.0990 $0.0118 $0.0872
AR GTE .D.MTS 27 to 31 Miles USAGE Yes Yes $0.1100 $0.0131 $0.0969
AR GTE .D.MTS 32 to 41 Miles USAGE Yes Yes $0.1210 $0.0144 $0.1066
AR GTE .D.MTS 42 to 56 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 57 to 71 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 72 to 87 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS 88 to 127 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS Over 128 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR GTE .D.MTS Service Charge - Dial Calling
Card - Station to Station USAGE Yes No $0.35 N/A $0.35
AR GTE .D.MTS Service Charge - Operator -
Station to Station USAGE Yes No $0.90 N/A $0.90
AR GTE .D.MTS Service Charge - Person to
Person USAGE Yes No $2.50 N/A $2.50
AR GTE .D.MTS Enterprise Service MRC Yes No $4.40 N/A $4.40
</TABLE>
Page 22
<PAGE> 109
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
St Co Sec Service Description Type Position Position Rate Cost Rate
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE .D.MTS Selective Class of Call Screening MRC Yes Yes $53.00 $6.32 $46.68
AR GTE .D.MTS Selective Class of Call Screening NRC Yes No $340.00 N/A $340.00
AR GTE .D.MTS PrePaid Calling Card Service (per minute) USAGE Yes Yes $0.40 $0.05 $0.35
Conference Service:
AR GTE .D.MTS Conference Call Set-Up Charge USAGE Yes No $1.50 N/A $1.50
Conference Call Per Minute of Use Charge:
AR GTE .D.MTS 0-26 Miles USAGE Yes No $0.05 N/A $0.05
AR GTE .D.MTS 27-71 Miles USAGE Yes No $0.10 N/A $0.10
AR GTE .D.MTS Over 71 Miles USAGE Yes No $0.15 N/A $0.15
IntraLATA Optional Toll Calling Plans:
Extended Community Saver:
Residence:
Block-of-Time:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $2.70 $0.32 $2.38
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.045 $0.005 $0.040
Business:
Block-of-Time:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $2.70 $0.32 $2.38
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.045 $0.005 $0.040
Residence:
AR GTE OCP Unlimited Usage MRC No No $16.20 N/A N/A
Business:
AR GTE OCP Unlimited Usage MRC Yes Yes $18.00 $2.15 $15.85
Circle Saver:
Residence Block-of-Time:
41 Mile Radius:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $6.00 $0.72 $5.28
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
Business Block-of-Time:
41 Mile Radius:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $6.00 $0.72 $5.28
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
Circle Saver Trial Plan - Fort Smith LATA:
Residence:
AR GTE OCP Unlimited Usage (one-way originating
calling) MRC No No $19.95 N/A N/A
Business:
AR GTE OCP Unlimited Usage (one-way originating
calling) MRC Yes Yes $34.95 $4.17 $30.78
1+ Saver:
</TABLE>
Page 23
<PAGE> 110
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
Billing Resale Discount Retail Avoided Resale
St Co Sec Service Description Type Position Position Rate Cost Rate
- -- --- --- ------------------- ------ -------- -------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Residence:
Block-of-Time:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $7.80 $0.93 $6.87
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.13 $0.02 $0.11
Block-of-Time:
AR GTE OCP Monthly Rate for First 5 Hours MRC Yes Yes $36.00 $4.29 $31.71
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
Block-of-Time:
AR GTE OCP Monthly Rate for First 10 Hours MRC Yes Yes $60.00 $7.16 $52.84
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
Business:
Block-of-Time:
AR GTE OCP Monthly Rate for First Hour MRC Yes Yes $7.80 $0.93 $6.87
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.13 $0.02 $0.11
Block-of-Time:
AR GTE OCP Monthly Rate for First 5 Hours MRC Yes Yes $36.00 $4.29 $31.71
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
Block-of-Time:
AR GTE OCP Monthly Rate for First 10 Hours MRC Yes Yes $60.00 $7.16 $52.84
AR GTE OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
Residence:
Discount Plan:
AR GTE OCP 10 % Discount MRC Yes Yes Varies Varies Varies
AR GTE OCP 15 % Discount MRC Yes Yes Varies Varies Varies
AR GTE OCP 20 % Discount MRC Yes Yes Varies Varies Varies
Business:
Discount Plan:
AR GTE OCP 10 % Discount MRC Yes Yes Varies Varies Varies
AR GTE OCP 15 % Discount MRC Yes Yes Varies Varies Varies
AR GTE OCP 20 % Discount MRC Yes Yes Varies Varies Varies
Designated Number Plan:
Residence:
AR GTE OCP Unlimited Usage to First
Designated Number MRC Yes Yes $15.00 $1.79 $13.21
AR GTE OCP Unlimited Usage to Each Additional
Designated Number MRC Yes Yes $10.00 $1.19 $8.81
Business:
AR GTE OCP Unlimited Usage to First Designated
Number MRC Yes Yes $15.00 $1.79 $13.21
AR GTE OCP Unlimited Usage to Each Additional
Designated Number MRC Yes Yes $10.00 $1.19 $8.81
Wide Area Telecommunications Services:
800 Service:
AR GTE WATS Access Line MRC Yes Yes $38.00 $4.53 $33.47
Usage Rates (per Hour):
</TABLE>
Page 24
<PAGE> 111
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------ -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR GTE WATS Day - First 10 Hours USAGE Yes Yes $18.00 $2.15 $15.85
AR GTE WATS Day - Next 15 Hours USAGE Yes Yes $16.20 $1.93 $14.27
AR GTE WATS Day - Next 25 Hours USAGE Yes Yes $14.40 $1.72 $12.68
AR GTE WATS Day - Over 50 Hours USAGE Yes Yes $12.60 $1.50 $11.10
AR GTE WATS Evening - First 10 Hours USAGE Yes Yes $15.00 $1.79 $13.21
AR GTE WATS Evening - Next 15 Hours USAGE Yes Yes $13.20 $1.57 $11.63
AR GTE WATS Evening - Next 25 Hours USAGE Yes Yes $12.00 $1.43 $10.57
AR GTE WATS Evening - Over 50 Hours USAGE Yes Yes $10.80 $1.29 $9.51
AR GTE WATS Night/Weekend - First 10 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR GTE WATS Night/Weekend - Next 15 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR GTE WATS Night/Weekend - Next 25 Hours USAGE Yes Yes $7.20 $0.86 $6.34
AR GTE WATS Night/Weekend - Over 50 Hours USAGE Yes Yes $6.60 $0.79 $5.81
Outward WATS:
AR GTE WATS Access Line MRC Yes Yes $38.00 $4.53 $33.47
Usage Rates (per Hour):
AR GTE WATS Day - First 10 Hours USAGE Yes Yes $10.80 $1.29 $9.51
AR GTE WATS Day - Next 15 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR GTE WATS Day - Next 25 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR GTE WATS Day - Over 50 Hours USAGE Yes Yes $6.60 $0.79 $5.81
AR GTE WATS Evening - First 10 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR GTE WATS Evening - Next 15 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR GTE WATS Evening - Next 25 Hours USAGE Yes Yes $7.20 $0.86 $6.34
AR GTE WATS Evening - Over 50 Hours USAGE Yes Yes $6.00 $0.72 $5.28
AR GTE WATS Night/Weekend - First 10 Hours USAGE Yes Yes $6.60 $0.79 $5.81
AR GTE WATS Night/Weekend - Next 15 Hours USAGE Yes Yes $6.00 $0.72 $5.28
AR GTE WATS Night/Weekend - Next 25 Hours USAGE Yes Yes $5.40 $0.64 $4.76
AR GTE WATS Night/Weekend - Over 50 Hours USAGE Yes Yes $4.80 $0.57 $4.23
Business Line 800:
AR GTE WATS Access Line MRC Yes Yes $5.00 $0.60 $4.40
Usage Rates:
Per Minute of Use Plan:
AR GTE WATS Day Rate USAGE Yes Yes $0.20 $0.02 $0.18
AR GTE WATS Evening/Night/Weekend Rate USAGE Yes Yes $0.18 $0.02 $0.16
Two Hour Block Plan:
AR GTE WATS Initial Period USAGE Yes Yes $21.60 $2.58 $19.02
AR GTE WATS Each Additional Minute USAGE Yes Yes $0.17 $0.02 $0.15
</TABLE>
Page 25
<PAGE> 112
GTE SOUTHWEST INC. ARKANSAS TAFIFFS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------- -------- -------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Five Hour Block Plan:
AR GTE WATS Initial Period USAGE Yes Yes $45.00 $5.37 $39.63
AR GTE WATS Each Additional Minute USAGE Yes Yes $0.14 $0.02 $0.12
Change Charges:
AR GTE WATS Number of Terminations Changed
(1 or 2 Terms) NRC Yes No $20.00 N/A $20.00
AR GTE WATS Number of Terminations Changed
(3 to 10 Terms) NRC Yes No $90.00 N/A $90.00
AR GTE WATS Number of Terminations Changed
(Over 10 Terms) NRC Yes No $225.00 N/A $225.00
AR GTE WATS Change Billing Arrangement Charge NRC Yes No $12.50 N/A $12.50
AR GTE WATS Charge to Change Usage Plans NRC Yes No $5.00 N/A $5.00
AR GTE WATS Call Detail Information per Account Charge NRC No No $12.50 N/A N/A
Residence Line 800:
AR GTE WATS Access Line MRC Yes Yes $3.95 $0.47 $3.48
Usage Rates:
Per Minute of Use Plan:
AR GTE WATS Day Rate USAGE Yes Yes $0.20 $0.02 $0.18
AR GTE WATS Evening/Night/Weekend Rate USAGE Yes Yes $0.18 $0.02 $0.16
One Hour Block Plan:
AR GTE WATS Initial Period USAGE Yes Yes $9.00 $1.07 $7.93
AR GTE WATS Each Additional Minute USAGE Yes Yes $0.14 $0.02 $0.12
Two Hour Block Plan:
AR GTE WATS Initial Period USAGE Yes Yes $15.00 $1.79 $13.21
AR GTE WATS Each Additional Minute USAGE Yes Yes $0.12 $0.01 $0.11
Change Charges:
AR GTE WATS Number of Terminations Changed (1 or 2 Terms) NRC Yes No $20.00 N/A $20.00
AR GTE WATS Number of Terminations Changed (3 to 10 Terms) NRC Yes No $90.00 N/A $90.00
AR GTE WATS Number of Terminations Changed (Over 10 Terms) NRC Yes No $225.00 N/A $225.00
AR GTE WATS Change Billing Arrangement Charge NRC Yes No $12.50 N/A $12.50
AR GTE WATS Charge to Change Usage Plans NRC Yes No $5.00 N/A $5.00
AR GTE WATS Call Detail Information per Account Charge NRC No No $12.50 N/A N/A
</TABLE>
Page 26
<PAGE> 113
GTE SOUTHWEST INC. ARKANSAS
RESALE PRODUCTS & SERVICES
GTE SOUTHWEST INC. GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
5 SPECIAL ACCESS SERVICES
5 DIGITAL DATA SERVICE - Asso. w/Sw. Data service
AR GTE 5 SPECIAL TRANSPORT PER AIRLINE MILE -56 KBPS MRC Yes No $5.33 N/A $5.33
5 HIGH CAPACITY DS1
AR GTE 5 SAL - FIRST SYSTEM NRC Yes No $900.00 N/A $900.00
AR GTE 5 FIRST SYSTEM - MONTHLY MRC Yes No $325.00 N/A $325.00
AR GTE 5 SAL - EACH ADDITIONAL SYSTEM NRC Yes No $130.00 N/A $130.00
AR GTE 5 EACH ADDITIONAL - MONTHLY MRC Yes No $160.00 N/A $160.00
AR GTE 5 SPECIAL TRANSPORT TERMINATION MRC Yes No $45.00 N/A $45.00
AR GTE 5 SPECIAL TRANSPORT - PER AIRLINE MILE MRC Yes No $12.97 N/A $12.97
1) If service is priced below cost, a discount will
not apply.
2) The retail Rates above do not include the End
User Subscriber Line Charge (EUSLC). The ALEC will
be responsible for the business or residential
charge, $6.00 and $3.50, respectively.
3) This document is subject to the terms and
conditions of the nondisclosure agreement between
the CLEC and GTE.
</TABLE>
Page 27
<PAGE> 114
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BASIC LOCAL RATE SCHEDULES:
Schedule "A" Improved Exchanges 1-PARTY
AR CON 2 4 Business Individual Line MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 4 Business Trunk MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 4 Key Business Line MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 4 Coin Line MRC Yes No $21.55 N/A $21.55
AR CON 2 4 Customer Owned Pay Telephone Service MRC Yes No $16.00 N/A $16.00
2
AR CON 2 4 Schedule "B" Unimproved Exchanges
AR CON 2 4 Business Individual Line MRC Yes Yes $10.00 $1.19 $8.81
AR CON 2 4 Business Trunk MRC Yes Yes $10.00 $1.19 $8.81
AR CON 2 4 Key Business Line MRC Yes Yes $10.00 $1.19 $8.81
AR CON 2 4 Business Two Party MRC Yes Yes $9.00 $1.07 $7.93
AR CON 2 4 Business Four Party (Rural Only) MRC Yes Yes $8.00 $0.95 $7.05
AR CON 2 4 Coin Line MRC Yes No $15.55 N/A $15.55
AR CON 2 4 Customer Owned Pay Telephone Service MRC Yes No $10.00 N/A $10.00
AR CON 2 4 Residence One party MRC No No $5.00 N/A N/A
AR CON 2 4 Residence Two party MRC No No $4.50 N/A N/A
AR CON 2 4 Residence four party MRC No No $4.00 N/A N/A
AR CON 2 4 Residence four party rural MRC No No $4.00 N/A N/A
2
2 4 EXTENDED AREA SERVICE RATES
AR CON 2 4 Rate Group 1 (1-3000) MRC Yes Yes $2.10 $0.25 $1.85
AR CON 2 4 Rate Group II (3001 -18,000) MRC Yes Yes $2.75 $0.33 $2.42
AR CON 2 4 Rate Group II I (-18,000 +) MRC Yes Yes $4.15 $0.50 $3.65
2
2 GENERAL SERVICES
AR CON 2 5 Answer Supervision per line MRC Yes No $4.55 N/A $4.55
2
2 Custom Calling Features
2 individual services
AR CON 2 5 Call Forwarding - variable per In
-Business MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Forwarding - variable per In
-Residence MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Forwarding Multipath - Business MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Forwarding Multipath - Residence MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Screening per line-Incoming -3rd
No. bus MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Screening per line-Incoming -3rd
No. Res MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Screening per line-Incoming
-collect. Bus MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Screening per line-Incoming
-collect. Res MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Call Screening per line-Incoming
-collect./3rd no. - Bus MRC Yes Yes $4.00 $0.48 $3.52
AR CON 2 5 Call Screening per line-Incoming
-collect./3rd no. - Res MRC Yes Yes $4.00 $0.48 $3.52
AR CON 2 5 Call Screening per line-Outgoing- Bus MRC Yes Yes $7.50 $0.89 $6.61
AR CON 2 5 Call Screening per line-Outgoing- res MRC Yes Yes $7.50 $0.89 $6.61
</TABLE>
Page 1
<PAGE> 115
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 5 Fixed Call Forwarding/Busy - Business MRC Yes Yes $1.25 $0.15 $1.10
AR CON 2 5 Fixed Call Forwarding/Busy - Residence MRC Yes Yes $1.25 $0.15 $1.10
AR CON 2 5 Fixed Call Forwarding/No Answer
- Business MRC Yes Yes $1.25 $0.15 $1.10
AR CON 2 5 Fixed Call Forwarding/No Answer - Residence MRC Yes Yes $1.25 $0.15 $1.10
AR CON 2 5 Fixed Call Forwarding/Busy/No Answer
- Business MRC Yes Yes $1.50 $0.18 $1.32
AR CON 2 5 Fixed Call Forwarding/Busy/No Answer
- Residence MRC Yes Yes $1.50 $0.18 $1.32
AR CON 2 5 Call Forward/Busy/No Answer - Business
(Variable) MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Call Forward/Busy/No Answer - Residence
(Variable) MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Call Waiting, per line Business MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Call waiting, per line, Residence MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Remote Call Forwarding - BUS/ - first
access path MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 5 Remote Call Forwarding - RES - first
access path MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 5 Remote Call Forwarding - BUS - additional
path MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 5 Remote Call Forwarding - RES - additional
path MRC Yes Yes $16.00 $1.91 $14.09
AR CON 2 5 Smart Ring - One Feature -Business MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Smart Ring - One Feature - Residence MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Speed Call 8 - Business MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Speed Call 8 - Residence MRC Yes Yes $2.50 $0.30 $2.20
AR CON 2 5 Speed Call 30 - Business MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Speed Call 30 - Residence MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Three Way Calling - One Feature - Business MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Three Way Calling - One Feature - Residence MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Call Wait, Call Fwd, 3-way & speed call 30 per
ln -bus MRC Yes Yes $9.95 $1.19 $8.76
AR CON 2 5 Call Wait, Call Fwd, 3-way & speed call 30 per
ln -res MRC Yes Yes $9.95 $1.19 $8.76
AR CON 2 5 SMARTER Package - Business MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 SMARTER Package - Residence (GF) MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 Smart Ring with a Pac - Business MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 5 Smart Ring with a Pac - Residence (GF) MRC Yes Yes $3.00 $0.36 $2.64
2
2 CLASS Vertical Services:
AR CON 2 5 Automatic Busy Redial - Business MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Automatic Busy Redial - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 Automatic Call Return - Business MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Automatic Call Return - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 Call Block - Business MRC Yes Yes $4.00 $0.48 $3.52
AR CON 2 5 Call Block - Residence MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 5 Call Tracing per line - Bus MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Call Tracing per line - Res MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 Special Call Acceptance - Business MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 5 Special Call Acceptance - Residence MRC Yes Yes $2.00 $0.24 $1.76
AR CON 2 5 Special Call Forwarding - Business MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Special Call Forwarding - Residence MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 Special Call Waiting - Business (GF) MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 5 Special Call Waiting - Residence (GF) MRC Yes Yes $5.00 $0.60 $4.40
AR CON 2 5 VIP Alert - Business MRC Yes Yes $4.00 $0.48 $3.52
</TABLE>
Page 2
<PAGE> 116
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 5 VIP Alert - Residence MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 5 SmartCall Pak 4400 - Residence MRC Yes Yes $8.75 $1.04 $7.71
AR CON 2 5 SmartCall Pak 4900 - Residence MRC Yes Yes $13.25 $1.58 $11.67
AR CON 2 5 Calling Number ID - Business MRC Yes Yes $10.00 $1.19 $8.81
AR CON 2 5 Calling Number ID - Residence MRC Yes Yes $7.00 $0.84 $6.16
AR CON 2 5 Caller ID name and number (Residence) MRC Yes Yes $7.95 $0.95 $7.00
AR CON 2 5 Caller ID name and number (Business) MRC Yes Yes $11.50 $1.37 $10.13
AR CON 2 5 Anonymous Caller Rejection (Residence) MRC Yes Yes $1.00 $0.12 $0.88
AR CON 2 5 Anonymous Caller Rejection (Business) MRC Yes Yes $1.00 $0.12 $0.88
2
2 5 TEL-TEEN SERVICE CUSTOM FEATURE
PACKAGES (GF)
AR CON 2 5 Touch Call, Three-Way Calling, Speed
Call 8, Toll Control (GF) MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 5 Touch Call, Call Waiting, Speed
Call 8, Toll Control (GF) MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 5 Touch Call, Three-Way Calling, Toll
Control (GF) MRC Yes Yes $2.00 $0.24 $1.76
AR CON 2 5 Touch Call, Call Waiting, Speed
Call 8 (GF) MRC Yes Yes $3.00 $0.36 $2.64
2
2 5 Direct Inward Dialing Service
AR CON 2 5 DID Trunk Terminations (Per Trunk) MRC MRC Yes Yes $25.00 $2.98 $22.02
AR CON 2 5 DID Trunk Terminations (Per Trunk) NRC NRC Yes No $150.00 N/A $150.00
AR CON 2 5 DID Station Numbers-Block of 20 mrc MRC Yes Yes $8.00 $0.95 $7.05
AR CON 2 5 DID Station Numbers-Block of 100 mrc MRC Yes Yes $22.00 $2.62 $19.38
2
2 DIRECTORY ASSISTANCE SERVICE
AR CON 2 5 Customer Dialed Calling Card USAGE Yes No $0.35 N/A $0.35
AR CON 2 5 All other (Opr.assist sent paid,third
no.,credit card) USAGE Yes No $0.90 N/A $0.90
2
AR CON 2 5 DIRECTORY LISTINGS
AR CON 2 5 Regular Extra Listing - Residential - Each MRC No No N/A N/A N/A
AR CON 2 5 Regular Extra Listing - Business - Each MRC No No N/A N/A N/A
AR CON 2 5 Foreign Listings - Residential MRC No No N/A N/A N/A
AR CON 2 5 Foreign Listings - Business MRC No No N/A N/A N/A
AR CON 2 5 Nonlisted Service, each MRC No No N/A N/A N/A
AR CON 2 5 Nonpublished Service, each MRC No No N/A N/A N/A
AR CON 2 5 Directory Connect Plus Service USAGE Yes No $0.50 N/A $0.50
2
2 5 FOREIGN SWITCH OFC SVC (MILEAGE ADD) NEW
CUST. ONLY
AR CON 2 5 Airline Mileage - To 125 miles MRC Yes Yes $15.00 $1.79 $13.21
AR CON 2 5 Airline Mileage - 125 to 425 miles MRC Yes Yes $22.00 $2.62 $19.38
AR CON 2 5 Airline Mileage - Over 425 miles MRC Yes Yes $29.00 $3.46 $25.54
2
AR CON 2 5 Rotary Hunt Line Service (Each arrangement) MRC Yes Yes $3.00 $0.36 $2.64
2
2 5 INTRAEXCHANGE MILEAGE
AR CON 2 5 Extension Lines - Exchanges
AR CON 2 5 a. Single pr. off prem, per 1/4 mi or frac MRC Yes Yes $1.05 $0.13 $0.92
</TABLE>
Page 3
<PAGE> 117
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 5 b. Single pr. on prem,term beyond 150 ft
per 1/4 mi MRC Yes Yes $1.05 $0.13 $0.92
2 5 Extension Lines - Former Systems of Ark.
Exchanges MRC Yes Yes $0.00 $0.00 $0.00
AR CON 2 5 a. Single pr. off prem, per 1/4 mi or frac MRC Yes Yes $0.60 $0.07 $0.53
2 5 b.1. Single pr. on prem=1st 300 ft MRC Yes Yes $0.00 $0.00 $0.00
AR CON 2 5 b.2. Single pr. on prem=each add. 200 ft.
of ckt. MRC Yes Yes $0.10 $0.01 $0.09
2
2 5 Tie line - Exchanges
AR CON 2 5 Tie line per 1/4 mile MRC Yes Yes $1.05 $0.13 $0.92
2
2 5 Tie line - Former Systems of Ark. Exchanges
AR CON 2 5 a. Single pr. off prem, per 1/4 mi or frac MRC Yes Yes $0.60 $0.07 $0.53
2 5 b.1. Single pr. on prem=1st 300 ft $0.00
AR CON 2 5 b.2. Single pr. on prem=each add. 200 ft
of ckt. MRC Yes Yes $0.10 $0.01 $0.09
2
AR CON 2 5 School to Home
AR CON 2 5 First 1/4 mile or fraction MRC Yes No $1.30 N/A $1.30
2 5 Additional 1/4 mile or fraction MRC Yes No $1.30 N/A $1.30
2
2 5 900 Call Restriction
AR CON 2 5 Per line equipped (Business only) NRC NRC Yes No $8.00 N/A $8.00
2
2 5 Operator Assisted Local Calls (Svc. Chgs.)
AR CON 2 5 Customer Dialed Calling Card USAGE Yes No $0.35 N/A $0.35
AR CON 2 5 Opr Station to Station - Opr. sent paid,
collect, third no, cre. card USAGE Yes No $0.90 N/A $0.90
AR CON 2 5 Person to Person USAGE Yes No $2.50 N/A $2.50
2
AR CON 2 5 PRIVATE LINES AND EQUIPMENT - INTRAEXCHANGE
AR CON 2 5 Signal Grade
AR CON 2 5 Mileage - first 1/4 mile or fraction MRC Yes No $6.25 N/A $6.25
AR CON 2 5 Additional 1/4 mile or fraction MRC Yes No $2.20 N/A $2.20
AR CON 2 5
AR CON 2 5 Voice Grade
AR CON 2 5 Mileage - first 1/4 mile or fraction MRC Yes No $6.25 N/A $6.25
AR CON 2 5 Additional 1/4 mile or fraction MRC Yes No $2.20 N/A $2.20
AR CON 2 5
AR CON 2 5 Former GTE Systems of Arkansas - Each local
Channel or Ntwk
AR CON 2 5 Mileage - first 1/4 mile or fraction MRC Yes No $4.00 N/A $4.00
AR CON 2 5 Additional 1/4 mile or fraction MRC Yes No $1.00 N/A $1.00
2
2
2 5 Verification and Emer. interrupt Operator
AR CON 2 5 Line verify - each occurrence USAGE Yes No $1.50 N/A $1.50
AR CON 2 5 Emergency Interrupt - Each occurrence USAGE Yes No $2.50 N/A $2.50
2
2 6 SERVICE CHARGES
</TABLE>
Page 4
<PAGE> 118
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 6 Primary Svc. Ord. Chg-Each - Residence NRC No No $15.00 N/A N/A
AR CON 2 6 Primary Svc. Ord. Chg-Each - Bus. & Coin NRC No No $23.00 N/A N/A
AR CON 2 6 Primary Svc. Ord. Chg-Each - key lines/trks NRC No No $23.00 N/A N/A
AR CON 2 6 Secondary Svc. Ord. Chg-Each - Residence NRC No No $8.65 N/A N/A
AR CON 2 6 Secondary Svc. Ord. Chg-Each - Business NRC No No $14.80 N/A N/A
AR CON 2 6 Secondary Svc. Ord. Chg-Each -
key/lns/trks NRC No No $14.80 N/A N/A
AR CON 2 6 Line Connect Chg. - Each - Residence NRC Yes No $12.00 N/A $12.00
AR CON 2 6 Line Connect Chg. - Each - Business and Coin NRC Yes No $12.00 N/A $12.00
AR CON 2 6 Line Connect Chg. - Each - Key Lns/trks NRC Yes No $12.00 N/A $12.00
AR CON 2 6 Trip Charge, Each - Residence NRC Yes No $7.00 N/A $7.00
AR CON 2 6 Trip Charge, Each - Bus & Coin NRC Yes No $7.00 N/A $7.00
AR CON 2 6 Trip Charge, Each - Key Lines and Trunks NRC Yes No $7.00 N/A $7.00
2
AR CON 2 6 Link up Arkansas - assistance for initiating
Svc.50% or 30 nrc NRC No No $0.50 N/A N/A
2
2 7 DIGITAL CENTREX SERVICE
2 7 Intragroup Calling Svc. - Monthly per
line 1-200 lns.
AR CON 2 7 0 - .5 miles MRC Yes Yes $2.40 $0.29 $2.11
AR CON 2 7 .6 - 1.0 miles MRC Yes Yes $3.60 $0.43 $3.17
AR CON 2 7 1.1 - 1.5 miles MRC Yes Yes $4.80 $0.57 $4.23
AR CON 2 7 1.6 - 2.0 miles MRC Yes Yes $6.05 $0.72 $5.33
2
2 Basic Service per line
AR CON 2 7 Customer with 2 lines each MRC Yes Yes $3.50 $0.42 $3.08
AR CON 2 7 Customer with 3 lns or more, but less
than 7 lns MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 7 Customer with 7 lines or more, each MRC Yes Yes $2.50 $0.30 $2.20
2
2 7 Enhanced Services and Features (per line)
AR CON 2 7 Business Set Service (excludes CPE) MRC Yes Yes $2.45 $0.29 $2.16
AR CON 2 7 Enhanced Business Service MRC Yes Yes $2.95 $0.35 $2.60
AR CON 2 7 Station Message Detail Recorder MRC Yes Yes $2.95 $0.35 $2.60
AR CON 2 7 Enhanced Station Message Detail Recorder MRC Yes Yes $4.15 $0.50 $3.65
AR CON 2 7 Automatic Route Selection MRC Yes Yes $2.05 $0.24 $1.81
AR CON 2 7 Datapath Basic MRC Yes Yes $4.50 $0.54 $3.96
AR CON 2 7 Hospital Communications MRC Yes Yes $0.50 $0.06 $0.44
AR CON 2 7 Console alerting MRC Yes Yes $0.50 $0.06 $0.44
AR CON 2 7 Electronic Switched Network MRC Yes Yes $5.10 $0.61 $4.49
AR CON 2 7 Cut-Thru Dialing MRC Yes Yes $0.50 $0.06 $0.44
2
2 7 MOBILE TELEPHONE SERVICE
AR CON 2 7 Mobile Telephone access line MRC Yes Yes $40.00 $4.77 $35.23
AR CON 2 7 Mobile Radio Paging Access MRC Yes Yes $7.40 $0.88 $6.52
AR CON 2 7 foreign msg. chg. - First min. USAGE Yes Yes $0.20 $0.02 $0.18
AR CON 2 7 Foreign Each add. min. or fraction
thereafter USAGE Yes Yes $0.20 $0.02 $0.18
2
</TABLE>
Page 5
<PAGE> 119
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2
2
2 9 SWITCHED DATA CUSTOMER LINE SERVICES
AR CON 2 9 SW Data Cust Ln Svcs - Low Speed Single Ln. MRC Yes Yes $50.00 $5.97 $44.04
AR CON 2 9 SW Data Cust Ln Svcs - Low Speed Single Ln.
INSTALL NRC NRC Yes No $50.00 N/A $50.00
AR CON 2 9 SW Data Cust Ln Svcs - Low Speed CentrEX MRC Yes Yes $50.00 $5.97 $44.04
AR CON 2 9 SW Data Cust Ln Svcs - Low Speed CentrEX
INSTALL NRC NRC Yes No $50.00 N/A $50.00
AR CON 2 9 SW Data Cust Ln Svcs - High Speed Single Ln. MRC Yes Yes $50.00 $5.97 $44.04
AR CON 2 9 SW Data Cust Ln Svcs - High Speed Single Ln.
INSTALL NRC NRC Yes No $12.00 N/A $12.00
AR CON 2 9 SW Data Cust Ln Svcs - High Speed CentraNet MRC Yes Yes $50.00 $5.97 $44.04
AR CON 2 9 SW Data Cust Ln Svcs - High Speed CentraNet
INSTALL NRC NRC Yes No $15.00 N/A $15.00
AR CON 2 9 INTEROFFICE MILEAGE
AR CON 2 9 Central Office Termination MRC Yes Yes $150.00 $17.90 $132.11
AR CON 2 9 Central Office Termination INSTALL NRC NRC Yes No $125.00 N/A $125.00
AR CON 2 9 Central Office Channelization MRC Yes Yes $5.00 $0.60 $4.40
2 9 Optional Services
AR CON 2 9 Data Direct Connect MRC Yes Yes $1.00 $0.12 $0.88
AR CON 2 9 Data Closed User Group MRC Yes Yes $1.00 $0.12 $0.88
AR CON 2 9 INTEROFFICE MILEAGE
AR CON 2 9 Feature Package Data 1000 MRC Yes Yes $3.00 $0.36 $2.64
AR CON 2 9 Software Reconfiguration NRC NRC Yes No $12.75 N/A $12.75
2 9 Switched Data Network Usage
AR CON 2 9 LOCAL SET UP USAGE Yes Yes $0.02 $0.00 $0.02
AR CON 2 9 LOCAL EACH MOU USAGE Yes Yes $0.01 $0.00 $0.01
AR CON 2 9 Band A 1-10 Airline Mi. Set up USAGE Yes Yes $0.03 $0.00 $0.03
AR CON 2 9 Band B 11-16 Airline Mi. Set up USAGE Yes Yes $0.04 $0.00 $0.04
AR CON 2 9 Band C 17-22 Airline Mi. Set up USAGE Yes Yes $0.05 $0.01 $0.04
AR CON 2 9 Band D 23-30 Airline Mi. Set up USAGE Yes Yes $0.06 $0.01 $0.05
AR CON 2 9 Band E 31-40 Airline Mi. Set up USAGE Yes Yes $0.07 $0.01 $0.06
AR CON 2 9 Band A 1-10 Airline Mi. each min USAGE Yes Yes $0.03 $0.00 $0.03
AR CON 2 9 Band B 11-16 Airline Mi. each min. USAGE Yes Yes $0.05 $0.01 $0.04
AR CON 2 9 Band C 17-22 Airline Mi. each min. USAGE Yes Yes $0.08 $0.01 $0.07
AR CON 2 9 Band D 23-30 Airline Mi. each min. USAGE Yes Yes $0.09 $0.01 $0.08
AR CON 2 9 Band E 31-40 Airline Mi. each min. USAGE Yes Yes $0.11 $0.01 $0.10
2
2 SWITCHED DATA NETWORK USAGE WITH 40 % DISCOUNT
AR CON 2 9 Local call setup USAGE Yes Yes $0.012 $0.001 $0.011
AR CON 2 9 Each add. mou - local USAGE Yes Yes $0.006 $0.001 $0.005
AR CON 2 9 Band A 1-10 Airline Mi. Set up USAGE Yes Yes $0.018 $0.002 $0.016
AR CON 2 9 Band B 11-16 Airline Mi. Set up USAGE Yes Yes $0.024 $0.003 $0.021
AR CON 2 9 Band C 17-22 Airline Mi. Set up USAGE Yes Yes $0.030 $0.004 $0.026
AR CON 2 9 Band D 23-30 Airline Mi. Set up USAGE Yes Yes $0.036 $0.004 $0.032
AR CON 2 9 Band E 31-40 Airline Mi. Set up USAGE Yes Yes $0.042 $0.005 $0.037
AR CON 2 9 Band A 1-10 Airline Mi. each min. USAGE Yes Yes $0.018 $0.002 $0.016
AR CON 2 9 Band B 11-16 Airline Mi. each min. USAGE Yes Yes $0.030 $0.004 $0.026
</TABLE>
Page 6
<PAGE> 120
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 9 Band C 17-22 Airline Mi. each min. USAGE Yes Yes $0.048 $0.006 $0.042
AR CON 2 9 Band D 23-30 Airline Mi. each min. USAGE Yes Yes $0.054 $0.006 $0.048
AR CON 2 9 Band E 31-40 Airline Mi. each min. USAGE Yes Yes $0.066 $0.008 $0.058
2
AR CON 2 10 RETURNED CHECKS NRC NRC No No N/A N/A N/A
2
2
2 4 USAGE PRICING SERVICE (GRANDFATHERED)
2
AR CON 2 4 Plan I -Inside base rate area - one
party RES MRC No No $7.50 N/A N/A
AR CON 2 4 Plan II -Inside base rate area - one
party RES MRC No No $5.00 N/A N/A
2
AR CON 2 4 Usage Charges - usage pricing (GRANDFATHERED)
AR CON 2 4 Zone 1 - (home exchange, airline miles)
plan 1 USAGE Yes Yes $0.04 $0.00 $0.04
AR CON 2 4 Zone 2 - 0-10 airline miles plan I USAGE Yes Yes $0.04 $0.00 $0.04
AR CON 2 4 Zone 3 - 11-20 airline miles plan 1 USAGE Yes Yes $0.04 $0.00 $0.04
AR CON 2 4 Zone 1 - (home exchange, airline miles)
plan 1 USAGE Yes Yes $0.015 $0.00 $0.013
AR CON 2 4 Zone 2 - 0-10 airline miles plan I USAGE Yes Yes $0.02 $0.00 $0.02
AR CON 2 4 Zone 3 - 11-20 airline miles plan 1 USAGE Yes Yes $0.025 $0.00 $0.022
AR CON 2 4 Zone 1 - (home exchange, airline miles)
plan II USAGE Yes Yes $0.07 $0.01 $0.06
AR CON 2 4 Zone 2 - 0-10 airline miles plan II USAGE Yes Yes $0.07 $0.01 $0.06
AR CON 2 4 Zone 3 - 11-20 airline miles plan II USAGE Yes Yes $0.07 $0.01 $0.06
AR CON 2 4 Zone 1 - (home exchange, airline miles)
plan II USAGE Yes Yes $0.03 $0.00 $0.03
AR CON 2 4 Zone 2 - 0-10 airline miles plan II USAGE Yes Yes $0.04 $0.00 $0.04
AR CON 2 4 Zone 3 - 11-20 airline miles plan II USAGE Yes Yes $0.05 $0.01 $0.04
AR CON 2 4 Usage pricing - detail billing - monthly
per account MRC No No N/A N/A
AR CON 2 4 Usage pricing - detail billing - monthly per
account NRC NRC No No N/A N/A
AR CON 2 4 Usage Pricing - Detail billing - each call
printed MRC No No N/A N/A
2
2 4 Usage Charges - NIGHT DISCOUNT) usage
pricing (GRANDFATHERED)
AR CON 2 4 Zone 1 - (home exchange. airline miles)
plan 1 USAGE Yes Yes $0.020 $0.002 $0.018
AR CON 2 4 Zone 2 - 0-10 airline miles plan I USAGE Yes Yes $0.020 $0.002 $0.018
AR CON 2 4 Zone 3 - 11-20 airline miles plan 1 USAGE Yes Yes $0.020 $0.002 $0.018
AR CON 2 4 Zone 1 - (home exchange. airline miles)
plan 1 USAGE Yes Yes $0.008 $0.001 $0.007
AR CON 2 4 Zone 2 - 0-10 airline miles plan I USAGE Yes Yes $0.010 $0.001 $0.009
AR CON 2 4 Zone 3 - 11-20 airline miles plan 1 USAGE Yes Yes $0.013 $0.001 $0.011
AR CON 2 4 Zone 1 - (home exchange. airline miles)
plan II USAGE Yes Yes $0.035 $0.004 $0.031
AR CON 2 4 Zone 2 - 0-10 airline miles plan II USAGE Yes Yes $0.035 $0.004 $0.031
AR CON 2 4 Zone 3 - 11-20 airline miles plan II USAGE Yes Yes $0.035 $0.004 $0.031
AR CON 2 4 Zone 1 - (home exchange. airline miles)
plan II USAGE Yes Yes $0.015 $0.002 $0.013
AR CON 2 4 Zone 2 - 0-10 airline miles plan II USAGE Yes Yes $0.020 $0.002 $0.018
AR CON 2 4 Zone 3 - 11-20 airline miles plan II USAGE Yes Yes $0.025 $0.003 $0.022
2
2
2 4 LOCAL MEASURED SERVICE (LMS) - GRANDFATHERED
</TABLE>
Page 7
<PAGE> 121
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 4 Usage 1st MOU USAGE Yes Yes $0.050 $0.006 $0.044
AR CON 2 4 Usage Add'l MOU USAGE Yes Yes $0.020 $0.002 $0.018
AR CON 2 4 TOD Discount 1st mou USAGE Yes Yes $0.025 $0.003 $0.022
AR CON 2 4 TOD Discount Add mou USAGE Yes Yes $0.010 $0.001 $0.009
AR CON 2 4 LMS-Opr Hnd.-Credit card Station USAGE Yes Yes $0.350 $0.042 $0.308
AR CON 2 4 LMS-Opr Hnd.-Station to station USAGE Yes Yes $0.900 $0.107 $0.793
AR CON 2 4 LMS-Opr Hnd.-Person to person USAGE Yes Yes $2.500 $0.298 $2.202
AR CON 2 4 LMS-Opr Hnd.-Detail billing USAGE Yes Yes $0.030 $0.004 $0.026
2
2 49 OBSOLETE SERVICES (GRANDFATHERED)
AR CON 2 49 Special Billing Number Service - 1st Number MRC No No $1.00 N/A N/A
AR CON 2 49 Special Billing Number Service - Each
Add. No. MRC No No $0.50 N/A N/A
AR CON 2 49 Special Billing No. Separate bill -
each No. MRC No No $2.00 N/A N/A
AR CON 2 49 Automatic Callback Per line - BUS MRC YES YES $2.50 $0.30 $2.20
AR CON 2 49 Automatic Callback Per line - RES MRC YES YES $2.50 $0.30 $2.20
AR CON 2 49 Call Trace per line - BUS MRC YES YES $1.50 $0.18 $1.32
AR CON 2 49 Call Trace per line - RES MRC YES YES $1.50 $0.18 $1.32
AR CON 2 49 Call Trace per successful attempt - BUS NRC YES YES $7.00 $0.84 $6.16
AR CON 2 49 Call Trace per successful attempt -RES NRC YES YES $7.00 $0.84 $6.16
AR CON 2 49 Ring Again per line - BUS MRC YES YES $2.50 $0.30 $2.20
AR CON 2 49 Ring Again per line - RES MRC YES YES $2.50 $0.30 $2.20
2
2
</TABLE>
Page 8
<PAGE> 122
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SWB PR 2
2
2 IntraLATA Interexchange Private Lines
2 2 Series 100
2 Type 102
AR CON 2 Local Channel, ea NRC Yes No $225.00 N/A $225.00
AR CON 2 Local Channel, ea MRC Yes No $22.00 N/A $22.00
AR CON 2 Interoffice Channel, ea mi MRC Yes No $4.00 N/A $4.00
AR CON 2 Interoffice Channel Terminal,
per channel MRC Yes No $14.25 N/A $14.25
2 2 IX Channel
AR CON 2 0 to 250 mi ea mi MRC Yes No $5.75 N/A $5.75
AR CON 2 Ea additional mi over 250 MRC Yes No $3.90 N/A $3.90
AR CON 2 IX Channel Terminal ea, 2 required
per IX channel MRC Yes No $10.75 N/A $10.75
2 2 Series 200
2 Type 250
2 Interoffice Channel
AR CON 2 Half-duplex MRC Yes No $5.00 N/A $5.00
AR CON 2 Duplex MRC Yes No $8.00 N/A $8.00
2 2 Interoffice Channel Terminal, per
terminal
AR CON 2 Half-duplex MRC Yes No $2.60 N/A $2.60
AR CON 2 Duplex MRC Yes No $2.60 N/A $2.60
2 IX Channel, ea mi
2 Half-duplex
AR CON 2 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
AR CON 2 Ea additional mi over 250 MRC Yes No $4.70 N/A $4.70
2 Duplex
AR CON 2 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
2 Ea additional mi over 250
2 IX Channel Terminal
AR CON 2 Half-duplex MRC Yes No $53.00 N/A $53.00
AR CON 2 Duplex MRC Yes No $55.00 N/A $55.00
2 2 Type 251
2 Interoffice Channel
AR CON 2 Half-duplex MRC Yes No $5.00 N/A $5.00
AR CON 2 Duplex MRC Yes No $8.00 N/A $8.00
2 2 Interoffice Channel Terminal
AR CON 2 Half-duplex MRC Yes No $2.60 N/A $2.60
AR CON 2 Duplex MRC Yes No $2.60 N/A $2.60
2 IX Channel, ea
2 Half-duplex
AR CON 2 0 to 250 mi, ea mi MRC Yes No $2.90 N/A $2.90
AR CON 2 Ea additional mi over 250 MRC Yes No $2.90 N/A $2.90
2 Duplex
AR CON 2 0 to 250 mi, ea mi MRC Yes No $2.90 N/A $2.90
2 Ea additioanl mi over 250 $2.90
</TABLE>
Page 9
<PAGE> 123
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2 IX Channel Terminal
AR CON 2 Half-duplex MRC Yes No $47.00 N/A $47.00
AR CON 2 Duplex MRC Yes No $47.00 N/A $47.00
2 2 Series 400
2 Local Channel, ea
AR CON 2 Type 414B MRC Yes No $66.00 N/A $66.00
AR CON 2 Type 414B NRC Yes No $590.00 N/A $590.00
AR CON 2 Type 414C NRC Yes No $445.00 N/A $445.00
AR CON 2 Type 415 MRC Yes No $21.00 N/A $21.00
AR CON 2 Type 415 NRC Yes No $155.00 N/A $155.00
AR CON 2 Type 417A MRC Yes No $35.50 N/A $35.50
AR CON 2 Type 417A NRC Yes No $360.00 N/A $360.00
AR CON 2 Type 417B MRC Yes No $35.50 N/A $35.50
AR CON 2 Type 417B NRC Yes No $410.00 N/A $410.00
AR CON 2 Type 420 MRC Yes No $52.00 N/A $52.00
AR CON 2 Type 420 NRC Yes No $290.00 N/A $290.00
AR CON 2 Type 422 MRC Yes No $51.00 N/A $51.00
AR CON 2 Type 422 NRC Yes No $295.00 N/A $295.00
AR CON 2 Type 423 MRC Yes No $21.00 N/A $21.00
AR CON 2 Type 423 NRC Yes No $270.00 N/A $270.00
AR CON 2 Type 424 MRC Yes No $53.00 N/A $53.00
AR CON 2 Type 424 NRC Yes No $340.00 N/A $340.00
AR CON 2 Type 425 MRC Yes No $38.00 N/A $38.00
AR CON 2 Type 425 NRC Yes No $280.00 N/A $280.00
AR CON 2 Type 428 MRC Yes No $23.50 N/A $23.50
AR CON 2 Type 428 NRC Yes No $260.00 N/A $260.00
AR CON 2 Type 432 MRC Yes No $47.00 N/A $47.00
AR CON 2 Type 432 NRC Yes No $470.00 N/A $470.00
AR CON 2 Type 435 MRC Yes No $54.00 N/A $54.00
AR CON 2 Type 435 NRC Yes No $260.00 N/A $260.00
AR CON 2 Type 442 MRC Yes No $21.75 N/A $21.75
AR CON 2 Type 442 NRC Yes No $265.00 N/A $265.00
AR CON 2 Type 443 MRC Yes No $57.00 N/A $57.00
AR CON 2 Type 443 NRC Yes No $275.00 N/A $275.00
AR CON 2 2 Interoffice Channel ea mi MRC Yes No $7.75 N/A $7.75
AR CON 2 Interoffice Channel Terminal, per terminal MRC Yes No $3.20 N/A $3.20
2 IX Channel, per mile
AR CON 2 0 to 250 mi, ea mi MRC Yes No $4.70 N/A $4.70
AR CON 2 Ea additional mi over 250 MRC Yes No $3.20 N/A $3.20
2 2 IX Channel Terminal, per Terminal, 2
required per ch.
AR CON 2 Type 414B MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 414C MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 417A MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 417B MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 420 MRC Yes No $33.00 N/A $33.00
</TABLE>
Page 10
<PAGE> 124
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 Type 422 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 423 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 424 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 425 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 428 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 432 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 435 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 442 MRC Yes No $33.00 N/A $33.00
AR CON 2 Type 443 MRC Yes No $33.00 N/A $33.00
AR CON 2 2 Bridging Charge, (Multi-point Serv.)
per channel bridged MRC Yes No $9.50 N/A $9.50
2 2 Signaling Arrangements
2 IX IntraLATA
AR CON 2 Manual (J1B) MRC Yes No $20.75 N/A $20.75
AR CON 2 Manual (J1B) NRC Yes No $75.00 N/A $75.00
AR CON 2 Automatic (J1A) MRC Yes No $15.00 N/A $15.00
AR CON 2 Automatic (J1A) NRC Yes No $75.00 N/A $75.00
2 2 E & M Type Signaling
AR CON 2 Type 420 MRC Yes No $12.25 N/A $12.25
AR CON 2 Type 420 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 422 MRC Yes No $12.25 N/A $12.25
AR CON 2 Type 422 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 423 MRC Yes No $23.00 N/A $23.00
AR CON 2 Type 423 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 424 MRC Yes No $12.50 N/A $12.50
AR CON 2 Type 424 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 425 MRC Yes No $27.50 N/A $27.50
AR CON 2 Type 425 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 428 MRC Yes No $14.25 N/A $14.25
AR CON 2 Type 428 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 435 MRC Yes No $14.25 N/A $14.25
AR CON 2 Type 435 NRC Yes No $75.00 N/A $75.00
2 Loop Signaling, capable of 900 ohms
or more
AR CON 2 Type 420 MRC Yes No $12.25 N/A $12.25
AR CON 2 Type 420 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 422 MRC Yes No $8.25 N/A $8.25
AR CON 2 Type 422 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 423 MRC Yes No $8.75 N/A $8.75
AR CON 2 Type 423 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 435 MRC Yes No $7.50 N/A $7.50
AR CON 2 Type 435 NRC Yes No $75.00 N/A $75.00
2 Loop Signaling, capable off less than
900 ohms
AR CON 2 Type 420 MRC Yes No $18.50 N/A $18.50
AR CON 2 Type 420 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 422 MRC Yes No $15.25 N/A $15.25
AR CON 2 Type 422 NRC Yes No $75.00 N/A $75.00
</TABLE>
Page 11
<PAGE> 125
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 Type 423 MRC Yes No $10.50 N/A $10.50
AR CON 2 Type 423 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type 435 MRC Yes No $12.00 N/A $12.00
AR CON 2 Type 435 NRC Yes No $75.00 N/A $75.00
AR CON 2 Type A, resistance in the range of
0-199 ohms MRC Yes No $6.25 N/A $6.25
AR CON 2 Type A, resistance in the range of
0-199 ohms NRC Yes No $75.00 N/A $75.00
AR CON 2 Type B, resistance in the range of 200
to 899 ohms MRC Yes No $3.80 N/A $3.80
AR CON 2 Type B, resistance in the range of 200
to 899 ohms NRC Yes No $75.00 N/A $75.00
AR CON 2 Type C, resistance of 900 ohms or more MRC Yes No $1.50 N/A $1.50
AR CON 2 Type C, resistance of 900 ohms or more NRC Yes No $75.00 N/A $75.00
2
</TABLE>
Page 12
<PAGE> 126
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2
2
2
SW BEL 2
2
ST CO 2 Tariff GTE Long Distance Telecommunications
Services:
2 IntraLATA Two Point Service:
2 Day Rate:
2 Initial Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.10 $0.01 $0.09
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.12 $0.01 $0.11
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.15 $0.02 $0.13
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.18 $0.02 $0.16
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.23 $0.03 $0.20
2 Each Additional Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.08 $0.01 $0.07
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.10 $0.01 $0.09
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.12 $0.01 $0.11
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.15 $0.02 $0.13
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.18 $0.02 $0.16
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.20 $0.02 $0.18
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.22 $0.03 $0.19
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.23 $0.03 $0.20
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.23 $0.03 $0.20
2 Evening Rate:
2 Initial Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.0831 $0.0099 $0.0732
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.0997 $0.0119 $0.0878
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.1246 $0.0149 $0.1097
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.1496 $0.0178 $0.1318
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
</TABLE>
Page 13
<PAGE> 127
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
2 Each Additional Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.0665 $0.0079 $0.0586
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.0831 $0.0099 $0.0732
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.0997 $0.0119 $0.0878
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.1246 $0.0149 $0.1097
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.1496 $0.0178 $0.1318
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.1662 $0.0198 $0.1464
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.1828 $0.0218 $0.1610
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.1911 $0.0228 $0.1683
2 Night/Weekend Rate:
2 Initial Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.0550 $0.0066 $0.0484
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.0660 $0.0079 $0.0581
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.0825 $0.0098 $0.0727
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.0990 $0.0118 $0.0872
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
2 Each Additional Minute:
AR CON 2 D.MTS 1 to 8 Miles USAGE Yes Yes $0.0440 $0.0052 $0.0388
AR CON 2 D.MTS 9 to 12 Miles USAGE Yes Yes $0.0550 $0.0066 $0.0484
AR CON 2 D.MTS 13 to 16 Miles USAGE Yes Yes $0.0660 $0.0079 $0.0581
AR CON 2 D.MTS 17 to 21 Miles USAGE Yes Yes $0.0825 $0.0098 $0.0727
AR CON 2 D.MTS 22 to 26 Miles USAGE Yes Yes $0.0990 $0.0118 $0.0872
AR CON 2 D.MTS 27 to 31 Miles USAGE Yes Yes $0.1100 $0.0131 $0.0969
AR CON 2 D.MTS 32 to 41 Miles USAGE Yes Yes $0.1210 $0.0144 $0.1066
AR CON 2 D.MTS 42 to 56 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 57 to 71 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 72 to 87 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS 88 to 127 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
AR CON 2 D.MTS Over 128 Miles USAGE Yes Yes $0.1265 $0.0151 $0.1114
2
AR CON 2 D.MTS Service Charge - Dial Calling Card -
Station to Station USAGE Yes No $0.35 N/A $0.35
</TABLE>
Page 14
<PAGE> 128
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 D.MTS Service Charge - Operator -
Station to Station USAGE Yes No $0.90 N/A $0.90
AR CON 2 D.MTS Service Charge - Person to Person USAGE Yes No $2.50 N/A $2.50
2
AR CON 2 D.MTS Enterprise Service MRC Yes No $4.40 N/A $4.40
2
AR CON 2 D.MTS Selective Class of Call Screening MRC Yes Yes $53.00 $6.32 $46.68
AR CON 2 D.MTS Selective Class of Call Screening NRC Yes No $340.00 N/A $340.00
2
AR CON 2 D.MTS PrePaid Calling Card Service (per minute) USAGE Yes Yes $0.40 $0.05 $0.35
2
2 Conference Service:
AR CON 2 D.MTS Conference Call Set-Up Charge USAGE Yes No $1.50 N/A $1.50
2 Conference Call Per Minute of Use Charge:
AR CON 2 D.MTS 0 - 26 Miles USAGE Yes No $0.05 N/A $0.05
AR CON 2 D.MTS 27 - 71 Miles USAGE Yes No $0.10 N/A $0.10
AR CON 2 D.MTS Over 71 Miles USAGE Yes No $0.15 N/A $0.15
2
2
2 IntraLATA Optional Toll Calling Plans:
2 Extended Community Saver:
2 Residence:
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $2.70 $0.32 $2.38
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.045 $0.005 $0.040
2 Business:
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $2.70 $0.32 $2.38
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.045 $0.005 $0.040
2 Residence:
AR CON 2 OCP Unlimited Usage MRC No No $16.20 N/A N/A
2 Business:
AR CON 2 OCP Unlimited Usage MRC Yes Yes $18.00 $2.15 $15.85
2
2 Circle Saver:
2 Residence Block-of-Time:
2 41 Mile Radius:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
2 Business Block-of-Time:
2 41 Mile Radius:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $6.00 $0.72 $5.28
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
2
2 Circle Saver Trial Plan - Fort Smith LATA:
2 Residence:
</TABLE>
Page 15
<PAGE> 129
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 OCP Unlimited Usage (one-way
originating calling) MRC No No $19.95 N/A N/A
2 Business:
AR CON 2 OCP Unlimited Usage (one-way
originating calling) MRC Yes Yes $34.95 $4.17 $30.78
2
2 1+ Saver:
2 Residence:
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $7.80 $0.93 $6.87
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.13 $0.02 $0.11
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First 5 Hours MRC Yes Yes $36.00 $4.29 $31.71
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First 10 Hours MRC Yes Yes $60.00 $7.16 $52.84
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
2 Business:
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First Hour MRC Yes Yes $7.80 $0.93 $6.87
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.13 $0.02 $0.11
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First 5 Hours MRC Yes Yes $36.00 $4.29 $31.71
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
2 Block-of-Time:
AR CON 2 OCP Monthly Rate for First 10 Hours MRC Yes Yes $60.00 $7.16 $52.84
AR CON 2 OCP Additional Per Minute USAGE Yes Yes $0.10 $0.01 $0.09
2
2 Residence:
2 Discount Plan:
AR CON 2 OCP 10 % Discount MRC Yes Yes Varies Varies Varies
AR CON 2 OCP 15 % Discount MRC Yes Yes Varies Varies Varies
AR CON 2 OCP 20 % Discount MRC Yes Yes Varies Varies Varies
2 Business:
2 Discount Plan:
AR CON 2 OCP 10 % Discount MRC Yes Yes Varies Varies Varies
AR CON 2 OCP 15 % Discount MRC Yes Yes Varies Varies Varies
AR CON 2 OCP 20 % Discount MRC Yes Yes Varies Varies Varies
2
2 Designated Number Plan:
2 Residence:
AR CON 2 OCP Unlimited Usage to First Designated
Number MRC Yes Yes $15.00 $1.79 $13.21
AR CON 2 OCP Unlimited Usage to Each Additional
Designated Number MRC Yes Yes $10.00 $1.19 $8.81
2 Business:
AR CON 2 OCP Unlimited Usage to First Designated
Number MRC Yes Yes $15.00 $1.79 $13.21
AR CON 2 OCP Unlimited Usage to Each Additional
Designated Number MRC Yes Yes $10.00 $1.19 $8.81
2
</TABLE>
Page 16
<PAGE> 130
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2
2 Wide Area Telecommunications Services:
2 800 Service:
AR CON 2 WATS Access Line MRC Yes Yes $38.00 $4.53 $33.47
2 Usage Rates (per Hour):
AR CON 2 WATS Day - First 10 Hours USAGE Yes Yes $18.00 $2.15 $15.85
AR CON 2 WATS Day - Next 15 Hours USAGE Yes Yes $16.20 $1.93 $14.27
AR CON 2 WATS Day - Next 25 Hours USAGE Yes Yes $14.40 $1.72 $12.68
AR CON 2 WATS Day - Over 50 Hours USAGE Yes Yes $12.60 $1.50 $11.10
2
AR CON 2 WATS Evening - First 10 Hours USAGE Yes Yes $15.00 $1.79 $13.21
AR CON 2 WATS Evening - Next 15 Hours USAGE Yes Yes $13.20 $1.57 $11.63
AR CON 2 WATS Evening - Next 25 Hours USAGE Yes Yes $12.00 $1.43 $10.57
AR CON 2 WATS Evening - Over 50 Hours USAGE Yes Yes $10.80 $1.29 $9.51
2
AR CON 2 WATS Night/Weekend - First 10 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR CON 2 WATS Night/Weekend - Next 15 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR CON 2 WATS Night/Weekend - Next 25 Hours USAGE Yes Yes $7.20 $0.86 $6.34
AR CON 2 WATS Night/Weekend - Over 50 Hours USAGE Yes Yes $6.60 $0.79 $5.81
2
2
2 Outward WATS:
AR CON 2 WATS Access Line MRC Yes Yes $38.00 $4.53 $33.47
2 Usage Rates (per Hour):
AR CON 2 WATS Day - First 10 Hours USAGE Yes Yes $10.80 $1.29 $9.51
AR CON 2 WATS Day - Next 15 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR CON 2 WATS Day - Next 25 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR CON 2 WATS Day - Over 50 Hours USAGE Yes Yes $6.60 $0.79 $5.81
2
AR CON 2 WATS Evening - First 10 Hours USAGE Yes Yes $9.60 $1.15 $8.45
AR CON 2 WATS Evening - Next 15 Hours USAGE Yes Yes $8.40 $1.00 $7.40
AR CON 2 WATS Evening - Next 25 Hours USAGE Yes Yes $7.20 $0.86 $6.34
AR CON 2 WATS Evening - Over 50 Hours USAGE Yes Yes $6.00 $0.72 $5.28
2
AR CON 2 WATS Night/Weekend - First 10 Hours USAGE Yes Yes $6.60 $0.79 $5.81
AR CON 2 WATS Night/Weekend - Next 15 Hours USAGE Yes Yes $6.00 $0.72 $5.28
AR CON 2 WATS Night/Weekend - Next 25 Hours USAGE Yes Yes $5.40 $0.64 $4.76
AR CON 2 WATS Night/Weekend - Over 50 Hours USAGE Yes Yes $4.80 $0.57 $4.23
2
2
2 Business Line 800:
AR CON 2 WATS Access Line MRC Yes Yes $5.00 $0.60 $4.40
2
2 Usage Rates:
2 Per Minute of Use Plan:
</TABLE>
Page 17
<PAGE> 131
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AR CON 2 WATS Day Rate USAGE Yes Yes $0.20 $0.02 $0.18
AR CON 2 WATS Evening/Night/Weekend Rate USAGE Yes Yes $0.18 $0.02 $0.16
2 Two Hour Block Plan:
AR CON 2 WATS Initial Period USAGE Yes Yes $21.60 $2.58 $19.02
AR CON 2 WATS Each Additional Minute USAGE Yes Yes $0.17 $0.02 $0.15
2 Five Hour Block Plan:
AR CON 2 WATS Initial Period USAGE Yes Yes $45.00 $5.37 $39.63
AR CON 2 WATS Each Additional Minute USAGE Yes Yes $0.14 $0.02 $0.12
2
2 Change Charges:
AR CON 2 WATS Number of Terminations Changed
(1 or 2 Terms) NRC Yes No $20.00 N/A $20.00
AR CON 2 WATS Number of Terminations Changed
(3 to 10 Terms) NRC Yes No $90.00 N/A $90.00
AR CON 2 WATS Number of Terminations Changed
(Over 10 Terms) NRC Yes No $225.00 N/A $225.00
2
AR CON 2 WATS Change Billing Arrangement Charge NRC Yes No $12.50 N/A $12.50
2
AR CON 2 WATS Charge to Change Usage Plans NRC Yes No $5.00 N/A $5.00
2
AR CON 2 WATS Call Detail Information per Account
Charge swb tariff NRC No No $12.50 N/A N/A
2
2
2 Residence Line 800:
AR CON 2 WATS Access Line MRC Yes Yes $3.95 $0.47 $3.48
2
2 Usage Rates:
2 Per Minute of Use Plan:
AR CON 2 WATS Day Rate USAGE Yes Yes $0.20 $0.02 $0.18
AR CON 2 WATS Evening/Night/Weekend Rate USAGE Yes Yes $0.18 $0.02 $0.16
2 One Hour Block Plan:
AR CON 2 WATS Initial Period USAGE Yes Yes $9.00 $1.07 $7.93
AR CON 2 WATS Each Additional Minute USAGE Yes Yes $0.14 $0.02 $0.12
2 Two Hour Block Plan:
AR CON 2 WATS Initial Period USAGE Yes Yes $15.00 $1.79 $13.21
AR CON 2 WATS Each Additional Minute USAGE Yes Yes $0.12 $0.01 $0.11
2
2 Change Charges:
AR CON 2 WATS Number of Terminations Changed
(1 or 2 Terms) NRC Yes No $20.00 N/A $20.00
AR CON 2 WATS Number of Terminations Changed
(3 to 10 Terms) NRC Yes No $90.00 N/A $90.00
AR CON 2 WATS Number of Terminations Changed
(Over 10 Terms) NRC Yes No $225.00 N/A $225.00
2
AR CON 2 WATS Change Billing Arrangement Charge NRC Yes No $12.50 N/A $12.50
2
AR CON 2 WATS Charge to Change Usage Plans NRC Yes No $5.00 N/A $5.00
2
AR CON 2 WATS Call Detail Information per Account
Charge NRC No No $12.50 N/A N/A
</TABLE>
Page 18
<PAGE> 132
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2
</TABLE>
Page 19
<PAGE> 133
GTE ARKANSAS (CONTEL) TARIFFS
RESALE PRODUCTS & SERVICES
GTE ARKANSAS (CONTEL) GENERAL EXCHANGE TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO RULE SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2
GTE AR 2
2
2 SPECIAL ACCESS SERVICES
2 DIGITAL DATA SERVICE -asso. with Sw.
Data Svc.
AR CON 2 7 CIRCUIT MILEAGE (FIXED) 56 KBPS MRC Yes No $73.75 N/A $73.75
AR CON 2 7 CIRCUIT MILEAGE - PER MILE 56 KPBS MRC Yes No $3.10 N/A $3.10
2
2
2 7 HIGH CAPACITY DS1
2
AR CON 2 7 Circuit term -per pt. of termination NRC Yes No $900.00 N/A 900.00
AR CON 2 7 Circuit term -per pt. of termination MRC Yes No $325.00 N/A $325.00
AR CON 2 7 CIRCUIT MILEAGE (FIXED) 1.544 mbps MRC Yes No $60.00 N/A $60.00
AR CON 2 7 CIRCUIT MILEAGE - PER MILE 1.544 mpbs MRC Yes No $17.86 N/A $17.86
Footnote: (1) If service is priced
below cost, a discount will not apply.
Footnote: (2) The retail rates above do
not include the End User Subscriber Line
Charge (EUSLC). The ALEC will be
responsible for the business or residential
charge, $6.00 and $3.50 respectively.
Footnote: (3) Confidential and proprietary.
This document is subject to the terms and
conditions of the nondisclosure
agreement between the CLEC and GTE.
</TABLE>
Page 20
<PAGE> 134
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT
BETWEEN
GTE MIDWEST INCORPORATED
GTE ARKANSAS INCORPORATED
AND
DIGITAL TELEPORT, INC.
AMENDMENT NO. _________
THIS AMENDMENT (herein so called) is made effective as of_____________,
199___, by and between GTE Midwest Incorporated/GTE Arkansas Incorporated
("GTE") and Digital Teleport, Inc. ("DTI"). GTE and DTI are sometimes referred
to herein collectively as the "Parties" and individually as a "Party." Either
GTE or DTI may be referred to as "Provider" or "Customer" as the context
requires.
WHEREAS, Provider is providing to Customer and Customer is purchasing from
Provider those Services described in that certain Interconnection,
Telecommunications Services and Facilities Agreement for the State of __________
by and between GTE and DTI dated effective as of________________, 199___(the
"Agreement"); and
WHEREAS, the Parties desire to amend the Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the terms and conditions contained in this
Amendment, the Parties agree as follows:
1.
2. ADDITIONAL SERVICES [IF APPLICABLE]
2.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following services under the terms and conditions set
forth in the Agreement and within the service attachment listed below and
attached to this Amendment:
Service Attachment ______-______________________
2.2 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, ________________________ is
made a part of the Services provided under the Agreement and Service
Attachment ___________ shall be deemed to be a Service Attachment to the
Agreement.
2.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect the additional
Services and related Service Locations.
3. SERVICE LOCATIONS [IF APPLICABLE]
3.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following Services in the following locations:
C-1
<PAGE> 135
<TABLE>
<S> <C> <C>
Service Location Services
(identified by tandem serving IP (identified by Service
area) (identified by CLLI code) Attachment Number)
</TABLE>
3.2 As of the effective date of this Amendment, the locations set forth in
Section 3.1 above shall be deemed Service Locations under the Agreement.
3.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect additional Service
Locations.
4. INTERPRETATION
All capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
5. EFFECT
Except as modified herein, the Agreement shall remain in full force and
effect.
6. AUTHORITY
Each person whose signature appears below represents and warrants that he
or she has the authority to bind the Party on whose behalf he or she has
executed this Amendment.
7. MULTIPLE COUNTERPARTS
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which shall constitute but one and
the same instrument.
8. NO OFFER
Submission of this Amendment for examination or signature does not
constitute an offer by Provider for the provision of the products or
services described herein. This Amendment will be effective only upon
execution by both Provider and Customer.
IN WITNESS WHEREOF, the Parties have executed this Amendment on the date or
dates written below effective as of the date first above written.
GTE MIDWEST INCORPORATED DIGITAL TELEPORT, INC.
GTE ARKANSAS INCORPORATED
By By
---------------------------- -------------------------
Name Name
-------------------------- ----------------------
Title Title
------------------------- ----------------------
Date Date
-------------------------- ----------------------
C-2
<PAGE> 136
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC
General. The rates contained in this Appendix D are the rates as defined in
Article V and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
Each Party will bill the other Party as appropriate:
A. The Local Interconnection rate element that applies to Local
Traffic on a minute of use basis that each Party switches for
termination purposes at its wire centers. The local interconnection
rate is $0.0063158.
B. The Tandem Switching rate element that applies to tandem
routed Local Traffic on a minute of use basis. This rate includes
tandem transport, but does not include the local interconnection
charge. The tandem switching rate is $0.0011771.
C. The Common Transport Facility rate element that applies to
tandem routed Local Traffic on a per minute/per mile basis. The
Common Transport Facility rate is $0.0000328.
D. The Common Transport Terminal element that applies to tandem
routed Local Traffic on a per minute/per termination basis. The
Common Transport Termination rate is $0.0002057.
D-1
<PAGE> 137
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF
General. The rates contained in this Appendix E are as defined in Article V,
Section 7, and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
In addition, as defined in Article V, Section 3.2.3, the Party providing the
ported number will pay the other Party the rate per line per month for each
ported business line and the rate per line per month for each ported
residential line for the sharing of Access Charges on calls to ported numbers.
<TABLE>
<S> <C>
Business Rate Per Line Per Month: $ .
- --
Residential Rate Per Line Per Month: $ .
- --
SERVICE NUMBER PORTABILITY
- -----------------------------
Remote Call Forwarding $3.70 line/month
Simultaneous Call Capability $5.70 path/month
Non-recurring for Portability $10.50
</TABLE>
E-1
<PAGE> 138
APPENDIX F
SERVICES AVAILABLE FOR RESALE
General. The rates contained in this Appendix F are based upon an avoided cost
discount from GTE's retail rates as provided in Article VI, Section 5.3 of the
Agreement to which this Appendix F is attached and are subject to change
resulting from future Commission or other proceedings, including but not
limited to any generic proceeding to determine GTE's unrecovered costs (e.g.,
historic costs, contribution, undepreciated reserve deficiency, or similar
unrecovered GTE costs (including GTE's interim Universal Service Support
Surcharge)), the establishment of a competitively neutral universal service
system, or any appeal or other litigation.
<TABLE>
<S> <C>
NON-RECURRING CHARGES FOR RESALE SERVICES
- -----------------------------------------
Initial Service Order, per order order $41.50
Subsequent Service Order, per order $24.00
Installation, per line $28.75
Outside Facility Connection Charge, per order* $Tariffed
</TABLE>
*This charge will apply when field work is required for establishment of new
resale service. The terms, conditions and rates that apply for this work are
described in GTE's retail local service tariffs.
F-1
<PAGE> 139
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS
General. The rates contained in this Appendix G are the rates as defined in
Article VII and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Service Support Surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
<TABLE>
<S> <C>
(1) Local Loops
Local Loop
2 Wire Loop $ 46.21
4 Wire Loop $ 69.19
Network Interface Device
Basic NID $ 1.60
12x NID $ 2.20
(2) Local Switching (Must purchase Port)
Ports
2 Wire Basic Port $ 3.70
DS-1 Port $ 101.80
Local Switching
Originating MOU $ 0.0063158
Terminating MOU $ 0.0063158
Intrastate End Office Switching
Originating MOU $ 0.0063158
Terminating MOU $ 0.0063158
Interconnection Charge $ 0.0043952
CCL
-Originating State Tariff
-Terminating State Tariff
Interstate End Office Switching
Originating MOU $ 0.0063158
Terminating MOU $ 0.0063158
Interconnection Charge $ 0.0043952
CCL
-Originating $ 0.0100000
-Terminating $ 0.0217290
(3) Features See Attached
(4) Dedicated Transmission Links
Entrance Facility
2 Wire Voice $ 36.00
4 Wire Voice $ 54.00
DS1 Standard 1st System $ 325.00
DS1 Standard Add'l System $ 160.00
DS3 Protected, Electrical $1,750.00
DS1 to Voice Multiplexing $ 205.00
DS3 to Voice Multiplexing $ 490.00
</TABLE>
G-1
<PAGE> 140
<TABLE>
<S> <C>
Direct Trunked Transport
Voice Facility Per ALM $ 5.33
DS1 Facility Per ALM $ 12.97
DS1 Per Termination $ 45.00
DS3 Facility Per ALM $ 60.00
DS3 Per Termination $ 300.00
(5) Common/Shared Transmission Links
Transport Termination MOU/Term $ 0.0002057
Transport Facility MOU/Mile $ 0.0000328
(6) Tandem Switching MOU $ 0.0011771
(7) Databases and Signaling Systems
Signaling Links and STP
56 Kbps Links $ 99.54
DS-1 Link $ 168.09
Signal Transfer Point (STP) Port Term $ 226.00
Call Related Databases
Line Information Database (ABS-Queries) $ 0.035
Line Information Database Transport (ABS-Queries) $ 0.0046
Toll Free Calling Database (DB800 Queries) $ 0.0101230
Non-Recurring Charges for Unbundled Services
Service Ordering (loop or port)
Initial Service Order, per order $ 47.25
Transfer of Service Charges, per order $ 16.00
Subsequent Service Order, per order $ 24.00
Customer Service Record Research, per request $ 5.25
Installation
Unbundled Loop, per loop $ 11.75
Unbundled Port, per port $ 11.75
Loop Facility Charge, per order $ 68.25
This charge will apply when field work is required for establishment of new unbundled loop service.
Monthly Recurring Charge for EIS
DS0 Level Connection $ 2.17
DS1 Level Connection $ 4.96
</TABLE>
G-2
<PAGE> 141
ARKANSAS FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
------------- ------------------
<S> <C>
1. Speed Call 8 (Changeable) $0.25
2. Speed Call 30 (Changeable) $0.25
3. Cancel Call Waiting $0.25
4. Call Forward Variable $0.25
5. Call Waiting $0.25
6. Dual Tone Multifrequency (DTMF) $0.25
7. Teen Service/Distinctive Ringing $0.25
8. Three-Way Calling $0.75
9. Account Codes For AFR $0.25
10. Add On - Consultation Hold - Incoming Only $0.25
11. Attendant BL Verification $1.00
12. Attendant camp-on (NonDL Console) $0.50
13. Attendant Conference $3.00
14. Attendant Position Busy $1.00
15. Attendant Recall from Satellite $1.75
16. Authorization Codes for AFR $0.25
17. Basic Business Group $2.50
18. Dual Tone Multifrequency (DTMF) $0.25
19. Station-to-Station Dialing (Intercom) $2.50
20. Business Group Automatic Callback (BGAC) $0.25
21. Call Forwarding Variable $0.25
22. Business Group - Speed Call - 8 $0.25
23. Business Group - Speed Call - 30 $0.25
24. Business Group - Three Way Calling (TWC) $0.75
25. Business Set Access To Paging $2.00
26. Business Set Call Grp Intercom $173.00
27. Code Calling $0.50
28. Call Forward Busy Line $0.25
29. Call Forward Don't Answer $0.25
30. Call Forward Fixed $0.25
31. Call Forwarding - Incoming Only $0.25
32. Call Flip/Flop $0.25
33. Call Forwarding - Within Group $0.25
34. Call Hold $0.25
35. Circular Hunting $0.25
36. Control of Facilities $0.25
37. Conference Calling 6 Way $3.00
38. Call Park $0.25
39. Call Pick-Up $0.25
40. Code Restrictions and Diversion $0.75
41. Call Transfer Individual - All Calls $0.25
42. Call Waiting Originating $0.25
43. Call Waiting Terminating $0.25
44. Direct Connect $0.25
45. Directed Call Pickup W/BI $0.25
46. Directed Call Pickup WO/BI $0.25
47. Dial Call Waiting $0.25
</TABLE>
G-3
<PAGE> 142
ARKANSAS FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
------------- ------------------
<S> <C>
48. Remote Access to (Business Group) Features $0.25
49. Expensive Route Warning Tone $0.25
50. Fixed Night Service - Call Fwd $0.25
51. Fixed Night Service - Key $1.75
52. Fully Restricted (Orig/Term) $0.25
53. Facility Restriction Level $0.75
54. Foreign Exchange Facilities $0.50
55. Last Number Redial $0.25
56. Loud Speaker Paging $0.50
57. Make Busy Key $0.50
58. Music on Hold $0.50
59. Off-Hook Queuing $0.25
60. On-Hook Queuing $0.25
61. Preferential Multiline Hunting $0.25
62. Queuing $2.25
63. Recorded Telephone Dictation $0.50
64. Speed Calling Individual 1 Digit $0.25
65. Speed Calling Individual 2 Digit $0.25
66. Stop Hunt Key $0.50
67. Special Intercept Announcements $8.25
68. SMDR To Customer Premise $17.75
69. Station Message Detail Recording - RAO $1.25
70. Station Restricted (Orig/Term) $0.25
71. Time of Day Routing Control $0.25
72. Toll Restricted Service $0.75
73. Two-way Splitting $0.25
74. Uniform Call Distribution (UCD) Hunting $0.25
75. Auto Alt Rt $0.50
76. Auto Rt Sel $0.25
77. Meet Me Conf $18.00
78. Automatic Busy Redial $0.25
79. Automatic Call Rejection $0.25
80. Auto Recall $0.25
81. Calling Number ID $0.25
82. Cancel Calling Number Delivery, per line $0.25
83. Customer Orig. Trace $0.25
84. VIP Alert $0.25
85. Special Call Acceptance $0.25
86. Select Call Frwd $0.25
87. Select Call Reject $0.25
88. Select Call Wait $0.25
---------------- -----
TOTAL $262.00
</TABLE>
G-4
<PAGE> 143
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS
The following services are offered by GTE for purchase by DTI, where an
individual item is not superseded by a tariffed offering.
<TABLE>
<CAPTION>
NRC MRC
------- -------
<S> <C> <C>
1. 9-1-1 Selective Router Map $125.00 n/a
Provided is a color map showing a selective router's
location and the GTE central offices that send their
9-1-1 call to it. The selective router and central
office information will include CLLI codes and
NPA/NXXs served. The map will include boundaries of
each central office and show major streets and the
county boundary. Permission to reproduce within DTI
for its internal use is granted without further fee.
Non-tariffed price.
2. 9-1-1 Selective Router Pro-Rata Fee/trunk $0 $100.77
This fee covers the cost of selective routing switch
capacity per trunk to cover investment to handle the
additional capacity without going to the 9-1-1
districts for additional funding.
3. PS ALI Software $790.80
a personal computer software program running on
Windows 3.1(TM) for formatting subscriber records into
NENA Version #2 format to create files for uploading
to GTE's ALI Gateway. Fee includes software, warranty
and 1 800 872-3356 support at no additional cost.
4. ALI Gateway Service $135.00 $36.12
Interface for delivery of ALI records to GTE's Data
Base Management System. This provides a computer
access port for DTI to transmit daily subscriber
record updates to GTE for loading into ALI databases.
It includes support at 1 800 872-3356 at no additional
cost.
5. 9-1-1 Interoffice Trunk Tariff Tariff
This is a tariffed offering, to be found in each
state's Emergency Number Service Tariff.
6. ALI Database Tariff Tariff
This is a tariffed offering, to be found in each
state's Emergency Number Service Tariff.
7. Selective Router Database per Record Charge Tariff Tariff
Fee for each ALI record used in a GTE selective
router. This is a tariffed offering, to be found in
each state's Emergency Number Service Tariff.
8. MSAG Copy
Production of one copy of a 9-1-1 Customer's Master
Street Address Guide, postage paid.
a. Copy provided in paper format $238.50 $54.00
</TABLE>
H-1
<PAGE> 144
NRC MRC
------- -------
b. Copy provided in flat ASCII file on a 3 1/2" diskette $276.00 $36.00
H-2
<PAGE> 145
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE
1. Service Ordering, Service Provisioning, and Billing Systems Generally.
The following describes generally the operations support systems that GTE
will use and the related functions that are available for ordering,
provisioning and billing for resold services, interconnection facilities
and services and unbundled network elements. Except as specifically
provided otherwise in this Agreement, service ordering, provisioning,
billing and maintenance shall be governed by the GTE Guide. Before orders
can be taken, DTI will provide GTE with as Operating Company Number
("OCN") and Company Code ("CC") as follows:
(a) The ALEC must provide their OCN (four-digit alpha-numeric
assigned by Bellcore or number administrator) on the ALEC Profile.
The GTE Guide provides the necessary information for the ALEC to
contact Bellcore to obtain the OCN. There are no optional fields on
the Profile.
(b) Before the Local Service Request ("LSR") and Directory
Service Request ("DSR") order forms can be processed DTI must
provide the OCN and Customer Carrier Name Abbreviation ("CCNA").
1.1 Operations Support Systems for Trunk-Side Interconnection
1.1.1 DTI will be able to order trunk-side interconnection
services and facilities from GTE through a direct electronic
interface over the GTE Network Data Mover ("NDM") in a
nondiscriminatory manner. Orders for trunk-side
interconnection will be initiated by an Access Service
Request ("ASR") sent electronically by DTI over the NDM.
ASRs for trunk-side interconnection will be entered
electronically into GTE's Carrier Access Management System
("CAMS") to validate the request, identify any errors, and
resolve any errors back to DTI. CAMS is a family of GTE
systems comprised primarily of EXACT/TUF, SOG/SOP, and CABS.
1.1.2 The use of CAMS to support DTI's requests for trunk-side
interconnection will operate in the following manner: GTE
will route the ASR through its data center to one of two
National Access Ordering Centers ("NACC"). The ASR will be
entered electronically into the EXACT/TUF system for
validation and correction of errors. Errors will be referred
back to DTI. DTI then will correct any errors that GTE has
identified and resubmit the request to GTE electronically
through a supplemental ASR, without penalty or charge (e.g.,
order modification charge) to DTI. Similarly, errors
committed by GTE subsequent to the receipt of a valid ASR
from DTI will be expeditiously identified and corrected by
GTE without the need for DTI's submission of a supplemental
ASR. GTE then will translate the ASR into a service order
for provisioning and billing. In order to convert the ASR
into a service order, GTE personnel must apply the necessary
elements to provision the service and include the billable
elements necessary for GTE to bill DTI for the services
provided. This application also requires a determination of
the access tandem to end office relationships with the
service requested.
1.1.3 At the next system level, translated service orders will be
distributed electronically through the SOG/SOP systems to
several destinations. The SOG/SOP system will begin the
actual provisioning of the service for DTI. Other GTE
provisioning systems are CNAS and ACES. The GTE Database
Administrative Group ("DBA") and the Special Services Control
Center ("SSCC") will be the two most important destinations
at this level. The DBA location will identify codes for the
appropriate
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GTE switch in order to provide the functions required by the
ASR. The SSCC will provide the engineering for the
facilities over which the services will be handled.
Information from these two groups (and others) then will be
transmitted electronically to GTE's field service personnel
(Customer Zone Technicians or "CZTs") who will establish the
trunks and facilities, thus connecting the GTE facilities to
a connecting company, if one is required, and to DTI. GTE's
CZTs also will contact DTI directly to perform testing , and
upon acceptance by DTI, will make the necessary entries into
the GTE system to complete the order. The completed orders
then will pass to GTE's Carrier Access Billing System
("CABS") which will generate the bill to DTI. The billing
process under CABS requires coordination with several other
systems.
1.1.4 Billing for transport and termination services cannot be
accomplished without call records from GTE's central office
switches. Records of usage will be generated at GTE's end
office switches or the access tandems. Call usage records
will be transmitted electronically from GTE's switches
through GTE's Billing Intermediate Processor ("BIP"). This
system will collect the call records, perform limited
manipulations to the record and transfer them to a
centralized data center where they will be processed through
the Universal Measurement System ("UMS") to determine the
validity and accuracy of the records. UMS also will sort the
records and send them to the CABS billing system, from which
GTE will produce a bill and send it to DTI.
1.2 Operations Support Systems for Resold Services and Unbundled Elements
1.2.1 DTI will also be able to order services for resale and
unbundled network elements, as well as interim number
portability, directly from GTE through an electronic
interface. To initiate an order for these services or
elements, DTI will submit a Local Service Request ("LSR")
from its data center to GTE's Data Center using the same
electronic NDM interface used for trunk-side
interconnection. If no NDM interface exists or if DTI
chooses to establish a separate NDM interface, DTI must
request an NDM facility. For new entrants that elect not to
interface electronically, GTE will accommodate submission
of LSR orders by facsimile, E-mail, Internet or a dial NDM
arrangement. An LSR is very similar to an ASR, except that
it will be used exclusively for line-side interconnection
requests. GTE will transfer LSRs to GTE's NOMC centralized
service order processing center electronically.
1.2.2 Most LSRs will be used either to transfer an existing GTE
customer to DTI or to request service for a new customer who
is not an existing GTE customer. Depending on the situation,
different information will be required on the LSR. LSRs for
a conversion of a GTE local customer to DTI must include
information relating to all existing, new and disconnected
services for that customer, including the customer's name,
type of service desired, location of service and features or
options the customer desires. DTI will be able to obtain
this customer information after GTE has received the
customer's written consent as specified in Article VI.3.3.
For service to a new customer who is not an existing GTE
customer, the LSR must contain the customer's name, service
address, service type, services, options, features and ALEC
data. If known, the LSR should include the telephone number
and due date/desired due date.
1.2.3 While DTI would have its own customer information and may
have the SAG/GTE products on tape from GTE, DTI would not
have the due date or new telephone number for new customers
since that information is contained in GTE's systems.
Therefore, a process is required to provide this information
to DTI. GTE itself does not have uniform access to this
information electronically. Until GTE and DTI have
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agreed and established electronic interfaces, DTI agrees that
an 800 number is the method that will be used. The 800
telephone number will connect DTI directly to GTE's NOMC
service representatives. When DTI receives a request for
basic services from a new local service customer, DTI will
call GTE's NOMC through the 800 number, and, while the new
customer is on hold, GTE will provide the due date for
service and the new telephone number for that customer. At
the same time, DTI will give GTE the new customer's name,
service address and type of requested service (i.e., R1, B1).
GTE will enter that information into its SORCES or SOLAR
service ordering systems to be held in suspense until DTI
sends the confirming LSR. DTI will then return to its
customer holding on the line and provide the due date and new
telephone number.
1.2.4 After concluding the telephone call with the new customer,
DTI will complete a confirming LSR for the new service and
send it electronically to GTE's data center for processing.
Upon receipt, GTE will match the LSR with the service order
suspended in GTE's system, and if there is a match, GTE
will process the LSR. After the LSR is processed, GTE will
transmit confirmation electronically to DTI through the NDM
that the LSR has been processed, providing a record of the
telephone number and due date. DTI will be required to
submit the confirming LSR by 12:00 p.m. each day local
time, as defined by the location of the service address. If
DTI fails to submit the LSR in a timely manner, the suspended
LSR will be considered in jeopardy, at which time GTE will
assign a new due date upon receipt of the delayed LSR for
such customer requests and notify DTI of the change.
1.2.5 Number assignments and due date schedules for services other
than single line service and hunt groups up to 12 lines will
be assigned within approximately twenty-four (24) hours after
GTE's receipt of the LSR using the standard Local
Confirmation ("LSC") report sent electronically to DTI over
the NDM, thereby providing a record of the newly established
due date. An exception would be a multi-line hunt group for
12 lines or fewer. The other numbers then will be provided
through the normal electronic confirmation process.
1.2.6 The processing of specifically requested telephone numbers
(called "vanity numbers") is as follows. GTE will work with
DTI on a real time interface to process vanity numbers while
DTI's customer is still on the line. If a number solution
can be established expeditiously, it will be done while the
customer is still on the line. If extensive time will be
required to find a solution, GTE service representatives will
work with DTI representatives off line as GTE would for its
own customers. For all of this, the basic tariff guidelines
for providing telephone numbers will be followed.
1.2.7 Once the order for line-side interconnection service is
established, it is moved for provisioning to the next system
level. Here, GTE will validate and process the LSR to
establish an account for DTI and, if GTE continues to provide
some residual services to the customer, GTE will maintain
a GTE account. In GTE's system, GTE's account is called the
Residual Account and DTI's account is referred to as DTI
Account. If any engineering for the service is necessary,
the account would be distributed to the SSCC. Otherwise, it
will be distributed for facility assignment.
1.2.8 With the account established and any engineering and
facility assignment complete, GTE then will transmit
electronically a record to GTE's CZT field personnel if
physical interconnection or similar activity is required.
The CZTs will provision the service and then electronically
confirm such provision in the SOLAR/SORCES system when
completed. The accounts then will be transmitted to GTE's
Customer Billing Services System ("CBSS"). GTE shall
provide to DTI a
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service completion report. Call records for actual service
provided to DTI's customers on GTE facilities will be
transmitted from GTE's switches through some usage rating
systems (BIP, UMS), screened and eventually delivered to CBSS
for the generation of bills.
1.2.9 CBSS is a different system than CABS, and it is the one that
GTE will utilize to produce the required bills for resold
services, unbundled elements and local number portability.
CBSS will create a bill to DTI for resold services and
unbundled elements along with a summary bill master.
Daily unrated records for intraLATA toll usage and local
usage (in collect usage data will be provided on rated basis)
on DTI's accounts will be generated and transmitted
electronically to DTI.
1.2.10 On resold accounts, GTE will provide usage in EMR format per
existing file exchange schedules. The usage billing will be
in agreed upon level of detail for DTI to issue a bill to
its end users.
1.2.11 GTE will provide DTI with detailed monthly billing
information in a paper format until an agreed upon
Electronic Data Interchange 811 electronic bill format is
operational.
1.2.12 State or sub-state level billing will include up to ten (10)
summary bill accounts.
1.2.13 GTE accepts DTI's control reports and agrees to utilize
industry standard return codes for unbillable messages.
Transmission will occur via the NDM. Tape data will conform
to Attachment "A" of the LRDTR. Data will be delivered
Monday through Friday except for Holidays as agreed. Data
packages will be tracked by invoice sequencing criteria. GTE
contacts will be provided for sending/receiving usage files.
1.2.14 GTE will retain data backup for 45 Business Days. To the
extent this retention is exclusively for DTI, DTI shall
reimburse GTE for all expenses related to this retention.
1.2.15 In addition to the LSR delivery process, DTI will distribute
directory assistance and directory listing information
(together sometimes referred to hereafter as "DA/DL
information") to GTE via the LSR ordering process over the
NDM. GTE will provide listings service via its "listing
continuity" offering.
1.2.16 Charges and credits for PIC changes ordered via an LSR will
appear on the wholesale bill. As DTI places a request for a
PIC change via LSR, the billing will be made on DTI account
associated with each individual end user. GTE will process
all PIC changes from IXCs that are received for DTI end users
by rejecting back to the IXC with DTI OCN. Detail is
provided so that DTI can identify the specific charges for
rebilling to their end user.
1.2.17 CMDS. The parties will provide for the distribution of
intraLATA CMDS incollect messages and/or selected local
measured service messages as follows:
1.2.17.1 Messages to be Screened. GTE receives CMDS I
transmissions containing intraLATA incollect
messages from the state RBOC CMDS host each
business day. Per DTI's request, GTE will
screen the incollects by NPA and line
number and accumulate the Collect, Third
Number Billed and Credit Card (collectively
called incollects) messages in a data file.
The screening will be
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for end users who have chosen DTI as their
local service provider through a Resale or
Unbundled Network arrangement. The screened
incollect messages and any Local Measured
Service (LMS) usage will be accumulated
and forwarded to DTI. The Parties will
mutually agree on the frequency of the data
exchange and the method of transmission (i.e.,
magnetic tape or direct electronic
transmission). GTE will forward the screened
messages in the industry standard EMR format.
GTE intraLATA toll messages that are recorded
by GTE and dialed on a one plus or zero plus
basis are not part of this section and will
not be screened.
1.2.17.2 Compensation. GTE will bill DTI monthly for
all services related to the screening,
accumulating, processing and transmitting of
incollect messages and LMS usage, if
applicable, at a reasonable and mutually
agreeable charge. In addition, any message
processing fee associated with DTI's incollect
messages that are charged to GTE by the CMDS
Host will be passed on to DTI on the monthly
statement. All revenue, surcharges, taxes and
any other amounts due to the CMDS Host for
DTI's incollect messages will be billed on the
monthly statement. It is DTI's responsibility
to bill and collect all incollect and LMS
amounts due from its end users. The incollect
and LMS revenue amounts that are listed on the
monthly invoice are payable to GTE in total.
The Parties agree that the arrangement for
invoicing the incollect and LMS revenue
amounts due GTE is not a settlement process
with DTI.
1.2.17.3 Administration. The Parties agree to
develop a process whereby DTI's end user
information is available in a timely
manner to allow GTE to build tables to screen
the CMDS incollect files and LMS files on
behalf of DTI.
1.2.18 Backbilling. GTE shall bill DTI on a timely basis. In no
case shall GTE bill DTI for previously unbilled charges that
are for more than one year prior to the current bill date.
1.3 Order Processing.
1.3.1 Order Expectations. DTI agrees to warrant to GTE that it is
a certified provider of telecommunications service. DTI will
document its Certificate of Operating Authority on DTI
Profile and agrees to update this DTI Profile as required to
reflect its current certification. The Parties agree to
exchange and to update end user contact and referral numbers
for order inquiry, trouble reporting, billing inquiries, and
information required to comply with law enforcement and other
security agencies of the government. The Parties also agree
to exchange and to update internal order, repair and billing
point of contacts. Prior to submitting an order under this
Agreement, DTI shall obtain such documentation as may be
required by state and federal laws and regulations.
1.3.2 GTE shall provide DTI with a specified customer contact
center for purposes of placing service orders and
coordinating the installation of services. These activities
shall be accomplished by telephone call or facsimile until
electronic interface capability has been established. The
Parties adopt the OBF LSR and DSR forms for the ordering,
confirmation and billing of resale and unbundled services.
The
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Parties adopt the OBF ASR forms for the ordering,
confirmation and billing of trunk-side interconnection.
1.3.3 GTE will process such service orders during normal operating
hours, at a minimum on each Business Day between the hours of
8 a.m. to 8 p.m. Eastern Time and shall implement service
orders within the same time intervals used to implement
service orders for similar services for its own users.
1.3.4 GTE will provide current GTE customer proprietary network
information (name, address, telephone number and description
of services provided by GTE including PIC and white page
directory listing information) as provided in Article VI,
Section 3. The return of customer information will be via
facsimile or via electronic transmission.
1.3.5 Transfer Between Local Service Providers - GTE will provide
a displacement/out service report to a Local Service Provider
(LSP) whenever an end user leaves that LSP and procures
service from another LSP. When DTI end user changes to
another LSP, GTE will notify DTI when such activity occurs
the day after completion or within 48 hours of such
disconnect.
2. Maintenance Systems.
2.1 General Overview
2.1.1 If DTI requires maintenance for its local service customers,
DTI will initiate a request for repair (sometimes referred to
as a "trouble report") by calling GTE's Customer Care Repair
Center. During this call, GTE service representatives will
verify that the end-user is DTI customer and will then obtain
the necessary information from DTI to process the trouble
report. While DTI representatives are still on the line, GTE
personnel will perform an initial analysis of the problem
and remote line testing for resale services. If engineered
services are involved, the call will be made to the GTE SSCC
for handling. If no engineering is required and the line
testing reveals that the trouble can be repaired remotely,
GTE personnel will correct the problem and close the trouble
report while DTI representatives are still on the line. If
on-line resolution is not possible, GTE personnel will
provide DTI representatives a commitment time for repair, and
the GTE personnel then will enter the trouble ticket into the
GTE service dispatch queue. DTI's repair service commitment
times will be within the same intervals as GTE provides to
its own end users. Maintenance and repair of GTE facilities
is the responsibility of GTE and will be performed at no
incremental charge to DTI. If, as a result of DTI-initiated
trouble report, trouble is found to be the responsibility of
DTI (e.g., non-network cause) GTE will charge DTI for trouble
isolation. DTI will have the ability to report trouble for
its end users to appropriate trouble reporting centers 24
hours a day, 7 days a week. DTI will be assigned a customer
contact center when initial service agreements are made.
2.1.2 Repair calls to the SSCC for engineered services will be
processed in essentially the same manner as those by the GTE
Customer Care Center. GTE personnel will analyze the
problem, provide DTI representative with a commitment time
while they are still on the line, and then place the trouble
ticket in the dispatch queue.
2.1.3 GTE then will process all DTI trouble reports in the
dispatch queue along with GTE trouble reports in the order
they were filed (first in, first out), with priority given to
out-of-service conditions. If, at any time, GTE would
determine that a commitment time given to DTI becomes in
jeopardy, GTE service representatives will contact
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DTI by telephone to advise of the jeopardy condition and
provide a new commitment time.
2.1.4 Trouble reports in the dispatch queue will be transmitted
electronically to GTE CZT service technicians who will repair
the service problems and clear the trouble reports. For
cleared DTI trouble reports, GTE service technicians will
make a telephone call to DTI directly to clear the trouble
ticket. GTE service technicians will make the confirmation
call to the telephone number provided by DTI. If DTI is
unable to process the call or places the GTE technician on
hold, the call will be terminated. To avoid disconnect, DTI
may develop an answering system, such as voice mail, to
handle the confirmation calls expeditiously.
2.1.5 GTE will provide electronic interface access to operation
support systems functions which provide the capability to
initiate, status and close a repair trouble ticket. GTE
will not provide to DTI real time testing capability on DTI
end user services. GTE will not provide to DTI an interface
for network surveillance (performance monitoring).
2.1.6 GTE will resolve repair requests by or for DTI local service
customers using GTE's existing repair system in parity with
repair requests by GTE end users. GTE will respond to
service requests for DTI using the same time parameters and
procedures that GTE uses. DTI then would call GTE's Customer
Care Center or SSCC while the customers were on hold.
2.2 Network Management Controls.
2.2.1 Network Maintenance and Management. The Parties will work
cooperatively to install and maintain a reliable network.
2.2.2 Neither Party shall be responsible to the other if necessary
changes in network configurations render any facilities of
the other obsolete or necessitate equipment changes.
2.2.3 Network Management Controls. Each Party shall provide a
24-hour contact number for Network Traffic Management issues
to the other's network surveillance management center. A fax
number must also be provided to facilitate event
notifications for planned mass calling events. Additionally,
both Parties agree that they shall work cooperatively that
all such events shall attempt to be conducted in such a
manner as to avoid degradation or loss of service to other
end users. Each Party shall maintain the capability of
respectively implementing basic protective controls such as
"Cancel To" and "Call Gap."
3. Electronic Interface. The Parties shall work cooperatively in the
implementation of electronic gateway access to GTE operational support
systems functions in the long-term in accordance with established industry
standards. DTI shall compensate GTE for the full costs including but not
limited to design, development, testing, implementation and deployment,
for access to GTE's Operational Support System functions. Where
subsequent parties request use of GTE's operation support systems, cost
recovery for such electronic interface systems shall be allocated among
all requesting users.
3.1 DTI shall have immediate access to the following OSS electronic
interfaces that will provide functionality to enable DTI to service
customers in an equal and non-discriminatory manner:
3.1.1 Pre-Order functions, e.g., TN Assignment, DD Reservation,
Address Validation, Product Availability, that are available
on a dial-up or dedicated basis using the Secure Integrated
Gateway System (SIGS).
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3.1.2 Order functions that are available on a dial-up or dedicated
basis using CONNECT: Mail file transfer.
3.1.3 Repair functions, e.g., trouble report repair functions, to
allow DTI to determine status and close trouble reports.
3.1.4 Electronic transfer of DTI bill in electronic data 811
format.
3.2 DTI may migrate to fully interactive system to system interconnectivity.
GTE, with input from DTI and other carriers, shall provide general
interface specifications for electronic access to this functionality.
These specifications will be provided to enable DTI to design system
interface capabilities. Development will be in accordance with applicable
national standards committee guidelines. Such interfaces will be
available as expeditiously as possible.
3.3 All costs and expenses for any new or modified electronic interfaces
exclusively to meet DTI requirements that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI. Costs for
development of systems intended for common use by competing carriers will
be assessed based on a mutually agreed method of cost recovery.
3.4 DTI shall be responsible for modifying and connecting any of its
pre-ordering and ordering systems with GTE provided interfaces as
described in this Appendix.
4. GTE Initiated Electronic System Redesigns. GTE will not charge DTI when
GTE initiates its own electronic system redesigns/reconfigurations.
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APPENDIX J
SS7 SERVICES
ARTICLE 1.
DEFINITIONS
In addition to the definitions contained elsewhere in the Agreement to which
this Appendix J is attached and made a part, for purposes of this Appendix J
the following terms shall have the following meanings.
1.1 "A" Link: An access signaling link that connects SPs and/or SSPs to
STPs.
1.2 "B" Link: A bridge signaling link that connects two (2) sets or pairs of
STPs, not the STPs within a mated pair, but on the same hierarchical
level.
1.3 Compatibility Testing: Certification testing performed by
representatives of GTE and DTI to ensure proper interconnection of CCS
network facilities for accurate transmission of system signals and
messages. This certification testing shall be performed in accordance
with the following ANSI documents:
T1.234 Telecommunications - Signaling System Number 7 (SS7) - MTP
Levels 2 and 3 Compatibility Testing (ATIS)
T1.235 Telecommunications - Signaling System Number 7 (SS7) - SCCP
Class 0 Compatability Testing (ATIS)
T1.236 Telecommunications - Signaling System Number 7 (SS7) - ISDN
User Part Compatibility Testing (ATIS)
1.4 Service: The service described in Article 2 of this Appendix.
1.5 Signaling Link: An end-to-end high-capacity data link (56 kbps) that
transmits supervision and control signals from one network SS7 node to
another in a CCS network. The link type identifies the functionality of
the signaling link sets. The two link types associated with the Service
are "a" Links and "B" Links.
1.6 Signaling Point Code (SPC): A code that identifies the Signaling Point
address in the CCS network. Signaling Point Codes consist of three (3)
segments of three (3) digits each, identifying the network ID, network
cluster, and cluster member, respectively.
1.7 Signaling Point of Interface (SPOI): The point at which GTE hands off
signaling information to DTI.
ARTICLE 2.
SERVICE DESCRIPTION
2.1 Provision. Subject to the terms and conditions of this Appendix, GTE
agrees to provide the Service to DTI.
2.2 Interconnection. This Agreement is for DTI's interconnection with GTE at
GTE's ___________________ STPs to support local exchange services. DTI
shall not submit signaling messages in support of interexchange services.
2.3 Service. The "Service" consists of the following:
(a) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network is via an "a" Link connection between DTI's SP or SSP and
GTE's STP. The "a" Link connection is made by a dedicated 56 kbps
channel between the SP or SSP and the STP. Any connection from an
SSP
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or an SP to an STP pair will have a link to each individual STP
(i.e., two (2) links). DTI and GTE shall mutually agree upon the
location of the SPOI.
(b) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network via a "B" Link connection between DTI's STPs and GTE's STPs.
The "B" Link connection is a dedicated 56 kbps channel.
Connections between two (2) pairs of STPs will have four (4)
connections; i.e., one (1) link from each individual STP to each
individual STP. DTI and GTE shall mutually agree upon the location
of the SPOI.
(c) Local and IntraLATA call set-up signaling, allowing DTI to
use the out-of-band trunk signaling provided by GTE's CCS/SS7
network to carry its calls on the intraLATA toll network.
(d) The Service shall include access to: (1) all switching
systems served by a given STP which have been converted to SS7
signaling, including switching systems owned by other local service
providers; (2) databases directly connected to a given STP, with the
exception of 800/888 databases which can be accessed through any
STP; (3) other local service provider STPs on an intraLATA basis;
and (4) other Third Party local service provider STPs on an
intraLATA basis.
(e) It is the responsibility of DTI to populate the "privacy
indicator" portion of all SS7 signaling messages forwarded to GTE's
network. GTE agrees to deliver the information forwarded by DTI in
the SS7 signaling message. DTI, by entering into this Agreement,
agrees to deliver "privacy indicator" information forwarded by GTE
in its signaling message.
(f) DTI acknowledges that call set-up times may be greater when
DTI employs intermediate access tandems (IATs) in its network.
(g) If selected on the order form attached to this Appendix, the
Service shall also include IXC call set-up signaling service (ISUP)
as described in Article 2.4 of this Appendix. Additional charges as
set forth in Exhibit A shall apply.
2.4 ISUP Service Charge. This is an optional service that allows DTI to
utilize SS7 signaling to an SS7 capable interexchange carrier (IXC) for
Feature Group D access service and other intraLATA interexchange services.
The ISUP service is a monthly charge.
(a) The rate for ISUP signaling is per connection in situations
when GTE does not provide any underlying call messages for DTI on
GTE's network trunks. The rate for ISUP signaling is shown in
Exhibit a.
(b) Where GTE has a mated pair of STPs and has CCS/SS7
interconnection facilities to an IXC within the same LATA, for
interexchange telecommunications services, GTE shall provide call
set-up signaling between DTI and the IXC.
(c) DTI agrees to provide to GTE such information as deemed
necessary by GTE for network planning in connection with this
offering and as may be requested by GTE from time to time.
(d) DTI must provide the Signaling Point Codes of the IXCs for
which it is providing call setup via GTE's SS7 signaling network, so
that GTE screening and translation tables can be updated.
2.5 Technical Specifications. The technical specifications for the Services
described above are defined in Bellcore TR-TSV-000905. GTE will provide
SS7 via OR-394-SS7 and/or OR-317-SS7 format(s).
2.6 Other Services. If DTI desires to order SS7-related services other than
the Service, such services will be governed by separate agreements.
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2.7 Applicable Traffic. The Service applies to the traffic of DTI and its
subtending LECs only. DTI must provide GTE with thirty (30) calendar
days' written notice and a letter of agency before the traffic of any
party other than DTI or its subtending LECs may be transmitted through
DTI's facilities on to GTE's SS7 network.
ARTICLE 3.
MANNER OF PROVISIONING
3.1 Link Facilities. The link facilities to GTE STPs in the same LATA can be
either:
(a) "a" Link sets from DTI's SP or SSP. A minimum of two (2)
links is required, one (1) from the SP or SSP to each STP; or,
(b) "B" Link sets from DTI's STPs that are connected to GTE's
mated pairs of STPs. A minimum of four (4) links is required
between the two (2) pairs of STPs.
3.2 Port Termination. An STP port termination is required for each 56 kbps
access link utilized for the Service. STP locations are set forth in the
National Exchange Carrier Association, Inc. (NECA) Tariff, F.C.C. No. 4.
3.3 Signaling Point Codes. GTE shall install all applicable Signaling Point
codes for each signaling link at each of GTE's interconnecting STPs.
3.4 Protocol. GTE shall provision the Service in accordance with ANSI T1.226
Telecommunications - Operations, Administration, Maintenance, and
Provisioning (OAM&P) -Management of functions for Signaling System No. 7
(SS7) Network Interconnections (ATIS) with the exception of references to
OMAP protocol elements. The Service cannot be established until
Compatibility Testing has been successfully completed between DTI and GTE.
3.5 56 kbps Channel. Unless DTI elects to provide such links, GTE shall
provide two (2) or four (4) 56 kbps circuits as link facilities at rates
set forth in Article 4 herein. If approved by GTE, DTI may utilize a 56
kbps channel of an intraLATA DS1 (1.544 mbps) facility, which is in place
at the time of ordering, as an "A" Link or a "B" Link, for the STP access
connection between the SPOI and GTE's STP. WHEN THIS OPTION IS CHOSEN,
DTI UNDERSTANDS AND ACCEPTS THAT THE SERVICE PERFORMANCE STANDARDS AS
OUTLINED IN BELLCORE DOCUMENT TR-TSV-000905 MAY NOT BE MET IN THE
PROVISION OF THE TOTAL SERVICE. If such a channel is not utilized, DTI
must order DS1 (1.544 Mbps) service.
3.6 Multiplexing. Where technically required, GTE shall provide multiplexing
arrangements to DTI at no charge.
3.7 Diversity. Where technically feasible and not unreasonably economically
burdensome, GTE agrees to allow interoffice and intraoffice diversity.
ARTICLE 4.
RATES AND CHARGES
4.1 Payment. DTI agrees to pay to GTE for the Service at the rates and
charges set forth in Exhibit A attached to this Appendix and made a part
hereof.
4.2 Period. Subject to Article 4.3 below, the rates and charges shall remain
in effect and are firm for a period of twelve (12) months from the
effective date of this Appendix. Thereafter, GTE shall give DTI sixty
(60) calendar days' notice of any price change. If the new prices are not
acceptable to DTI, DTI may terminate this Appendix upon thirty (30)
calendar days' advance written notice without penalties for either Party.
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4.3 Rate Basis. The rates are based upon rates and charges reflected in
GTE's approved CCS/SS7 interconnection tariffs. To the extent that tariff
rates are adjusted, rates and charges for similar rate elements in this
Appendix will be adjusted accordingly on the date the new tariff rates
become effective. If a state or federal regulatory agency requires, or
GTE elects, to offer the Service by tariff, the tariff shall supersede
this Appendix. If the Service becomes tariffed, DTI has the right to
terminate this Appendix upon sixty (60) calendar days' advance written
notice effective on the effective date of such tariff, without penalty to
either Party.
4.4 Mileage. Mileage is calculated on the airline distance between the
locations involved, using the V&H coordinates method, as set forth in the
National Exchange Carrier Association, Inc. Tariff, F.C.C. No. 4.
4.5 Rates and Charges. Rates and charges for each component of the Service
are described as follows:
(a) "A" Link connection - Charges for the "a" Link connection to
GTE's CCS/SS7 network consist of the STP port termination charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from DTI's SSP or
SP.
(2) DTI will lease facilities between its SSPs/SPs
and GTE's STPs.
(b) "B" Link connection - Charges for the "B" Link connection to
GTE's CCS/SS7 network consist of the STP port termination charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from DTI's STPs.
(2) DTI and GTE shall mutually agree upon the rates
for "B" Link interconnections within thirty (30) calendar days
of the execution of this Agreement.
(c) STP Interconnection nonrecurring charge - STP interconnection
nonrecurring charge shall apply for each "A" Link and "B" Link
interconnection to GTE's SS7 network.
4.6 Rearrangement. Charges for rearrangement of the Service that are not
specifically addressed will be determined by GTE on an individual case
basis.
4.7 Applicable Traffic. The rates apply only to the traffic of DTI and its
subtending LECs. Any traffic from any other party will be subject to
additional charges.
ARTICLE 5.
ORDERING THE SERVICE
5.1 Order. To order the Service, DTI shall submit a completed CCS/SS7 Order
Form to GTE. DTI may change its Service order by submitting a new Order
Form which shall be effective when executed by both Parties. Service
shall be implemented for DTI thirty (30) calendar days after the execution
of this Agreement by both Parties.
5.2 Port Terminations. GTE shall reserve STP port terminations only upon
receipt of a fully executed copy of this Agreement and the Order Form
referred to in this Appendix. GTE shall reserve ports on a first come,
first served basis. Should DTI fail to use a port within sixty (60)
Business Days of availability, GTE may reassign the port and, DTI must
resubmit an Order Form for interconnection.
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ARTICLE 6.
RESPONSIBILITIES OF GTE
6.1 Managing the Network. GTE is responsible for managing the network
provided by GTE as part of the Service and applying protective controls
which it can invoke as a result of occurrences including, but not limited
to, failure or overload of GTE or DTI facilities due to natural disasters,
mass calling or national security demands.
6.2 Performance Standards. GTE is responsible for meeting service
performance standards as outlined in Bellcore TR-TSV-000905 except as
otherwise provided herein.
6.3 Invoice. GTE shall include with the monthly invoice such data GTE and
DTI mutually agree is necessary for DTI to verify the accuracy of the
billing it receives from GTE for the Service.
ARTICLE 7.
RESPONSIBILITIES OF DTI
7.1 Signaling Link. DTI shall provision the signaling links from its
premises to the SPOIs in a manner technically compatible to the GTE
network.
7.2 Privacy Indicator. DTI shall populate the "privacy indicator" portion of
the CCS/SS7 initial address message forwarded to GTE's network for call
processing.
7.3 Accuracy of Information. DTI shall verify the accuracy of information
provided by DTI concerning the Service ordered by DTI.
7.4 Forecast. DTI shall furnish to GTE, at the time the Service is ordered
and annually thereafter, an updated three year forecast of usage for the
56 kbps channel and the STP port termination for each STP pair. The
forecast shall include total annual volume and busy hour busy month
volume. GTE shall utilize the forecast in its own efforts to project
further facility requirements.
7.5 Changes. DTI agrees to inform GTE in writing at least thirty (30)
Business Days in advance of any change in its use of the Service that
alters by ten percent (10%) or more for any thirty (30) day period the
volume of signaling transactions to be forwarded to GTE's CCS/SS7 network.
DTI will provide the reason for the change in volume by individual SS7
service.
ARTICLE 8.
SIGNALING POINT CODES
8.1 Interconnection. DTI may utilize either the GTE CCS/SS7 network SPC or
its own SPC for interconnection purposes when interconnecting its SPs or
SSPs at the "A" Link level. DTI shall utilize its own SPC when
interconnecting its STP at the "B" Link level. DTI agrees to obtain its
own initial SPC if it has short or long range plans to provide its own
STPs.
8.2 SPC. When the SPC is utilized, GTE shall be responsible for DTI code
assignment. When DTI obtains its own SPC, DTI shall be responsible for
code assignments and shall be responsible for notifying GTE and other
CCS/SS7 network providers of such assignments.
8.3 SPC Change. Due to the complexities and potential DTI signaling network
downtime required for changing working SPCs, DTI agrees to give GTE a
written notice of an SPC change as soon as possible but no later than
thirty (30) Business Days prior to the effective date of the SPC change.
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ARTICLE 9.
MONTHLY BILLING
Billing statements shall be rendered monthly by GTE to DTI. The monthly charge
shall be the total of all monthly rate element charges associated with the
Service. Payment to GTE for bills rendered to DTI shall be due thirty (30)
calendar days after receipt of the invoice and DTI agrees to pay all billed
amounts. Beginning the day after the due date of the bill, interest charges of
twelve per cent (12%) per annum or the maximum allowed by law, whichever is
less, shall be added to DTI's bill. Payments shall be applied to the oldest
outstanding amounts first.
ARTICLE 10.
LIABILITY AND INDEMNIFICATION
10.1 Release from Liability. Each Party releases the other from any
liability for loss or damage arising out of errors, interruptions,
defects, failures, delays, or malfunctions of the Service, including
any and all associated equipment and data processing systems, not
caused by gross negligence or willful misconduct. Any losses or
damages for which either Party is held liable under this Agreement
shall in no event exceed the amount of the charges for the Service
during the period beginning at the time notice of the error,
interruption, defect, failure, or malfunction is received, to the time
Service is restored.
10.2 Limitation of Liability. IN ADDITION TO THE LIMITATION OF LIABILITY
SET FORTH AT SECTION 24.4 OF ARTICLE III OF THE AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR ANY LOSS OF REVENUE OR PROFIT OR FOR ANY
LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR OUT OF THE USE OF THE
CCS OR ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT THAT IS
SUFFERED BY THE OTHER PARTY, WHETHER ARISING IN CONTRACT, TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE AND WHETHER OR NOT INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
10.3 Third Parties. Each Party agrees to release, defend, indemnify, and
hold harmless the other Party from and against any and all losses,
damages, or other liability, including reasonable attorneys' fees,
that it may incur as a result of claims, demands, wrongful death
actions, or other suits brought by third parties, arising out
of the use of the Service and resulting from the gross negligence or
willful misconduct by the indemnifying Party, its employees, agents,
or contractors in the performance of this Agreement. In addition, to
the extent that the Parties' interests do not conflict, DTI shall
defend GTE against all end users' claims just as if DTI had provided
such service to its end users with its own employees. In any event,
DTI shall assert its tariff limitation of liability for the benefit of
both GTE and DTI.
10.4 Infringement. Each Party agrees to release, defend, indemnify, and
hold harmless the other Party from and against any claim, demands or
suit that asserts any infringement or invasion of privacy or
confidentiality of any person(s), caused or claimed to be caused,
directly or indirectly, by the indemnifying Party's employees or
equipment associated with provision of the Service. This includes,
but is not limited to, suits arising from disclosure of any
customer-specific information associated with either the originating
or terminating numbers used to provision the Service.
10.5 No Warranties. IN ADDITION TO THE DISCLAIMER SET FORTH AT SECTION 24.3
OF ARTICLE III OF THE AGREEMENT, NEITHER GTE NOR DTI MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD PARTY
CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES PROVIDED UNDER OR IN
CONNECTION WITH THIS APPENDIX, THAT THE SERVICES PROVIDED UNDER THIS
APPENDIX WILL BE ERROR FREE OR THAT THE FACILITIES WILL OPERATE
WITHOUT
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INTERRUPTION. GTE AND DTI DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY
OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR FROM
USAGES OF TRADE.
ARTICLE 11.
RESERVATION OF RIGHTS
11.1 Rights Reserved. By entering into this Appendix to the Agreement,
neither Party waives, releases or compromises any rights it may have
to argue, in any federal or state regulatory proceeding (or in any
judicial appeal following such a proceeding), in support of, or in
opposition to any position, including but not limited to: (a)
Accounting for deregulated (or detariffed) data base services; (b)
removal from regulated accounts of expenses and investment associated
with deregulated (or detariffed) data base services; and (c) any other
issue pertinent to regulation or deregulation of costs which were, are
now, or may in the future be, associated with the provisions of data
base services. Each Party expressly reserves all its rights in
connection with such matters.
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EXHIBIT A
RATES AND CHARGES
for Interconnection at
GTE's - , STP
------------- ------------ --
** CONTACT AL WOOD RE: ARKANSAS PRICING (THE FORM AND NUMBERS ARE COPIED FROM
TEXAS)
<TABLE>
<CAPTION>
CONTEL RATES & CHARGES GTE RATES & CHARGES
---------------------- -------------------
Rate Element Nonrecurring Monthly Nonrecurring Monthly
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. STP Port Termination for an $ 65.00 $226.00 $ 65.00 $226.00
"A" Link Per Port
2. STP Port Termination for a "B" $ 65.00 $226.00 $ 65.00 $226.00
Link Per Port
3. 56 Kbps Digital Facility $ 1.82 $ 1.82
Dedicated Switched Access
Transport Per Airline Mile
4. 56 Kbps Dedicated Switched $ 100.00 $ 99.54 $ 100.00 $ 99.54
Access Line
5. 1.544 Mbps (DS1) High Capacity $ 4.65 $ 6.65
Digital Facility Dedicated
Switched Access Transport Per
Airline Mile
6. 1.544 Mbps (DS1) Dedicated $1500.00 $168.59 $1500.00 $168.09
Switched Access Line
7. Facility Charge for "B" Links Depends negotiated Dependes negotiated
interconnection agreement interconnection agreement
8. ISUP Charge per Interconnection $500.00 $500.00
8.1 For ISUP Service an additional SCP charge shall apply per interconnection.
</TABLE>
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APPENDIX K
POLE ATTACHMENT AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE MIDWEST INCORPORATED/GTE ARKANSAS
INCORPORATED, a State of _______ corporation having its principal office
at _______ ("GTE"), and DIGITAL TELEPORT, INC., a corporation of the State
of _______, having its principal office at ____________ ("Licensee").
2. Definitions.
2.1 "GTE's poles" or "GTE pole(s)" means a pole or poles solely owned by GTE,
jointly owned by GTE and another entity, and space on poles obtained by
GTE through arrangements with the owner(s) thereof.
2.2 "Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities
used.
2.3 "Cable Television Services" means the transmission to subscribers of
off-the-air pickup of broadcast signals or the transmission, without
separate charge, of locally originated closed circuit television to the
subscribers of off-the-air service.
2.4 "Attachments" means the equipment reasonably required by Licensee to
provide its Telecommunications Services or Cable Television Services that
is placed on GTE's poles.
2.5 "Make-Ready Work" means all work, including, but not limited to,
rearrangement, removal, or transfer of existing attachments, placement,
repair, or replacement of poles, or any other changes required to
accommodate the Licensee's Attachments on a pole.
2.6 "Hazardous Materials" means (i) any substance, material or waste now or
hereafter defined or characterized as hazardous, extremely hazardous,
toxic or dangerous within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any
similar law, ordinance, statute, rule or regulation of any governmental
body or authority, (ii) any substance, material or waste now or hereafter
classified as a contaminant or pollutant under any law, ordinance,
statute, rule or regulation of any governmental body or authority or (iii)
any other substance, material or waste, the manufacture, processing,
distribution, use, treatment, storage, placement, disposal, removal or
transportation of which is now or hereafter subject to regulation under
any law, ordinance, statute, rule or regulation of any governmental body
or authority.
2.7 "Attachment Fee" means the fee assessed per pole and paid by Licensee to
place Attachments on GTE's poles.
3. Purpose.
3.1 Licensee represents to GTE that Licensee has a need to occupy, place and
maintain Attachments on GTE's poles for the purpose of providing
Telecommunications Services.
3.2 GTE agrees to permit Licensee to occupy, place and maintain its
Attachments on such GTE poles as GTE may allow pursuant to the terms of
this Agreement.
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4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space on
specified GTE poles Licensee's Attachments on the terms and conditions
set forth herein. Licensee shall have no further right, title, or other
interest in connection with GTE's poles. GTE shall have the right to
grant, renew or extend privileges to others not parties to this Agreement
to occupy, place or maintain Attachments on or otherwise use any or all GTE
poles. Nothing herein is intended to, nor should it be construed to
require GTE to construct or modify any facilities not needed for its own
service requirements. GTE grants this license in reliance on the
representation of Licensee that Licensee intends to provide
Telecommunications Services with the Attachments covered by this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the term
of this Agreement shall be two (2) years from the effective date referenced
in the first paragraph of this Agreement and shall continue in effect for
consecutive one (1) year terms until either Party gives the other
Party at least ninety (90) calendar days written notice of termination,
which termination shall be effective at the end of the then-current term.
In the event notice is given less than ninety (90) calendar days prior to
the end of the current term, this Agreement shall remain in effect for
ninety (90) calendar days after such notice is received, provided, that in
no case shall the term be extended beyond ninety (90) calendar days after
the end of the current term.
6. Pole Attachment Requests (PARs).
6.1 Licensee shall submit a written Pole Attachment Request ("PAR") to GTE
identifying the GTE poles upon which it desires to place Attachments.
Each PAR shall be in a form specified by GTE and may be revised from time
to time by GTE. All PARs submitted to GTE shall be processed on a first
come, first served basis. GTE, in its sole judgment, will determine the
availability of space on the GTE pole(s) specified in the PAR and will
provide its response to the PAR within thirty (30) Business Days of its
submission. Upon approval of the PAR, GTE shall return one copy thereof to
Licensee bearing an endorsement acknowledging GTE's authorization. All
Attachments placed on GTE's poles pursuant to an approved PAR shall become
subject to all of the terms and conditions of this Agreement. Licensee may
submit subsequent PARs for approval by GTE as needed. GTE is under no
obligation to provide general information respecting the location and
availability of GTE poles, except as may be necessary to process a PAR. No
Attachment shall be placed on any GTE pole identified in a PAR until that
PAR has been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a PAR to compensate GTE for
the general administrative costs as well as the actual engineering costs
reasonably incurred. The fee for engineering costs shall be computed by
multiplying the fully loaded hourly rate for an engineer times the number
of hours reasonably required by each engineer to inspect the GTE poles
included in the PAR. GTE will charge its then current rates for
administrative and engineering costs, as may be changed from time to time
by GTE to remain consistent with prevailing costs.
6.3 Upon receiving an approved PAR, Licensee shall have the right, subject to
the terms of this License, to place and maintain the facilities described
in the PAR in the space designated on the GTE poles identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate Licensee's
Attachments, GTE shall notify Licensee of such fact and provide Licensee
with a good faith estimate of the total cost of such Make-Ready Work
needed to accommodate Licensee's Attachments. Within fifteen (15) days
after receiving such notice from GTE, Licensee shall notify GTE either (1)
that Licensee shall pay all of the costs actually incurred to perform the
Make-Ready Work and shall pay the total estimated
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amount to GTE at least ten (10) days prior to the date the Make-Ready
Work is to begin or (2) that it desires to cancel its PAR.
6.5 GTE shall not be responsible to Licensee for any loss sustained by
Licensee by reason of the refusal or failure of any other party with
attachments on GTE's poles to rearrange or modify its attachments as may
be required to accommodate Licensee's Facilities.
6.6 Licensee is not authorized and shall have no right to place facilities on
any GTE pole unless that GTE pole is identified in an approved PAR.
7. Availability of Information Regarding Space on Poles.
GTE will provide information regarding the availability of pole space
within thirty (30) Business Days of a written request by Licensee. Because
GTE will endeavor to determine available space as quickly as
possible, a shorter interval may be experienced for requests of a limited
scope where physical field verification is not necessary. In the event the
thirty (30) Business Day time frame cannot be met, GTE shall so advise
Licensee and shall seek a mutually satisfactory alternative response date.
No representation regarding the availability of space shall be made in the
absence of a physical field verification.
8. Authority to Place Attachments.
8.1 Before Licensee places any Attachments on GTE's poles pursuant to an
approved PAR, Licensee shall submit evidence satisfactory to GTE of its
authority to erect and maintain the facilities to be placed on GTE's poles
within the public streets, highways and other thoroughfares or on private
property. Licensee shall be solely responsible for obtaining all
rights-of-way, easements, licenses, authorizations, permits and consents
from federal, state and municipal authorities or private property owners
that may be required to place Attachments on GTE's poles. In the event
Licensee must obtain any additional easements, permits, approvals,
licenses and/or authorizations from any governmental authority or private
individual or entity in order to utilize GTE's poles under an approved
PAR, GTE shall, upon Licensee's request, provide written confirmation of
its consent to Licensee's utilization of poles in a particular location in
accordance with this Agreement, if needed by Licensee to obtain such
additional approvals or authorizations. GTE shall also provide maps or
drawings of its facilities' locations to the extent reasonably required by
such governmental authority or private individual or entity for purposes
of considering or granting Licensee's request to it for authority or
approval.
8.2 GTE shall not unreasonably intervene in or attempt to delay the granting
of any rights-of-way, easements, licenses, authorizations, permits and
consents from federal, state or municipal authorities or private property
owners that may be required for Licensee to place its Attachments on GTE's
poles.
8.3 If any right-of-way, easement, license, authorization, permit or consent
obtained by Licensee is subsequently revoked or denied for any reason,
Licensee's permission to attach to GTE's poles shall terminate immediately
and Licensee shall promptly remove its Attachments. Should Licensee fail
to remove its Attachments within one hundred twenty (120) days of
receiving notice to do so from GTE, GTE shall have the option to remove
all such Attachments and store them in a public warehouse or elsewhere at
the expense of and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming liable for any
loss or damages to Licensee occasioned thereby. All costs incurred by GTE
to remove Licensee's Attachments shall be reimbursed to GTE by Licensee
upon demand.
8.4 Upon notice from GTE to Licensee that the cessation of the use of any one
or more of GTE's poles is necessary for reasons of safety or has been
directed by any federal, state or municipal authority, or private property
owner, permission to attach to such pole or poles shall terminate
immediately
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and Licensee promptly shall remove its Attachments. Should Licensee fail
to remove its Attachments within the time frame provided by the requesting
or directing party or one hundred twenty (120) days of receiving notice
to do so from GTE, whichever is less, GTE shall have the option to remove
all such Attachments and store them in a public warehouse or elsewhere at
the expense of and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming liable for any
loss or damages to Licensee occasioned thereby.
All costs incurred by GTE to remove Licensee's Attachments shall be
reimbursed to GTE by Licensee upon demand by GTE.
9. Placement of Attachments.
9.1 Licensee shall, at its own expense, place and maintain its Attachments on
GTE's poles in accordance with (I) such requirements and specifications as
GTE shall from time to time prescribe in writing, (ii) all rules or orders
now in effect or that hereafter may be issued by any regulatory agency or
other authority having jurisdiction, and (iii) all currently applicable
requirements and specifications of the National Electrical Safety Code,
and the applicable rules and regulations of the Occupational Safety and
Health Act. Licensee agrees to comply, at its sole risk and expense, with
all specifications included in Exhibits ___ through ___ hereto, as may be
revised from time to time by GTE.
9.2 Licensee's Facilities shall be tagged at maximum intervals of 300 feet so
as to identify Licensee as the owner of the Facilities. The tags shall be
of sufficient size and lettering so as to be easily read from ground
level.
10. Failure of Licensee to Place Attachments.
Once Licensee has obtained an approved PAR, Licensee shall have sixty (60)
days from the date the PAR is approved to begin the placement of its
Attachments on the GTE poles covered by the PAR. If Licensee has not begun
placing its Attachments within that sixty (60) day period, Licensee
shall so advise GTE with a written explanation for the delay. If Licensee
fails to advise GTE of its delay, with a written explanation therefor, or
if Licensee fails to act in good faith by not making a bona fide effort to
begin placing its Attachments within the sixty (60) days prescribed by this
Section, the previously approved PAR shall be deemed rescinded by GTE and
Licensee shall have no further right to place Attachments pursuant to that
PAR.
11. Attachment Fees.
11.1 Licensee shall pay to GTE an Attachment Fee, as specified in Exhibit
hereto, for each GTE pole upon which Licensee obtains authorization to
place an Attachment. The Attachment Fee may be increased by GTE from time
to time as permitted by law upon sixty (60) days written notice to
Licensee.
11.2 Attachments Fees shall become due and payable on the date a PAR is
approved by GTE for all GTE poles identified in that PAR on a pro rata
basis until the end of the then current year and thereafter on an annual
basis within thirty (30) days of the date of a statement from GTE
specifying the fees to be paid. Any payment after thirty (30) days shall
bear interest at the rate of eighteen percent (18%) per annum or the
maximum rate allowed by law, whichever is less.
11.3 GTE shall maintain an inventory of the total number of GTE poles occupied
by Licensee based upon the cumulative number of poles specified in all PARs
approved by GTE. GTE may, at its option, conduct a physical inventory of
Licensee's Attachments under this Section. It shall be Licensee's sole
responsibility to notify GTE of any and all removals of Attachments from
GTE's poles. Except as provided in Section 18 of this Agreement in
connection with the termination of this Agreement, such notice shall be
provided to GTE at least thirty (30) days prior to the removal of the
Attachments. Each Notice of Removal shall be in a form specified by GTE
and may be revised
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from time to time at GTE's sole discretion. Licensee shall remain
liable for Attachment Fees until Licensee's Attachments have been
physically removed from GTE's poles.
12. Modifications, Additions or Replacements to Existing Attachments.
12.1 Licensee shall not modify, add to or replace Facilities on any
pre-existing Attachment without first notifying GTE in writing of the
intended modification, addition or replacement at least thirty (30) days
prior to the date the activity is scheduled to begin. The required
notification shall include: (1) the date the activity is scheduled to
begin, (2) a description of the planned modification, addition or
replacement, (3) a representation that the modification, addition or
replacement will not require any space other than the space previously
designated for Licensee's Attachments, and (4) a representation that the
modification, addition or replacement will not impair the structural
integrity of the poles involved.
12.2 Should GTE determine that the modification, addition or replacement
specified by Licensee in its notice will require more space than that
allocated to Licensee or will require the reinforcement of, replacement of
or an addition of support equipment to the poles involved in order to
accommodate Licensee's modification, addition or replacement, GTE will so
notify Licensee, whereupon Licensee will be required to submit a PAR in
compliance with this Agreement in order to obtain authorization for the
modification, addition or replacement of its Attachments.
12.3 Access to GTE's poles for repairs, modifications, additions, or
replacements required in emergency situations shall be governed by Section
22 of this Agreement.
12.4 Should Licensee request GTE to expand capacity or purchase additional
plant, Licensee agrees to pay all costs.
13. Rearrangements to Accommodate Other Licensees.
Licensee acknowledges that at some point in the future it may become
necessary to rearrange Licensee's Facilities in order to create space to
accommodate the facilities of another licensee. Licensee agrees that in
such event Licensee will cooperate in good faith with such other licensee
to come to a mutually agreeable understanding regarding the manner in which
the rearrangement of Licensee's Facilities will be achieved.
14. Unauthorized Attachments.
14.1 The parties agree that because it would be impracticable and extremely
difficult to determine the actual amount of damages resulting from
Licensee's unauthorized Attachment(s), a charge equal to five (5) times
the amount of the then current Attachment Fee shall be paid by Licensee to
GTE for each unauthorized Attachment to a GTE pole. Such payment shall be
deemed liquidated damages and not a penalty. Licensee also shall pay GTE
an Attachment Fee for each unauthorized Attachment accruing from the date
the unauthorized Attachment was first placed on the GTE pole. In the
event that the date the unauthorized Attachment was first placed on a GTE
pole cannot be determined, such date shall be deemed the date of the last
physical inventory made in accordance with this Agreement or, if no
physical inventory has been conducted, the date the first PAR from
Licensee was approved in accordance with this Agreement. Licensee also
shall pay to GTE all costs incurred by GTE to rearrange any unauthorized
Attachment(s) of Licensee if such rearrangement is required to safeguard
GTE's Attachment(s) or to accommodate the Attachment(s) of another party
whose Attachment(s) would not have required a rearrangement but for the
presence of Licensee's unauthorized Attachment(s). Licensee shall also
pay to GTE all costs incurred by GTE to reinforce, replace or modify any
GTE pole, which reinforcement, replacement or modification was required as
a result of the unauthorized Attachment of Licensee. The Attachment Fee
referenced in this subsection 14.1 shall be determined in the same manner
as such fee would have been determined if the attachment had been
authorized by GTE.
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14.2 For purposes of this section, an unauthorized Attachment shall include,
but not be limited to:
14.2.1 An Attachment to a GTE pole which pole is not identified in any
PAR in accordance with this Agreement;
14.2.2 An Attachment that occupies more space than that allocated to
Licensee by GTE;
14.2.3 An Attachment that is not placed in accordance with the provisions
of this Agreement or the appropriate PAR issued pursuant to this
Agreement;
14.2.4 An addition or modification by Licensee to its pre-existing
Attachment(s) that impairs the structural integrity of the involved
GTE pole(s).
14.2.5 An Attachment that consists of facilities owned or controlled by,
and for the use of a party other than Licensee.
15. Surveys and Inspections of Pole Attachments.
15.1 Upon written notice to Licensee, the total number and exact location of
Licensee's Attachments on GTE's poles may be determined, at GTE's
discretion, through a survey to be made not more than once per calendar
year by GTE. If so requested, Licensee and/or any other entity owning
or jointly owning the poles with GTE may participate in the survey. The
costs incurred by GTE to conduct the survey shall be reimbursed to GTE by
Licensee upon demand by GTE. If the Attachments of more than one Licensee
are surveyed, each such Licensee shall contribute a proportionate share of
the costs reimbursed to GTE.
15.2 Apart from surveys conducted in accordance with this section, GTE shall
have the right to inspect any Attachment of Licensee on GTE's poles as
conditions may warrant upon written notice to Licensee. Licensee shall,
upon demand by GTE, reimburse GTE all costs incurred to conduct its
inspection. No joint survey or inspection, or lack thereof, by GTE shall
operate to relieve Licensee of any responsibility, obligation or liability
assumed under this Agreement.
16. Notice of Modification or Alteration of Poles by GTE.
16.1 In the event GTE plans to modify or alter any GTE pole(s) upon which
Licensee has Attachments, GTE shall provide Licensee notice of the
proposed modification or alteration at least thirty (30) days prior to the
time the proposed modification or alteration is scheduled to take place.
Should Licensee decide to modify or alter its Attachments on the GTE poles
to be modified or altered by GTE, Licensee shall so notify GTE in writing.
In such event, Licensee shall bear a proportionate share of the total
costs incurred by GTE to make such poles accessible to Licensee.
16.2 In the event GTE is required by a federal, state, or local authority to
move, replace or change the location of any GTE pole(s), Licensee shall
concurrently relocate Licensee's Attachments. GTE and each Licensee
required to relocate its Attachments shall bear its own costs for such
relocation.
17. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR PURPOSE.
18. Default and Remedies.
18.1 The occurrence of any one of the following shall be deemed a Material
Default by Licensee under this Agreement:
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18.1.1 Failure by Licensee to pay any fee or other sum required to be
paid under the terms of this Agreement and such default continues
for a period of ten (10) days after written notice thereof to
Licensee;
18.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this Agreement and
such default continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if such default
is not curable within such thirty (30) day period, the period will
be extended if Licensee commences to cure such default within such
thirty (30) day period and proceeds diligently thereafter to effect
such cure);
18.1.3 The filing of any tax or mechanic's lien against GTE's poles which
is not bonded or discharged within thirty (30) days of the date
Licensee receives notice that such lien has been filed;
18.1.4 Licensee's voluntary or involuntary bankruptcy;
18.1.5 Licensee's knowing use or maintenance of its Attachments in
violation of any law or regulation, or in aid of any unlawful act or
undertaking;
18.1.6 If any authorization which may be required of the Licensee by any
governmental or private authority for the placement, operation or
maintenance of Licensee's Attachments is denied or revoked.
18.2 In the event of a Material Default, GTE, without any further notice to
the Licensee (except where expressly provided for below or required by
applicable law) may do any one or more of the following:
18.2.1 Perform, on behalf and at the expense of Licensee, any obligation
of Licensee under this Agreement which Licensee has failed to
perform and of which GTE shall have given Licensee notice, the cost
of which performance shall be paid by Licensee to GTE upon demand;
18.2.2 Terminate this Agreement by giving notice of such termination to
Licensee and remove Licensee's Attachments and store them in a
public warehouse or elsewhere at the expense of and for the account
of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or damages
to Licensee occasioned thereby; or
18.2.3 Exercise any other legal or equitable right or remedy which GTE
may have.
18.3 Any costs and expenses incurred by GTE (including, without limitation,
reasonable attorneys' fees) in enforcing this Agreement shall be repaid to
GTE by Licensee upon demand.
18.4 Upon termination of this Agreement by GTE because of a material default
by Licensee, Licensee shall remain liable to GTE for any and all fees,
other payments and damages which may be due or sustained prior to such
termination, all reasonable costs, fees and expenses, including, without
limitation, reasonable attorneys' fees incurred by GTE in pursuit of its
remedies hereunder, and additional liquidated damages which shall be an
amount equal to one full year of Pole Attachment fees.
18.5 All rights and remedies of each party set forth in this Agreement shall
be cumulative and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule of
court, or the common law, either at law or in equity, or both.
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19. Indemnification.
19.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is related to
this Agreement or activities undertaken pursuant to this Agreement
(including, without limitation, the installation, construction, operation
or maintenance of Licensee's Attachments).
19.2 Licensee will further indemnify, defend and hold harmless GTE and GTE's
agents, officers, employees and assigns, from any and all losses, damages,
costs, expenses (including, without limitation, reasonable attorneys'
fees), statutory fines or penalties, actions or claims for personal injury
(including death), damage to property, or other damage or financial loss
of whatever nature in any way arising out of or connected with this
Agreement or activities undertaken pursuant to this Agreement (including,
without limitation, the installation, construction, operation or
maintenance of Licensee's Attachments), except to the extent caused by the
gross negligence or willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns. Licensee further indemnifies GTE from
subsequent taxes and fees that may be levied by municipalities ROWs in
association with these agreements. Such fees that are levied would be in
addition to the attachment/occupancy fees reflected in this Agreement.
Licensee expressly assumes all liability for actions brought against GTE
and GTE's agents, officers, employees and assigns, by Licensee's agents,
officers or employees and Licensee expressly waives any immunity from the
enforcement of this indemnification provision that might otherwise be
provided by workers' compensation law or by other state or federal laws.
19.3 Without limiting any of the foregoing, Licensee assumes all risk of, and
agrees to relieve GTE of any and all liability for, loss or damage (and
the consequences of loss or damage) to any Attachments placed on GTE's
poles and any other financial loss sustained by Licensee, whether caused
by fire, extended coverage perils, or other casualty, except to the extent
caused by the gross negligence or willful misconduct on the part of GTE or
GTE's agents, officers, employees and assigns.
19.4 Without limiting the foregoing, Licensee expressly agrees to indemnify,
defend and hold harmless GTE and GTE's agents, officers, employees and
assigns from any and all claims asserted by customers of Licensee in any
way arising out of or in connection with this Agreement or Licensee's
Attachments, except to the extent caused by the gross negligence or
willful misconduct on the part of GTE or GTE's agents, officers, employees
and assigns.
19.5 Notwithstanding anything to the contrary in this Agreement, Licensee
further shall indemnify and hold harmless GTE, its agents, officers,
employees and assigns from and against any claims, liabilities, losses,
damages, fines, penalties and costs (including, without limitation,
reasonable attorneys' fees) whether foreseen or unforeseen, which the
indemnified parties suffer or incur because of: (I) any discharge of
Hazardous Waste resulting from acts or omissions of Licensee or the
Licensee's predecessor in interest; (ii) acts or omissions of the Licensee,
it agents, employees, contractors or representatives in connection with any
cleanup required by law, or (iii) failure of Licensee to comply with
Environmental, Safety and Health Laws.
19.6 In no event shall either party be liable to the other party for any
special, consequential or indirect damages (including, without limitation,
lost revenues and lost profits) arising out this Agreement or any
obligation arising hereunder, whether in an action for or arising out of
breach of contract, tort or otherwise.
19.7 Licensee shall indemnify, protect and hold harmless GTE from and against
any and all claims for libel and slander, copyright and/or patent
infringement arising directly or indirectly by reason of installation of
Licensee's equipment on GTE's poles pursuant to this Agreement.
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20. Insurance.
20.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set forth in
Section 19 of this Agreement. Such insurance shall include, but not
be limited to, coverage against liability due to personal injury or
death of persons in the amount of $500,000 as to any one person and
$1,000,000 as to any one accident; coverage against liability due to
property damage in the amount of $500,000 as to each accident and
$500,000 aggregate; and coverage necessary to fully protect both it
and GTE from all claims under any worker's compensation laws that
may be applicable.
20.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The company
or companies issuing such insurance shall be approved by GTE and GTE
shall be named as an additional insured in each such policy.
Licensee shall submit to GTE certificates by each insurer to the
effect that the insurer has insured Licensee for all potential
liabilities of Licensee under this Agreement, and that it will not
cancel or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of non-payment of
premiums due, GTE shall have the option of paying any amount due and
Licensee shall forthwith reimburse GTE the full amount paid by GTE.
20.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising out of
or in any manner related, directly or indirectly, to the presence or
use of Licensee's Attachments.
20.4 Licensee shall furnish bond or satisfactory evidence of contractual
insurance coverage, the terms of which shall be subject to GTE's
approval, in the amount of ten thousand dollars ($10,000) to
guarantee the payment of any sums which may become due to GTE for
rentals, inspections or for work performed by GTE for the benefit of
Licensee under this Agreement, including the removal of Licensee's
equipment pursuant to any of the provisions hereof. All bonds must
specify that GTE be notified thirty (30) days prior to the expiration
or cancellation of the policy.
21. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes levied
on income) resulting from the performance of this Agreement shall be borne
by the Party upon which the obligation for payment is imposed under
applicable law, even if the obligation to collect and remit such taxes is
placed upon the other Party. The collecting Party shall charge and collect
from the obligated Party, and the obligated Party agrees to pay to the
collecting Party, all applicable taxes, except to the extent that the
obligated Party notifies the collecting Party and provides to the
collecting Party appropriate documentation as GTE requires that qualifies
the obligated Party for a full or partial exemption. Any such taxes shall
be shown as separate items on applicable billing documents between the
Parties. The obligated Party may contest the same in good faith, at its
own expense, and shall be entitled to the benefit of any refund or
recovery, provided that such Party shall not permit any lien to exist on
any asset of the other Party by reason of the contest. The collecting
Party shall cooperate in any such contest by the other Party. The other
Party will indemnify the collecting Party from any sales or use taxes that
may be subsequently levied on payments by the other Party by the collecting
Party.
22. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Attachments. While GTE shall not be responsible
for the repair of Licensee's
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Attachments that are damaged (except by mutual written agreement), GTE
shall nonetheless control access to its poles if the restoration is to be
achieved in an orderly fashion.
22.1 Where GTE and Licensee are involved in emergency
restorations, access to GTE's poles will be controlled by GTE's
Maintenance District Manager or his/her on-site representative
according to the following guidelines:
22.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or outages,
while exercising its right to first access, GTE shall
make all reasonable efforts to grant access to as
many other entities with Attachments as is reasonably
safe.
(b) Where simultaneous access is not possible, access will
be granted by GTE on a first come, first served
basis.
22.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies not
resulting in service disruptions or outages, while
exercising its right to first access, GTE shall make
all reasonable efforts to grant access to as many
other entities with Attachments as is reasonably safe.
(b) Where GTE is unable to grant simultaneous access to all
other entities with Attachments, access will granted
according to the level of damage to the Attachments of
each entity and the likelihood that a given level of
damage will result in service disruption. Where the
likelihood that a service disruption will result is not
clearly discernible, access will be on a first come,
first served basis.
22.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Attachments, or any action or failure to act
by GTE, under this Section 22 shall not constitute a basis for any
claim by Licensee against GTE for any damage to Licensee's
Attachments or disruption of Licensee's services, or any other
direct or indirect damages of any kind whatsoever incurred by
Licensee.
23. Damage Suspected to Licensee's Facilities Only.
23.1 In the event Licensee receives information that Licensee's
Attachments are damaged, Licensee shall notify GTE of said damage at
a number to be provided later by GTE. This is a 24-hour, 7 days per
week notification number. Licensee shall provide GTE all
information known to it regarding the damage to Licensee's
Attachments.
23.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by telephone at
the Licensee's emergency telephone number. GTE shall provide
Licensee all information known to it regarding the damage to
Licensee's Attachments.
23.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's Attachments,
subject to the provisions of this Agreement.
23.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's Attachments, or
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any action or failure to act by GTE, appropriately or
inappropriately, under this Section shall not be the basis for any
claim by Licensee against GTE for any damage to Licensee's
Attachments or disruption of Licensee's services, or any other direct
or indirect damages of any kind whatsoever incurred by Licensee and
Licensee shall indemnify and hold GTE harmless from any such claim.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE from
abandoning, selling, assigning or otherwise disposing of any poles or other
GTE property used for Licensee's Attachments; provided, however, that GTE
shall condition any such sale, assignment or other disposition subject to
the rights granted to Licensee pursuant to this Agreement. GTE shall
promptly notify Licensee of any proposed sale, assignment or other
disposition of any poles or other GTE property used for Licensee's
Attachments.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee:
----------------------------
----------------------------
----------------------------
To GTE:
----------------------------
----------------------------
----------------------------
Any notice given by personal delivery shall be deemed to have been given on
the day of actual delivery and, if given by registered or certified
mail, return receipt requested, on the date of receipt thereof and, if
given by facsimile transmission, on the day of transmittal thereof if given
during the normal business hours of the recipient and on the next business
day if not given during normal business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any of
term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition or
other provision of this Agreement.
27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify GTE
pursuant to this Agreement or (ii) a suit, action or proceeding to
compel either party to comply with the dispute resolution
procedures set forth in this section, the parties agree to use the
following procedure to resolve any dispute, controversy or claim
arising out of or relating to this Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute, controversy or claim arising
under this Agreement. The parties intend that these negotiations be
conducted by non-lawyer, business representatives. The substance of
the negotiations shall be left to the discretion of the
representatives. Upon mutual agreement, the
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representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence between the representatives for
purposes of these negotiations shall be treated as confidential,
undertaken for purposes of settlement, shall be exempt from
discovery and production, and shall not be admissible in the
arbitration described below or in any subsequent lawsuit without the
concurrence of all parties. Documents identified in or provided
during such negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request, the
dispute, controversy or claim shall be submitted to binding
arbitration by a single arbitrator pursuant to the rules of the
American Arbitration Association (AAA), except as hereinafter
provided. Discovery in any proceeding before the AAA shall be
controlled by the arbitrator and shall be permitted to the extent
set forth in this section. Parties may exchange, in any
combination, up to thirty-five (35) (none of which may contain
subparts) written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for
arbitration and shall be held in the city where GTE's local offices
are located. The arbitrator shall rule on the dispute, controversy
or claim by issuing a written opinion within thirty (30) days after
the close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the arbitrator
upon a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing procedures.
A party seeking discovery shall reimburse the responding party the
cost of reproducing documents (to include search time and
reproduction time costs). The fees associated with any arbitration,
including the fees of the arbitrator, shall be divided equally
between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, each party
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (i) workers' compensation laws,
(ii) unemployment compensation laws, (iii) the Federal Social Security
Law, (iv) the Fair Labor Standards Act, and (v) all laws, regulations,
rules, guidelines, policies, orders, permits and approvals of any
governmental authority relating to environmental matters and/or
occupational safety.
29. Force Majeure.
Neither party shall have any liability for its delays or its failure in
performance due to fire, flood, explosion, pest damage, power failures,
strikes or labor disputes, acts of God, the Elements, war, civil
disturbances, acts of civil or military authorities or the public enemy,
inability to secure raw materials, transportation facilities, fuel or
energy shortages, or other cause beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole or in
part, without the prior written consent of GTE. An assignment,
transfer or sub-license of this Agreement by Licensee shall not
relieve Licensee of its obligations under this Agreement. Any
assignment attempted without the prior written consent of GTE shall
be void.
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30.2 GTE shall have the right to assign this Agreement and to assign its
rights and delegate its obligations and liabilities under this
Agreement, either in whole or in part. GTE shall provide notice
to Licensee of any assignment which shall state the effective date
thereof. Upon the effective date and to the extent of the
assignment, GTE shall be released and discharged from all
obligations and liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall be
governed and construed under the laws of the State of _____________ without
regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and all
applicable laws, rules, regulations, guidelines, orders, or tariffs that
are currently in force or that may be prescribed by any federal, state
or local governmental authority. The parties agree to modify, in writing,
the affected term(s) and condition(s) of this Agreement to bring them into
compliance with such law, rule, regulation, guideline, order, or tariff.
Should any term of this Agreement be determined by a court or other entity
with competent jurisdiction to be unenforceable, all other terms of this
Agreement shall remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and are
not intended to affect the meaning or interpretation of any part of this
Agreement.
34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be charged.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
- ---------------------------------- -------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
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EXHIBIT ___
ATTACHMENT FEES
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APPENDIX L
CONDUIT OCCUPANCY AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE MIDWEST INCORPORATED/GTE
ARKANSAS INCORPORATED, a State of ________ corporation having its
principal office at ________ ("GTE"), and DIGITAL TELEPORT, INC., a
corporation of the State of _______, having as principal office at
("Licensee").
2. Definitions.
2.1 "GTE's conduit(s)" or "GTE conduit(s)" means any reinforced
passage or opening in, on, under/over or through the ground capable
of containing communications facilities.
2.2 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.
2.3 "Cable Television Services" means the transmission to
subscribers of off-the-air pickup of broadcast signals or the
transmission, without separate charge, of locally originated closed
circuit television to the subscribers of off-the-air service.
2.4 "Conduit" or "Duct" means a single enclosed raceway used to
house Innerduct.
2.5 "Innerduct," unless otherwise specified or approved by GTE,
shall mean a single enclosed raceway 1" or 1-1/4" in diameter,
placed within duct and used for housing communications facilities.
2.6 "Facilities" means all facilities, including, but not limited
to, cables, equipment and associated hardware, owned and utilized by
the Licensee which occupy an innerduct.
2.7 "Make-Ready Work" means all work, including, but not limited
to, rearrangement, removal, or transfer of existing facilities,
placement, repair, or replacement of duct or innerduct, or any other
changes required to accommodate the Licensee's Facilities in a
conduit.
2.8 "Manholes" and "handholes" mean subsurface enclosures which
personnel may enter and use for the purpose of installing, operating
and maintaining communications facilities.
2.9 "Hazardous Materials" means (I) any substance, material or
waste now or hereafter defined or characterized as hazardous,
extremely hazardous, toxic or dangerous within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, or any similar law, ordinance, statute,
rule or regulation of any governmental body or authority, (ii) any
substance, material or waste now or hereafter classified as a
contaminant or pollutant under any law, ordinance, statute, rule or
regulation of any governmental body or authority or (iii) any other
substance, material or waste, the manufacture, processing,
distribution, use, treatment, storage, placement, disposal, removal
or transportation of which is now or hereafter subject to regulation
under any law, ordinance, statute, rule or regulation of any
governmental body or authority.
2.10 "Occupancy Fee" means the fee paid by Licensee to GTE per
linear foot for each innerduct occupied by Licensee's Facilities in
GTE's Conduit(s).
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3. Purpose.
Licensee represents to GTE that Licensee has a need to occupy, place and
maintain communications facilities within GTE's conduit(s) for the purpose
of providing Telecommunications Service. GTE agrees to permit Licensee to
occupy, place and maintain communications facilities within GTE's
conduit(s) as GTE may allow pursuant to the terms of this Agreement.
4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space in
specified GTE conduits Licensee's Facilities on the terms and conditions
set forth herein. Licensee shall have no further right, title, or other
interest in connection with GTE's conduit(s). GTE shall have the right
to grant, renew or extend privileges to others not parties to this
Agreement to occupy, place and maintain facilities in or otherwise use any
or all of GTE's conduit(s). Nothing herein is intended to, nor should it
be construed to require GTE to construct or modify any facilities not
needed for its own service requirements. GTE grants this license in
reliance on the representation of Licensee that Licensee intends to
provide Telecommunications Service with Licensee's Facilities covered by
this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue in
effect for consecutive one (1) year terms until either Party gives the
other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement shall
remain in effect for ninety (90) calendar days after such notice is
received, provided, that in no case shall the term be extended beyond
ninety (90) calendar days after the end of the current term.
6. Conduit Occupancy Requests.
6.1 Upon execution of this Agreement, Licensee shall have the
right to submit a written Conduit Occupancy Request ("COR") to GTE
specifying the GTE conduits in which it desires to place its
Facilities. Each COR shall be in a form specified by GTE, which
form may be revised from time to time by GTE. CORs received by GTE
shall be processed on a first come, first served basis. GTE will
determine the availability of space for Licensee's Facilities in the
GTE conduit(s) specified in the COR within thirty (30) Business Days
of its submission. Upon approval of the COR, GTE shall return a
copy thereof to Licensee bearing an endorsement acknowledging GTE's
authorization. All of Licensee's Facilities placed in GTE's
conduit(s) pursuant to an approved COR shall become subject to all
of the terms and conditions of this Agreement. Licensee may submit
subsequent CORs for approval by GTE as needed. All of Licensee's
Facilities shall be placed in innerduct unless otherwise approved by
GTE. No facilities of any kind shall be placed in any GTE
conduit(s) identified in a COR until that COR has been approved by
GTE.
6.2 Licensee shall pay GTE a fee for processing a COR to
compensate GTE for the general administrative costs as well as the
actual engineering costs reasonably incurred. The fee for
engineering costs shall be computed by multiplying the fully loaded
hourly rate for an engineer times the number of hours reasonably
required by each engineer to inspect the GTE conduits included in
the COR. GTE will charge its then current rates for administrative
and engineering costs, as may be changed from time to time by GTE to
remain consistent with prevailing costs.
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6.3 Upon receiving an approved COR, Licensee shall have the right,
subject to the terms of this Agreement, to place and maintain
Licensee's Facilities described in the COR in the innerducts of the
GTE conduit(s) identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate Licensee's
Facilities, GTE shall notify Licensee of such fact and provide
Licensee with an estimate of the total cost of such Make-Ready Work.
Within fifteen (15) days after receiving such notice from GTE,
Licensee shall notify GTE either (1) that Licensee shall pay all of
the costs actually incurred to perform the Make-Ready Work and
shall pay the total estimated amount to GTE at least ten (10) days
prior to the date the Make-Ready Work is to begin or (2) that it
desires to cancel its COR.
6.5 Nothing herein shall confer any right upon Licensee to place
power cables or related power equipment in GTE Conduit(s) or
Manholes. Licensee shall place equipment of this nature in its own
pull boxes outside of GTE's Conduit(s) or Manholes. Cable
connectors or splicing devices shall not be used by Licensee in
GTE's Conduit(s) or innerducts.
7. Availability of Conduit Maps.
Existing conduit maps will be made available for viewing by Licensee for
the purpose of pre-order planning at the GTE area engineering offices
during normal business hours, subject to reasonable advance notification.
While a formal written request will not be required in connection with the
first request by Licensee to view conduit maps, GTE reserves the right to
refuse any subsequent viewing request or require written justification for
the request if Licensee has demonstrated that it does not have a good
faith intention to submit a COR. If the availability of specific
point-to-point conduits can be determined at the time of viewing conduit
maps, maps reflecting such point-to-point conduits may be made available
for copying. Licensee shall pay to GTE a fee for making such copies
available sufficient to cover the general administrative costs incurred.
IN MAKING CONDUIT MAPS AVAILABLE, GTE WILL BE MAKING NO EXPRESS OR IMPLIED
WARRANTY REGARDING THEIR ACCURACY OTHER THAN THAT THEY ARE THE SAME
CONDUIT MAPS USED BY GTE IN ITS DAY-TO-DAY OPERATIONS.
8. Availability of Information Regarding Space In Conduits.
GTE will provide information regarding the availability of conduit space
within thirty (30) Business Days of a written request by Licensee. Because
GTE will endeavor to determine available space as quickly as
possible, a shorter interval may be experienced for requests of a limited
scope where physical field verification is not necessary. In the event
the thirty (30) Business Day time frame cannot be met, GTE shall so advise
Licensee and shall seek a mutually satisfactory alternative response date.
No representation regarding the availability of space shall be made in the
absence of a physical field verification.
9. Authority to Place Licensee's Facilities.
9.1 Before Licensee places any of Licensee's Facilities in GTE's
conduit(s) pursuant to an approved COR, Licensee, upon request,
shall submit sufficient evidence to GTE of its authority to maintain
the Facilities to be placed in GTE's conduit(s) within the public
streets, highways and other thoroughfares or on private property.
Licensee shall be solely responsible for obtaining all licenses,
authorizations, permits and consents from federal, state and
municipal authorities or private property owners that may be
required to place and maintain Licensee's Facilities in GTE's
conduit(s).
9.2 GTE shall not attempt to prevent or delay the granting of any
rights-of-way, easements, licenses, authorizations, permits and
consents from any federal, state or municipal
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authorities, or private property owners that may be required by
Licensee to place Licensee's Facilities in GTE's conduit(s).
9.3 If any right-of-way, easement, license, authorization, permit
or consent obtained by Licensee is subsequently revoked or denied
for any reason, Licensee's permission to occupy GTE's conduit(s)
shall terminate immediately and Licensee shall promptly remove
Licensee's Facilities. Should Licensee fail to remove Licensee's
Facilities within thirty (30) days of receiving notice to do so from
GTE, GTE shall have the option to remove Licensee's Facilities and
store them in a public warehouse or elsewhere at the expense of and
for the account of Licensee without GTE being deemed guilty of
trespass or conversion, and without GTE becoming liable for any
loss or damages to Licensee occasioned thereby. All costs incurred
by GTE to remove Licensee's Facilities shall be reimbursed to GTE
by Licensee upon demand.
9.4 Upon notice from GTE to Licensee that the cessation of the
use of any portion of GTE's conduit(s) has been ordered or directed
by any federal, state or municipal authority, or private property
owner, Licensee's permission to occupy such GTE conduit(s) shall
terminate immediately and Licensee promptly shall remove Licensee's
Facilities. Should Licensee fail to remove Licensee's Facilities
within thirty (30) days of receiving notice to do so from GTE, GTE
shall have the option to remove Licensee's Facilities and store them
in a public warehouse or elsewhere at the expense of and for the
account of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or damages
to Licensee occasioned thereby. All costs incurred by GTE to remove
Licensee's Facilities shall be reimbursed to GTE by Licensee upon
demand by GTE.
10. Placement of Licensee's Facilities.
10.1 Licensee shall, at its sole expense, place and maintain
Licensee's Facilities in GTE's conduit(s) in accordance with
(I) such requirements and specifications as GTE shall from
time to time prescribe in writing, (ii) all rules or orders
now in effect or that hereafter may be issued by any
regulatory agency or other authority having jurisdiction,
and (iii) all currently applicable requirements and
specifications of the National Electrical Safety Code, and the
applicable rules and regulations of the Occupational Safety
And Health Act. Licensee agrees to comply, at its sole risk
and expense, with all specifications included in Exhibits______
through_____hereto, as may be revised from time to time by GTE.
10.2 Licensee's Facilities shall be tagged at each manhole so as
to identify Licensee as the owner of the Facilities. The tags shall
be of sufficient size and lettering so as to be easily read.
11. Failure of Licensee to Occupy Conduit Space.
Upon approval of a COR, Licensee shall have sixty (60) days in which to
begin the placement of Licensee's Facilities in the GTE conduit(s) covered
by the COR. If Licensee has not begun placing its Facilities within that
sixty (60) day period, Licensee shall so advise GTE with a written
explanation for the delay. If Licensee fails to advise GTE of its delay,
with a written explanation therefor, or if Licensee fails to act in good
faith by not making a bona fide effort to begin placing its Facilities
within the sixty (60) days prescribed by this Section, the previously
approved COR shall be deemed rescinded by GTE and Licensee shall have no
further right to place Licensee's Facilities pursuant to that COR.
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12. Occupancy Fees.
12.1 Licensee shall pay to GTE an Occupancy Fee, as specified in
Exhibit __ hereto, for each linear foot of innerduct occupied
by Licensee's Facilities in GTE's conduit(s). If Licensee's
Facilities occupy more than one innerduct, a separate Occupancy Fee
shall be paid by Licensee for each innerduct occupied. The
Occupancy Fee specified in Exhibit __ hereto is the fee applicable
to 1" or 1-1/4" diameter innerduct. GTE reserves the right to
charge a higher fee for innerduct of greater diameter. The
Occupancy Fee may be increased by GTE from time to time as permitted
by law upon sixty (60) days written notice to Licensee.
12.2 Occupancy Fees shall become due and payable on the date a COR
is approved by GTE for all GTE innerducts identified in that COR on
a pro rata basis until the end of the calendar year and thereafter
on an annual basis within thirty (30) days of the receipt of a
statement from GTE specifying the fees to be paid. Any payment
after thirty (30) days shall bear interest at the rate of eighteen
percent (18%) per annum or the maximum rate allowed by law,
whichever is less.
12.3 GTE shall maintain an inventory of the total linear footage
of innerduct occupied by Licensee's Facilities in GTE's conduit(s)
based upon the cumulative linear footage per innerduct from all CORs
approved by GTE. GTE may, at its option, conduct a physical
inventory of Licensee's Facilities for purposes of determining the
Occupancy Fees to be paid by Licensee under this section. It shall
be Licensee's sole responsibility to notify GTE of any and all
removals of Licensee's Facilities from GTE's conduit(s). Written
notice of such removals (unless they are covered by Section 17 of
this Agreement) shall be provided to GTE at least thirty (30) days
prior to the removal. Each Notice of Removal shall be in a form
specified by GTE. Licensee shall remain liable for all Occupancy
Fees until Licensee's Facilities have been physically removed from
GTE's conduits.
13. Modifications, Additions or Replacements of Licensee's Facilities.
13.1 Licensee shall not modify, add to or replace Licensee's Facilities
in any GTE conduit(s) without first notifying GTE in writing of the
intended modification, addition or replacement at least thirty (30)
days prior to the date the activity is scheduled to begin. The
required notification shall include: (1) the date the activity is
scheduled to begin, (2) a description of the planned modification,
addition or replacement, (3) a representation that the modification,
addition or replacement will not require any space other than the
space previously designated for Licensee's Facilities, and (4) a
representation that the modification, addition or replacement will
not impair the structural integrity of the GTE conduit(s) involved.
13.2 Should GTE determine that the modification, addition or
replacement specified by Licensee in its notice will require more
space than that allocated to Licensee or will require any
modification, replacement or reinforcement of the GTE conduit(s)
involved in order to accommodate Licensee's modification, addition
or replacement, GTE will so notify Licensee, whereupon Licensee
shall be required to submit a COR in compliance with this Agreement
in order to obtain authorization for the modification, addition or
replacement of Licensee's Facilities.
13.3 Access to GTE's conduit(s) for repairs, modifications, additions,
or replacements required in emergency situations shall be governed
by the provisions of Section 21 of this Agreement.
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14. Unauthorized Occupancy of GTE Conduit.
14.1 It is agreed that a charge equal to five (5) times the amount
of the then current Occupancy Fee shall be paid by Licensee to GTE
for each unauthorized occupancy of GTE's conduit(s) by Licensee.
Such payment shall be deemed liquidated damages and not a penalty.
Licensee also shall pay GTE an Occupancy Fee for each unauthorized
occupancy accruing from the date the unauthorized occupancy first
began. In the event that the date the unauthorized occupancy first
began cannot be determined, such date shall be deemed the date of
the last physical inventory made in accordance with this Agreement
or, if no physical inventory has been conducted, the date the first
COR from Licensee was approved in accordance with this Agreement.
Licensee also shall pay to GTE all costs incurred by GTE to
rearrange Licensee's Facilities that are unauthorized if such
rearrangement is required to safeguard GTE's facilities or to
accommodate the facilities of another party whose facilities would
not have required a rearrangement but for the presence of Licensee's
unauthorized facilities. Licensee also shall pay to GTE all costs
incurred by GTE to reinforce, replace or modify any GTE conduit(s),
which reinforcement, replacement or modification is required as a
result of the unauthorized occupancy by Licensee. The Occupancy Fee
referenced in this subsection 14.1 shall be determined in the same
manner as such a fee would have been determined if the occupancy had
been authorized by GTE.
14.2 For purposes of this section, an unauthorized occupancy shall
include, but not be limited to:
14.2.1 The presence of Licensee's Facilities in any GTE conduit
which conduit is not identified in any COR approved in
accordance with this Agreement;
14.2.2 The presence of Licensee's Facilities in any GTE conduit
that occupies more space than that allocated to Licensee
by GTE;
14.2.3 Licensee's Facilities that are not placed in accordance
with the provisions of this Agreement or the appropriate
COR issued pursuant to this Agreement;
14.2.4 An addition or modification by Licensee to its
pre-existing Facilities in any GTE conduit that impairs
the structural integrity of that GTE conduit.
14.2.5 The presence of facilities in GTE's conduit(s) placed by
Licensee that are owned or controlled by and for the use
of a party other than Licensee.
15. Modification or Alteration GTE Conduits.
15.1 In the event GTE plans to modify or alter any GTE conduit(s)
that house Licensee's Facilities, GTE shall provide Licensee notice
of the proposed modification or alteration at least fourteen (14)
days prior to the time the proposed modification or alteration is
scheduled to take place. Should Licensee decide to modify or alter
Licensee's Facilities in the GTE conduit(s) to be modified or
altered by GTE, Licensee shall so notify GTE in writing. In such
event, Licensee shall bear a proportionate share of the total costs
incurred by GTE to make the GTE conduit(s) accessible. Licensee's
proportionate share of the total cost shall be based on the ratio of
the amount of new space occupied by Licensee to the total amount of
new space occupied by all of the parties joining in the
modification.
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15.2 In the event GTE moves, replaces or changes the location,
alignment or grade of GTE's conduit(s) ("relocation") for reasons
beyond GTE's control, Licensee concurrently shall relocate
Licensee's Facilities. Licensee shall be solely responsible for the
costs of the relocation of Licensee's Facilities.
16. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR PURPOSE.
17. Default and Remedies.
17.1 The occurrence of any one of the following shall be deemed a
Material Default by Licensee under this Agreement:
17.1.1 Failure by Licensee to pay any fee or other sum required to be
paid under the terms of this Agreement and such default
continues for a period of five (5) days after written notice
thereof to Licensee;
17.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this Agreement and
such default continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if such default is
not curable within such thirty (30) day period, the period will be
extended if Licensee commences to cure such default within such
thirty (30) day period and proceeds diligently thereafter to effect
such cure);
17.1.3 The filing of any tax or mechanic's lien against any GTE
conduit(s) which is not bonded or discharged within thirty (30) days
of the date Licensee receives notice that such lien has been filed;
17.1.4 Licensee's voluntary or involuntary bankruptcy;
17.1.5 Licensee's knowing use or maintenance of Licensee's Facilities in
violation of any law or regulation, or in aid of any unlawful act or
undertaking;
17.1.6 If any authorization which may be required of the Licensee by any
governmental or private authority for the placement, operation or
maintenance of Licensee's Facilities is denied or revoked.
17.2 In the event of a Material Default, GTE, without any further
notice to the Licensee (except where expressly provided for below or
required by applicable law) may do any one or more of the following:
17.2.1 Perform, on behalf and at the expense of Licensee, any
obligation of Licensee under this Agreement which
Licensee has failed to perform and of which GTE
shall have given Licensee notice, the cost of which
performance shall be paid by Licensee to GTE upon
demand;
17.2.2 Terminate this Agreement by giving notice of such
termination to Licensee and remove Licensee's Facilities
and store them in a public warehouse or elsewhere at the
expense of and for the account of Licensee without GTE
being deemed guilty of trespass or conversion, and
without GTE becoming liable for any loss or damages to
Licensee occasioned thereby; or
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17.2.3 Exercise any other legal or equitable right to remedy
which GTE may have.
17.3 Any costs and expenses incurred by GTE (including, without
limitation, reasonable attorneys' fees) in enforcing this Agreement
shall be paid to GTE by Licensee upon demand.
17.4 Upon termination of this Agreement by GTE, Licensee shall remain
liable to GTE for any and all fees, other payments and damages
which may be due or sustained prior to such termination, all
reasonable costs, fees and expenses, including, without limitation,
reasonable attorneys' fees incurred by GTE in pursuit of its
remedies hereunder, and additional liquidated damages which shall
be an amount equal to one full year of Occupancy Fees.
17.5 All rights and remedies of GTE set forth in this Agreement
shall be cumulative and none shall exclude any other right or
remedy, now or hereafter allowed by or available under any statute,
ordinance, rule of court, or the common law, either at law or in
equity, or both.
18. Indemnification.
18.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is
related to this Agreement or activities undertaken pursuant to
this Agreement (including, without limitation, the installation,
construction, operation or maintenance of Licensee's Facilities).
18.2 Licensee will further indemnify, defend and hold harmless GTE and
GTE's agents, officers, employees and assigns, from any and all
losses, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees), statutory fines or penalties, actions
or claims for personal injury (including death), damage to
property, or other damage or financial loss of whatever nature in
any way arising out of or connected with this Agreement or
activities undertaken pursuant to this Agreement (including,
without limitation, the installation, construction, operation or
maintenance of Licensee's Facilities), except to the extent caused
by the negligence or willful misconduct on the part of GTE or GTE's
agents, officers, employees and assigns. Licensee further
indemnifies GTE from subsequent taxes and fees that may be levied
by municipalities ROWs in association with these agreements. Such
fees that are levied would be in addition to the
attachment/occupancy fees reflected in this Agreement. Licensee
expressly assumes all liability for actions brought against GTE and
GTE's agents, officers, employees and assigns, by Licensee's
agents, officers or employees and Licensee expressly waives any
immunity from the enforcement of this indemnification provision
that might otherwise be provided by workers' compensation law or by
other state or federal laws.
18.3 Without limiting any of the foregoing, Licensee assumes all
risk of, and agrees to relieve GTE of any and all liability for,
loss or damage (and the consequences of loss or damage) to any of
Licensee's Facilities placed in any GTE conduit(s) and any other
financial loss sustained by Licensee, whether caused by fire,
extended coverage perils, or other casualty, except to the extent
caused by the negligence or willful misconduct on the part of GTE
or GTE's agents, officers, employees and assigns.
18.4 Without limiting the foregoing, Licensee expressly agrees to
indemnify, defend and hold harmless GTE and GTE's agents, officers,
employees and assigns from any and all claims asserted by customers
of Licensee in any way arising out of or in connection with this
Agreement or Licensee's Attachments, except to the extent caused by
the negligence or willful misconduct on the part of GTE or GTE's
agents, officers, employees and assigns.
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18.5 Notwithstanding anything to the contrary in this Agreement,
Licensee further shall indemnify and hold harmless GTE, its agents,
officers, employees and assigns from and against any claims,
liabilities, losses, damages, fines, penalties and costs
(including, without limitation, reasonable attorneys' fees) whether
foreseen or unforeseen, which the indemnified parties suffer or
incur because of: (I) any discharge of Hazardous Waste resulting
from acts or omissions of Licensee or the Licensee's predecessor in
interest; (ii) acts or omissions of the Licensee, it agents,
employees, contractors or representatives in connection with any
cleanup required by law, or (iii) failure of Licensee to comply
with Environmental, Safety and Health Laws.
18.6 In no event shall GTE be liable to Licensee for any special,
consequential or indirect damages (including, without limitation,
lost revenues and lost profits) arising out this Agreement or any
obligation arising hereunder, whether in an action for or arising
out of breach of contract, tort or otherwise.
18.7 Licensee shall indemnify, protect and hold harmless GTE from
and against any and all claims for libel and slander, copyright
and/or patent infringement arising directly or indirectly by reason
of installation of Licensee's equipment in GTE's Ducts pursuant to
this Agreement.
19. Insurance.
19.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set forth in
Section 18 of this Agreement. Such insurance shall include, but
not be limited to, coverage against liability due to personal
injury or death of persons in the amount of $500,000 as to any one
person and $1,000,000 as to any one accident; coverage against
liability due to property damage in the amount of $500,000 as to
each accident and $500,000 aggregate; and coverage necessary to
fully protect both it and GTE from all claims under any worker's
compensation laws that may be applicable.
19.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The company
or companies issuing such insurance shall be approved by GTE and
GTE shall be named as an additional insured in each such policy.
Licensee shall submit to GTE certificates by each insurer to the
effect that the insurer has insured Licensee for all potential
liabilities of Licensee under this Agreement, and that it will not
cancel or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of non-payment of
premiums due, GTE shall have the option of paying any amount due
and Licensee shall forthwith reimburse GTE the full amount paid by
GTE.
19.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising out of
or in any manner related, directly or indirectly, to the presence
or use of Licensee's Facilities.
19.4 Licensee shall furnish bond or satisfactory evidence of contractual
insurance coverage, the terms of which shall be subject to GTE's
approval, in the amount of ten thousand dollars ($10,000) to
guarantee the payment of any sums which may become due to GTE for
rentals, inspections or for work performed by GTE for the benefit
of Licensee under this Agreement, including the removal of
Licensee's equipment pursuant to any of the provisions hereof. All
bonds must specify that the GTE be notified thirty (30) days prior
to the expiration or cancellation of the policy.
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20. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting the performance of this Agreement shall be
borne by the Party upon which the obligation for payment is imposed under
applicable law, even if the obligation to collect and remit such taxes is
placed upon the other Party. The collecting Party shall charge and
collect from the obligated Party, and the obligated Party agrees to pay to
the collecting Party, all applicable taxes, except to the extent that the
obligated Party notifies the collecting Party and provides to the
collecting Party appropriate documentation as GTE requires that qualifies
the obligated Party for a full or partial exemption. Any such taxes shall
be shown as separate items on applicable billing documents between the
Parties. The obligated Party may contest the same in good faith, at its
own expense, and shall be entitled to the benefit of any refund or
recovery, provided that such Party shall not permit any lien to exist on
any asset of the other Party by reason of the contest. The collecting
Party shall cooperate in any such contest by the other Party. The other
Party will indemnify the collecting Party from any sales or use taxes that
may be subsequently levied on payments by the other Party by the
collecting Party.
21. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Facilities in GTE's conduit(s). While GTE
shall not be responsible for the repair of Licensee's Facilities that are
damaged (except by mutual written agreement), GTE shall nonetheless
control access to its Conduits if the restoration is to be achieved in an
orderly fashion.
21.1 Where GTE and Licensee are involved in emergency restorations,
access to GTE's conduit(s) will be controlled by GTE's Maintenance
District Manager or his/her on-site representative according to
the following guidelines:
21.1.1 Service Disruptions/Outages
(a) In the event of service disruptions
and/or outages, while exercising its right to first
access, GTE shall make all reasonable efforts to grant
access to as many other entities with facilities in
GTE's conduit(s) as is reasonably safe.
(b) Where simultaneous access is not
possible, access will be granted by GTE on a first come,
first served basis.
21.1.2 Service Affecting Emergencies
(a) In the event of service affecting
emergencies not resulting in service disruptions or
outages, while exercising its right to first access, GTE
shall make all reasonable efforts to grant access to as
many other entities with facilities in GTE's conduit(s)
as is reasonably safe.
(b) Where GTE is unable to grant
simultaneous access to all other entities with
facilities in GTE's conduit(s), access will granted
according to the level of damage to the facilities of
each entity and the likelihood that a given level of
damage will result in service disruption. Where the
likelihood that a service disruption will result is not
clearly discernible, access will be on a first come,
first served basis.
21.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's Facilities, or any action or
failure to act by GTE under this Section 21 shall not constitute a
basis for any
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claim by Licensee against GTE for any damage to Licensee's
Facilities or disruption of Licensee's services, or any other
direct or indirect damages of any kind whatsoever incurred by
Licensee.
22. Damage Suspected to Licensee's Facilities Only.
22.1 In the event Licensee receives information that Licensee's
Facilities are damaged, Licensee shall notify GTE of said damage at
[--TELEPHONE NUMBER--]. This is a 24-hour, 7 days per week
notification number. Licensee shall provide GTE all information
known to it regarding the damage to Licensee's Facilities.
22.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by telephone
at the Licensee's emergency telephone number. GTE shall provide
Licensee all information known to it regarding the damage to
Licensee's Facilities.
22.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's Facilities,
subject to the provisions of this Agreement.
22.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any decision by
GTE regarding access to Licensee's facilities, or any action or
failure to act by GTE, appropriately or inappropriately, under this
Section shall not be the basis for any claim by Licensee against
GTE for any damage to Licensee's Facilities or disruption of
Licensee's services, or any other direct or indirect damages of any
kind whatsoever incurred by Licensee and Licensee shall indemnify
and hold GTE harmless from any such claim.
23. Access to GTE's Manholes/Handholes.
23.1 GTE will allow Licensee to audit manholes/handholes that are
included in any COR submitted to GTE to confirm usability.
Licensee shall give GTE at least fourteen (14) days advance written
notice of its desire to audit and shall obtain all authorizations
from appropriate authorities required to open the
manholes/handholes. GTE shall have the right to have a GTE employee
or agent present when its manholes/handholes are being opened.
Such GTE employee or agent shall have the authority to suspend
Licensee's activities in and around GTE's manholes/handholes if, in
the sole discretion of said employee or agent, any hazardous
conditions arise or any unsafe practices are being followed by
Licensee's employees, agents, or contractors. Licensee agrees to
reimburse GTE the cost of having GTE's employee or agent present.
Such charge shall be GTE's fully loaded labor rates then in effect.
23.2 For purposes other than to audit usability, GTE's
manholes/handholes shall be opened only as permitted by GTE and
only after Licensee has obtained all necessary authorizations from
appropriate authorities to open manholes/handholes and conduct work
operations therein. GTE shall have the right to have a GTE
employee or agent present at any site at which its
manholes/handholes are being opened. Such GTE employee or agent
shall have the authority to suspend Licensee's work operations in
and around GTE's manholes/handholes if, in the sole discretion of
said employee or agent, any hazardous conditions arise or any
unsafe practices are being followed by Licensee's employees,
agents, or contractors. Licensee agrees to reimburse GTE the cost
of having GTE's employee or agent present. Such charge shall be
GTE's fully loaded labor rates then in effect. The presence of
GTE's authorized employee or agent shall not relieve Licensee of
its responsibility to conduct all of its work operations in and
around GTE's conduit(s) in a safe and workmanlike manner, in
accordance with the terms of this Agreement.
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24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities; provided, however, that GTE shall condition any such sale,
assignment or other disposition subject to the rights granted to Licensee
pursuant to this Agreement. GTE shall promptly notify Licensee of any
proposed sale, assignment or other disposition of any GTE conduit(s) or
other GTE property used in connection with Licensee's Facilities.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee:
-------------------------------
-------------------------------
-------------------------------
To GTE:
-------------------------------
-------------------------------
-------------------------------
Any notice given by personal delivery shall be deemed to have been given
on the day of actual delivery and, if given by registered or certified
mail, return receipt requested, on the date of receipt thereof and, if
given by facsimile transmission, on the day of transmittal thereof if
given during the normal business hours of the recipient and on the next
business day if not given during normal business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any of
term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition or
other provision of this Agreement.
27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify GTE
pursuant to this Agreement or (ii) a suit, action or proceeding to
compel either party to comply with the dispute resolution
procedures set forth in this section, the parties agree to use the
following procedure to resolve any dispute, controversy or claim
arising out of or relating to this Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and negotiate
in good faith to resolve any dispute, controversy or claim arising
under this Agreement. The parties intend that these negotiations
be conducted by non-lawyer, business representatives. The
substance of the negotiations shall be left to the discretion of
the representatives. Upon mutual agreement, the representatives
may utilize other alternative dispute resolution procedures such as
mediation to assist in the negotiations. Discussions and
correspondence between the representatives for purposes of these
negotiations shall be treated as confidential, undertaken for
purposes of settlement, shall be exempt from discovery and
production, and shall not be admissible in the arbitration
described below or in any subsequent lawsuit without the
concurrence of all parties. Documents identified in or provided
during such
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negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request, the
dispute, controversy or claim shall be submitted to binding
arbitration by a single arbitrator pursuant to the rules of the
American Arbitration Association (AAA), except as hereinafter
provided. Discovery in any proceeding before the AAA shall be
controlled by the arbitrator and shall be permitted to the extent
set forth in this section. Parties may exchange, in any
combination, up to thirty-five (35) (none of which may contain
subparts) written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for
arbitration and shall be held in the city where GTE's local offices
are located. The arbitrator shall rule on the dispute, controversy
or claim by issuing a written opinion within thirty (30) days after
the close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the arbitrator
upon a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing procedures.
A party seeking discovery shall reimburse the responding party
the cost of reproducing documents (to include search time and
reproduction time costs). The fees associated with any
arbitration, including the fees of the arbitrator, shall be divided
equally between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, Licensee
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (I) workers' compensation laws,
(ii) unemployment compensation laws, (iii) the Federal Social Security
Law, (iv) the Fair Labor Standards Act, and (v) all laws, regulations,
rules, guidelines, policies, orders, permits and approvals of any
governmental authority relating to environmental matters and/or
occupational safety.
29. Force Majeure.
Except for payment of the Occupancy Fees and other amounts payable under
this Agreement, neither party shall have any liability for its delays or
its failure in performance due to fire, flood, explosion, pest damage,
power failures, strikes or labor disputes, acts of God, the Elements, war,
civil disturbances, acts of civil or military authorities or the public
enemy, inability to secure raw materials, transportation facilities, fuel
or energy shortages, or other cause beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole or in
part, without the prior written consent of GTE. An assignment,
transfer or sub-license of this Agreement by Licensee shall not
relieve Licensee of its obligations under this Agreement. Any
assignment attempted without the prior written consent of GTE shall
be void.
30.2 GTE shall have the right to assign this Agreement and to assign its
rights and delegate its obligations and liabilities under this
Agreement, either in whole or in part. GTE shall provide notice to
Licensee of any assignment which shall state the effective date
thereof.
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Upon the effective date and to the extent of the assignment, GTE
shall be released and discharged from all obligations and
liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall be
governed and construed under the laws of the State of _________ without
regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations or guidelines that subsequently
may be prescribed by any federal, state or local governmental authority.
To the extent required by any such subsequently prescribed law, rule,
regulation or guideline, the parties agree to modify, in writing, the
affected term(s) and condition(s) of this Agreement to bring them into
compliance with such law, rule, regulation or guideline. Should any term
of this Agreement be determined by a court or other entity with competent
jurisdiction to be unenforceable, all other terms of this Agreement shall
remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and are
not intended to affect the meaning or interpretation of any part of this
Agreement.
34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be charged.
L-14
<PAGE> 190
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
- ---------------------------------- -------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
L-15
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EXHIBIT __
OCCUPANCY FEES
L-16
<PAGE> 192
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION
1. This document describes the reciprocal compensation arrangements between
DTI and GTE for Local Tariff, Toll and Switched Access Services. The
Parties shall compensate each other for transport and termination of such
traffic at the rates provided in Appendix D and/or the appropriate
Parties' Switched Access Tariff.
2. Compensation for Call Termination
A. Reciprocal compensation does not apply in a resale environment.
B. The following compensation terms shall apply in all cases where
DTI purchases GTE's unbundled Local Switching:
1. For local intra-switch calls between lines connected to GTE's
switch where DTI has purchased GTE's unbundled Local
Switching, the Parties agree to impose no call termination
charges on each other. GTE's Local Switching charge will
apply as described below where the call is:
(a) Originated by DTI's customer and completed to a GTE
customer:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply
to DTI.
(b) Originated by DTI's customer and completed to the
customer of a Third Party LEC (not affiliated with
DTI) using GTE's unbundled Local Switching:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply
to DTI.
(c) Originated by DTI's customer and completed to another
DTI's customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office will apply
to DTI.
(d) Originated by a GTE customer and terminated to DTI's
customer using GTE's unbundled Local Switching.
(1) No Local Switching charge will apply.
(e) Originated by the customer of a Third Party LEC (not
affiliated with DTI) using GTE's unbundled Local
Switching and terminated to DTI's customers using GTE's
unbundled Local Switching.
(1) No Local Switching charge will apply to DTI.
2. For Local inter-switch calls where DTI has purchased GTE's
unbundled Local Switching.
GTEs charges will apply to DTI described below where the call is:
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(a) Originated from DTI's end-user customer using GTE's
unbundled Local Switching and completed to a GTE
customer.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when
DTI uses GTE's transport.
(3) (For call termination): Charges for local
interconnection/call termination, when
applicable.
(b) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to a Third Party LEC (not
affiliated with DTI) customer using GTE's unbundled
Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating Office.
(2) a mileage-based transport charge will apply when
DTI uses GTE's transport.
(c) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to the interconnected
network of a Third Party LEC (not affiliated with DTI).
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when
DTI uses GTE's transport, and mileage shall be
measured between the originating office and the
POI of the Third Party's network.
(d) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to DTI's customer using
GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply when
DTI uses GTE's transport.
(3) (For use of the local switch): Local Switching
charge at the terminating office.
(d) Originated by a GTE customer and terminated to DTI's
customer using GTE's unbundled Local
Switching.
(1) (For use at local switch): Local Switching
Charge at the terminating office.
(2) (For call termination): DTI shall charge GTE for
local interconnection/call termination, when
applicable.
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(f) Originated by a customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local
Switching and terminated to DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
(g) Originated by a customer of the interconnected network
of a third-party LEC (not affiliated with DTI)
and terminated to DTI's customer using GTE's unbundled
Local Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
3. For intraLATA toll calls where DTI has purchased GTE's unbundled
Local Switching, charges per Unbundled Network Element pricing
shall apply as follows:
a. Originated by DTI's customer and completed to a GTE customer.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC (Residual Interconnection Charge) at
the originating office.
2. Shared transport charge between the two offices will
apply when DTI uses GTE's transport.
3. (For call termination): End Office Switching charge at
the terminating office (Switched Access Rate).
4. RIC and CCLC at the terminating office.
B. Originated by DTI's customer and completed to the customer of
a third-party LEC (not affiliated with DTI) using GTE's
unbundled Local Switching in a distant end office.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the originating office.
2. will apply when DTI uses GTE's transport.
C. Originated by DTI customer and completed to the network of a
third-party LEC (not affiliated with DTI) interconnected with
GTE's network.
1. (For use of the local switch): Local Switching
charge, plus RIC and CCLC, at the originating office.
2. Common transport charge will apply when DTI uses
GTE's transport, and mileage shall be measured between
the originating office and the POI of the Third Party's
network.
3. Tandem Switching, where applicable.
D. Originated by DTI's customer and completed by another of
DTI's customers being served through GTE's unbundled Local
Switching in a distant office.
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1. (For use of the local switch): Local Switchingcharge
plus RIC and CCLC at the originating office.
2. Shared transport charge between the two offices will
apply when DTI uses GTE's transport.
3. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
E. Originated by a GTE customer and terminated to DTI's customer
using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching
2. (For call termination): DTI will charge GTE Local
Switching at the terminating office (Switched Access
Rate).
3. (For call termination): DTI will charge GTE NI and CCLC
at the terminating office.
F. Originated by the customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local Switching in
a distant end office and terminated to DTI's customer
using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
G. Originated by a customer of the network of a third-party LEC
(not affiliated with DTI) interconnected with GTE's network and
terminated to DTI's customer using GTE's unbundled Local
Switching.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
4. For intrastate Switched Access calls where DTI's is using GTE's
unbundled Local Switching for calls originated from or terminated to
an IXC for completion:
a. For calls originated from DTI's customer to DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Originating RIC and CCLC.
3. GTE will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
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(b) Local Switching.
B. For calls originating from DTI's customer to an IXC's switch
not affiliated with DTI.
1. (For use of the local switch): DTI's customer to an
IXC's switch not affiliated with DTI.
2. Originating RIC and CCLC.
3. GTE shall charge the non-affiliated IXC for the
following originating Switched Access on a meet-point
basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge the non-affiliated IXC for the following
Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
C. For calls terminating to DTI's end-user customer from DTI's
own IXC switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCLC.
3. GTE will charge DTI's IXC (affiliate) the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC (affiliate) for the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC and CCLC.
(b) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch
not affiliated with DTI.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCLC.
3. GTE shall charge the IXC for the following terminating
Switched Access on a meet point basis:
(a) Local Transport;
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(b) Tandem Switching.
4. DTI will charge IXC for the following Switched Access
elements on a meet-point basis:
(a) Terminating RIC and CCLC;
(b) Local Switching.
5. For interstate Switched Access calls where DTI is using GTE's
unbundled Local Switching for calls originated from or terminated
to an IXC for completion:
a. For calls originated from DTI's customer to DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the originating office.
2. Originating Residual Interconnection Charge (RIC) and
CCL.
3. GTE shall charge DTI's IXC affiliate for the following
originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
B. For calls originated from DTI's customer to an IXC's switch
not affiliated to DTI.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Originating RIC and CCLC.
3. GTE shall charge the IXC for the following originating
Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access
elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
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C. For calls terminating customer for DTI's own IXC switch (or
that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge DTI's IXC (affiliate) the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch
not affiliated with DTI.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge the non-affiliated IXC for the following
terminating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access
elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
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APPENDIX 46A
GTE TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III of this Agreement and subject to all of
the terms and conditions of that Section 46, each of the following rates or
terms may be replaced or supplemented by the correlative rate or term set forth
in the OtherCLEC TERMS listed in Appendix 45B, as and when provided in Section
46 and only until, as long as, and under the conditions prescribed by Section
46.
<TABLE>
<S> <C> <C>
ISSUE NUMBER ISSUE AGREEMENT REFERENCE
DESCRIPTION
</TABLE>
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APPENDIX 46B
OTHERCLEC TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III of this Agreement and subject to all of
the terms and conditions thereof, and after notice as called for in Section 46,
the following OtherCLEC TERMS referred to in Section 46 will be substituted for
the GTE TERMS which are set out in Appendix 45A as and when Section 46 calls
for them to be substituted. When the OtherCLEC Agreement is selected pursuant
to the provisions of Section 46, the parties shall modify this Appendix by
replacing the descriptions of issues below with the specific rates and terms
and conditions of the selected OtherCLEC Agreement that describes those precise
issues are attached hereto as Exhibits to this Appendix.
ISSUE NUMBER ISSUE AGREEMENT REFERENCE
DESCRIPTION
O-1
<PAGE> 1
EXHIBIT 10.25
INTERCONNECTION, RESALE AND UNBUNDLING AGREEMENT
BETWEEN
GTE SOUTHWEST INCORPORATED;
GTE ARKANSAS INCORPORATED;
GTE MIDWEST INCORPORATED
AND
DIGITAL TELEPORT, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I
SCOPE AND INTENT OF AGREEMENT............................................................................I-1
ARTICLE II
DEFINITIONS ............................................................................................II-1
1. General Definitions.....................................................................................II-1
1.1 "ACCESS SERVICE REQUEST" ....................................................................II-1
1.2 "ACT" .......................................................................................II-1
1.3 "AFFILIATE" .................................................................................II-1
1.4 "AMA" .......................................................................................II-1
1.5 "APPLICABLE LAW" ............................................................................II-1
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT
SYSTEM (ALI/DMS)" ...........................................................................II-1
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" ..................................................II-1
1.8 "BELLCORE" ..................................................................................II-1
1.9 "BILL-AND-KEEP ARRANGEMENT" .................................................................II-1
1.10 "BONA FIDE REQUEST (BFR)" ...................................................................II-2
1.11 "BUSINESS DAY" ..............................................................................II-2
1.12 "CENTRAL OFFICE SWITCH" .....................................................................II-2
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) ............................................II-2
1.14 "CLLI CODES" ................................................................................II-2
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) ...................................................II-2
1.16 "COMMISSION" ................................................................................II-2
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" .........................................................II-2
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) .................................................II-2
1.19 "COMPLIANCE" ................................................................................II-2
1.20 "CUSTOMER" ..................................................................................II-2
1.21 "CUSTOMER USAGE DATA" .......................................................................II-2
1.22 "DS-1" ......................................................................................II-3
1.23 "DS-3" ......................................................................................II-3
1.24 "ELECTRONIC FILE TRANSFER" ..................................................................II-3
1.25 "EMR"........................................................................................II-3
1.26 "E-911 SERVICE" .............................................................................II-3
1.27 "EXCHANGE SERVICE" ..........................................................................II-3
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" .................................................II-3
1.29 "FACILITY" ..................................................................................II-3
1.30 "FCC" .......................................................................................II-3
1.31 "GENERATOR" .................................................................................II-3
1.32 "GTOC" ......................................................................................II-3
1.33 "GUIDE"......................................................................................II-3
1.34 "HAZARDOUS CHEMICAL" ........................................................................II-4
1.35 "HAZARDOUS WASTE" ...........................................................................II-4
1.36 "IMMINENT DANGER" ...........................................................................II-4
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) ...................................................II-4
1.38 "INTERIM NUMBER PORTABILITY (INP)" ..........................................................II-4
1.39 "INTERCONNECTION POINT" ("IP") ..............................................................II-4
1.40 "ISDN USER PART (ISUP)" .....................................................................II-4
1.41 "IXC" OR "INTEREXCHANGE CARRIER" ............................................................II-4
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" .....................................II-4
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
1.43 "LATA" ......................................................................................II-4
1.44 "LINE INFORMATION DATA BASE (LIDB)" .........................................................II-4
1.45 "LINE SIDE" .................................................................................II-4
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" ...........................................................II-5
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" ....................................................II-5
1.48 "LOCAL NUMBER PORTABILITY (LNP)" ............................................................II-5
1.49 "LOCAL TRAFFIC" .............................................................................II-5
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" ..........................................................II-5
1.51 "MEET-POINT BILLING" OR "MPB" ...............................................................II-5
1.52 "MECAB" .....................................................................................II-5
1 53 "MECOD" .....................................................................................II-5
1.54 "MID-SPAN FIBER MEET" .......................................................................II-5
1.55 "NANP" ......................................................................................II-6
1.56 "NETWORK ELEMENT" ...........................................................................II-6
1.57 "NID" OR "NETWORK INTERFACE DEVICE" .........................................................II-6
1.58 "NUMBERING PLAN AREA" OR "NPA" ..............................................................II-6
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" .......................................II-6
1.60 "911 SERVICE" ...............................................................................II-6
1.61 "OWNER AND OPERATOR" ........................................................................II-6
1 62 "POI" .......................................................................................II-6
1.63 "POLE ATTACHMENT" ...........................................................................II-6
1.64 "PROVIDER" ..................................................................................II-6
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" ...................................................II-6
1.66 "RATE CENTER" ...............................................................................II-7
1.67 "RIGHT-OF-WAY" OR "ROW" .....................................................................II-7
1.68 "ROUTING POINT" .............................................................................II-7
1.69 "SERVICE CONTROL POINT" OR "SCP" ............................................................II-7
1.70 "SERVICE SWITCHING POINT" OR "SSP" ..........................................................II-7
1.71 "SIGNALING POINT" OR "SP" ...................................................................II-7
1.72 "SIGNALING SYSTEM 7" OR "SS7" ...............................................................II-7
1.73 "SIGNAL TRANSFER POINT" OR "STP" ............................................................II-7
1.74 "SUBSIDIARY" ................................................................................II-7
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" ....................................................II-7
1.76 "SWITCHED ACCESS SERVICE" ...................................................................II-8
1.77 "TELECOMMUNICATIONS SERVICES" ...............................................................II-8
1.78 "THIRD PARTY CONTAMINATION" .................................................................II-8
1.79 "TRUNK SIDE" ................................................................................II-8
1.80 "UNDEFINED TERMS" ...........................................................................II-8
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") ............................................II-8
1.82 "WIRE CENTER" ...............................................................................II-8
ARTICLE III
GENERAL PROVISIONS......................................................................................III-1
1. Scope of General Provisions.............................................................................III-1
2. Term and Termination....................................................................................III-1
2.1 Term.........................................................................................III-1
2.2 Post-Termination Arrangements................................................................III-1
2.3 Termination Upon Default.....................................................................III-1
2.4 Termination Upon Sale........................................................................III-1
2.5 Liability upon Termination...................................................................III-1
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3. Amendments............................................................................................. III-2
4. Assignment..............................................................................................III-2
5. Authority...............................................................................................III-2
6. Responsibility for Payment..............................................................................III-2
7. Billing and Payment.....................................................................................III-2
7.1 Dispute......................................................................................III-2
7.2 Late Payment Charge..........................................................................III-2
7.3 Due Date.....................................................................................III-2
7.4 Audits.......................................................................................III-2
8. Binding Effect..........................................................................................III-3
9. Capacity Planning and Forecasting.......................................................................III-3
10. Compliance with Laws and Regulations....................................................................III-3
11. Confidential Information................................................................................III-3
11.1 Identification...............................................................................III-3
11.2 Handling.....................................................................................III-3
11.3 Exceptions...................................................................................III-4
11.4 Survival.....................................................................................III-4
12. Consent .............................................................................................III-4
13. Cooperation on Fraud Minimization.......................................................................III-4
14. Dispute Resolution......................................................................................III-4
14.1 Alternative to Litigation....................................................................III-4
14.2 Negotiations.................................................................................III-5
14.3 Arbitration..................................................................................III-5
14.4 Expedited Arbitration Procedures.............................................................III-5
14.5 Costs........................................................................................III-5
14.6 Continuous Service...........................................................................III-6
15. Entire Agreement........................................................................................III-6
16. Expenses................................................................................................III-6
17. Force Majeure...........................................................................................III-6
18. Good Faith Performance..................................................................................III-6
19. Governing Law...........................................................................................III-6
20. Standard Practices......................................................................................III-6
21. Headings .............................................................................................III-6
22. Independent Contractor Relationship.....................................................................III-6
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23. Law Enforcement Interface...............................................................................III-7
24. Liability and Indemnity.................................................................................III-7
24.1 Indemnification..............................................................................III-7
24.2 End User and Content-Related Claims..........................................................III-7
24.3 DISCLAIMER...................................................................................III-8
24.4 Limitation of Liability......................................................................III-8
24.5 Intellectual Property........................................................................III-8
25. Multiple Counterparts...................................................................................III-8
26. No Offer................................................................................................III-8
27. No Third Party Beneficiaries............................................................................III-8
28. Notices.................................................................................................III-8
29. Protection..............................................................................................III-9
29.1 Impairment of Service........................................................................III-9
29.2 Resolution...................................................................................III-9
30. Publicity...............................................................................................III-9
31. Regulatory Agency Control...............................................................................III-9
32. Changes in Legal Requirements...........................................................................III-10
33. Effective Date..........................................................................................III-10
34. Regulatory Matters......................................................................................III-10
35. Rule of Construction....................................................................................III-10
36. Section References......................................................................................III-10
37. Service Standards.......................................................................................III-10
37.1 .............................................................................................III-10
37.2 .............................................................................................III-10
37.3 .............................................................................................III-10
38. Severability............................................................................................III-10
39. Subcontractors..........................................................................................III-10
40. Subsequent Law..........................................................................................III-10
41. Taxes...................................................................................................III-10
42. Trademarks and Trade Names..............................................................................III-11
43. Waiver..................................................................................................III-11
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44. Environmental Responsibility............................................................................III-11
45. TBD Prices..............................................................................................III-13
46. Amendment of Certain Rates, Terms and Conditions........................................................III-13
ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS..................................................................................IV-1
1. General ................................................................................................IV-1
2. Liability of GTE........................................................................................IV-1
2.1 Inapplicability of Tariff Liability..........................................................IV-1
2.2 DTI Tariffs or Contracts.....................................................................IV-1
2.3 No Liability for Errors......................................................................IV-1
3. Unauthorized Changes....................................................................................IV-1
3.1 Procedures...................................................................................IV-1
3.2 Option to Restrict Changes Without Evidence of Authorization.................................IV-2
4. Impact of Payment of Charges on Service.................................................................IV-2
5. Unlawful Use of Service.................................................................................IV-2
6. Timing of Messages......................................................................................IV-3
7. Procedures For Preordering, Ordering, Provisioning, Etc. ...............................................IV-3
8. Customer Contacts.......................................................................................IV-3
ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC................................................V-1
1. Services Covered by This Article........................................................................V-1
1.1 Types of Services............................................................................V-1
1.2 Service Locations for Interconnection Services and Facilities................................V-1
1.3 Additional Services or Service Locations.....................................................V-1
2. Billing and Rates.......................................................................................V-1
2.1 Rates and Charges............................................................................V-1
2.2 Billing......................................................................................V-1
3. Transport and Termination of Traffic....................................................................V-1
3.1 Traffic to be Exchanged......................................................................V-1
3.2 Compensation For Exchange Of Traffic.........................................................V-2
3.3 Tandem Switching Traffic.....................................................................V-3
3.4 Inter-Tandem Switching.......................................................................V-3
4. Direct Network Interconnection..........................................................................V-3
4.1 Network Interconnection Architecture.........................................................V-3
4.2 Compensation.................................................................................V-4
4.3 Trunking Requirements........................................................................V-5
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4.4 Network Redesigns Initiated by GTE...........................................................V-6
4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection...........................................V-6
5. Indirect Network Interconnection........................................................................V-6
6. Number Resources........................................................................................V-6
6.1 Number Assignment............................................................................V-6
6.2 Rate Centers.................................................................................V-6
6.3 Routing Points...............................................................................V-7
6.4 Code and Numbers Administration..............................................................V-7
6.5 Programming Switches.........................................................................V-7
7. Interim Number Portability (INP)........................................................................V-7
8. Meet-Point Billing......................................................................................V-7
8.1 Meet-Point Arrangements......................................................................V-7
8.2 Compensation.................................................................................V-8
9. Common Channel Signaling................................................................................V-8
9.1 Service Description..........................................................................V-8
9.2 Signaling Parameters.........................................................................V-8
9.3 Privacy Indicators...........................................................................V-9
9.4 Connection Through STP.......................................................................V-9
9.5 Third Party Signaling Providers..............................................................V-9
9.6 Multi-Frequency Signaling....................................................................V-9
10. Service Quality and Performance.........................................................................V-9
11. Network Outages.........................................................................................V-9
ARTICLE VI
RESALE OF SERVICES......................................................................................VI-1
1. General.................................................................................................VI-1
2. Terms and Conditions....................................................................................VI-1
2.1 Quality and Performance......................................................................VI-1
2.2 Restrictions on Resale.......................................................................VI-1
2.3 Restrictions on Discount of Retail Services..................................................VI-1
2.4 Resale to Other Carriers.....................................................................VI-2
3. Ordering and Billing....................................................................................VI-2
3.1 Local Service Request........................................................................VI-2
3.2 Certificate of Operating Authority...........................................................VI-2
3.3 Letter of Authorization......................................................................VI-2
3.4 Directory Assistance Listings................................................................VI-2
3.5 Nonrecurring Charges.........................................................................VI-2
3.6 Transfers Between DTI and Another Reseller of GTE Services...................................VI-2
3.7 Local Calling Detail.........................................................................VI-2
3.8 Procedures...................................................................................VI-2
3.9 LIDB.........................................................................................VI-2
3.10 "OLN"........................................................................................VI-3
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4. Maintenance.............................................................................................VI-3
4.1 Maintenance, Testing and Repair..............................................................VI-3
4.2 Specifics and Procedures for Maintenance.....................................................VI-3
5.1 Description of Local Exchange Services Available for Resale..................................VI-3
5.2 List of Services Available for Resale........................................................VI-3
5.3 Rates........................................................................................VI-4
5.4 Grandfathered Services.......................................................................VI-4
5.5 Access.......................................................................................VI-4
5.6 Operator Services (OS) and Directory Assistance (DA).........................................VI-4
ARTICLE VII
UNBUNDLED NETWORK ELEMENTS..............................................................................VII-1
1. General.................................................................................................VII-1
2. Unbundled Network Elements..............................................................................VII-1
2.1 Categories...................................................................................VII-1
2.2 Prices.......................................................................................VII-1
2.3 Interconnection to Unbundled Elements........................................................VII-1
2.4 Service Quality..............................................................................VII-2
3. Network Interface Device................................................................................VII-2
3.1 Direct Connection............................................................................VII-2
3.2 NID to NID Connection........................................................................VII-2
3.3 Removal of Cable Pairs.......................................................................VII-3
3.4 Maintenance..................................................................................VII-3
4. Loop Elements...........................................................................................VII-3
4.1 Service Description..........................................................................VII-3
4.2 Categories of Loops..........................................................................VII-3
4.3 Conditioned Loops............................................................................VII-4
4.4 Features, Functions, Attributes..............................................................VII-4
4.5 Digital Loop Carrier.........................................................................VII-4
4.6 Unbundled Loop Facility Certification........................................................VII-4
4.7 Unbundled Loop Facility Notification.........................................................VII-5
4.8 Subloops.....................................................................................VII-5
5. Port and Local Switching Elements.......................................................................VII-5
5.1 Port.........................................................................................VII-5
5.2 Ports Available as Unbundled Network Elements................................................VII-6
5.3 Port Prices..................................................................................VII-6
5.4 .............................................................................................VII-6
Local Switching.........................................................................................VII-6
5.5 Compliance with Section......................................................................VII-6
6. Transport Facility......................................................................................VII-6
6.1 Service Description..........................................................................VII-6
6.2 Categories/Types.............................................................................VII-7
7. SS7 Transport and Signaling.............................................................................VII-7
7.1 .............................................................................................VII-7
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8. LIDB Services...........................................................................................VII-7
9. Database 800-Type Services..............................................................................VII-7
10. Data Switching..........................................................................................VII-7
10.1 Access.......................................................................................VII-7
10.2 Nondiscrimination............................................................................VII-7
10.3 Testing, Monitoring, Administration and Maintenance..........................................VII-7
11. Digital Cross Connect System (DCS)......................................................................VII-7
11.1 Access.......................................................................................VII-7
11.2 Optional Characteristics.....................................................................VII-7
11.3 Alternate Provisioning.......................................................................VII-7
11.4 Elements.....................................................................................VII-8
11.5 Capabilities.................................................................................VII-8
11.6 Protection and Performance...................................................................VII-8
11.7 Provisioning, Administration and Maintenance.................................................VII-8
12. Operator Services (OS) and Directory Assistance (DA)....................................................VII-8
12.1 Customized Routing...........................................................................VII-8
13. Advanced Intelligent Network Access (AIN)...............................................................VII-9
14. Nondiscrimination Provision and Support.................................................................VII-9
15. Provisioning Intervals..................................................................................VII-9
16. Directory Assistance Listing............................................................................VII-9
ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS................................................VIII-1
1. Bona Fide Request Process...............................................................................VIII-1
1.1 Intent ......................................................................................VIII-1
1.2 Process .....................................................................................VIII-1
2. Transfer of Service Announcements.......................................................................VIII-1
3. Misdirected Calls.......................................................................................VIII-1
3.1 .............................................................................................VIII-2
3.2 .............................................................................................VIII-2
4. 911/E911 Arrangements...................................................................................VIII-2
4.1 Description of Service.......................................................................VIII-2
4.2 Transport....................................................................................VIII-2
4.3 Cooperation and Level of Performance.........................................................VIII-2
4.4 Basic 911 and E911 General Requirements......................................................VIII-2
4.5 Compensation.................................................................................VIII-7
5. Information Services Traffic............................................................................VIII-7
5.1 Routing......................................................................................VIII-7
5.2 Billing and Collection and Information Service Provider (ISP) Remuneration...................VIII-7
5.3 900-976 Call Blocking........................................................................VIII-7
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5.4 Miscellaneous ...............................................................................VIII-7
6. Telephone Relay Service.................................................................................VIII-7
7. Directory Assistance (DA) and Operator Services (OS)....................................................VIII-8
7.1 Directory Assistance Calls...................................................................VIII-8
7.2 Operator Services Calls......................................................................VIII-8
8. Directory Assistance Listings Information...............................................................VIII-8
8.1 .............................................................................................VIII-8
8.2 .............................................................................................VIII-8
8.3 .............................................................................................VIII-8
9. Directory Listings and Directory Distribution...........................................................VIII-9
10. Busy Line Verification and Busy Line Verification Interrupt.............................................VIII-9
11. SAG ....................................................................................................VIII-9
12. Dialing Format Changes..................................................................................VIII-9
13. Operational Support Systems (OSS).......................................................................VIII-9
ARTICLE IX
COLLOCATION.............................................................................................IX-1
1. Physical Collocation....................................................................................IX-1
1.1 Space Planning...............................................................................IX-1
1.2 Connection to Customer Loops and Ports.......................................................IX-1
1.3 Connection to Other Collocated Carriers......................................................IX-1
1.4 Choice of Vendor.............................................................................IX-2
1.5 Monitoring...................................................................................IX-2
1.6 Phone Service................................................................................IX-2
1.7 Intraoffice Diversity........................................................................IX-2
1.8 DTI Proprietary Information..................................................................IX-2
1.9 Notification of Modifications................................................................IX-2
1.10 Drawings.....................................................................................IX-2
1.11 Construction of Space........................................................................IX-2
1.12 Connection Equipment.........................................................................IX-3
1.13 Access to DTI Collocation Space..............................................................IX-3
2. Virtual Collocation.....................................................................................IX-4
2.1 Existing Virtual Collocation.................................................................IX-4
2.2 Conversion from Physical to Virtual..........................................................IX-4
2.3 Vendors......................................................................................IX-5
2.4 Inspection...................................................................................IX-5
ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY .....................................................X-1
APPENDIX A
GTE MEASURES OF QUALITY (MOQ)...........................................................................A-1
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APPENDIX B
SERVICE MATRIX..........................................................................................B-1
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT................................................................................C-1
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC....................................................................D-1
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF................................................E-1
APPENDIX F
SERVICES AVAILABLE FOR RESALE...........................................................................F-1
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS...........................................................................G-1
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS.............................................................H-1
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE.................................................I-1
APPENDIX J
SS7 SERVICES............................................................................................J-1
APPENDIX K
POLE ATTACHMENT AGREEMENT...............................................................................K-1
APPENDIX L
CONDUIT OCCUPANCY AGREEMENT.............................................................................L-1
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION............................................................M-1
APPENDIX 46A
GTE TERMS...............................................................................................N-1
APPENDIX 46B
OTHERCLEC TERMS.........................................................................................O-1
</TABLE>
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This Interconnection, Resale and Unbundling Agreement (the "Agreement"), is
made effective as of______, 199___ , by and between GTE Southwest
Incorporates/GTE Arkansas Incorporated/GTE Midwest Incorporated, with its
address for purposes of this Agreement at 600 Hidden Ridge Drive, Irving, Texas
75038 ("GTE"), and Digital Teleport, Inc., in its capacity as a certified
provider of local dial-tone service ("DTI"), with its address for this
Agreement at 11111 Dorsett Road, St. Louis, Missouri 63043 (GTE and DTI being
referred to collectively as the "Parties" and individually as a "Party"). This
Agreement covers services in the State of Oklahoma only (the "State").
WHEREAS, interconnection between competing Local Exchange Carriers ("LECs") is
necessary and desirable for the mutual exchange and termination of traffic
originating on each LEC's network; and
WHEREAS, the Parties desire to exchange such traffic and related signaling in a
technically and economically efficient manner at defined and mutually agreed
upon interconnection points; and
WHEREAS, the Parties wish to enter into an agreement to interconnect their
respective telecommunications networks on terms that are fair and equitable to
both Parties; and
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes
specific obligations on LECs with respect to the interconnection of their
networks, resale of their telecommunications services, access to their poles,
ducts, conduits and rights-of-way and, in certain cases, the offering of certain
unbundled network elements and physical collocation of equipment in LEC
premises;
WHEREAS, GTE is entering, under protest, into certain aspects of this Agreement
that incorporate adverse results from the arbitrated agreements approved or
which may be approved by the Commission in this state and is doing so in order
to avoid the expense of arbitration while at the same time preserving its legal
positions, rights and remedies.
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, GTE and DTI hereby covenant and agree as follows:
<PAGE> 13
ARTICLE I
SCOPE AND INTENT OF AGREEMENT
Pursuant to this Agreement, the Parties will extend certain arrangements to one
another within each area in which they both operate within the State for
purposes of interconnection and the exchange of traffic between their respective
end user customers, and reciprocal access to poles, ducts, conduits and
rights-of-way. This Agreement also governs the purchase by DTI of certain
telecommunications services provided by GTE in its franchise areas for resale by
DTI, the purchase by DTI of certain unbundled network elements from GTE, and the
terms and conditions of the collocation of certain equipment of DTI in the
premises of GTE. This Agreement is an integrated package that reflects a
balancing of interests critical to the Parties. This Agreement will be submitted
to the Oklahoma Corporation Commission (the "Commission") for approval. The
Parties agree that their entrance into this Agreement is without prejudice to
and does not waive any positions they may have taken previously, or may take in
the future, in any legislative, regulatory, judicial or other public forum
addressing any matters, including matters related to the same types of
arrangements and/or matters related to GTE's cost recovery covered in this
Agreement. DTI agrees to negotiate reciprocal terms and conditions with GTE
based on this Agreement. GTE's execution of this Agreement is not a concession
or waiver in any manner concerning its position that certain of the rates, terms
and conditions contained herein are unlawful, illegal and improper.
The services and facilities to be provided to DTI by GTE in satisfaction of this
Agreement may be provided pursuant to GTE tariffs and then current practices.
Should such services and facilities be modified by tariff or by Order, including
any modifications resulting from other Commission proceedings, federal court
review or other judicial action, such modifications will be deemed to
automatically supersede any rates and terms and conditions of this Agreement.
GTE will provide notification to DTI before such a tariff becomes effective, and
DTI may provide input on such proposed tariff. The Parties shall cooperate with
one another for the purpose of incorporating required modifications into this
agreement.
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<PAGE> 14
ARTICLE II
DEFINITIONS
1. General Definitions. Except as otherwise specified herein, the
following definitions shall apply to all Articles and Appendices
contained in this Agreement. Additional definitions that are specific
to the matters covered in a particular Article may appear in that
Article. To the extent that there may be any conflict between a
definition set forth in this Article II and any definition in a
specific Article or Appendix, the definition set forth in the specific
Article or Appendix shall control with respect to that Article or
Appendix.
1.1 "ACCESS SERVICE REQUEST" (ASR) means an industry standard form
used by the Parties to add, establish, change or disconnect
services or trunks for the purposes of Interconnection.
1.2 "ACT" means the Telecommunications Act of 1996, Public Law
104-104 of the 104th United States Congress effective February
8, 1996.
1.3 "AFFILIATE" of a Party means a person, corporation or other
legal entity that, directly or indirectly, owns or controls a
Party, or is owned or controlled by, or is under common
ownership or control with a Party.
1.4 "AMA" means the Automated Message Accounting structure
inherent in switch technology that initially records
telecommunication message information. AMA format is contained
in the Automated Message Accounting document, published by
Bellcore as GR-1100-CORE which defines the industry standard
for message recording.
1.5 "APPLICABLE LAW" shall mean all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders,
permits, and approvals of any Governmental Authority, which
apply or relate to the subject matter of this Agreement.
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM
(ALI/DMS)" means the emergency services (E911/911) database
containing customer location information (including name,
address, telephone number, and sometimes special information
from the local service provider) used to process subscriber
access records into Automatic Location Identification (ALI)
records. From this database, records are forwarded to GTE's
ALI Gateway for downloading by local ALI database systems to
be available for retrieval in response to ANI from a 9-1-1
call. Also, from this database, GTE will upload to its
selective routers the selective router ALI (SR/ALI) which is
used to determine to which Public Safety Answering Point
("PSAP") to route the call.
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" refers to the
number transmitted through the network identifying the calling
party.
1.8 "BELLCORE" means an organization owned jointly by the Bell
regional holding companies and that may in the future be owned
partially or totally by other persons, that conducts research
and development projects for its owners, including development
of new telecommunications services. Bellcore also provides
certain centralized technical and management services for the
regional holding companies and also provides generic
requirements for the telecommunications industry for products,
services and technologies.
1.9 "BILL-AND-KEEP ARRANGEMENT" means a compensation arrangement
whereby the Parties do not render bills to each other for the
termination of local traffic specified in this
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<PAGE> 15
Agreement and whereby the Parties terminate local exchange
traffic originating from end-users served by the networks of
the other Party without explicit charging among or between
said carriers for such traffic exchange.
1.10 "BONA FIDE REQUEST (BFR)" process is intended to be used when
requesting customized Service Orders for certain services,
features, capabilities or functionality defined and agreed
upon by the Parties as services to be ordered as Bona Fide
Requests.
1.11 "BUSINESS DAY" shall mean Monday through Friday, except
for holidays on which the U.S. mail is not delivered.
1.12 "CENTRAL OFFICE SWITCH" means a switch used to provide
telecommunications services including (I) "End Office
Switches" which are Class 5 switches from which end user
Exchange Services are directly connected and offered, and (ii)
"Tandem Office Switches" which are Class 4 switches which are
used to connect and switch trunk circuits between and among
central office switches. Central office switches may be
employed as combination end office/tandem office switches
(combination Class 5/Class 4).
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the
billing record and clearing house transport system that the
Regional Bell Operating Companies ("RBOCs") and other
incumbent LECs use to efficiently exchange out collects and in
collects as well as Carrier Access Billing System ("CABS")
records.
1.14 "CLLI CODES" means Common Language Location Identifier Codes.
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means a radio
communication service between mobile stations or receivers and
land stations, or by mobile stations communicating among
themselves that is provided for profit and that makes
interconnected service available to the public or to such
classes of eligible users as to be effectively available to a
substantial portion of the public.
1.16 "COMMISSION" means the Oklahoma Corporation Commission.
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" means a high-speed
specialized packet-switched communications network that is
separate (out-of-band) from the public packet-switched and
message networks. CCS carries addressed signaling messages for
individual trunk circuits and/or database-related services
between Signaling Points in the CCS network using SS7
signaling protocol.
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) means any company
or person authorized to provide local exchange services in
competition with an ILEC.
1.19 "COMPLIANCE" means environmental and safety laws and
regulations are based upon a federal regulatory framework,
with certain responsibilities delegated to the States. An
environmental/safety compliance program may include review of
applicable laws/regulations, development of written
procedures, training of employees and auditing.
1.20 "CUSTOMER" may mean GTE or DTI depending on the context
and which Party is receiving the service from the other Party.
1.21 "CUSTOMER USAGE DATA" means that the local telecommunications
services usage data of a CLEC customer, measured in minutes,
sub-minute increments, message units, or otherwise, that is
recorded and exchanged by the Parties.
II-2
<PAGE> 16
1.22 "DS-1" is a digital signal rate of 1.544 Mbps.
1.23 "DS-3" is a digital signal rate of 44.736 Mbps.
1.24 "ELECTRONIC FILE TRANSFER" refers to a system or process which
utilizes an electronic format and protocol to send/receive
data files.
1.25 "EMR" means the Exchange Message Record which is an industry
standard record used to exchange telecommunications message
information among CLECs for billable, non-billable, sample,
settlement and study data. EMR format is defined in
BR-010-200-010 CRIS Exchange Message Record, published by
Bellcore and which defines the industry standard for exchange
message records.
1.26 "E-911 SERVICE" is a method of routing 911 calls to a Public
Service Answering Point that uses a customer location database
to determine the location to which a call should be routed.
E-9-1-1 service includes the forwarding of the caller's
Automatic Number Identification (ANI) to the PSAP where the
ANI is used to retrieve and display the Automatic Location
Identification (ALI) on a terminal screen at the answering
Attendant's position. It usually includes selective routing.
1.27 "EXCHANGE SERVICE" refers to all basic access line services,
or any other services offered to end users which provide end
users with a telephonic connection to, and a unique telephone
number address on, the public switched telecommunications
network ("PSTN"), and which enable such end users to place or
receive calls to all other stations on the PSTN.
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" means a service
that provides interconnecting carriers with the capability to
terminate basic fiber optic transmission facilities, including
optical terminating equipment and multiplexers, at GTE's wire
centers and access tandems and interconnect those facilities
with the facilities of GTE. Microwave is available on a
case-by-case basis where feasible.
1.29 "FACILITY" means all buildings, equipment, structures and
other items located on a single site or contiguous or adjacent
sites owned or operated by the same persons or person as used
in Article III, Section 44.
1.30 "FCC" means the Federal Communications Commission.
1.31 "GENERATOR" means under Resource Conservation Recovery Act
(RCRA), the person whose act produces a hazardous waste (40
CFR 261) or whose act first causes a hazardous waste to become
subject to regulation. The generator is legally responsible
for the proper management and disposal of hazardous wastes in
accordance with regulations.
1.32 "GTOC" means GTE Telephone Operating Company.
1.33 "GUIDE" means the GTE Open Market Transition Order/Processing
Guide/ALEC Customer Guide, which contains GTE's operating
procedures for ordering, provisioning, trouble reporting and
repair for resold services and unbundled elements. Except as
specifically provided otherwise in this Agreement, service
ordering, provisioning, billing and maintenance shall be
governed by the "Guide" which may be amended from time to time
by GTE as needed.
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1.34 "HAZARDOUS CHEMICAL" means as defined in the U.S. Occupational
Safety and Health (OSHA) hazard communication standard (29 CFR
1910.1200), any chemical which is a health hazard or physical
hazard.
1.35 "HAZARDOUS WASTE" means as described in Resource Conservation
Recovery Act (RCRA), a solid waste(s) which may cause, or
significantly contribute to an increase in mortality or
illness or pose a substantial hazard to human health or the
environment when improperly treated, stored, transported or
disposed of or otherwise managed because of its quantity,
concentration or physical or chemical characteristics.
1.36 "IMMINENT DANGER" means as described in the Occupational
Safety and Health Act and expanded for environmental matters,
any conditions or practices at a facility which are such that
a danger exists which could reasonably be expected to cause
death or serious harm or significant damage to the environment
or natural resources.
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) means any local
exchange carrier that was as of February 8, 1996, deemed to be
a member of the Exchange Carrier Association as set forth in
47 C.F.R. ss.69.601(b) of the FCC's regulations.
1.38 "INTERIM NUMBER PORTABILITY (INP)" means the delivery of LNP
capabilities, from a customer standpoint in terms of call
completion, with as little impairment of functioning, quality,
reliability, and convenience as possible and from a carrier
standpoint in terms of compensation, through the use of
existing and available call routing, forwarding, and
addressing capabilities.
1.39 "INTERCONNECTION POINT" ("IP") means the physical point on the
network where the two parties interconnect. The "IP" is the
demarcation point between ownership of the transmission
facility.
1.40 "ISDN USER PART (ISUP)" means a part of the SS7 protocol
that defines call setup messages and call takedown messages.
1.41 "IXC" OR "INTEREXCHANGE CARRIER" means a telecommunications
service provider authorized by the FCC to provide interstate
long distance communications services between LATAs and are
authorized by the State to provide inter- and/or intraLATA
long distance communications services within the State.
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" means
the physical connection of separate pieces of equipment,
transmission facilities, etc., within, between and among
networks, for the transmission and routing of exchange service
and exchange access.
1.43 "LATA" means Local Access and Transport Area. A LATA denotes a
geographic area for the provision and administration of
communications service; i.e., intraLATA or interLATA.
1.44 "LINE INFORMATION DATA BASE (LIDB)" means one or all, as the
context may require, of the Line Information databases owned
individually by GTE and other entities which provide, among
other things, calling card validation functionality for
telephone line number cards issued by GTE and other entities.
A LIDB also contains validation data for collect and third
number-billed calls; i.e., Billed Number Screening.
1.45 "LINE SIDE" refers to an end office switch connection that has
been programmed to treat the circuit as a local line connected
to an ordinary telephone station set. Line side
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connections offer only those transmission and signaling
features appropriate for a connection between an end office
and an ordinary telephone set.
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" means any company certified
by the Commission to provide local exchange telecommunications
service. This includes the Parties to this Agreement.
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" means the Bellcore
reference customarily used to identify NPA-NXX routing and
homing information, as well as network element and equipment
designation.
1.48 "LOCAL NUMBER PORTABILITY (LNP)" means the ability of users of
telecommunications services to retain, at the same location,
existing telecommunications numbers without impairment of
quality, reliability, or convenience when switching from one
telecommunications carrier to another.
1.49 "LOCAL TRAFFIC" means traffic that is originated by an end
user of one Party and terminates to the end user of the other
Party within GTE's then current local serving area, including
mandatory local calling scope arrangements. A mandatory local
calling scope arrangement is an arrangement that provides end
users a local calling scope, Extended Area Service ("EAS"),
beyond their basic exchange serving area. Local Traffic does
not include optional local calling scopes (i.e., optional rate
packages that permit the end user to choose a local calling
scope beyond their basic exchange serving area for an
additional fee), referred to hereafter as "optional EAS."
Local Traffic excludes Information Service Provider ("ISP")
traffic (e.g., Internet, paging, 900-976, etc.).
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" means the distribution
frame used to interconnect cable pairs and line trunk
equipment terminating on a switching system.
1.51 "MEET-POINT BILLING" OR "MPB" refers to an arrangement whereby
two LECs jointly provide the transport element of a switched
access service to one of the LEC's end office switches, with
each LEC receiving an appropriate share of the transport
element revenues as defined by their effective access tariffs.
1.52 "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 Telecommunications Industry Solutions ("ATIS").
The MECAB document, published by Bellcore as Special Report
SR-BDS-000983, contains the recommended guidelines for the
billing of an access service provided by two or more LECs, or
by one LEC in two or more states within a single LATA.
1.53 "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 under the auspices 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, establish methods for processing orders for
access service which is to be provided by two or more LECs.
1.54 "MID-SPAN FIBER MEET" means an Interconnection architecture
whereby two carriers' fiber transmission facilities meet at a
mutually agreed-upon POI.
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1.55 "NANP" means the "North American Numbering Plan", the system
of telephone numbering employed in the United States, Canada,
and the Caribbean countries that employ NPA 809.
1.56 "NETWORK ELEMENT" means a facility or equipment used in the
provision of a telecommunications service. Network Element
includes features, functions, and capabilities that are
provided by means of such facility or equipment, including
subscriber numbers, databases, signaling systems, and
information sufficient for billing and collection or used in
the transmission, routing, or other provision of a
telecommunications service.
1.57 "NID" OR "NETWORK INTERFACE DEVICE" means the point of
demarcation between the end user's inside wiring and GTE's
facilities.
1.58 "NUMBERING PLAN AREA" OR "NPA" is also sometimes referred to
as an area code. This is the three digit indicator which is
defined by the "A", "B", and "C" digits of each 10-digit
telephone number within the NANP. Each NPA contains 800
possible NXX Codes. There are two general categories of NPA,
"Geographic NPAs" and "Non-Geographic NPAs". A Geographic NPA
is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with
services provided within that geographic area. A
Non-Geographic NPA, also known as a "Service Access Code" or
"SAC Code" is typically associated with a specialized
telecommunications service which may be provided across
multiple geographic NPA areas. 800, 900, 700, and 888 are
examples of Non-Geographic NPAs.
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" is the
three digit switch entity indicator which is defined by the
"D", "E", and "F" digits of a 10-digit telephone number within
the NANP. Each NXX Code contains 10,000 station numbers.
1.60 "911 SERVICE" means a universal telephone number which gives
the public direct access to the PSAP. Basic 911 service
collects 911 calls from one or more local exchange switches
that serve a geographic area. The calls are then sent to the
correct authority designated to receive such calls.
1.61 "OWNER AND OPERATOR" means as used in OSHA regulations, owner
is the legal entity, including a lessee, which exercises
control over management and record keeping functions relating
to a building or facility. As used in the Resource
Conservation and Recovery Act (RCRA), operator means the
person responsible for the overall (or part of the) operations
of a facility.
1.62 "POI" means Point of Interconnection designated for routing of
local interconnection trunks.
1.63 "POLE ATTACHMENT" has the meaning as set forth in Article X
and Appendix K of this Agreement.
1.64 "PROVIDER" may mean GTE or DTI depending on the context
and which Party is providing the service to the other Party.
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" means an answering
location for 9-1-1 calls originating in a given area. A PSAP
may be designated as Primary or Secondary, which refers to the
order in which calls are directed for answering. Primary PSAPs
respond first; Secondary PSAPs receive calls on a transfer
basis only, and generally serve as a centralized answering
location for a particular type of emergency call. PSAPs are
staffed
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by employees of Emergency Response Agencies ("ERAs") such as
police, fire or emergency medical agencies or by employees of
a common bureau serving a group of such entities.
1.66 "RATE CENTER" means the specific geographic point and
corresponding geographic area that are associated with one or
more particular NPA-NXX Codes that have been assigned to a LEC
for its provision of Exchange Services. The geographic point
is identified by a specific Vertical and Horizontal (V&H)
coordinate that is used to calculate distance-sensitive end
user traffic to/from the particular NPA-NXXs associated with
the specific Rate Center.
1.67 "RIGHT-OF-WAY" OR "ROW" means the right to use the land or
other property of another party to place poles, conduits,
cables, other structures and equipment, or to provide passage
to access such structures and equipment. A ROW may run under,
on, or above public or private property (including air space
above public or private property) and may include the right to
use discrete space in buildings, building complexes, or other
locations.
1.68 "ROUTING POINT" denotes a location that a LEC has designated
on its network as the homing (routing) point for traffic that
terminates to Exchange Services provided by the LEC that bear
a certain NPA-NXX designation. The Routing Point is used to
calculate airline mileage for the distance-sensitive transport
element charges of Switched Access Services. Pursuant to
Bellcore Practice BR795-100-100, the Routing Point may be an
end office location, or a "LEC Consortium Point of
Interconnection." The Routing Point must be in the same LATA
as the associated NPA-NXX.
1.69 "SERVICE CONTROL POINT" OR "SCP" is the node in the signaling
network to which informational requests for service handling,
such as routing, are directed and processed. The SCP is a real
time database system that, based on a query from the SSP,
performs subscriber or application-specific service logic, and
then sends instructions back to the SSP on how to continue
call processing.
1.70 "SERVICE SWITCHING POINT" OR "SSP" means a Signaling Point
that can launch queries to databases and receive/interpret
responses used to provide specific customer services.
1.71 "SIGNALING POINT" OR "SP" means a node in the CCS network that
originates and/or receives signaling messages, or transfers
signaling messages from one signaling link to another, or
both.
1.72 "SIGNALING SYSTEM 7" OR "SS7" means the signaling protocol,
Version 7, of the CCS network, based upon American National
Standards Institute ("ANSI") standards.
1.73 "SIGNAL TRANSFER POINT" OR "STP" means a packet switch in the
CCS network that is used to route signaling messages among
SSPs, SCPs and other STPs in order to set up calls and to
query databases for advanced services. GTE's network includes
mated pairs of local and regional STPs. STPs are provided in
pairs for redundancy. GTE STPs conform to ANSI T1.111-8
standards.
1.74 "SUBSIDIARY" of a Party means a corporation or other legal
entity that is majority owned by such Party.
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" means synchronous
electrical ("STS") or optical channel ("OC") connections
between LECs.
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1.76 "SWITCHED ACCESS SERVICE" means the offering of facilities for
the purpose of the origination or termination of traffic to or
from Exchange Service customers in a given area pursuant to a
switched access tariff. Switched Access Services include:
Feature Group A, Feature Group B, Feature Group C, Feature
Group D, 800 access and 900 access services.
1.77 "TELECOMMUNICATIONS SERVICES" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
1.78 "THIRD PARTY CONTAMINATION" means environmental pollution that
is not generated by the LEC or DTI but results from off-site
activities impacting a facility.
1.79 "TRUNK SIDE" refers to a central office switch connection that
is capable of, and has been programmed to treat the circuit
as, connecting to another switching entity, for example, to
another central office switch. Trunk side connections offer
those transmission and signaling features appropriate for the
connection of switching entities and cannot be used for the
direct connection of ordinary telephone station sets.
1.80 "UNDEFINED TERMS" means the Parties acknowledge that terms may
appear in this Agreement which are not defined and agree that
any such terms shall be construed in accordance with their
customary usage in the telecommunications industry as of the
effective date of this Agreement.
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") means
vertical services and switch functionalities provided by GTE,
including: Automatic Call Back; Automatic Recall; Call
Forwarding Busy Line/Don't Answer; Call Forwarding Don't
Answer; Call Forwarding Variable; Call Forwarding - Busy Line;
Call Trace; Call Waiting; Call Number Delivery Blocking Per
Call; Calling Number Blocking Per Line; Cancel Call Waiting;
Distinctive Ringing/Call Waiting; Incoming Call Line
Identification Delivery; Selective Call Forward; Selective
Call Rejection; Speed Calling; and Three Way Calling/Call
Transfer.
1.82 "WIRE CENTER" means a building or space within a building that
serves as an aggregation point on a LEC's network, where
transmission facilities and circuits are connected or
switched. "Wire center" can also denote a building in which
one or more Central Offices, used for the provision of
exchange services and access services, are located.
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ARTICLE III
GENERAL PROVISIONS
1. Scope of General Provisions. Except as may otherwise be set forth in a
particular Article or Appendix of this Agreement, in which case the
provisions of such Article or Appendix shall control, these General
Provisions apply to all Articles and Appendices of this Agreement.
2. Term and Termination.
2.1 Term. Subject to the termination provisions contained in this
Agreement, the term of this Agreement shall be two (2) years
from the effective date referenced in the first paragraph of
this Agreement and shall continue in effect for consecutive
one (1) year terms until either Party gives the other Party at
least ninety (90) calendar days written notice of termination,
which termination shall be effective at the end of the
then-current term. In the event notice is given less than 90
calendar days prior to the end of the current term, this
Agreement shall remain in effect for 90 calendar days after
such notice is received, provided, that in no case shall the
term be extended beyond 90 calendar days after the end of the
current term.
2.2 Post-Termination Arrangements. Except in the case of
termination as a result of either Party's default or a
termination upon sale, for service arrangements made available
under this Agreement and existing at the time of termination,
those arrangements may continue without interruption (a) under
a new agreement voluntarily executed by the Parties; (b)
standard terms and conditions approved and made generally
effective by the Commission, if any; (c) tariff terms and
conditions made generally available to all CLECs; or (d) any
rights under Section 252(I) of the Act.
2.3 Termination Upon Default. Either Party may terminate this
Agreement in whole or in part in the event of a default by the
other Party; provided however, that the non-defaulting Party
notifies the defaulting party in writing of the alleged
default and that the defaulting Party does not cure the
alleged default within sixty (60) calendar days of receipt of
written notice thereof. Default is defined to include:
(a) A Party's insolvency or the initiation of bankruptcy or
receivership proceedings by or against the Party; or
(b) A Party's refusal or failure in any material respect properly
to perform its obligations under this Agreement, or the
violation any of the material terms or conditions of this
Agreement.
2.4 Termination Upon Sale. Notwithstanding anything to the
contrary contained herein, a Party may terminate this
Agreement as to a specific operating area or portion thereof
of such Party if such Party sells or otherwise transfers the
area or portion thereof. The Party shall provide the other
Party with at least ninety (90) calendar days' prior written
notice of such termination, which shall be effective on the
date specified in the notice. Notwithstanding termination of
this Agreement as to a specific operating area, this Agreement
shall remain in full force and effect in the remaining
operating areas.
2.5 Liability upon Termination. Termination of this Agreement, or
any part hereof, for any cause shall not release either Party
from any liability which at the time of termination had
already accrued to the other Party or which thereafter accrues
in any respect to any act or omission occurring prior to the
termination or from an obligation which is expressly stated in
this Agreement to survive termination.
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3. Amendments. Any amendment, modification, or supplement to this
Agreement must be in writing and signed by an authorized representative
of each Party. The term "this Agreement" shall include future
amendments, modifications, and supplements.
4. Assignment. Any assignment by either Party of any right, obligation, or
duty, in whole or in part, or of any interest, without the written
consent of the other Party shall be void, except that either Party may
assign all of its rights, and delegate its obligations, liabilities and
duties under this Agreement, either in whole or in part, to any entity
that is, or that was immediately preceding such assignment, a
Subsidiary or Affiliate of that Party without consent, but with written
notification. The effectiveness of an assignment shall be conditioned
upon the assignee's written assumption of the rights, obligations, and
duties of the assigning Party.
5. Authority. Each person whose signature appears on this Agreement
represents and warrants that he or she has authority to bind the Party
on whose behalf he or she has executed this Agreement.
6. Responsibility for Payment. All charges for Services provided under
this Agreement will be billed to DTI, including all applicable taxes
and surcharges. In addition, the End User Common Line (EUCL) Charge
from GTOC Tariff FCC No. 1 is applicable to Resold Services. DTI is
responsible for payment of charges billed regardless of any billing
arrangements or situation between DTI and its end user customer.
7. Billing and Payment. Except as provided elsewhere in this Agreement and
where applicable, in conformance with MECAB and MECOD guidelines, DTI
and GTE agree to exchange all information to accurately, reliably, and
properly bill for features, functions and services rendered under this
Agreement.
7.1 Dispute. If one Party disputes a billing statement issued by
the other Party, the billed Party shall notify Provider in
writing regarding the nature and the basis of the dispute
within six (6) months of the statement date or the dispute
shall be waived. The Parties shall diligently work toward
resolution of all billing issues.
7.2 Late Payment Charge. If any undisputed amount due on the
billing statement is not received by Provider on the payment
due date, Provider may charge, and Customer agrees to pay, at
Provider's option, interest on the past due balance at a rate
equal to the lesser of the interest rates set forth in the
applicable GTE/Contel state access tariffs or the GTOC/GSTC
FCC No. 1 tariff, one and one-half percent (1 1/2%) per
month or the maximum nonusurious rate of interest under
applicable law. Late payment charges shall be included on the
next statement.
7.3 Due Date. Payment is due 30 calendar days from the bill date.
7.4 Audits. Either Party may conduct an audit of the other Party's
books and records pertaining to the Services provided under
this Agreement, no more frequently than once per twelve (12)
month period, to evaluate the other Party's accuracy of
billing, data and invoicing in accordance with this Agreement.
Any audit shall be performed as follows: (I) following at
least thirty (30) Business Days' prior written notice to the
audited Party; (ii) subject to the reasonable scheduling
requirements and limitations of the audited Party: (iii) at
the auditing Party's sole cost and expense; (iv) of a
reasonable scope and duration; (v) in a manner so as not to
interfere with the audited Party's business operations; and
(vi) in compliance with the audited Party's security rules.
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8. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the
Parties.
9. Capacity Planning and Forecasting. Within thirty (30) days from the
Effective Date of this Agreement, the Parties agree to have met and
developed joint planning and forecasting responsibilities which are
applicable to Local Services, including Features, Network Elements,
INP, Interconnection Services, Collocation, Poles, Conduits and Rights
of Way (ROW). Such responsibilities shall include but are not limited
to the following:
(a) The Parties will establish periodic reviews of network and
technology plans and will notify one another no later than six
(6) months in advance of changes that would impact either
Party's provision of services.
(b) DTI will furnish to GTE information that provides for
state-wide annual forecasts of order activity, in-service
quantity forecasts, and facility/demand forecasts.
(c) The Parties will develop joint forecasting responsibilities
for traffic utilization over trunk groups and yearly
forecasted trunk quantities.
(d) DTI shall notify GTE promptly of changes to current forecasts
(increase or decrease) that generate a shift in the demand
curve for the following forecasting period.
10. Compliance with Laws and Regulations. Each Party shall comply with all
federal, state, and local statutes, regulations, rules, ordinances,
judicial decisions, and administrative rulings applicable to its
performance under this Agreement.
11. Confidential Information.
11.1 Identification. Either Party may disclose to the other
proprietary or confidential customer, technical, or business
information in written, graphic, oral or other tangible or
intangible forms ("Confidential Information"). In order for
information to be considered Confidential Information under
this Agreement, it must be marked "Confidential" or
"Proprietary," or bear a marking of similar import. Orally or
visually disclosed information shall be deemed Confidential
Information only if contemporaneously identified as such and
reduced to writing and delivered to the other Party with a
statement or marking of confidentiality within thirty (30)
calendar days after oral or visual disclosure.
Notwithstanding the foregoing, preorders and all orders for Services or
network elements placed by DTI pursuant to this Agreement, and
information that would constitute customer proprietary network
information of DTI end user customers pursuant to the Act and the rules
and regulations of the FCC, as well as recorded usage information with
respect to DTI end users, whether disclosed by DTI to GTE or otherwise
acquired by GTE in the course of its performance under this Agreement,
and where GTE is the NANP Number Plan Administrator, DTI information
submitted to GTE in connection with such responsibilities shall be
deemed Confidential Information of DTI for all purposes under this
Agreement whether or not specifically marked or designated as
confidential or proprietary.
11.2 Handling. In order to protect such Confidential Information from
improper disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain
the exclusive property of the source;
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(b) To limit access to such Confidential Information to authorized
employees who have a need to know the Confidential Information
for performance of this Agreement;
(c) To keep such Confidential Information confidential and to use
the same level of care to prevent disclosure or unauthorized
use of the received Confidential Information as it exercises
in protecting its own Confidential Information of a similar
nature;
(d) Not to copy, publish, or disclose such Confidential
Information to others or authorize anyone else to copy,
publish, or disclose such Confidential Information to others
without the prior written approval of the source;
(e) To return promptly any copies of such Confidential Information
to the source at its request; and
(f) To use such Confidential Information only for purposes of
fulfilling work or services performed hereunder and for other
purposes only upon such terms as may be agreed upon between
the Parties in writing.
11.3 Exceptions. These obligations shall not apply to any
Confidential Information that was legally in the recipient's
possession prior to receipt from the source, was received in
good faith from a Third Party not subject to a confidential
obligation to the source, now is or later becomes publicly
known through no breach of confidential obligation by the
recipient, was developed by the recipient without the
developing persons having access to any of the Confidential
Information received in confidence from the source, or that is
required to be disclosed pursuant to subpoena or other process
issued by a court or administrative agency having appropriate
jurisdiction, provided, however, that the recipient shall give
prior notice to the source and shall reasonably cooperate if
the source deems it necessary to seek protective arrangements.
11.4 Survival. The obligation of confidentiality and use with
respect to Confidential Information disclosed by one Party to
the other shall survive any termination of this Agreement for
a period of three (3) years from the date of the initial
disclosure of the Confidential Information.
12. Consent. Where consent, approval, or mutual agreement is required of a
Party, it shall not be unreasonably withheld or delayed.
13. Cooperation on Fraud Minimization. DTI assumes responsibility for all
fraud associated with its end user customers and accounts. GTE shall
have no responsibility for, nor is it required to investigate or make
adjustments to DTI's account in cases of fraud. The Parties agree that
they shall cooperate with one another to resolve cases of fraud. The
Parties' fraud minimization procedures are to be cost effective and
implemented so as not to unduly burden or harm one Party as compared to
the other.
14. Dispute Resolution.
14.1 Alternative to Litigation. Except as provided under Section
252 of the Act with respect to the approval of this Agreement
by the Commission, the Parties desire to resolve disputes
arising out of or relating to this Agreement without
litigation. Accordingly, except for action seeking a temporary
restraining order or an injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute
resolution process, the Parties agree to use the following
alternative dispute resolution procedures as their sole remedy
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with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
14.2 Negotiations. At the written request of a Party, each Party
will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute
arising out of or relating to this Agreement. The Parties
intend that these negotiations be conducted by non-lawyer,
business representatives. The location, format, frequency,
duration, and conclusion of these discussions shall be left to
the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes of
settlement, exempt from discovery, and shall not be admissible
in the arbitration described below or in any lawsuit without
the concurrence of all Parties. Documents identified in or
provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may, if
otherwise discoverable, be discovered or otherwise admissible,
be admitted in evidence, in the arbitration or lawsuit.
14.3 Arbitration. If the negotiations do not resolve the dispute
within sixty (60) Business Days of the initial written
request, the dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association except that the
Parties may select an arbitrator outside American Arbitration
Association rules upon mutual agreement. A Party may demand
such arbitration in accordance with the procedures set out in
those rules. Discovery shall be controlled by the arbitrator
and shall be permitted to the extent set out in this section.
Each Party may submit in writing to a Party, and that Party
shall so respond to, a maximum of any combination of
thirty-five (35) (none of which may have subparts) of the
following: interrogatories, demands to produce documents, or
requests for admission. Each Party is also entitled to take
the oral deposition of one individual of another Party.
Additional discovery may be permitted upon mutual agreement of
the Parties. The arbitration hearing shall be commenced within
sixty (60) Business Days of the demand for arbitration. The
arbitration shall be held in a mutually agreeable city. The
arbitrator shall control the scheduling so as to process the
matter expeditiously. The Parties may submit written briefs.
The arbitrator shall rule on the dispute by issuing a written
opinion within thirty (30) Business Days after the close of
hearings. The times specified in this section may be extended
upon mutual agreement of the Parties or by the arbitrator upon
a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having
jurisdiction.
14.4 Expedited Arbitration Procedures. If the issue to be resolved
through the negotiations referenced in Section 14.2 directly
and materially affects service to either Party's end user
customers, then the period of resolution of the dispute
through negotiations before the dispute is to be submitted to
binding arbitration shall be five (5) Business Days. Once such
a service affecting dispute is submitted to arbitration, the
arbitration shall be conducted pursuant to the expedited
procedures rules of the Commercial Arbitration Rules of the
American Arbitration Association (i.e., rules 53 through 57).
14.5 Costs. Each Party shall bear its own costs of these
procedures. A Party seeking discovery shall reimburse the
responding Party the costs of production of documents
(including search time and reproduction costs). The Parties
shall equally split the fees of the arbitration and the
arbitrator.
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14.6 Continuous Service. The Parties shall continue providing
services to each other during the pendency of any dispute
resolution procedure, and the Parties shall continue to
perform their obligations (including making payments in
accordance with Article IV, Section 4) in accordance with this
Agreement.
15. Entire Agreement. This Agreement constitutes the entire agreement of
the Parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements, negotiations, proposals, and
representations, whether written or oral, and all contemporaneous oral
agreements, negotiations, proposals, and representations concerning
such subject matter. No representations, understandings, agreements, or
warranties, expressed or implied, have been made or relied upon in the
making of this Agreement other than those specifically set forth
herein.
16. Expenses. Except as specifically set out in this Agreement, each Party
shall be solely responsible for its own expenses involved in all
activities related to the subject of this Agreement.
17. Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood, earthquake or
likes acts of God, wars, revolution, civil commotion, explosion, acts
of public enemy, embargo, acts of the government in its sovereign
capacity, labor difficulties, including without limitation, strikes,
slowdowns, picketing, or boycotts, unavailability of equipment from
vendor, changes requested by Customer, or any other circumstances
beyond the reasonable control and without the fault or negligence of
the Party affected, the Party affected, upon giving prompt notice to
the other Party, shall be excused from such performance on a
day-to-day basis to the extent of such prevention, restriction, or
interference (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis until the delay,
restriction or interference has ceased); provided however, that the
Party so affected shall use diligent efforts to avoid or remove such
causes of nonperformance and both Parties shall proceed whenever such
causes are removed or cease.
18. Good Faith Performance. In the performance of their obligations under
this Agreement, the Parties shall act in good faith. In situations in
which notice, consent, approval or similar action by a Party is
permitted or required by any provision of this Agreement, such action
shall not be unreasonably delayed, withheld or conditioned.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the state where the Services are
provided or the facilities reside and shall be subject to the exclusive
jurisdiction of the courts therein.
20. Standard Practices. The Parties acknowledge that GTE shall be adopting
some industry standard approaches and/or establishing its own standard
approaches to various requirements hereunder applicable to DTI industry
which may be added in the Guide. DTI agrees that GTE may implement such
approaches to satisfy any GTE obligations under this Agreement. A copy
is attached hereto as Appendix ? and is incorporated by reference into
this Agreement.
21. Headings. The headings in this Agreement are inserted for convenience
and identification only and shall not be considered in the
interpretation of this Agreement.
22. Independent Contractor Relationship. The persons provided by each
Party shall be solely that Party's employees and shall be under the
sole and exclusive direction and control of that Party. They shall not
be considered employees of the other Party for any purpose. Each Party
shall remain an independent contractor with respect to the other and
shall be responsible for compliance with all laws, rules and
regulations involving, but not limited to, employment of labor,
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hours of labor, health and safety, working conditions and
payment of wages. Each Party shall also be responsible for payment of
taxes, including federal, state and municipal taxes, chargeable or
assessed with respect to its employees, such as Social Security,
unemployment, workers' compensation, disability insurance, and federal
and state withholding. Each Party shall indemnify the other for any
loss, damage, liability, claim, demand, or penalty that may be
sustained by reason of its failure to comply with this provision.
23. Law Enforcement Interface.
23.1 Except to the extent not available in connection with GTE's
operation of its own business, GTE shall provide seven day a
week/twenty-four hour a day assistance to law enforcement
persons for emergency traps, assistance involving emergency
traces and emergency information retrieval on customer invoked
CLASS services, including, without limitation, call traces
requested by DTI.
23.2 GTE agrees to work jointly with DTI in security matters to
support law enforcement agency requirements for taps, traces,
court orders, etc. Charges for providing such services for DTI
Customers will be billed to DTI.
23.3 GTE will, in non emergency situations, inform the requesting
law enforcement agencies that the end-user to be wire tapped,
traced, etc. is a DTI Customer and shall refer them to DTI.
24. Liability and Indemnity.
24.1 Indemnification. Subject to the limitations set forth in
Section 24.4 of this Article III, each Party agrees to
release, indemnify, defend, and hold harmless the other Party
from all losses, claims, demands, damages, expenses, suits, or
other actions, or any liability whatsoever, including, but not
limited to, costs and attorney's fees, whether suffered, made,
instituted, or asserted by any other party or person, for
invasion of privacy, personal injury to or death of any person
or persons, or for losses, damages, or destruction of
property, whether or not owned by others, proximately caused
by the indemnifying Party's negligence or willful misconduct,
regardless of form of action. The indemnified Party agrees to
notify the other Party promptly, in writing, of any written
claims, lawsuits, or demands for which it is claimed that the
indemnifying Party is responsible under this Section and to
cooperate in every reasonable way to facilitate defense or
settlement of claims. The indemnifying Party shall have
complete control over defense of the case and over the terms
of any proposed settlement or compromise thereof. The
indemnifying Party shall not be liable under this Section for
settlement by the indemnified Party or any claim, lawsuit, or
demand, if the indemnifying Party has not approved the
settlement in advance, unless the indemnifying Party has had
the defense of the claim, lawsuit, or demand tendered to it in
writing and has failed to assume such defense. In the event of
such failure to assume defense, the indemnifying Party shall
be liable for any reasonable settlement made by the
indemnified Party without approval of the indemnifying Party.
24.2 End User and Content-Related Claims. Each Party agrees to
release, indemnify, defend, and hold harmless the other Party,
its affiliates, and any third-party provider or operator of
facilities involved in the provision of Services, Unbundled
Network Elements or Facilities under this Agreement
(collectively, the "Indemnified Party") from all losses,
claims, demands, damages, expenses, suits, or other actions,
or any liability whatsoever, including, but not limited to,
costs and attorney's fees, suffered, made, instituted, or
asserted by either Party's end users against an Indemnified
Party arising from Services, Unbundled Network Elements or
Facilities. Each Party further agrees to release, indemnify,
defend, and hold
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<PAGE> 29
harmless the Indemnified Party from all losses, claims,
demands, damages, expenses, suits, or other actions, or any
liability whatsoever, including, but not limited to, costs
and attorney's fees, suffered, made, instituted, or asserted
by any Third Party against an Indemnified Party arising from
or in any way related to actual or alleged defamation, libel,
slander, interference with or misappropriation of proprietary
or creative right, or any other injury to any person or
property arising out of content transmitted by the
Indemnified Party or such Party's end users, or any other act
or omission of the Indemnified Party or such Party's end
users.
24.3 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN
THIS AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR
WARRANTIES TO CUSTOMER CONCERNING THE SPECIFIC QUALITY OF ANY
SERVICES, UNBUNDLED NETWORK ELEMENTS OR FACILITIES PROVIDED
UNDER THIS AGREEMENT. PROVIDER DISCLAIMS, WITHOUT LIMITATION,
ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING, OR FROM USAGES OF TRADE.
24.4 Limitation of Liability. Each Party's liability, whether in
contract, tort or otherwise, shall be limited to direct
damages, which shall not exceed the monthly charges for the
Services, Unbundled Network Elements or facilities for the
month during which the claim of liability arose. Under no
circumstance shall either Party be responsible or liable for
indirect, incidental, or consequential damages, including, but
not limited to, economic loss or lost business or profits,
damages arising from the use or performance of equipment or
software, or the loss of use of software or equipment, or
accessories attached thereto, delay, error, or loss of data.
Should either Party provide advice, make recommendations, or
supply other analysis related to the Services, unbundled
network elements or facilities described in this Agreement,
this limitation of liability shall apply to provision of such
advice, recommendations, and analysis.
24.5 Intellectual Property. Neither Party shall have any obligation
to defend, indemnify or hold harmless, or acquire any license
or right for the benefit of, or owe any other obligation or
have any liability to, the other based on or arising from any
claim, demand, or proceeding by any Third Party alleging or
asserting that the use of any circuit, apparatus, or system,
or the use of any software, or the performance of any service
or method, or the provision or use of any facilities by either
Party under this Agreement constitutes direct or contributory
infringement, or misuse or misappropriation of any patent,
copyright, trademark, trade secret, or any other proprietary
or intellectual property right of any Third Party.
25. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which shall together constitute but one and the same document.
26. No Offer. This Agreement will be effective only upon execution and
delivery by both Parties and approval by the Commission in accordance
with Section 252 of the Act.
27. No Third Party Beneficiaries. Except as may be specifically set forth
in this Agreement, this Agreement does not provide and shall not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other right or privilege.
28. 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 U.S.
mail, or on the date
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<PAGE> 30
stated on the receipt if delivered by certified or registered mail or
by a courier service that obtains a written receipt. Upon prior
immediate oral agreement of the parties' designated recipients
identified below, notice may also be provided by facsimile, internet or
electronic messaging system, which shall be effective if sent before
5:00 p.m. on that day, or if sent after 5:00 p.m. it will be effective
on the next Business Day following the date sent. 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:
If to GTE: GTE Central
Attention: State Director, External Affairs
1000 GTE Drive
Building "A"
Wentzville, Missouri 63385
Facsimile number: (616) 727-1686
Internet Address:_________________
If to DTI: Digital Teleport, Inc.
Attention: J.W. Sheehy, Vice President, I.C.
Support
11111 Dorsett Road
St. Louis, Missouri 63043
Facsimile number: (314) 253-6699
Internet Address:_________________
29. Protection.
29.1 Impairment of Service. The characteristics and methods of
operation of any circuits, facilities or equipment of either
Party connected with the services, facilities or equipment of
the other Party pursuant to this Agreement shall not interfere
with or impair service over any facilities of the other Party,
its affiliated companies, or its connecting and concurring
carriers involved in its services, cause damage to their
plant, violate any applicable law or regulation regarding the
invasion of privacy of any communications carried over the
Party's facilities or create hazards to the employees of
either Party or to the public (each hereinafter referred to as
an "Impairment of Service").
29.2 Resolution. If either Party causes an Impairment in Service,
the Party whose network or service is being impaired (the
"Impaired Party") shall promptly notify the Party causing the
Impairment of Service (the "Impairing Party") of the nature
and location of the problem and that, unless promptly
rectified, a temporary discontinuance of the use of any
circuit, facility or equipment may be required. The Impairing
Party and the Impaired Party agree to work together to attempt
to promptly resolve the Impairment of Service. If the
Impairing Party is unable to promptly remedy the Impairment of
Service, then the Impaired Party may at its option temporarily
discontinue the use of the affected circuit, facility or
equipment.
30. Publicity. Any news release, public announcement, advertising, or any
form of publicity pertaining to this Agreement, provision of Services,
Unbundled Network Elements or Facilities pursuant to it, or association
of the Parties with respect to provision of the services described in
this Agreement shall be subject to prior written approval of both GTE
and DTI.
31. Regulatory Agency Control. This Agreement shall at all times be subject
to changes, modifications, orders, and rulings by the Federal
Communications Commission and/or the applicable state utility
regulatory commission to the extent the substance of this Agreement is
or becomes subject to the jurisdiction of such agency.
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<PAGE> 31
32. Changes in Legal Requirements. GTE and DTI further agree that the terms
and conditions of this Agreement were composed in order to effectuate
the legal requirements in effect at the time the Agreement was
produced. Any modifications to those requirements will be deemed to
automatically supersede any terms and conditions of this Agreement.
33. Effective Date. If this Agreement or changes or modifications thereto
are subject to approval of a regulatory agency, the "effective date" of
this Agreement for such purposes will be ten (10) Business Days after
such approval or in the event this Agreement is developed in whole or
in part through arbitration, sixty (60) Business Days after such
approval. Such date (i.e., ten (10) or, if arbitrated, sixty (60)
Business Days after the approval) shall become the "effective date" of
this Agreement for all purposes.
34. Regulatory Matters. Each Party shall be responsible for obtaining and
keeping in effect all their own FCC, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement.
35. Rule of Construction. No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
36. Section References. Except as otherwise specified, references within an
Article of this Agreement to a Section refer to Sections within that
same Article.
37. Service Standards.
37.1 The Parties shall meet applicable quality of local service
standards imposed by the Commission and will provide a level
of services to each other under this Agreement in compliance
with the nondiscrimination requirements of the Act.
37.2 GTE and DTI agree to implement the performance measures
defined in Appendix ?.
37.3 The Parties will alert each other to any network events that
can result or have resulted in service interruption, blocked
calls, and/or changes in network performance.
38. Severability. If any provision of this Agreement is held by a court or
regulatory agency of competent jurisdiction to be unenforceable, the
rest of the Agreement shall remain in full force and effect and shall
not be affected unless removal of that provision results, in the
opinion of either Party, in a material change to this Agreement. If a
material change as described in this paragraph occurs as a result of
action by a court or regulatory agency, the Parties shall negotiate in
good faith for replacement language. If replacement language cannot be
agreed upon within a reasonable period, either Party may terminate this
Agreement without penalty or liability for such termination upon
written notice to the other Party.
39. Subcontractors. Provider may enter into subcontracts with third parties
or affiliates for the performance of any of Provider's duties or
obligations under this Agreement.
40. Subsequent Law. The terms and conditions of this Agreement shall be
subject to any and all applicable laws, rules, or regulations that
subsequently may be prescribed by any federal, state or local
governmental authority. To the extent required by any such subsequently
prescribed law, rule, or regulation, the Parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to
bring them into compliance with such law, rule, or regulation.
41. Taxes. Any state or local excise, sales, or use taxes (excluding
any taxes levied on income) resulting from the performance of this
Agreement shall be borne by the Party upon which the
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<PAGE> 32
obligation for payment is imposed under applicable law, even if the
obligation to collect and remit such taxes is placed upon the other
Party. The collecting Party shall charge and collect from the obligated
Party, and the obligated Party agrees to pay to the collecting Party,
all applicable taxes, except to the extent that the obligated Party
notifies the collecting Party and provides to the collecting Party
appropriate documentation as GTE requires that qualifies the obligated
Party for a full or partial exemption. Any such taxes shall be shown as
separate items on applicable billing documents between the Parties. The
obligated Party may contest the same in good faith, at its own expense,
and shall be entitled to the benefit of any refund or recovery,
provided that such Party shall not permit any lien to exist on any
asset of the other Party by reason of the contest. The collecting Party
shall cooperate in any such contest by the other Party. The other Party
will indemnify the collecting Party from any sales or use taxes that
may be subsequently levied on payments by the other Party by the
collecting Party.
41.1 Tax - A charge which is statutorily imposed by the state or
local jurisdiction and is either (a) imposed on the seller
with the seller having the right or responsibility to pass the
charge(s) on to the purchaser and the seller is responsible
for remitting the charge(s) to the state or local jurisdiction
or (b) imposed on the purchaser with the seller having an
obligation to collect the charge(s) from the purchaser and
remit the charge(s) to the state or local jurisdiction.
Taxes shall include but not be limited to: federal excise tax,
state/local sales and use tax, state/local utility user tax,
state/local telecommunication excise tax, state/local gross receipts
tax, and local school taxes. Taxes shall not include income,
income-like, gross receipts on the revenue of a provider, or property
taxes. Taxes shall not include payroll withholding taxes unless
specifically required by statute or ordinance.
41.2 Fees/Regulatory Surcharges - A charge imposed by a regulatory
authority, other agency, or resulting from a contractual
obligation, in which the seller is responsible or required to
collect the fee/surcharge from the purchaser and the seller is
responsible for remitting the charge to the regulatory
authority, other agency, or contracting party.
Fees/Regulatory Surcharges shall include but not be limited to
E911/911, E311/311, franchise fees, Lifeline, hearing impaired, and
Commission surcharges.
42. Trademarks and Trade Names. Except as specifically set out in this
Agreement, 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 any purpose whatsoever.
43. Waiver. The failure of either Party to insist upon the performance of
any provision of this Agreement, or to exercise any right or privilege
granted to it under this Agreement, shall not be construed as a waiver
of such provision or any provisions of this Agreement, and the same
shall continue in full force and effect.
44. Environmental Responsibility.
44.1 GTE and DTI agree to comply with applicable federal, state and
local environmental and safety laws and regulations including
U.S. Environmental Protection Agency (EPA) regulations issued
under the Clean Air Act, Clean Water Act, Resource
Conservation and Recovery Act, Comprehensive Environmental
Response, Compensation and Liability Act, Superfund Amendments
and Reauthorization Act and the Toxic Substances Control Act
and OSHA regulations issued under the Occupational Safety and
Health Act of 1970. Each Party has the responsibility to
notify the other if Compliance inspections occur and/or
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citations are issued that impact any aspect of this Agreement
such as occurring on a LEC Facility or involving DTI potential
employee exposure.
44.2 GTE and DTI shall provide notice of known and recognized
physical hazards or hazardous chemicals that must include
providing Material Safety Data Sheets (MSDSs) for materials
existing on site or brought on site to the Facility. Each
Party is required to provide specific notice for potential
imminent danger conditions which could include, but is not
limited to, a defective utility pole or significant petroleum
contamination in a manhole.
44.3 GTE will make available additional environmental control or
safety procedures for DTI to review and follow when working at
a GTE Facility. Providing these procedures, beyond government
regulatory Compliance requirements, is the decision of GTE.
These practices/procedures will represent the regular work
practices required to be followed by the employees and
contractors of GTE for safety and environmental protection.
44.4 Any materials brought, used or remaining at the Facility by
DTI are owned by DTI. DTI will indemnify GTE for these
materials. No substantial new safety or environmental hazards
can be created or new hazardous materials can be used at a GTE
Facility. DTI must demonstrate adequate emergency response
capabilities for its materials used or remaining at the GTE
Facility.
44.5 When Third Party contamination is discovered at a GTE
Facility, the Party uncovering the condition must notify the
proper safety or environmental authority, if required under
applicable laws or regulations. DTI must also notify GTE of
Third Party contamination it discovers at GTE facilities. The
cost causer (requiring access) will become the generator, as
owner or operator, of any waste materials such as petroleum
contaminated water, sewage or manhole sediment.
Notwithstanding Section 24 and Section 44.9 of this Article
III, the cost causer (requiring access) shall indemnify the
other Party hereunder.
44.6 DTI should obtain and use its own environmental permits, if
necessary. If GTE's permit or EPA identification number must
be used, DTI must comply with all of GTE's environmental
processes including environmental "best management practices
(BMP)" and/or selection of disposition vendors and disposal
sites.
44.7 DTI visitors must comply with GTE security, fire safety,
safety, environmental and building practices/codes including
equivalent employee training when working in GTE facilities.
44.8 GTE and DTI shall coordinate plans or information required to
be submitted to government agencies, such as emergency
response plans and community reporting. If fees are associated
with filing, GTE and DTI must develop a cost sharing
procedure.
44.9 Notwithstanding Section 23, with respect to environmental
responsibility under this Section 44, GTE and DTI shall
indemnify, defend and hold harmless the other party from and
against any claims (including, without limitation, Third Party
claims for personal injury or real or personal property
damage), judgments, damages (including direct and indirect
damage, and punitive damages), penalties, fines, forfeitures,
cost, liabilities, interest and losses proximately caused by
the indemnifying Party's negligent or willful misconduct
regardless of form, or in connection with the violation or
alleged violation of any applicable requirement with respect
to the presence or alleged presence of contamination arising
out of the indemnifying party's acts or omissions concerning
its operations at the Facility.
44.10 Activities impacting safety or the environment of a Right of
Way must be harmonized with the specific agreement and the
relationship between GTE and the private land
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<PAGE> 34
owner. This could include limitations on equipment access due
to environmental conditions (e.g., wetland area with equipment
restrictions).
45. TBD Prices. Numerous provisions in this Agreement and its
Attachments refer to pricing principles. If a provision
references prices in an Attachment and there are no corresponding
prices in such Attachment, such price shall be considered "To Be
Determined" (TBD). With respect to all TBD prices, prior to DTI
ordering any such TBD item, the Parties shall meet and confer to
establish a price. If the Parties are unable to reach agreement on a
price for such item, an interim price shall be set for such item that
is equal to the price for the nearest analogous item for which a price
has been established (for example, if there is not an established price
for a nonrecurring charge (NRC) for a specific network element, the
Parties would use the NRC for the most analogous retail service for
which there is an established price). Any interim prices so set shall
be subject to modification by any subsequent decision of the
Commission. If an interim price is different from the rate subsequently
established by the Commission, any underpayment shall be paid by DTI to
GTE, and any overpayment shall be refunded by GTE to DTI, within 45
Business Days after the establishment of the price by the Commission.
46. Amendment of Certain Rates, Terms and Conditions. The Parties agree as
follows with respect to modification of the rates, terms and conditions
initially provided for herein:
The rates, terms and conditions that are specified in Appendix 45A (the
"GTE Terms") may be replaced by the rates, terms and conditions from
the GTE/OtherCLEC Interconnection, Resale and Unbundling Agreement (the
"OtherCLEC Agreement"), respectively, that are specified in Appendix
45B (the "OtherCLEC Terms") if and when the OtherCLEC Agreement becomes
effective after approval by order of the Commission in Case No. . The
rates, terms and conditions that are specified in Appendix 45B (the
OtherCLEC Terms) shall not take effect for purposes of this Agreement
until thirty (30) days following GTE's receipt of written notice of
DTI's election to replace the specified GTE Terms with the specified
OtherCLEC Terms, which notice may be given no earlier than the date the
OtherCLEC Agreement is approved by the Commission and effective. GTE
and DTI agree that if the OtherCLEC Terms are deemed to be unlawful, or
are stayed, enjoined or otherwise modified, in whole or in part, by a
court or commission of competent jurisdiction, then this Agreement
shall be deemed to have been amended accordingly, by modification of
the OtherCLEC Terms or, as appropriate, the substitution of GTE Terms
for all stayed or enjoined OtherCLEC Terms, and such amendment shall be
effective retroactive to the Effective Date of the OtherCLEC Terms.
GTE and DTI further agree that the terms and conditions of this
Agreement reflect certain requirements of the FCC's First Report and
Order in CC Docket No. 96-98. The terms and conditions of this
Agreement shall be subject to any and all actions by any court or other
governmental authority that invalidate, stay, vacate or otherwise
modify the FCC's First Report and Order, in whole or in part
("subsequent action"). To the extent warranted by any such subsequent
action, the Parties agree that this Agreement shall be deemed to have
been modified accordingly as in the first paragraph of this Section 45.
The Parties agree to immediately apply any effected terms and
conditions, including any in other sections and articles of this
Agreement consistent with such subsequent action, and within a
reasonable time incorporate such modified terms and conditions in
writing into this Agreement. If the OtherCLEC Terms are affected by
such subsequent action and GTE determines they cannot be consistently
applied therewith, the GTE Terms shall apply. DTI acknowledges that GTE
may seek to enforce such subsequent action before a commission or court
of competent jurisdiction. GTE does not waive any position regarding
the illegality or inappropriateness of the FCC's First Report and
Order.
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The rates, terms and conditions (including rates which may be
applicable under true-up) specified in both the GTE Terms and the
OtherCLEC Terms are further subject to amendment, retroactive to the
Effective Date of the Agreement, to provide for charges or rate
adjustments resulting from future Commission or other proceedings,
including but not limited to any generic proceeding to determine GTE's
unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's
end user surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
If the Commission (or any other commission or federal or state court)
in reviewing this Agreement pursuant to applicable state or federal
laws, including Section 252(e) of the Telecommunications Act of 1996,
deletes or modifies in any way this Section 46, then the Parties agree
that they will reopen negotiations within ten (10) days after receipt
of the final decision making such deletion or modification in order to
attempt to craft the new provision that will provide substantially the
same protections to GTE and DTI as this Section 46. If the Parties
cannot reach agreement on such a provision within twenty (20) calendar
days thereafter, the Parties agree that this entire Agreement is void
and will not become effective, and DTI agrees to withdraw this
Agreement from consideration by the Commission (or any other commission
or federal or state court). In such event, each Party shall have 25
days following the close of the 20-day negotiation period within which
to file a petition for arbitration before the Commission under Section
252(e) of the Telecommunications Act of 1996 of the issues that remain
in dispute under this paragraph.
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ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS
1. General. General regulations, terms and conditions governing rate
applications, technical parameters, service availability, definitions
and feature interactions, as described in the appropriate GTE
intrastate local, toll and access tariffs, apply to retail services
made available by GTE to DTI for resale and unbundled network elements
provided by GTE to DTI, when appropriate, unless otherwise specified in
this Agreement. As applied to services or network elements offered
under this Agreement, the term "Customer" contained in the GTE Retail
Tariff shall be deemed to mean "DTI" as defined in this Agreement.
2. Liability of GTE.
2.1 Inapplicability of Tariff Liability. GTE's general liability,
as described in the GTE Retail Tariff, does not extend to
DTI's customers or any other Third Party. Liability of GTE to
DTI resulting from any and all causes arising out of services,
facilities, network elements or any other items relating to
this Agreement shall be governed by the liability provisions
contained in this Agreement and no other liability whatsoever
shall attach to GTE. GTE shall be liable for the individual
services, facilities or elements that it separately provides
to DTI and shall not be liable for the integration of
components combined by DTI.
2.2 DTI Tariffs or Contracts. DTI shall, in its tariffs or other
contracts for services provided to its end users using
services, facilities or network elements obtained from GTE,
provide that in no case shall GTE be liable to DTI's end users
or any third parties for any indirect, special or
consequential damages, including, but not limited to, economic
loss or lost business or profits, whether foreseeable or not,
and regardless of notification by DTI of the possibility of
such damages and DTI shall indemnify and hold GTE harmless
from any and all claims, demands, causes of action and
liabilities based on any reason whatsoever from its customers
as provided in this Agreement. Nothing in this Agreement shall
be deemed to create a third party beneficiary relationship
with DTI's end users.
2.3 No Liability for Errors. GTE is not liable for mistakes that
appear in GTE's listings, 911 and other information databases,
or for incorrect referrals of end users to DTI for any ongoing
DTI service, sales or repair inquiries, and with respect to
such mistakes or incorrect referrals, DTI shall indemnify and
hold GTE harmless from any and all claims, demands, causes of
action and liabilities whatsoever, including costs, expenses
and reasonable attorney's fees incurred on account thereof, by
third parties, including DTI's end users or employees. For
purposes of this Section 2.3, mistakes and incorrect referrals
shall not include matters arising out of the willful
misconduct of GTE or its employees or agents.
3. Unauthorized Changes.
3.1 Procedures. If DTI submits an order for resold services or
unbundled elements under this Agreement in order to provide
service to an end user that at the time the order is submitted
is obtaining its local services from GTE or another LEC using
GTE resold services or unbundled elements, and the end user
notifies GTE that the end user did not authorize DTI to
provide local exchange services to the end user, DTI must
provide GTE with written documentation of authorization from
that end user within thirty (30) Business Days of notification
by GTE. If DTI cannot provide written documentation of
authorization within such time frame, DTI must within three
(3) Business Days thereafter:
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(a) notify GTE to change the end user back to the LEC providing
service to the end user before the change to DTI was made; and
(b) provide any end user information and billing records DTI has
obtained relating to the end user to the LEC previously
serving the end user; and
(c) notify the end user and GTE that the change back to the
previous LEC has been made.
Furthermore, GTE will bill DTI fifty dollars ($50.00) per affected line
to compensate GTE for switching the end user back to the original LEC.
3.2 Option to Restrict Chances Without Evidence of Authorization.
DTI's or GTE's end users may request GTE to permit changes of
their provider of local exchange services only upon end user
written notification to GTE that the end user wishes to change
the end user's provider of local exchange services. In such a
situation, GTE will not change an end user's provider of local
exchange services without such written notification.
4. Impact of Payment of Charges on Service. DTI is solely responsible for
the payment of all charges for all services, facilities and elements
furnished under this Agreement, including, but not limited to, calls
originated or accepted at its or its end users' service locations. If
DTI fails to pay when due any and all charges billed to DTI under this
Agreement, including any late payment charges (collectively, "Unpaid
Charges"), and any or all such charges remain unpaid more than
forty-five (45) Business Days after the due date of such Unpaid Charges
excepting previously disputed charges for which DTI may withhold
payment, GTE shall notify DTI in writing that it must pay all Unpaid
Charges to GTE within seven (7) Business Days. If DTI disputes the
billed charges, it shall, within said seven (7) day period, inform GTE
in writing of which portion of the Unpaid Charges it disputes,
including the specific details and reasons for the dispute, unless such
reasons have been previously provided, and shall immediately pay to GTE
all undisputed charges. If DTI and GTE are unable, within thirty (30)
Business Days thereafter, to resolve issues related to the disputed
charges, then either DTI or GTE may file a request for arbitration
under Article III of this Agreement to resolve those issues. Upon
resolution of any dispute hereunder, if DTI owes payment it shall make
such payment to GTE with any late payment charge under Article III,
Section 7.2, from the original payment due date. If DTI owes no
payment, but has previously paid GTE such disputed payment, then GTE
shall credit such payment including any late payment charges. If DTI
fails to pay any undisputed Unpaid Charges, DTI shall, at its sole
expense, within five (5) Business Days notify its end users that their
service may be disconnected for DTI's failure to pay Unpaid Charges,
and that its end users must select a new provider of local exchange
services. If DTI fails to provide such notification or any of DTI's end
users fail to select a new provider of services within the applicable
time period, GTE will provide local exchange services to DTI's end
users under GTE's applicable end user tariff at the then current
charges for the services being provided. In this circumstance,
otherwise applicable service establishment charges will not apply to
DTI's end user, but will be assessed to DTI. GTE may discontinue
service to DTI upon failure to pay undisputed charges as provided in
this Section 4, and shall have no liability to DTI or DTI's end users
in the event of such disconnection.
5. Unlawful Use of Service. Services, facilities or unbundled elements
provided by GTE pursuant to this Agreement shall not be used by DTI or
its end users for any purpose in violation of law. DTI, and not GTE,
shall be responsible to ensure that DTI and its end users use of
services, facilities or unbundled elements provided hereunder comply at
all times with all applicable laws. GTE may refuse to furnish service
to DTI or disconnect particular services, facilities or unbundled
elements provided under this Agreement to DTI or, as appropriate, DTI's
end user when (i) an order is issued by a court of competent
jurisdiction finding that probable cause exists to believe that the use
made or to be made of the service, facilities or unbundled elements is
prohibited by
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law or (ii) GTE is notified in writing by a law enforcement agency
acting within its jurisdiction that any facility furnished by GTE is
being used or will be used for the purpose of transmitting or receiving
gambling information in interstate or foreign commerce in violation of
law. Termination of service shall take place after reasonable notice is
provided to DTI, or as ordered by the court. If facilities have been
physically disconnected by law enforcement officials at the premises
where located, and if there is not presented to GTE the written finding
of a court, then upon request of DTI and agreement to pay restoral of
service charges and other applicable service charges, GTE shall
promptly restore such service.
6. Timing of Messages. With respect to GTE resold measured rate local
service(s), chargeable time begins when a connection is established
between the calling station and the called station. Chargeable time
ends when the calling station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the calling station
does not, chargeable time ends when the network connection is released
by automatic timing equipment in the network. Timing of messages
applicable to GTE's Port and Local Switching element (usage sensitive
services) will be recorded based on originating and terminating access.
7. Procedures For Preordering, Ordering, Provisioning, Etc. Certain
procedures for preordering, ordering, provisioning, maintenance and
billing and electronic interfaces for many of these functions are
described in Appendix I. All costs and expenses for any new or modified
electronic interfaces DTI requires that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI pursuant to
Appendix I. The schedule for implementation of any new or modified
electronic interfaces will be developed by GTE according to industry
standards and will be based upon the amount of work needed to design,
test and implement the new or modified interface.
8. Customer Contacts. Except as otherwise provided in this Agreement or as
agreed to in a separate writing by DTI, DTI shall provide the exclusive
interface with DTI's end user customers in connection with the
marketing or offering of DTI services. Except as otherwise provided in
this Agreement, in those instances in which GTE personnel are required
pursuant to this Agreement to interface directly with DTI's end users,
such personnel shall not identify themselves as representing GTE. All
forms, business cards or other business materials furnished by GTE to
DTI end users shall bear no corporate name, logo, trademark or trade
name other than DTI's. In no event shall GTE personnel acting on behalf
of DTI pursuant to this Agreement provide information to DTI end users
about GTE products or services.
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ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC
1. Services Covered by This Article.
1.1 Types of Services. This Article governs the provision of
internetwork facilities (i.e., physical interconnection
services and facilities), meet point billing by GTE to DTI or
by DTI to GTE and the transport and termination and billing of
Local, IntraLATA Toll, optional EAS traffic and jointly
provided Interexchange Carrier Access between GTE and DTI. The
services and facilities described in this Article shall be
referred to in this Article V as the "Services."
1.2 Service Locations for Interconnection Services and Facilities.
Appendix B, Service Matrix, attached to this Agreement and
made a part hereof, sets forth the Services and each location
in the State where a Service shall be provided (the "Service
Locations") and the Interconnection Point ("IP") for such
Services.
1.3 Additional Services or Service Locations. If, during the term
of this Agreement, the parties determine that additional
services are needed in the State, or existing Services will be
offered in new locations in the State, the Parties shall
execute an amendment to this Agreement substantially in the
form of Appendix C attached to this Agreement and made a part
hereof, incorporating the additional locations and/or any
additional terms necessary for the additional services. Upon
the effective date of the amendment, and continuing through
the remaining term of this Agreement, the new services shall
be deemed part of the Services provided pursuant to this
Article and/or the new locations shall be deemed part of the
Service Locations.
2. Billing and Rates.
2.1 Rates and Charges. Customer agrees to pay to Provider the
rates and charges for the Services set forth in the applicable
appendices to this Agreement. GTE's rates and charges are set
forth in Appendix D attached to this Agreement and made a part
hereof. DTI's separate rates and charges are also set forth in
Appendix D attached hereto and made a part hereof.
2.2 Billing. Provider shall render to Customer a bill for
interconnection services on a current basis. Charges for
physical facilities and other nonusage sensitive charges shall
be billed in advance, except for charges and credits
associated with the initial or final bills. Usage sensitive
charges, such as charges for termination of Local Traffic,
shall be billed in arrears. DTI is required to order trunks
pursuant to Section 4.3.3 of this Article. Charges for traffic
that has been routed over a jurisdictionally inappropriate
trunk group (e.g., local traffic carried over trunks used for
Switched Access Traffic) may be adjusted to reflect the
appropriate compensation arrangement and may be handled as a
post-billing adjustment to bills rendered. Additional matters
relating to billing are included in Appendix I attached to
this Agreement and made a part hereof.
3. Transport and Termination of Traffic.
3.1 Traffic to be Exchanged. The Parties shall reciprocally
terminate Local, IntraLATA Toll, optional EAS and jointly
provided Interexchange Carrier Traffic originating on each
other's networks utilizing either Direct or Indirect Network
Interconnections as provided in Section 4 or Section 5 herein.
To this end, the Parties agree that there will be
interoperability between their networks. The Parties agree to
exchange traffic associated with Third-Party
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LECs, CLECs and Wireless Service Providers pursuant to the
compensation arrangement specified in Section 3.3 herein. Only
traffic originated by or terminating to the Parties' end user
customers is to be exchanged. In addition, the Parties will
notify each other of any anticipated change in traffic to be
exchanged (e.g., traffic type, volume).
3.2 Compensation For Exchange Of Traffic.
3.2.1 Mutual Compensation. The Parties shall compensate
each other for the exchange of Local Traffic in
accordance with Section 3.2.2 of this Article. The
Parties will develop an initial factor representative
of the share of traffic exempt from local
compensation. This factor will be updated quarterly
in like manner or as the Parties otherwise agree.
Once the traffic that is exempt from local
compensation can be measured, the actual exempt
traffic will be used rather than the above factor.
Charges for the transport and termination of
intraLATA toll and interexchange traffic shall be in
accordance with the Parties' respective intrastate or
interstate access tariffs, as appropriate
3.2.2 Bill-and-Keep. The Parties shall assume that Local
Traffic is roughly balanced between the parties
unless traffic studies indicate otherwise.
Accordingly, the Parties agree to use a
Bill-and-Keep Arrangement with respect to
termination of Local Traffic only. Either Party may
request that a traffic study be performed no more
frequently than once a quarter. Should such
traffic study indicate, in the aggregate, that
either Party is terminating more than 60 percent of
the Parties' total terminated minutes for Local
Traffic, either Party may notify the other that
mutual compensation will commence pursuant to the
rates set forth in Appendix D of this Agreement and
following such notice it shall begin and continue
for the duration of the Term of this Agreement
unless otherwise agreed. To account for ISP traffic,
the Parties will negotiate an initial factor(s)
representative of the proportionate share of traffic
exempt from local compensation. This factor will be
updated quarterly in a like manner or as the Parties
otherwise agree. Once the traffic that is exempt
from local compensation can be measured, the actual
exempt traffic will be used rather than the above
factor. Nothing in this Section 3.2.2 shall be
interpreted to (i) change compensation set forth in
this Agreement for traffic or services other than
Local Traffic, including but not limited to
internetwork facilities, access traffic or wireless
traffic, or (ii) allow either Party to aggregate
traffic other than Local Traffic for the purpose of
compensation under the Bill-and-Keep Arrangement
described in this Section 3.2.2, except as set forth
in Section 3.1 above.
3.2.3 Sharing of Access Charges on Calls to Ported Numbers.
Until permanent number portability is implemented,
the Parties agree that switched access termination to
a ported number will be billed by the party providing
interim number portability and that the party billing
the switched access will share the switched access
revenue with the other party. After permanent number
portability is implemented, the Parties agree to
renegotiate sharing of access charges to ported
numbers in accordance with permanent number
portability requirements. In lieu of actual
measurements of minutes and/exchange of billing
records for this traffic the Parties agree that the
Party providing the ported number will pay the other
Party the rate per line/per month as specified in
Appendix E.
(a) The number of lines/talk paths per ported
number that are subject to compensation will
be determined at the time the end user
customer's local service is changed from one
party to the other. The number of lines per
number eligible for the shared revenue
arrangement described
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in this section will be limited to the
number of lines in service on the date of
conversion plus a 10% growth margin. After
conversion the number of lines per number
available for compensation can only be
increased by mutual consent of the parties.
(b) The Parties agree that the compensation rate
in paragraph 3.3.3 may change as a result of
changes in access rates, traffic volume or
for other reasons and agree to renegotiate
the rate if a significant event occurs. At a
minimum, the parties agree to reevaluate the
rate on an annual basis.
(c) The Parties agree that terminating switched
access calls ported via interim number
portability may appear to the receiving
party to be a local call and that the
implementation of reciprocal compensation
for terminating local calls may result in
overcompensation for ported switched access
calls. Therefore, the Parties agree to
renegotiate the terminating shared access
compensation rate if reciprocal compensation
for local calls is implemented.
3.3 Tandem Switching Traffic. The Parties will provide tandem
switching for traffic between the Parties' end offices
subtending each other's access tandem, as well as for traffic
between either Party's end users and any Third Party which is
interconnected to the other Party's access tandems as follows:
3.3.1 The originating Party will compensate the tandem
Party for each minute of originated tandem switched
traffic which terminates to Third Party (e.g., other
CLEC, ILEC, or wireless service provider). The
applicable rate for this charge is identified in
Appendix D.
3.3.2 The originating Party also assumes responsibility for
compensation to the company which terminates the
call.
3.4 Inter-Tandem Switching. The Parties will only use inter-tandem
switching for the transport and termination of local/EAS or
intraLATA toll traffic originating on each other's network at
and after such time as either (I) DTI has agreed to and fully
implemented an existing intraLATA toll compensation mechanism
such as IntraLATA Terminating Access Compensation (ITAC) or a
functional equivalent thereof or (ii) generally accepted
industry signaling standards and AMA record standards support
the recognition of multiple tandem switching events.
4. Direct Network Interconnection.
4.1 Network Interconnection Architecture. DTI may interconnect
with GTE at any of the minimum technically feasible points
required by the FCC. Interconnection at additional points will
be reviewed on an individual case basis. Where the Parties
mutually agree following a Bona Fide Request to directly
interconnect their respective networks, interconnection will
be as specified in the following subsections. The "IPs" shall
be set forth in Appendix B attached to this Agreement and made
a part hereof. Based on the configuration, the installation
timeline will vary considerably, however, GTE will work with
DTI in all circumstances to install "IPs" within 120 calendar
days absent extenuating circumstances. Internetwork connection
and protocol must be based on industry standards developed
consistent with Section 256 of the Telecommunications Act of
1996.
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4.1.1 Subject to mutual agreement, the Parties may use the
following types of network facility interconnection,
using such interface media as are (I) appropriate to
support the type of interconnection requested and
(ii) available at the facility at which
interconnection is requested. For each "IP" set forth
in Appendix B, the Parties shall specify the type of
interconnection used at that "IP."
(a) A Mid-Span Fiber Meet within an existing GTE
exchange area whereby the Parties mutually
agree to jointly plan and engineer their
facility "IP" at a designated manhole or
junction location. The "IP" is the
demarcation between ownership of the fiber
transmission facility. Each party is
individually responsible for its incurred
costs in establishing this arrangement.
(b) A Virtual or Physical EIS arrangement at a
GTE wire center subject to the rates, terms,
and conditions contained in GTE's applicable
tariffs.
(c) A Special Access arrangement and/or Switched
Transport terminating at a GTE wire center
subject to the rates, terms, and conditions
contained in GTE's applicable tariffs. These
facilities will meet the standards set forth
in such tariffs.
4.1.2 Virtual and Physical EIS arrangements are governed by
appropriate GTE tariffs, except as provided in
Article IX, Section 1.3.
4.1.3 The Parties will mutually designate at least one POI
on GTE's network within each GTE local calling area
for the routing of Local Traffic. Recording and
billing of traffic routed over these facilities shall
be as provided in Section 3.4 of this Article.
4.2 Compensation. The Parties agree to the following compensation
for internetwork facilities, depending on facility type.
4.2.1 Mid-Span Fiber Meet: GTE will charge special access
(flat rated) transport from the applicable intrastate
access tariff and will rate charges between the "IP"
and GTE's interconnection switch. Charges will be
reduced to reflect the proportionate share of the
facility that is used for transport of traffic
originated by GTE. DTI will charge flat rated
transport to GTE for DTI facilities used by GTE at
their tariffed rates or as mutually agreed, not to
exceed GTE rates. DTI will apply charges based on the
lesser of; (i) the airline mileage from the "IP" to
the DTI switch; or (ii) the airline mileage from the
GTE switch to the serving area boundary.
4.2.2 Collocation: GTE will charge Virtual or Physical EIS
rates from the applicable GTE tariff. DTI will charge
GTE flat rated transport at their tariffed rates or
as mutually agreed, not to exceed GTE rates, to
reflect the proportionate share of the facility that
is used for transport of traffic originated by GTE.
DTI will apply charges based on the lesser of; (I)
the airline mileage from the "IP" to the DTI switch;
or (ii) two (2) times the airline mileage from the
GTE switch to the serving area boundary.
4.2.3 Special Access and/or Switched Access: GTE will
charge special access and/or switched access rates
from the applicable GTE intrastate access tariff.
Charges will be reduced to reflect the proportionate
share of the facility that is used for transport of
traffic originated by GTE. The Parties will negotiate
an initial factor representative of the proportionate
share of the facilities. This factor will be updated
quarterly in like manner or as the Parties otherwise
agree.
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4.3 Trunking Requirements.
4.3.1 The Parties agree to establish trunk groups of
sufficient capacity from the interconnecting
facilities such that trunking is available to any
switching center designated by either Party,
including end offices, tandems, 911 routing switches,
and directory assistance/operator service switches.
The Parties will mutually agree where one-way or
two-way trunking will be available. The Parties may
use two-way trunks for delivery of local traffic or
either Party may elect to provision its own one-way
trunks for delivery of local traffic to the other
Party. If a Party elects to provision its own one-way
trunks, that Party will be responsible for its own
expenses associated with the trunks.
4.3.2 DTI shall make available to GTE trunks over which GTE
shall terminate to end users of DTI-provided Exchange
Services, Local Traffic and intraLATA toll or
optional EAS traffic originated from end users of
GTE-provided Exchange Service.
4.3.3 DTI and GTE shall, where applicable, make
reciprocally available, by mutual agreement, the
required trunk groups to handle different traffic
types. DTI and GTE will support the provisioning of
trunk groups that carry combined or separate Local
Traffic and intraLATA toll and optional EAS traffic.
GTE requires separate trunk groups from DTI to
originate and terminate interLATA calls and to
provide Switched Access Service to IXCs. To the
extent DTI desires to have any Interexchange Carriers
(IC) originate or terminate traffic to DTI, DTI will
arrange for such IC to issue an ASR to GTE
instructing GTE to route such traffic over the
appropriate IC trunk group. Until GTE receives and
processes such ASR, the traffic will not be routed.
4.3.3.1 Each Party agrees to route traffic only
over the proper jurisdictional trunk
group.
4.3.3.2 Each Party shall only deliver traffic over
the local interconnection trunk groups to
the other Party's access tandem for those
publicly-dialable NXX Codes served by end
offices that directly subtend the access
tandem or to those wireless service
providers that directly subtend the access
tandem.
4.3.3.3 Neither party shall route Switched Access
Service traffic over local interconnection
trunks, or local traffic over Switched
Access Service trunks.
4.3.4 DTI and GTE will reciprocally provide Percent Local
Usage (PLU) factors to each other on a quarterly
basis to identify the proper jurisdiction of each
call type that is carried over the required trunks.
4.3.5 Reciprocal traffic exchange arrangement trunk
connections shall be made at a DS-1 or multiple DS-1
level, DS-3, (SONET where technically available) and
shall be jointly-engineered to an objective P.01
grade of service.
4.3.6 DTI and GTE agree to use diligent efforts to develop
and agree on a Joint Interconnection Grooming Plan
prescribing standards to ensure that the reciprocal
traffic exchange arrangement trunk groups are
maintained at consistent P.01 or better grades of
service. Such plan shall also include mutually-agreed
upon default standards for the configuration of all
segregated trunk groups.
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4.3.7 Signaling System 7 (SS7) Common Channel Signaling
will be used to the extent that such technology is
available.
4.3.8 The Parties agree to offer and provide to each other
B8ZS Extended Superframe Format ("ESF") facilities,
where available, capable of voice and data traffic
transmission.
4.3.9 The Parties will support intercompany 64kbps clear
channel where available.
4.4 Network Redesigns Initiated by GTE. GTE will not charge DTI
when GTE initiates its own network redesigns/reconfigurations.
4.5 Interconnection Calling and Called Scopes for the Access
Tandem Interconnection and the End Office Interconnection.
4.5.1 GTE Access Tandem Interconnection calling scope
(originating and terminating) is to those GTE end
offices which subtend the GTE access tandem to which
the connection is made except as provided for in
Section 3.3 of this Article V.
4.5.2 GTE End Office Interconnection calling scope
(originating and terminating) is only to the end
office to which the connection is made.
5. Indirect Network Interconnection. Nether Party shall deliver traffic
destined to terminate at the other Party's end office via another LEC's
end office. In addition, neither Party shall deliver traffic destined
to terminate at an end office subtending the other Party's access
tandem via another LEC's access tandem until such time as compensation
arrangements have been established in accordance with this Article V,
Sections 3.1 and 3.4.
6. Number Resources.
6.1 Number Assignment. Nothing in this Agreement shall be
construed to, in any manner, limit or otherwise adversely
impact DTI's right to employ or to request and be assigned any
NANP number resources including, but not limited to, Central
Office (NXX) Codes pursuant to the Central Office Code
Assignment Guidelines. Any request for numbering resources by
DTI shall be made directly to the NANP Number Plan
Administrator. Except with respect to those areas in which GTE
is the NANP Number Plan Administrator, GTE shall not be
responsible for the requesting or assignment of number
resources to DTI. The Parties agree that disputes arising from
numbering assignment shall be arbitrated by the NANP Number
Plan Administrator. DTI shall not request number resources to
be assigned to any GTE switching entity.
6.1.1 Each Party shall be responsible for notifying its
customers of any changes in numbering or dialing
arrangements to include changes such as the
introduction of new NPAs or new NXX codes. Each Party
is responsible for administering NXX codes assigned
to it.
6.2 Rate Centers. For purposes of compensation between the Parties
and the ability of GTE to appropriately apply its toll tariff
to its end user customers, DTI shall adopt the Rate Center
areas and Rate Center points that the Commission has approved
for the incumbent LEC and shall assign whole NPA-NXX codes to
each Rate Center.
6.3 Routing Points. DTI will also designate a Routing Point for
each assigned NXX code. DTI may designate one location within
each Rate Center as a Routing Point for the NPA-NXX associated
with that Rate Center; alternatively DTI may designate a
single location within
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one Rate Center to serve as the Routing Point for all the
NPA-NXXs associated with that Rate Center and with one or more
other Rate Centers served by DTI within an existing GTE
exchange area and LATA.
6.4 Code and Numbers Administration. The Parties will comply with
code administration requirements as prescribed by the FCC, the
Commission, and accepted industry guidelines. Where GTE is the
NANP Number Plan Administrator, GTE will administer number
resources, and charge for such administration in accord with
applicable rules and regulations. GTE will administer
numbering resources in a competitively neutral manner, and
process requests for NXX codes in a timely manner and in
accord with industry standards. The Parties shall protect DTI
proprietary information that may be submitted to GTE in
connection with GTE's responsibilities as NANP Number Plan
Administrator in accordance with Article III, Section 11 of
this Agreement.
6.5 Programming Switches. It shall be the responsibility of each Party to
program and update its own switches and network systems pursuant to the
Local Exchange Routing Guide ("LERG") guidelines to recognize and route
traffic to the other Party's assigned NXX codes at all times. Neither
Party shall impose any fees or charges whatsoever on the other Party
for such activities.
7. Interim Number Portability (INP). Each Party shall provide the other
Party with INP for the purpose of allowing end user customers to change
service-providing Parties without changing their telephone number. GTE
shall provide its INP to DTI using remote call forwarding ("RCF"). The
GTE rates for INP service using RCF are set out in Appendix E attached
to this Agreement and made a part hereof. If DTI wishes to use Direct
Inward Dialing ("DID") to provide INP to its end users, DTI may
purchase DID service from GTE at the rate specified in the appropriate
GTE tariff. DTI shall provide INP to GTE at the rates specified for DTI
in Appendix E.
8. Meet-Point Billing.
8.1 Meet-Point Arrangements.
8.1.1 The Parties may mutually establish Meet-Point Billing ("MPB")
arrangements in order to provide Switched Access Services to
Access Service customers via a GTE access tandem in accordance
with the MPB guidelines adopted by and contained in the
Ordering and Billing Forum's MECAB and MECOD documents, except
as modified herein and as described in Section 3.2.3 for
Interim Portability.
8.1.2 Except in instances of capacity limitations, GTE shall permit
and enable DTI to sub-tend the GTE access tandem(s) nearest to
the DTI Rating Point(s) associated with the NPA-NXX(s) to/from
which the Switched Access Services are homed. In instances of
capacity limitation at a given access tandem, DTI shall be
allowed to subtend the next-nearest GTE access tandem in which
sufficient capacity is available.
8.1.3 Interconnection for the MPB arrangement shall occur at the
"IP".
8.1.4 Common Channel Signaling shall be utilized in conjunction with
MPB arrangements to the extent such signaling is resident in
the GTE access tandem switch.
8.1.5 DTI and GTE will use diligent efforts, individually and
collectively, to maintain provisions in their respective
federal and state access tariffs, and/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.
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8.1.6 As detailed in the MECAB document, DTI and GTE will, in a
timely fashion, exchange all information necessary to
accurately, reliably and promptly bill Access Service
customers for Switched Access Services traffic jointly handled
by DTI and GTE via the meet-point arrangement. Information
shall be exchanged in Electronic Message Record ("EMR")
format, on magnetic tape or via a mutually acceptable
electronic file transfer protocol.
8.1.7 DTI and GTE shall work cooperatively to coordinate rendering
of Meet-Point bills to customers, and shall reciprocally
provide each other usage data and related information at the
appropriate charge.
8.2 Compensation.
8.2.1 Initially, billing to Access Service customers for the
Switched Access Services jointly provided by DTI and GTE via
the MPB arrangement shall be according to the multiple-bill
method as described in the MECAB guidelines. This means each
Party will bill the portion of service they provided at their
appropriate tariff, or price list.
8.2.2 Subsequently, DTI and GTE may mutually agree to implement one
of the following options for billing to third parties for the
Switched Access Services jointly provided by DTI and GTE via
the MPB arrangement: single-bill/single tariff method,
single-bill/multiple tariff method, or to continue the
multiple-bill method. Should either Party prefer to change
among these billing methods, that Party shall notify the other
Party of such a request in writing, ninety (90) Business Days
in advance of the date on which such change is desired to be
implemented, such changes then may be made in accordance with
MECAB guidelines and if the Parties mutually agree, the change
will be made.
9. Common Channel Signaling.
9.1 Service Description. The Parties will provide Common Channel Signaling
("CCS") to one another via Signaling System 7 ("SS7") network
interconnection, where and as available, in the manner specified in FCC
Order 95-187, in conjunction with all traffic exchange trunk groups.
SS7 signaling and transport services shall be provided by GTE in
accordance with the terms and conditions of this Section 9 of this
Article and Appendix J attached to this Agreement and made a part
hereof. The Parties will cooperate on the exchange of all appropriate
SS7 messages for local and intraLATA call set-up signaling, including
ISUP and Transaction Capabilities Application Part ("TCAP") messages to
facilitate full interoperability of all CLASS Features and functions
between their respective networks. Any other SS7 message services to be
provided using TCAP messages (such as data base queries) will be
jointly negotiated and agreed upon.
9.2 Signaling Parameters. All SS7 signaling parameters will be provided in
conjunction with traffic exchange trunk groups, where and as available.
These parameters include Automatic Number Identification ("ANI"),
Calling Party Number ("CPN"), Privacy Indicator, calling party category
information, originating line information, charge number, etc. Also
included are all parameters relating to network signaling information,
such as Carrier Information Parameter ("CIP"), wherever such
information is needed for call routing or billing. GTE will provide SS7
via GR-394-SS7 and/or GR-317-SS7 format(s).
9.3 Privacy Indicators. Each Party will honor all privacy indicators as
required under applicable law.
9.4 Connection Through STP. DTI must interconnect with the GTE STP(s)
serving the LATA in which the traffic exchange trunk groups are
interconnected. Additionally, all interconnection to GTE's 800/888
database and GTE's LIDB shall, consistent with this section and
Appendix J attached hereto, take place only through appropriate STP
pairs.
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9.5 Third Party Signaling Providers. DTI may choose a third-party SS7
signaling provider to transport messages to and from the GTE SS7
network. In that event, that third-party provider must present a letter
of agency to GTE, prior to the testing of the interconnection,
authorizing the Third Party to act on behalf of DTI in transporting SS7
messages to and from GTE. The third-party provider must interconnect
with the GTE STP(s) serving the LATA in which the traffic exchange
trunk groups are interconnected.
9.6 Multi-Frequency Signaling. In the case where CCS is not available, in
band Multi-Frequency ("MF"), wink start, E & M channel associated
signaling with ANI will be provided by the Parties. Network signaling
information, such as CIC/OZZ, will be provided wherever such
information is needed for call routing or billing.
10. Service Quality and Performance. Each Party shall provide Services
under this Article to the other Party that are equal in quality to that
the Party provides to itself, its Affiliates or any other entity.
"Equal in quality" shall mean that the Service will meet the same
technical criteria and performance standards that the providing Party
uses within its own network for the same Service at the same location
under the same terms and conditions.
11. Network Outages. GTE shall work with DTI to establish reciprocal
responsibilities for managing network outages and reporting. Each party
shall be responsible for network outage as a result of termination of
its equipment in GTE wire center or access tandem. DTI shall be
responsible for notifying GTE of significant outages which could impact
or degrade GTE switches and services.
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ARTICLE VI
RESALE OF SERVICES
1. General. The purpose of this Article VI is to define the Exchange
Services and related Vertical Features and other Services (collectively
referred to for purposes of this Article VI as the "Services") that may
be purchased from GTE and resold by DTI and the terms and conditions
applicable to such resold Services. Except as specifically provided
otherwise in this Agreement, provisioning of Exchange Services for
resale will be governed by the GTE Guide. GTE will make available to
DTI for resale any Telecommunications Service that GTE currently
offers, or may offer hereafter, on a retail basis to subscribers that
are not telecommunications carriers, except as qualified by Section 2.2
below.
2. Terms and Conditions.
2.1 Quality and Performance. GTE shall provide Services to DTI that are
equal in quality and performance standards to the same Services
provided by GTE to its own end user customers.
2.2 Restrictions on Resale. The following restrictions shall apply to the
resale of retail services by DTI.
2.2.1 DTI shall not resell Basic Exchange Residential Service
2.2.2 DTI shall not resell to one class of customers a service that
is offered by GTE only to another class of customers in
accordance with State requirements (e.g., R-1 to B-1, disabled
services or Lifeline services to non-qualifying customers).
2.2.3 DTI shall not resell public pay telephone lines.
2.2.4 DTI shall not resell semi-public pay telephone lines.
2.3 Restrictions on Discount of Retail Services. The discount specified in
Section 5.3 herein shall apply to all retail services except for the
following:
2.3.1 DTI shall resell services that are provided at a volume
discount in accordance with terms and conditions of applicable
tariff. DTI shall not aggregate end user traffic in order to
qualify for volume discount.
2.3.2 DTI shall resell ICB/Contract services without a discount and
only to end user customers that already have such services.
2.3.3 DTI shall resell COCOT coin or coinless line but no discount
applies.
2.3.4 DTI shall resell Lifeline services and services for the
disabled but no discount shall apply and they shall only be
resold to end user customers who qualify under GTE's tariffs
and state/Commission rules, orders and regulations.
2.3.5 DTI shall resell special access but no discount applies.
2.3.6 DTI shall resell Operator Services and Directory Assistance as
specified in Section 5.6 herein however no discount applies.
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<PAGE> 49
2.3.7 DTI shall resell promotional offerings that are ninety (90)
days or less in duration without a discount.
2.4 Resale to Other Carriers. Services available for resale may not be used
by DTI to provide access to the local network as an alternative to
tariffed switched and special access by other carriers, including, but
not limited to; interexchange carriers, wireless carriers, competitive
access providers, or other retail telecommunications providers.
3. Ordering and Billing.
3.1 Local Service Request. Orders for resale of Services will be placed
utilizing a standard Local Service Request ("LSR") form. GTE will
continue to participate in industry forums for developing service
order/disconnect order formats and will incorporate appropriate
industry standards. A complete and accurate LSR (containing the
requisite end user information as described in the Guide) must be
provided by DTI before a request can be processed.
3.2 Certificate of Operating Authority. When ordering, DTI must represent
and warrant to GTE that it is a certified provider of local dial-tone
service. DTI will provide a copy of its Certificate of Operating
Authority or other evidence of its status to GTE upon request.
3.3 Letter of Authorization. A Letter of Authorization ("LOA") will be
required before resold Services will be provided in cases in which the
subscriber currently receives Exchange Service from GTE or from a local
service provider other than DTI. Such LOA may be a blanket LOA or such
other form as agreed upon between GTE and DTI. GTE will not release
information to DTI on GTE end user customer accounts unless DTI first
provides to GTE a written LOA, signed by the end user customer,
authorizing the release of such information to DTI or if state or
federal law provides otherwise, in accordance with such law.
3.4 Directory Assistance Listings. GTE shall include a DTI customer listing
in its Directory Assistance database as part of the Local Service
Request ("LSR") process. GTE will honor DTI Customer's preferences for
listing status, including non-published and unlisted, as noted on the
LSR and will enter the listing in the GTE database which is used to
perform Directory Assistance functions as it appears on the LSR.
3.5 Nonrecurring Charges. DTI shall be responsible for the payment of all
nonrecurring charges ("NRCs") applicable to resold Services (e.g.,
installation, changes, ordering charges) in accordance with the
appropriate tariff. No discount applies to nonrecurring charges.
3.6 Transfers Between DTI and Another Reseller of GTE Services. When DTI
has obtained an end user customer from another reseller of GTE
services, DTI will inform GTE of the transfer by submitting a standard
LSR to GTE.
3.7 Local Calling Detail. Except for those Services and in those areas
where measured rate local service is available to end users, monthly
billing to DTI does not include local calling detail. However, DTI may
request and GTE shall consider developing the capabilities to provide
local calling detail in those areas where measured local service is not
available for a mutually agreeable charge.
3.8 Procedures. An overview of the procedures for preordering, ordering,
provisioning and billing for resold services are outlined in Appendix
I, attached hereto and made a part hereof.
3.9 LIDB. For resale services, GTE's service order will generate updates to
the LIDB for validation of calling card, collect, and third number
billed calls.
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<PAGE> 50
3.10 "OLN". Upon request, GTE will update the database to provide
Originating Line Number ("OLN") Screening which indicates to an
operator the acceptable billing methods for calls originating from the
calling number (e.g., penal institutions, COCOTS).
4. Maintenance.
4.1 Maintenance, Testing and Repair. GTE will provide repair and
maintenance services to DTI and its end user customers for resold
Services in accordance with the same standards and charges used for
such services provided to GTE end user customers. GTE will not initiate
a maintenance call or take action in response to a trouble report from
a DTI end user until such time as trouble is reported to GTE by DTI.
DTI must provide to GTE all end user information necessary for the
installation, repair and servicing of any facilities used for resold
Services according to the procedures described in the Guide.
4.2 Specifics and Procedures for Maintenance. An overview of the procedures
for maintenance of resold services and additional matters agreed to by
the Parties concerning maintenance are set forth in Appendix I.
5. Services Available for Resale.
5.1 Description of Local Exchange Services Available for Resale. Resold
basic Exchange Service includes, but is not limited to, the following
elements:
(a) Voice Grade Local Exchange Access Line - includes a telephone
number and dial tone.
(b) Local Calling - at local usage measured rates if applicable to
the end user customer.
(c) Access to long distance carriers
(d) E-911 Emergency Dialing
(e) Access to Service Access Codes - e.g., 800, 888, 900
(f) Use of AIN Services (those currently available to end users)
(g) End User Private Line Services
(h) Listing of telephone number in appropriate "white pages"
directory; and
(i) Copy of "White Pages" and "Yellow Pages" directories for the
appropriate GTE service area
5.2 List of Services Available for Resale. The type of Services listed on
Appendix F, attached hereto and made a part of this Agreement, are
available for resale by DTI. Subject to the limitations on resale
enumerated in this Article, any new services that GTE offers in the
future at retail to customers who are not telecommunications carriers
shall also be available to DTI for resale under the same terms and
conditions contained in this Agreement. Additional regulations, terms
and conditions relating to the type of Services listed on Appendix F
can be found in the appropriate intrastate local, toll and access
tariffs. Terms, conditions and other matters concerning rate
applications, technical parameters, provisioning capability,
definitions and feature interactions contained in such tariffs are
applicable to the type of Services offered under this Agreement and are
incorporated herein by reference. Modifications to Services listed on
Appendix F shall be provided to DTI in accordance with GTE's practices
and procedures.
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<PAGE> 51
5.3 Rates. The prices charged to DTI for Local Services shall be calculated
as follows:
(1) Avoided Cost Discount of 10.93% shall apply to all retail
services except those services listed in Section 2.2 and
Section 2.3 herein.
(2) The discount dollar amount calculated under Step 1 above will
be deducted from the retail rate.
(3) The resulting rate is the Wholesale Rate.
(4) This discount dollar amount in Step 2 above shall not change
during the Term of this Agreement, even though GTE may change
its retail rates.
5.4 Grandfathered Services. Services identified in GTE Tariffs as
grandfathered in any manner are available for resale only to end user
customers that already have such grandfathered service. An existing end
user customer may not move a grandfathered service to a new service
location.
5.5 Access. GTE retains all revenue due from other carriers for access to
GTE facilities, including both switched and special access charges.
5.6 Operator Services (OS) and Directory Assistance (DA). Where GTE
provides access to GTE Operator Services for local and toll assistance
(for example, call completion, busy line verification and emergency
interruption) and Directory Assistance (e.g., 411 calls routed to GTE's
DA operator centers) as an element of Exchange Services offered for
resale, DTI will be billed in accordance with Appendix F. GTE will
provide its existing OS and DA to a DTI at the same quality and in a
nondiscriminatory manner as the service GTE's end users receive.
5.6.1 Where Customized Routing is available (pursuant to Article
VII, Section 12.1), GTE will offer unbranded OS and DA or
rebranded OS and DA with the DTI brand. GTE will provide such
unbranding or rebranding on a switch-by-switch basis, subject
to capability and capacity limitations. Upon receipt of an
order for unbranding or rebranding, GTE will implement within
90 Business Days when technically capable.
5.6.2 DTI will be billed for unbranding or rebranding and Customized
Routing. Upon written request from DTI, GTE will provide DTI
with terms and conditions for providing Customized Routing and
branding, plus the applicable charges. In addition, a port and
dedicated trunk facilities are required as specified in
Article VII, Section 12.1.4.
5.6.3 For those offices that DTI has requested GTE to rebrand and/or
unbrand OS and DA, GTE will provide it using live operators
where GTE performs its own OS and DA service and where handled
by automated systems. If GTE uses a Third Party contractor to
provide OS or DA, GTE will not provide branding nor will GTE
negotiate it with a Third Party on behalf of DTI. DTI must
negotiate with the Third Party. In these instances, DTI will
need to purchase customized routing to differentiate OS/DA
traffic between GTE's and a Third Party.
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<PAGE> 52
ARTICLE VII
UNBUNDLED NETWORK ELEMENTS
1. General. The purpose of this Article VII is to define the unbundled
network elements that may be leased by DTI from GTE. Unless otherwise
specified in this Agreement, provisioning of unbundled network
arrangements will be governed with the GTE Customer Guide for DTI
Establishment of Services - Resale and Unbundling (the "Guide").
Additional procedures for preordering, ordering, provisioning and
billing of unbundled network elements are outlined in Appendix I.
2. Unbundled Network Elements.
2.1 Categories. There are several separate categories of Network Components
that shall be provided as unbundled network elements by GTE:
(a) Network Interface Device or NID
(b) Loop Elements
(c) Port and Local Switching Elements
(d) Transport Elements
(e) Signaling Elements
(f) Data Switching
(g) Digital Cross Connect System (DCS)
2.2 Prices. Individual unbundled network elements and prices are identified
on Appendix G attached to this Agreement and made a part hereof, or
under the appropriate GTE tariff as referenced in this Article.
Nonrecurring charges relating to unbundled elements are also listed on
Appendix G.
2.2.1 Reciprocal Compensation Arrangements for Call Termination.
Reciprocal compensation arrangements for call termination
shall be as provided in Appendix M attached hereto.
2.3 Interconnection to Unbundled Elements. DTI may lease and interconnect
to whichever of these unbundled network elements DTI chooses, and
subject to technical feasibility, may combine these unbundled elements
with any facilities or services that DTI may itself provide subject to
the following:
2.3.1 Interconnection shall be achieved via expanded
interconnection/collocation arrangements DTI shall maintain at
the wire center at which the unbundled services are resident.
2.3.2 DTI may order transport pursuant to Section 6 below as
follows:
(a) From the wire center at which the unbundled elements
(e.g., loop, port) are located to the GTE wire center
where DTI has established an
interconnection/collocation arrangement.
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<PAGE> 53
(b) Directly from the DTI switch to a GTE wire center and
connect to unbundled loops. Applicable charges would
be transport, transport termination, multiplexing,
loop/port connector and loop.
2.3.3 Each loop or port element shall be delivered to DTI
collocation arrangement over a loop/port connector applicable
to the unbundled services as listed on Appendix G.
2.3.4 DTI shall combine unbundled network elements with its own
facilities. GTE has no obligation to combine any network
elements for DTI. DTI may not combine such network elements to
provide solely interexchange service or solely access service
to an interexchange carrier.
2.4 Service Quality. To the degree reasonably possible, all service
attributes, grades-of-service and installation, maintenance and repair
intervals which apply to the bundled service will apply to unbundled
network elements. Notwithstanding the foregoing, GTE shall not be
responsible for impacts on service attributes, grades of service, etc.,
resulting from DTI's specific use of or modification to any unbundled
network element.
3. Network Interface Device.
3.1 Direct Connection. DTI shall be permitted to connect its own Loop
directly to GTE's Network Interface Device or NID in cases in which DTI
uses its own facilities to provide local service to an end user
formerly served by GTE, as long as such direct connection does not
adversely affect GTE's network. In order to minimize any such adverse
effects, DTI shall follow the procedures in Sections 3.1.1 and 3.1.2
below.
3.1.1 When connecting its own loop facility directly to GTE's NID
for a residence or business customer, DTI must make a clean
cut on the GTE drop wire at the NID so that no bare wire is
exposed. DTI shall not remove or disconnect GTE's drop wire
from the NID or take any other action that might cause GTE's
drop wire to be left lying on the ground.
3.1.2 At multi-tenant customer locations, DTI must remove the jumper
wire from the distribution block (i.e. the NID) to the GTE
cable termination block. If DTI cannot gain access to the
cable termination block, DTI must make a clean cut at the
closest point to the cable termination block. At DTI's request
and discretion, GTE will determine the cable pair to be
removed at the NID in multi-tenant locations. DTI will
compensate GTE for the trip charge necessary to identify the
cable pair to be removed.
3.1.3 GTE agrees to offer NIDs for lease to DTI but not for sale.
DTI may remove GTE identification from any NID which it
connects to a DTI loop, but DTI may not place its own
identification on such NID.
3.1.4 GTE Loop elements leased by DTI will be required to terminate
only on a GTE NID. If DTI leasing a GTE loop wants a DTI NID,
they will also be required to lease a GTE NID for the direct
loop termination and effect a NID to NID connection.
3.2 NID to NID Connection. Rather than connecting its loop directly to
GTE's NID, DTI may also elect to install its own NID and effect a NID
to NID connection to gain access to the end user's inside wiring.
3.2.1 DTI that provides its own loop facilities may elect to move
all inside wire terminated on a GTE NID to one provided by
DTI. In this instance, a NID to NID connection will not be
VII-2
<PAGE> 54
required. DTI, or the end user premise owner, can elect to
leave the GTE disconnected NID in place, or to remove the GTE
NID from the premise and dispose of it entirely.
3.3 Removal of Cable Pairs. Removal of existing cable pairs required for
DTI to terminate service is the responsibility of DTI.
3.4 Maintenance. When DTI provides its own loop and connects directly to
GTE's NID, GTE does not have the capability to perform remote
maintenance. DTI can perform routine maintenance via its loop and
inform GTE once the trouble has been isolated to the NID and GTE will
repair (or replace) the NID, or, at DTI's option, it can make a NID to
NID connection, using the GTE NID only to gain access to the inside
wire at the customer location.
4. Loop Elements.
4.1 Service Description. a "Loop" is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or
group of channels on such facility) which extends from a Main
Distribution Frame ("MDF') or functionally comparable piece of
equipment in a GTE end office or wire center to a demarcation or
connector block in/at a subscriber's premises. Traditionally, Loops
were provisioned as 2-wire or 4-wire copper pairs running from the end
office MDF to the customer premises. However, a loop may be provided
via other media, including radio frequencies, as a channel on a high
capacity feeder/distribution facility which may, in turn, be
distributed from a node location to the subscriber premises via a
copper or coaxial drop facility, etc.
4.2 Categories of Loops. There are six general categories of loops:
4.2.1 "2-wire analog voice grade" loops will support analog
transmission of 300-3000 Hz, repeat loop start or ground start
seizure and disconnect in one direction (toward the end office
switch), and repeat ringing in the other direction (toward the
end user). This loop is commonly used for local dial tone
service;
4.2.2 "4-wire analog voice grade" loops conform to the
characteristics of a 2-wire voice grade loop and, in addition,
can support the simultaneous independent transmission of
information in both directions;
4.2.3 "2-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 2-wire
digital loops shall be the price for the basic 2-wire loop
plus the loop facility NRC to recover the cost of the special
provisioning.
4.2.4 "4-wire digital" loops will support industry standard
specifications for digital transmission. Special provisioning
(removal of bridge taps and/or load coils) will be required to
conform to these industry standards. The price for 4-wire
digital loops shall be the price for the basic 4-wire loop
plus the loop facility NRC to recover the cost of the special
provisioning.
4.2.5 "DS-1" loops will support a digital transmission rate of 1.544
Mbps. The DS-1 loop will have no bridge taps or load coils and
will employ special line treatment. DS-1 loops will include
span line repeaters where required, office terminating
repeaters, and DSX cross connects. Prices for DS-1 grade loops
are the prices set forth in the appropriate GTE intrastate
special access tariff.
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<PAGE> 55
4.2.6 "DS-3" loops will support the transmission of isochronous
bipolar serial data at a rate of 44.736 Mbps. This DS-3 type
of loop provides the equivalent of 28 DS-1 channels and shall
include the electronics at either end.
4.3 Conditioned Loops. DTI may also require that the loops ordered above be
conditioned in order for them to provide the end-user service. Examples
of this type of conditioning are: Type C, Type DA, Improved C, Clear
Channel, etc. The price for such a conditioned loops shall be the
applicable charge as provided in the appropriate GTE intrastate special
access tariff.
4.4 Features, Functions, Attributes. To the degree reasonably possible, all
transport-based features, functions, service attributes,
grades-of-service, installation, maintenance and repair intervals that
apply to the bundled services will apply to unbundled loops.
4.4.1 GTE will not perform routine testing of the unbundled loop for
maintenance purposes. DTI will be required to provision a loop
testing device either in its central office (switch location),
Network Control Center or in its collocation arrangement to
test the unbundled loop. GTE will perform repair and
maintenance once trouble is identified by DTI.
4.4.2 All Loop facilities furnished by GTE on the premises of DTI's
end users and up to the network interface or functional
equivalent are the property of GTE. GTE must have access to
all such facilities for network management purposes. GTE
employees and agents may enter said premises at any reasonable
hour to test and inspect such facilities in connection with
such purposes or, upon termination or cancellation of the Loop
facility, to remove such facility.
4.4.3 GTE will provide loop transmission characteristics to DTI end
users which are equal to those provided to GTE end users.
4.4.4 If DTI leases loops which are conditioned to transmit digital
signals, as a part of that conditioning, GTE will test the
loop and provide recorded test results to DTI. In maintenance
and repair cases, if loop tests are taken, GTE will provide
any recorded readings to DTI at time the trouble ticket is
closed in the same manner as GTE provides to itself and its
end users.
4.5 Digital Loop Carrier. Where GTE utilizes integrated digital loop
carrier ("IDLC") (1) technology to provision the Loop element, GTE will
take the necessary affirmative steps to provide unbundled Loops. The
basic Loop provided will support voice grade services. Loop
capabilities beyond voice grade (i.e., ISDN, ADSL, etc.) will be
provided under the terms and conditions, and at the prices indicated in
Section 4.3.
4.5.1 GTE will permit DTI to collocate digital loop carriers and
associated equipment in conjunction with collocation
arrangements DTI maintains at a GTE wire center for the
purpose of interconnecting to unbundled Loop elements.
4.6 Unbundled Loop Facility Certification.
4.6.1 Before deploying any service enhancing copper cable technology
(e.g., HDSL, ISDN, etc.) over unbundled 2-wire analog voice
grade loops leased from GTE, DTI shall notify GTE of
- ---------------------
(1) See Bellcore TR-TSY-000008, Digital Interface Between the SLC-
96 Digital Loop Carrier System and Local Digital Switch and TR-TSY-000303,
Integrated Digital Loop Carrier (IDLC) Requirements, Objectives and Interface.
VII-4
<PAGE> 56
such intentions to enable GTE to assess the loop transport
facilities to determine whether there are any existing copper
cable loop transport technologies (e.g., analog carrier, etc.)
deployed within the same cable sheath that would be interfered
with if DTI deployed the proposed service enhancing copper
cable technology. If there are existing copper cable loop
transport technologies already deployed within the same cable
sheath, or if GTE already has existing near term (within 18
months of the date of facility certification) plans to deploy
copper cable loop transport technologies that would be
interfered with as described above, GTE will so inform DTI and
DTI shall not be permitted to deploy such service enhancing
copper cable technologies. GTE will charge DTI the applicable
engineering time and labor costs to perform the certification.
4.6.2 If DTI fails to notify GTE of its plans to deploy service
enhancing copper cable technology and obtain prior
certification from GTE of the facilities, if DTI's deployment
of such technology is determined to have caused interference
with existing or planned copper cable loop transport
technologies deployed by GTE in the same cable sheath, DTI
will immediately remove such service enhancing copper cable
technology and shall reimburse GTE for all incurred expense
related to this interference.
4.7 Unbundled Loop Facility Notification.
4.7.1 GTE reserves the right to deploy within its network at its
sole discretion any and all copper cable loop transport
technologies. If GTE plans to deploy copper cable loop
transport technology within a cable sheath in which such
technology was not previously deployed, GTE will provide
notice to DTI of such planned deployment, indicating all
service enhancing copper cable technologies that would cause
interference with the technology to be deployed, or that would
be interfered with by the deployment of such technology. Such
notice will be provided at least ninety (90) Business Days in
advance of the planned deployment. If DTI has deployed any
technologies within the same cable sheath that would interfere
with, or be interfered with, by the technology GTE plans to
deploy, the parties will work together to resolve the
situation.
4.8 Subloops.
4.8.1 GTE will provide as separate items the loop distribution, loop
concentrator and loop feeder on a case-by-case basis pursuant
to a Bona Fide Request ("BFR").
4.8.2 GTE will design and construct loop access facilities
(including loop feeders and loop concentration/multiplexing
systems) in accordance with standard industry practices as
reflected in applicable tariffs and/or as agreed to by GTE and
DTI.
4.8.3 Transport for loop concentrators/multiplexers services not
supported by embedded technologies will be provided pursuant
to applicable tariffs or as individually agreed upon by GTE
and DTI. The Parties understand that embedded loop
concentrators/multiplexers are not necessarily capable of
providing advanced and/or digital services.
4.8.4 GTE will provide loop transmission characteristics as
specified in Section 4.4.3 herein.
5. Port and Local Switching Elements.
5.1 Port. Port is an unbundled component of Exchange Service that provides
for the interconnection of individual loops or trunks to the switching
components of GTE's network. In general, it is a line card or trunk
card and associated peripheral equipment on GTE end office switch that
serves as the hardware termination for the end user's Exchange Service
on that switch and generates dial
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tone and provides the end user access to the public switched
telecommunications network. The port does not include such features and
functions which are provided as part of Local Switching. Each line-side
port is typically associated with one (or more) telephone number(s),
which serve as the end user's network address.
5.2 Ports Available as Unbundled Network Elements. There are four types of
Ports available as unbundled network elements;
5.2.1 "2-wire analog line" Port is a line side switch connection
employed to provide basic residential and business type
Exchange Service.
5.2.2 "2-wire ISDN digital line" Port is a Basic Rate Interface
(BRI) line side switch connection employed to provide ISDN
Exchange Services.
5.2.3 "DS-1 digital trunk" Port is a direct inward dialing (DID)
trunk side switch connection employed to provide the
equivalent of 24 analog incoming trunk type Exchange Services.
5.2.4 "4-wire ISDN digital DS-1 trunk" Port is a Primary Rate
Interface (PRI) trunk side switch connection employed to
provide the ISDN Exchange Services
5.3 Port Prices. Prices for 2-wire analog and DS-1 Ports are listed in
Appendix G. 2-wire ISDN line side Ports and 4-wire ISDN trunk side
Ports shall be provided at a price agreed to by the Parties.
5.4 Local Switching. Local switching provides the basic switching functions
to originate, route and terminate traffic and any signaling deployed in
the switch. Vertical features are optional services provided through
software programming in the switch which can be added on a per-feature
basis with applicable rate. GTE will offer only those features and
functions currently available to the particular platform used (e.g.,
DMS, 5ESS, GTD5). Any feature or function which is not available, but
the switch is capable of providing, may be requested via the BFR
process. DTI will be responsible for bearing any costs incurred by GTE
in making such feature/function available, including Right-to-Use (RTU)
fees. The rates for Local Switching and Vertical Features are listed in
Appendix G.
5.4.1 DTI must purchase Local Switching with the line-side Port or
trunk-side Port, if applicable.
5.5 Compliance with Section 2.3. DTI shall only order unbundled elements in
accordance with Section 2.3 herein and it will be the responsibility of
DTI to make arrangements for the delivery of interexchange traffic and
routing of traffic over interoffice transmission facilities, if
applicable.
6. Transport Facility.
6.1 Service Description. Transport is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or
group of channels on such facility) which extends from a Main
Distribution Frame (MDF) or functionally comparable piece of equipment
in a GTE end office or access tandem to either (I) another MDF or
functionally comparable piece of equipment in a GTE end office or
access tandem, or (ii) a meet point with transport facilities of DTI or
another carrier. Transport may be provided over a variety of media,
including, but not limped to, copper cables, radio frequencies or
channels on a high capacity facility.
6.1.1 Tandem Switching Capability. GTE will provide tandem
switching capability at GTE access tandems for
traffic between DTI and GTE end offices subtending
the GTE access tandem and for traffic between DTI
and non-GTE end offices subtending GTE access
tandems. GTE will provide the features and functions
that are
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centralized in tandem switches including but not limited to
call recording, the routing of calls to operator services when
technically feasible, and signaling conversion features.
6.2 Categories/Types. Unbundled transport is provided under rates, terms
and conditions of the applicable GTE access tariff or local private
line tariff.
7. SS7 Transport and Signaling. SS7 signaling and transport services in
support of DTI's local exchange services shall be provided in
accordance with the terms and conditions of Appendix I attached to this
Agreement and made a part hereof.
7.1 GTE will provide interconnection with its SS7 at the STPs but not at
other points.
8. LIDB Services. Access to GTE's LIDB shall be provided in accordance
with the rates, terms and conditions of GTE's switched access tariff,
GTOC Tariff FCC No. 1, Section 8.
9. Database 800-Type Services. Access to GTE's 800-Type database (i.e.,
888, 877) shall be provided in accordance with the rates, terms and
conditions of GTE's switched access tariff, GTOC Tariff FCC No. 1,
Section 8.
10. Data Switching.
10.1 Access. GTE will provide unbundled access to GTE data switches to DTI
at the user network interface ("UNI") and network to network interface
("NNI") level subject to mutual agreement on technical standards.
10.2 Nondiscrimination. Data switching features and functionalities provided
to DTI will be without discrimination with respect to the way GTE
provides them to GTE end users. In the event of overflow or congestion
conditions on the data switching network, DTI's data traffic carried on
GTE facilities will be equal priority to GTE data traffic.
10.3 Testing Monitoring, Administration and Maintenance. Testing,
monitoring, administration and maintenance will be performed by GTE in
a nondiscriminatory manner.
11. Digital Cross Connect System (DCS).
11.1 Access. GTE will provide unbundled access to the DCS element, which
shall provide automated cross-connection (with CNC), facility grooming,
bridging (MJU-digital), point to multipoint connections (DMB-analog),
broadcast and automated facility test capabilities. These
functionalities will be provided consistent with that which is provided
to GTE end users. DTI shall submit a Bona Fide Request to GTE
specifying these functionalities.
11.2 Optional Characteristics. The DCS element may include multiplexing,
format conversion, signaling conversion and manual cross connection
wiring.
11.3 Alternate Provisioning. Where no automated DCS capability exists, the
cross connection function will be provided manually by GTE through the
combination of DSX patch panels and D4 banks or DS0 (or higher
capacity) equipment.
11.4 Elements. DTI will have access to the following DCS elements:
(a) DS0 with DS1 interface (CNC)
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(b) DS1/VT1.5 with DS1, DS3 and SONET interfaces (CNC and Titan
5500)
11.5 Capabilities. The DCS elements will provide the following capabilities:
(a) Real-time configuration (with CNC)
(b) Real-time access to integrated test equipment (with React and
Customer Service)
(c) SONET asynchronous gateway functionality (with Titan 5500
only)
(d) Compliance with Bellcore and industry standards.
11.6 Protection and Performance. The unbundled DCS elements provided to DTI
will have equipment/interface protection, redundant power supply and/or
battery backup and performance/availability consistent with that
provided to GTE end users.
11.7 Provisioning, Administration and Maintenance. GTE will provide
provisioning, administration and maintenance of the DCS elements the
same level as GTE provides to itself as well as real time access to
performance monitoring and alarm data affecting DTI traffic (with CNC).
GTE is not required to keep software updated to the "current available
release" in every instance.
12. Operator Services (OS) and Directory Assistance (DA). GTE will provide
OS and DA to DTI in accordance with the terms set forth as follows:
12.0.1 Where Customized Routing is available, GTE will offer
unbranded OS and DA or rebranded OS and DA with the DTI
brand. GTE will provide such unbranding or rebranding on a
switch-by-switch basis, subject to capability and capacity
limitations. Upon receipt of an order for unbranding or
rebranding, GTE will implement within 90 Business Days when
technically capable.
12.0.2 DTI will be billed an element charge for OS and DA and a
charge for unbranding or rebranding and Customized Routing
as set forth in Section 12.1.2. In addition, charges
specified in Section 12.1.4 will apply.
12.0.3 For those offices that DTI has requested GTE to rebrand
and/or unbrand OS and DA, GTE will provide it using live
operators where GTE performs its own OS and DA service and
where handled by automated systems. If GTE uses a Third
Party contractor to provide OS or DA, GTE will not provide
branding nor will GTE negotiate it with a Third Party on
behalf of DTI. DTI must negotiate with the Third Party. In
these instances, DTI will need to purchase customized
routing to differentiate OS/DA traffic between GTE's and a
Third Party.
12.1 Customized Routing. Where technically feasible and upon receipt of
written request from DTI, GTE agrees to provide customized routing for
the following types of calls:
0-
0+Local
0+411
1+411
0+HNPA-555-1212 (intraLATA, only when
intraLATA presubscription is not available)
1+HNPA-555-1212 (intraLATA, only when
intraLATA presubscription is not available)
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12.1.1 GTE will provide DTI a list of switches that can provide
customized routing using line class codes or similar method
(regardless of current capacity limitations). DTI will
return a list of these switches ranked in priority order.
GTE will return to DTI a schedule for customized routing in
the switches with existing capabilities and capacity.
12.1.2 Upon written request from DTI, GTE will provide DTI with
applicable charges, and terms and conditions, for providing
OS and DA, branding, and Customized Routing.
12.1.3 Subject to the above provisions, GTE will choose the method
of implementing customized routing of OS and DA calls.
12.1.4 The use of customized routing will require the purchase of a
trunk side port and dedicated facilities between the GTE end
office and the designated OS/DA platform. The rates for
these elements will be billed in accordance with Appendix G.
13. Advanced Intelligent Network Access (AIN). GTE will provide DTI access
to GTE AIN functionality from GTE's AIN SCP via GTE's local switch or
DTI's local switch.
14. Nondiscrimination Provision and Support. GTE agrees to provide
unbundled network elements in a timely manner considering the need and
volume of requests. GTE will provide unbundled network elements in a
non-discriminatory manner and shall provide power to such elements on
the same basis as GTE provides to itself.
15. Provisioning Intervals. GTE agrees to provide unbundled network
elements in a timely manner considering the need and volume of
requests, pursuant to agreed upon service provisioning intervals.
16. Directory Assistance Listing. When DTI orders an unbundled port, a
Directory Service Request (DSR) must be submitted to have the listing
included in GTE's Directory Assistance database. The applicable
ordering charge will be applied for processing the DSR.
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ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS
1. Bona Fide Request Process.
1.1 Intent. The Bona Fide Request process is intended to be used when DTI
requests customized Service Orders for certain services, features,
capabilities or functionality defined and agreed upon by the Parties as
services to be ordered as Bona Fide Requests.
1.2 Process.
1.2.1 A Bona Fide Request shall be submitted in writing by DTI and shall
specifically identify the need to include technical requirements, space
requirements and/or other such specifications that clearly define the
request such that GTE has sufficient information to analyze and prepare
a response.
1.2.2 Although not expected to do so, DTI may cancel a Bona Fide Request in
writing at any time prior to DTI and GTE agreeing to price and
availability. GTE will then cease analysis of the request.
1.2.3 Within two (2) Business Days of its receipt, GTE shall acknowledge in
writing the receipt of the Bona Fide Request and identify a single
point of contact and any additional information needed to process the
request.
1.2.4 Except under extraordinary circumstances, within ten (10) Business Days
of its receipt of a Bona Fide Request, GTE shall provide a proposed
price and availability date, or it will provide an explanation as to
why GTE elects not to meet DTI's request. If extraordinary
circumstances prevail, GTE will inform DTI as soon as it realizes that
it cannot meet the ten (10) Business Day response due date. DTI and GTE
will then determine a mutually agreeable date for receipt of the
request.
1.2.5 Unless DTI agrees otherwise, all proposed prices shall be consistent
with the pricing principles of the Act, FCC and/or the Commission.
Payments for services purchased under a Bona Fide Request will be made
upon delivery, unless otherwise agreed to by DTI, in accordance with
the applicable provisions of the Agreement.
1.2.6 Upon affirmative response from GTE, DTI will submit in writing its
acceptance or rejection of GTE's proposal. If at any time an agreement
cannot be reached as to the terms and conditions or price of the
request GTE agrees to meet, the Dispute resolution procedures described
in Article III herein may be used by a Party to reach a resolution.
2. Transfer of Service Announcements. For services other than GTE resold
and ported number services, when an end user customer transfers service
from one Party to the other Party, and does not retain its original
telephone number, the Party formerly providing service to the end user
will provide, upon request and if such service is provided to its own
customers, a referral announcement on the original telephone number.
This announcement will provide the new number of the customer and will
remain in effect for the same time period this service is provided to
GTE's own end users. For GTE resold and ported number services, GTE
shall provide an intercept referral on behalf of DTI.
3. Misdirected Calls. The Parties will employ the following procedures for
handling any misdirected calls (e.g., Business office, repair bureau,
etc.).
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3.1 To the extent the correct provider can be determined, each Party will
refer misdirected calls to the proper provider of local exchange
service. When referring such calls, both Parties agree to do so in a
courteous manner, at no charge.
3.2 For misdirected repair calls, the Parties will provide their respective
repair bureau contact number to each other on a reciprocal basis and
provide the end user the correct contact number.
3.3 In responding to misdirected calls, nether Party shall make disparaging
remarks about each other, nor shall they use these calls as a basis for
internal referrals or to solicit end users or to market services.
4. 911/E911 Arrangements.
4.1 Description of Service. DTI will install a minimum of two (2) dedicated
trunks to GTE's 911/E911 selective routers (i.e., 911 tandem offices)
that serve the areas in which DTI provides Exchange Services, for the
provision of 911/E911 services and for access to all subtending PSAPs.
The dedicated trunks shall be, at a minimum, DS-0 level trunks
configured as a 2-wire analog interface or as part of a digital (1.544
Mbps) interface in which all circuits are dedicated to 9-1-1 traffic.
Either configuration shall use CAMA type signaling with multifrequency
("MF") tones that will deliver ANI with the voice portion of the call.
GTE will provide DTI with the appropriate CLLI codes and specifications
of the tandem office serving area or the location of the primary PSAP
when there is no 911 routing in that 911 district. If a DTI central
office serves end users in an area served by more than one (1) GTE
911/E911 selective router, DTI will install a minimum of two (2)
dedicated trunks in accordance with this Section to each of such
911/E911 selective routers or primary PSAP.
4.2 Transport. If DTI desires to obtain transport from GTE to the GTE 911
selective routers, DTI may purchase such transport from GTE at the
rates set forth in Appendix H.
4.3 Cooperation and Level of Performance. The Parties agree to provide
access to 911/E911 in a manner that is transparent to the end user. The
Parties will work together to facilitate the prompt, reliable and
efficient interconnection of DTI's systems to the 911/E911 platforms,
with a level of performance that will provide the same grade of service
as that which GTE provides to its own end users. To this end, GTE will
provide documentation to DTI showing the correlation of its rate
centers to its E911 tandems at rates set forth in Appendix H.
4.4 Basic 911 and E911 General Requirements:
4.4.1 Basic 911 and E911 provides a caller access to the appropriate
emergency service bureau by dialing a 3-digit universal
telephone number (911).
4.4.2 Where GTE has a 911 selective router installed in the network
serving the 911 district, GTE shall use subscriber data
derived from the Automatic Location Identification/Database
Management System (ALI/DMS) to selectively route the 911 call
to the Public Safety Answering Point (PSAP) responsible for
the caller's location.
4.4.3 All requirements for E911 also apply to the use of SS7 as a
type of signaling used on the interconnection trunks from the
local switch to an end office or a selective router.
4.4.4 Basic 911 and E911 functions provided to DTI shall be at least
at parity with the support and services that GTE provides to
its subscribers for such similar functionality.
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4.4.5 Basic 911 and E911 access from Local Switching shall be
provided to DTI in accordance with the following:
4.4.5.1 GTE and DTI shall conform to all state regulations
concerning emergency services.
4.4.5.2 For E911, both DTI and GTE shall use their respective
service order processes to update access line
subscriber data for transmission to the database
management systems. Validation will be done via MSAG
comparison listed in Section 4.4.5.5.
4.4.5.3 If legally required by the appropriate jurisdiction,
GTE shall provide or overflow 911 traffic to be
routed to GTE Operator Services or, at DTI's
discretion, directly to DTI Operator Services.
4.4.5.4 Basic 911 and E911 access from the DTI local switch
shall be provided from GTE to DTI in accordance with
the following:
4.4.5.4.1 If required by DTI and technically
feasible, GTE shall interconnect
direct trunks from the DTI network to
the E911 PSAP, or to the E911
selective routers as designated by
DTI. Such trunks may alternatively be
provided by DTI.
4.4.5.4.2 In government jurisdictions where GTE
has obligations under existing
Agreements as the primary provider of
the 911 System to the county (i.e.,
"lead telco"), DTI shall participate
in the provision of the 911 System as
follows:
4.4.5.4.2.1 Each Party shall be responsible
for those portions of the 911
System for which it has control,
including any necessary
maintenance to each Party's
portion of the 911 System.
4.4.5.4.2.2 DTI and GTE recognize that the
lead telco in a 911 district has
the responsibility of
maintaining the ALI database for
that district. Each company will
provide its access line
subscriber records to the
database organization of that
lead telco. DTI and GTE will be
responsible for correcting
errors when notified by either
the 911 district or its
customer, and then submitting
the corrections to the lead
telco. Lead telco database
responsibilities are covered in
Section 4.4.5.5 of this Article.
4.4.5.4.2.3 DTI shall have the right to
verify the accuracy of
information regarding DTI
customers in the ALI database
using methods and procedures
mutually agreed to by the
Parties. The fee for this
service shall be determined
based upon the agreed upon
solution.
4.4.5.4.3 If a Third Party is the primary
service provider to a 911 district,
DTI shall negotiate separately with
such Third Party with regard to the
provision of 911 service to the
agency. All relations between such
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Third Party and DTI are totally
separate from this Agreement and GTE
makes no representations on behalf of
the Third Party.
4.4.5.4.4 If DTI or Affiliate is the primary
service provider to a 911 district,
DTI and GTE shall negotiate the
specific provisions necessary for
providing 911 service to the agency
and shall include such provisions in
an amendment to this Agreement.
4.4.5.4.5 Interconnection and database access
shall be at rates as set forth in
Appendix H.
4.4.5.4.6 GTE shall comply with established,
competitively neutral intervals for
installation of facilities, including
any collocation facilities, diversity
requirements, etc.
4.4.5.4.7 In a resale situation, where it may be
appropriate for GTE to update the ALI
database, GTE shall update such
database with DTI data in an interval
no less than is experienced by GTE
subscribers, or than for other
carriers, whichever is faster, at no
additional cost.
4.4.5.5 The following are Basic 911 and E911 Database
Requirements:
4.4.5.5.1 The ALI database shall be managed by
GTE, but is the property of GTE and
any participating LEC or DTI which
provides their records to GTE.
4.4.5.5.2 Copies of the MSAG shall be provided
within five (5) business days after
the date the request is received and
provided on diskette or paper copy at
the rates set forth in Appendix H.
4.4.5.5.3 DTI shall be solely responsible for
providing DTI database records to GTE
for inclusion in GTE's ALI database on
a timely basis.
4.4.5.5.4 GTE and DTI shall arrange for the
automated input and periodic updating
of the E911 database information
related to DTI end users. GTE shall
work cooperatively with DTI to ensure
the accuracy of the data transfer by
verifying it against the Master Street
Address Guide ("MSAG"). GTE shall
accept electronically transmitted
files or magnetic tape that conform to
National Emergency Number Association
("NENA") Version #2 format.
4.4.5.5.5 DTI shall assign an E911 database
coordinator charged with the
responsibility of forwarding DTI end
user ALI record information to GTE or
via a third-party entity, charged with
the responsibility of ALI record
transfer. DTI assumes all
responsibility for the accuracy of the
data that DTI provides to GTE.
4.4.5.5.6 GTE shall update the database within
one (1) business day of receiving the
data from DTI. If GTE detects an error
in the DTI provided data, the data
shall be returned to DTI within one
day from when it was provided to GTE.
DTI shall respond to requests from GTE
to make corrections to database record
errors by
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uploading corrected records within one
day. Manual entry shall be allowed
only in the event that the system is
not functioning properly.
4.4.5.5.7 GTE agrees to treat all data on DTI
subscribers provided under this
Agreement as strictly confidential and
to use data on DTI subscribers only
for the purpose of providing E911
services.
4.4.5.5.8 GTE shall adopt use of a Carrier Code
(NENA standard five-character field)
on all ALI records received from DTI.
The Carrier Code will be used to
identify the carrier of record in NP
configurations. The NENA Carrier Code
for DTI is "DTI"; the NENA Carrier
Code for GTE is "GTE."
4.4.5.6 GTE and DTI will comply with the following
requirements for network performance, maintenance
and trouble notification.
4.4.5.6.1 Equipment and circuits used for 911
shall be monitored at all times.
Monitoring of circuits shall be done
to the individual trunk level.
Monitoring shall be conducted by GTE
for trunks between the selective
router and all associated PSAPs.
4.4.5.6.2 Repair service shall begin immediately
upon report of a malfunction. Repair
service includes testing and
diagnostic service from a remote
location, dispatch of or in-person
visit(s) of personnel. Where an
on-site technician is determined to be
required, a technician will be
dispatched without delay.
4.4.5.6.3 GTE shall notify DTI forty-eight (48)
hours in advance of any scheduled
testing or maintenance affecting DTI
911 service. GTE shall provide
notification as soon as possible of
any unscheduled outage affecting DTI
911 service.
4.4.5.6.4 All 911 trunks must be capable of
transporting Baudot Code necessary to
support the use of Telecommunications
Devices for the Deaf ("TTY/TDDs").
4.4.5.7 Basic 911 and E911 Additional Requirements
4.4.5.7.1 All DTI lines that have been ported
via INP shall reach the correct PSAP
when 911 is dialed. Where GTE is the
lead telco and provides the ALI, the
ALI record will contain both the DTI
number and GTE ported number. The PSAP
attendant shall see both numbers where
the PSAP is using a standard ALI
display screen and the PSAP extracts
both numbers from the data that is
sent. GTE shall cooperate with DTI to
ensure that 911 service is fully
available to all DTI end users whose
telephone numbers have been ported
from GTE, consistent with State
provisions.
4.4.5.7.2 DTI and GTE shall be responsible for
reporting all errors, defects and
malfunctions to one another. GTE and
DTI shall provide each other with a
point of contact for reporting errors,
defects, and
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malfunctions in the service and shall
also provide escalation contacts.
4.4.5.7.3 DTI may enter into subcontracts with
third parties, including DTI
Affiliates, for the performance of any
of DTI's duties and obligations stated
herein.
4.4.5.7.4 Where GTE is the lead telco, GTE shall
provide DTI with notification of any
pending selective router moves within
at least ninety (90) days in advance.
4.4.5.7.5 Where GTE is the lead telco, GTE shall
establish a process for the management
of NPA splits by populating the ALI
database with the appropriate new NPA
codes.
4.4.5.7.6 Where GTE is the lead telco, GTE shall
provide the ability for DTI to update
911 database with end user information
for lines that have been ported via
INP or LNP.
4.4.6 Basic 911 and E911 Information Exchanges and interfaces. Where
GTE is the lead telco:
4.4.6.1 GTE shall provide DTI access to the ALI Gateway
which interfaces to the ALI/DMS database. GTE shall
provide error reports from the ALI/DMS database to
DTI within one (1) day after DTI inputs information
into the ALI/DMS database. Alternately, DTI may
utilize GTE or a Third Party entity to enter
subscriber information into the database on a
demand basis, and validate subscriber information
on a demand basis. The rates are set forth in
Appendix H.
4.4.6.2 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database
information related to DTI end users. GTE shall
work cooperatively with DTI to ensure the accuracy
of the data transfer by verifying it against the
Master Street Address Guide ("MSAG"). GTE shall
accept electronically transmitted files or magnetic
tape that conform to National Emergency Number
Association ("NENA") Version #2 format.
4.4.6.3 Updates to MSAG. Upon receipt of an error recording
an DTI subscriber's address from GTE, and where GTE
is the lead telco, it shall be the responsibility
of DTI to ensure that the address of each of its
end users is included in the Master Street Address
Guide ("MSAG") via information provided on DTI's
Local Service Request ("LSR") or via a separate
feed established by DTI pursuant to Section 4.4.5.7
of this Article.
4.4.6.4 The ALI database shall be managed by GTE, but is
the property of GTE and all participating telephone
companies. The interface between the E911 Switch or
Tandem and the ALI/DMS database for DTI subscriber
shall meet industry standards.
4.5 Compensation. In situations in which GTE is responsible for maintenance
of the 911/E911 database and can be compensated for maintaining DTI's
information by the municipality, GTE will seek such compensation from
the municipality. GTE will seek compensation from DTI only if, and to
the extent, that GTE is unable to obtain such compensation from the
municipality. GTE
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shall charge DTI a portion of the cost of the shared 911/E911 selective
router as set forth in Appendix H.
5. Information Services Traffic.
5.1 Routing. Each Party shall route traffic for Information Services (i.e.
900-976, Internet, weather lines, sports providers, etc.) which
originates on its network to the appropriate Information Service
Platform.
5.2 Billing and Collection and Information Service Provider (ISP)
Remuneration.
5.2.1 In the event GTE performs switching of ISP traffic associated
with resale or unbundled network elements for DTI, GTE shall
provide to DTI GTE's standard call detail records so as to
allow DTI to bill its end users. GTE shall not be responsible
or liable to DTI or ISP for Billing and Collection and/or any
receivables of Information Service Providers.
5.2.2 Notwithstanding and in addition to Article III, Section 24,
GTE shall be indemnified and held harmless by CLEC from and
against any and all suits, actions, losses, damages, claims,
or liability of any character, type, or description, including
all expenses of litigation and court cost which may arise as a
result of the provisions contained in this Article VIII,
Section 5.2.1 supra. The indemnity contained in this section
shall survive the termination of this Agreement, for whatever
reason.
5.2.3 GTE agrees to notify DTI in writing within ten (10) working
days, by registered or certified mail at DTI's address of any
claim made against GTE on the obligations indemnified against
pursuant to this Article VIII, Section 5.
5.2.4 It is understood and agreed that the indemnity provided for in
this Article VIII, Section 5 is to be interpreted and enforced
so as to provide indemnification of liability to GTE to the
fullest extent now or hereafter permitted by law.
5.3 900-976 Call Blocking. GTE shall not unilaterally block 900-976 traffic
in which GTE performs switching associated with resale or unbundled
network elements. GTE will block 900-976 traffic when requested to do
so, in writing, by DTI. DTI shall be responsible for all cost
associated with the 900-976 call blocking request. GTE reserves the
right to block any and all calls which may harm or damage its network.
5.4 Miscellaneous. GTE reserves the right to provide to any Information
Service Provider a list of any and all Telecommunications Providers
doing business with GTE.
6. Telephone Relay Service. Local and intraLATA Telephone Relay Service
("TRS") enables deaf, hearing-impaired, or speech-impaired TRS users to
reach other telephone users. With respect to resold services, DTI's end
users will have access to the state authorized TRS provider to the
extent required by the Commission, including any applicable
compensation surcharges.
7. Directory Assistance (DA) and Operator Services (OS). Where DTI is
providing local service with its own switch, upon DTI's request GTE
will provide to DTI rebranded or unbranded directory assistance
services and/or operator services pursuant to separate contracts to be
negotiated in good faith between the Parties. If DTI so requests
directory assistance services and/or operator services, such contracts
shall provide for the following:
7.1 Directory Assistance Calls. GTE directory assistance centers shall
provide number and addresses to DTI end users in the same manner that
number and addresses are provided to
VIII-7
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GTE end users. If information is provided by an automated response unit
("ARU"), such information shall be repeated twice in the same manner in
which it is provided to GTE end users. Where available, GTE will
provide call completion to DTI end users in the same manner that call
completion is provided to GTE end users. GTE will provide its existing
services to DTI end users consistent with the service provided to GTE
end users.
7.2 Operator Services Calls. GTE operator services provided to DTI end
users shall be provided in the same manner GTE operator services are
provided to GTE end users. In accordance with GTE practices and at GTE
rates, GTE will offer to DTI end users collect, person-to-person,
station-to-station calling, Third Party billing, emergency call
assistance, calling card services, credit for calls, time and charges,
notification of the length of call, and real time rating. GTE operators
shall also have the ability to quote DTI rates upon request but only if
there is appropriate cost recovery to GTE and to the extent it can be
provided within the technical limitations of GTE's switches. GTE will
provide its existing services to DTI end users consistent with the
service GTE provides to its own end users.
8. Directory Assistance Listings Information. GTE will include listings in
its directory assistance database for DTI end users in the same
geographic area as GTE provides directory assistance for GTE end users
as specified in Article VI, Section 3.4.
8.1 GTE shall provide to DTI, at DTI's request, for purposes of DTI
providing DTI-branded directory assistance services to its local
customers, within sixty (60) Business Days after an order for such tape
is received, all published DA listings for that specific state via
magnetic tape. Such listings will be Confidential Information under
this Agreement and DTI will use the listings only for its directory
assistance services to its end users. If DTI uses a Third Party
directory assistance service to its end users, DTI will ensure that
such Third Party likewise treats the listings as Confidential
Information under this Agreement, and uses them only for such directory
assistance. Changes to the DA Listing Information shall be updated on a
daily basis through the same means used to transmit the initial list.
DA Listing Information provided shall indicate whether the customer is
a residence or business customer. The rate to be paid by DTI to GTE
will be reasonable and mutually agreed upon.
8.2 The Parties will not release DA Listing Information that includes the
other Party's end user information to Third Parties without the other
Party's written approval. The other Party will inform the Releasing
Party if it desires to have the Releasing Party provide the other
Party's DA Listing Information to the Third Party, in which case, the
Releasing Party shall provide the other Party's DA Listing Information
at the same time as the Releasing Party provides the Releasing Party's
DA Listing Information to the Third Party. The rate to be paid by the
Releasing Party to the other Party shall be no more than the direct
costs of compiling such information. The other Party shall be
responsible for billing the Third Party.
8.3 The Parties will work together to identify and develop procedures for
database error corrections.
9. Directory Listings and Directory Distribution. DTI will be required to
negotiate a separate agreement for directory listings and directory
distribution, except as set forth below, with GTE's directory
publication company.
Listings. DTI agrees to supply GTE on a regularly scheduled basis, at
no charge, and in a mutually agreed upon format (e.g. Ordering and
Billing Forum developed), all listing information for DTI's subscribers
who wish to be listed in any GTE published directory for the relevant
operating area. Listing information will consist of names, addresses
(including city, state and zip code) and telephone numbers. Nothing in
this Agreement shall require GTE to publish a directory where it would
not otherwise do so.
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Listing inclusion in a given directory will be in accordance with GTE's
solely determined directory configuration, scope, and schedules, and
listings will be treated in the same manner as GTE's listings.
Distribution. Upon directory publication, GTE will arrange for the
initial distribution of the directory to service subscribers in the
directory coverage area at no charge.
DTI will supply GTE in a timely manner with all required subscriber
mailing information including non-listed and non-published subscriber
mailing information, to enable GTE to perform its distribution
responsibilities.
10. Busy Line Verification and Busy Line Verification Interrupt. Each Party
shall establish procedures whereby its operator assistance bureau will
coordinate with the operator assistance bureau of the other Party to
provide Busy Line Verification ("BLV") and Busy Line Verification and
Interrupt ("BLVI") services on calls between their respective end
users. Each Party shall route BLV and BLVI inquiries over separate
inward operator services trunks. Each Party's operator assistance
bureau will only verify and/or interrupt the call and will not complete
the call of the end user initiating the BLV or BLVI. Each Party shall
charge the other for the BLV and BLVI services at the rates contained
in Appendix F, or if there is no applicable rate listed in Appendix F,
at the rates in their respective tariffs.
11. SAG. GTE will provide to DTI upon request the Street Address Guide at a
reasonable charge. Two companion files will be provided with the SAG
which lists all services and features at all LSOs, and lists services
and features that are available in a specific LSO.
12. Dialing Format Changes. GTE will provide reasonable notification to DTI
of changes to local dialing format, i.e., 7 to 10 digit, by end office.
13. Operational Support Systems (OSS). GTE shall provide OSS functions to
DTI for ordering, provisioning and billing that are generally available
as described in Appendix I attached to this Agreement. DTI shall pay
GTE for access to GTE's OSS functions consistent with processes defined
in Appendix I.
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ARTICLE IX
COLLOCATION
1. Physical Collocation. GTE shall provide to DTI physical collocation of
equipment pursuant to 47 CFR Section 51.323 necessary for
interconnection or for access to unbundled network elements, provided
that GTE may provide virtual collocation in place of physical
collocation, or in some cases deny a particular collocation request
entirely, if GTE demonstrates that physical collocation, or perhaps
even virtual collocation, is not practical because of technical reasons
or space limitations, as provided in Section 251(c)(6) of the Act. GTE
will work with DTI to install collocation arrangements within 120
calendar days absent extenuating circumstances, GTE will provide such
collocation for purposes of interconnection or access to unbundled
network elements pursuant to the terms and conditions in the applicable
federal and state EIS tariffs.
1.1 Space Planning. In addition to such provisions for space planning and
reservation as may be set forth in the applicable GTE federal and state
EIS tariffs, the parties agree to the following terms and conditions.
1.1.1 GTE has the right to reserve space within its central offices
for its own use based on a 5-year planning horizon.
1.1.2 GTE will notify DTI if it plans to build an addition to a
central office where DTI has collocated facilities, if such
addition would result in a material increase of space
available for collocation.
1.1.3 Should DTI submit to GTE a two-year forecast for space
planning for collocated facilities in a central office, GTE
will, in good faith, consider and discuss such forecast with
DTI when considering space planning or utilization decisions
for such central office; provided, however that any final
space planning or utilization decision shall be made by GTE in
its sole discretion in light of GTE requirements.
1.1.4 Subject to technical feasibility and space limitations, GTE
will make available at applicable federal and state EIS
tariffs such intraoffice facilities as may be necessary to
accommodate projected volumes of DTI traffic.
1.2 Connection to Customer LOOPS and Ports. Facilities for cross-connection
to unbundled loops and ports shall be provided under the applicable GTE
federal tariff for Special Access Cross Connect, until such time as a
local tariff applicable to the facilities used for such
cross-connection is filed.
1.3 Connection to Other Collocated Carriers. Subject to technical
feasibility and space limitations, DTI may interconnect with other
carriers collocated at a GTE central office at which DTI has collocated
facilities; provided, however, that DTI and such other carriers must be
collocated at the GTE central office for the primary purpose of
interconnecting with GTE or accessing GTE's unbundled network elements.
If DTI wants to interconnect with other carriers collocated at a GTE
central office, DTI must provide GTE with thirty Business Days' prior
written notice, during which time GTE may elect to provide the
facilities necessary to accomplish such interconnection. DTI and the
other collocated carriers may provide the necessary interconnection
facilities only if GTE elects not to provide such facilities or fails
to so elect within the thirty day notice period. If GTE elects to
provide interconnection facilities under this section, GTE will provide
this cross connection under the GTE federal tariff for Special Access
Cross Connect, until such time as a local tariff applicable to the
facilities used for such interconnection facilities is filed.
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1.4 Choice of Vendor. DTI may use the vendor of its choice to install,
maintain and repair equipment within DTI's collocated space. Access by
the employees, agents or contractors of such vendor shall be subject to
the same restrictions on access by employees, agents or contractors of
DTI imposed under the applicable GTE federal and state EIS tariffs,
including but not limited to certification and approval by GTE.
1.5 Monitoring. Subject to technical feasibility and space limitations, DTI
may extend its own facilities for remote monitoring of its collocated
equipment to its collocated space. DTI may request that GTE provide the
facilities necessary for such remote monitoring, at which time GTE and
DTI will negotiate in good faith the price, terms and conditions of
remote monitoring by GTE.
1.6 Phone Service. Upon ordering collocated space, DTI may order that its
collocation cage be provided with plain old telephone service (POTS)
commencing at such time as GTE has completed construction of the
collocated space. DTI shall pay separately for any ordered POTS
service.
1.7 Intraoffice Diversity. At DTI's request, GTE will provide diversity for
ingress/egress fiber and power cables where such diversity is available
and subject to technical feasibility and space limitations.
1.8 DTI Proprietary Information. GTE will protect all DTI proprietary
information to the extent required under non-disclosure agreements
existing as of the date GTE completes construction of a physical
collocation space at DTI's request.
1.9 Notification of Modifications. GTE will notify DTI of modifications to
collocation space in accord with the terms of applicable GTE state and
federal EIS tariffs. Additionally, GTE shall notify DTI when major
upgrades are made to the power plants supporting DTI's collocation
space. The following shall constitute such major upgrades:
(a) replacement of a rectifier;
(b) addition or replacement of a new fusing module;
(c) addition or replacement of a power distribution unit frame; or
(d) addition or replacement of modular rectifiers.
1.10 Drawings. When DTI orders collocated space, GTE and DTI will hold a
GTE/Customer meeting in accord with applicable GTE state and federal
EIS tariffs. At such meeting, GTE will provide such drawings of GTE's
central office facility as may be necessary to adequately depict DTI's
proposed collocation space.
1.11 Construction of Space. GTE will construct DTI's collocation space in
accord with the terms and conditions set forth in the applicable GTE
state and federal EIS tariff. Additionally, GTE agrees to the following
terms and conditions regarding construction of collocated space:
1.11.1 Space will be constructed in 100 square foot increments, and
shall be designed so as to prevent unauthorized access.
1.11.2 a standard 100 square foot cage shall have the following
standard features:
(a) eight-foot high, nine gauge chain link panels;
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(b) three of the panels listed at (a) above shall
measure eight by ten feet, the fourth panel shall
measure eight by seven feet;
(c) the door to the cage shall measure eight by three
feet and shall also consist of nine gauge chain
link;
(d) the cage shall be provided with one padlock set,
with GTE retaining one master key;
(e) one ac electrical outlet;
(f) one charger circuit system;
(g) one electrical sub-panel;
(h) such additional lighting as may be necessary;
(i) one fire detection requirement evaluation;
(j) grounding for the cage consistent with COEI.
1.11.3 Modifications to the standard configuration set forth in
Section 1.11.2 can be made on an individual case basis. If
modifications are agreed upon and made by the Parties, GTE
will work with DTI to implement such additional
modifications as may be necessary to ensure that DTI's
collocated space is protected from unauthorized access.
1.11.4 At such time as construction of DTI's collocation space is
approximately 50 percent completed, GTE will give DTI
notification, and such notification shall include scheduled
completion and turnover dates.
1.11.5 Upon completion of construction of collocated space, GTE
will conduct a walk through of the collocated space with
DTI. Should DTI note any deviations from the plan agreed
upon by GTE and DTI at the customer meeting, and if such
deviations were not requested by DTI or not required by law,
GTE shall correct such deviations at its own expense within
5 Business Days.
1.12 Connection Equipment. DTI may provision equipment for the connection of
DTI termination equipment to GTE equipment using either of the
following methods:
1.12.1 DTI may extend an electrical or optical cable from the
terminal within DTI's collocation cage and terminate that
cable at GTE's network.
1.12.2 DTI may install a patch panel within its collocation cage
and then hand the cabling to GTE to extend to and have GTE
terminate that cable at GTE's network.
1.13 Access to DTI Collocation Space. The terms and conditions of access to
DTI's collocation space shall be as set forth in applicable GTE state
and federal EIS tariffs. Additionally, GTE agrees that the following
terms and conditions shall apply to access:
1.13.1 GTE shall implement adequate measures to control access to
collocation cages.
1.13.2 Collocation space shall comply with all applicable fire and
safety codes.
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1.13.3 Doors with removable hinges or inadequate strength shall be
monitored by an alarm connected to a manned site. All other
alarms monitoring DTI collocation space provided by GTE
shall also be connected to a manned site. DTI may, at its
option, provide its own intrusion alarms for its collocated
space.
1.13.4 GTE shall control janitorial access to collocation cages,
and restrict such access to approved and certified
employees, agents or contractors.
1.13.5 GTE shall establish procedures for access to collocation
cages by GTE and non- GTE emergency personnel, and shall not
allow access by security guards unless such access comports
with this section and is otherwise allowed under applicable
GTE state and federal EIS tariffs.
1.13.6 GTE shall retain a master key to DTI's collocation space for
use only in event of emergency as detailed in applicable GTE
state and federal tariffs. At DTI's option, the Parties
shall review key control procedures no more frequently than
once in any twelve month period. At any time, DTI may elect
to change keys if it suspects key control has been lost,
provided, however, that GTE will be provided with a master
key in accord with this section.
1.13.7 Not more frequently than once a year, DTI may audit the
security and access procedures and equipment applicable to
its collocated space and the central office housing the
collocation space. Access by personnel necessary to conduct
such an audit shall be limited as set forth in applicable
GTE state and federal EIS tariffs. Should DTI identify
deficiencies in security and access procedures and equipment
as a result of such audit, the cost, terms and conditions of
the correction of such deficiencies shall be negotiated in
good faith between the parties.
2. Virtual Collocation. Subject to Section 1 of this Article IX, GTE will
provide virtual collocation for purposes of interconnection or access
to unbundled network elements pursuant to the terms and conditions in
the applicable GTE federal and state EIS tariffs. In addition, GTE
agrees that the terms and conditions set forth in this Section 2 of
this Article IX, shall apply to virtual collocation provided to DTI.
2.1 Existing Virtual Collocation. If, on the effective date of this
Agreement, DTI is virtually collocated in a GTE premise, DTI may (I)
elect to retain its virtual collocation arrangement in that premise or
(ii) unless it is not practical for technical reasons or because of
space limitations, convert its virtual collocation arrangement at that
premise to physical collocation. If DTI elects the latter option, DTI's
request shall be treated as a new physical collocation request and DTI
shall pay GTE at the applicable tariff rates for construction and
rearrangement of DTI's equipment as well as all applicable tariffed
physical collocation recurring charges.
2.2 Conversion from Physical to Virtual. Unless it is not practical for
technical reasons or because of space limitations, DTI may convert a
physical collocation arrangement to a virtual collocation arrangement.
DTI's request to do so shall be treated as a new virtual collocation
request and DTI shall pay GTE at the applicable tariff rates for
construction and rearrangement of DTI's equipment as well as all
applicable tariffed virtual collocation recurring charges. If DTI
elects to change to a virtual collocation arrangement pursuant to this
section, GTE will not refund previous payments for physical collocation
received from DTI.
2.3 Vendors. Choice of vendors for equipment used for virtual collocation
shall be under the terms and conditions set forth in the applicable GTE
federal and state EIS tariff. Upon request by DTI,
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GTE shall provide a list of locally qualified vendors approved
for the type of equipment to be collocated.
2.4 Inspection. Upon provision of virtual collocation by GTE, the Parties
shall agree on a mutually acceptable schedule whereby DTI may inspect
the equipment in its virtual collocation space.
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ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY
To the extent required by the Act, GTE and DTI shall each afford to the other
access to the poles, ducts, conduits rights of way it owns or controls on terms,
conditions and prices comparable to those offered to any other entity pursuant
to each Parties tariffs and/or standard agreements. Accordingly, GTE and DTI
shall execute pole attachment and conduit occupancy agreements in the form set
forth in Appendices I and J.
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IN WITNESS WHEREOF, each Party has executed this Agreement to be effective as of
the date first above written.
GTE SOUTHWEST INCORPORATED; DIGITAL TELEPORT, INC.
GTE ARKANSAS INCORPORATED;
GET MIDWEST INCORPORATED
By /s/ Connie Nicholas By /s/ J. W. Sheehy
----------------------------- -----------------------------
Name Connie Nicholas Name J.W. Sheehy
--------------------------- ---------------------------
Assistant Vice President
Title Wholesale Market Interconnection Title Vice President IC Support
---------------------------------- --------------------------
Date November 7, 1997 Date 10/20/97
--------------------------- ---------------------------
<PAGE> 77
APPENDIX A
GTE PERFORMANCE MEASURES (PM)
Pursuant to Article III of this Agreement, the following terms and conditions
shall apply regarding the performance measures set forth in this Appendix A. The
Parties recognize that these performance measures are new and evolving, and as
further evolution is made by GTE, the parties will discuss the changed
procedures, including new standard processes and procedures, if any, for the
purpose of applying them to and incorporating them in this Agreement.
GTE'S PERFORMANCE MEASURES (PMs) as set forth in this Appendix implement
standards to measure the quality of services supplied by GTE with respect to
pre-ordering, order/provisioning, maintenance and billing that is equivalent in
equality to what GTE provides to itself. GTE's PMs contain measures for both GTE
and DTI with the measures for DTI being considered an essential element for GTE
meeting customer expectations.
GTE's PMs are conditioned upon a 150 order per month minimum requirement as
described below for Service Units, as a threshold for providing Financial
Incentives for certain PMs. The 150 order per month requirement for Service
Units was developed to provide a statistically valid sample size to measure
GTE's performance for DTI in relationship to the level of performance GTE
provides to its own customers. Service Units are defined to include unbundled
loops, unbundled ports, resold local service lines, INP ported numbers, and
interconnection trunks.
GTE will begin recording of performance data in the first full month in which it
receives the first official order from DTI. GTE's report of performance measures
to DTI, however, will begin after 6 months of data recording; i.e., for data
recorded in the seventh full month. Each month's report will then be reported as
a rolling 3-month result (i.e., July's report will actually include May, June,
July data). The calculation of DTI performance will be based on this 3 month
rolling average of actual performance unless otherwise specified.
Reporting will be available monthly, or at a longer interval, as requested by
DTI. The details of report delivery shall be agreed upon between DTI and the
appropriate GTE Account Management group.
FORECASTING PERFORMANCE MEASUREMENT - GTE's PMs are conditioned upon the
requirement, as described more fully below, that DTI submit timely and accurate
forecasts. The Forecasting PM includes provisions that measure the accuracy of
DTI's forecast by comparing forecasted Service Units to ordered Service Units
for the same period.
DTI shall furnish a quarterly forecast of service order volumes and quantities
of resold local services, unbundled network elements, and interconnection trunks
on a State-wide basis, identifying these volumes/quantities by month, for each
month included in the quarter. These forecasts shall be received by GTE at least
one month before the beginning of the quarter covered by the forecast. Should
the first month of the next quarterly forecast be greater than ten (10%) percent
of the last month of the current quarterly forecast, DTI shall notify GTE
promptly of the increased order volume. Notification shall be made to the
appropriate GTE Account Management group in order to allow sufficient "lead
time" to ensure staffing levels are available to support the increased order
volumes.
DTI must agree to comply with the requirements of the Forecasting PM as the
basis for the application of Financial Incentives described below. If DTI
chooses not to comply with the Forecasting PM, Financial Incentives will not
apply. For purposes of applying Financial Incentives the accuracy of forecasts
will be determined at the state level.
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The measurement and reporting of GTE's PMs will still be made available as
stated above regardless of DTI's election for the Forecasting PM.
FINANCIAL INCENTIVES - When DTI agrees to the Forecasting PM described above,
Financial Incentives will begin concurrently with reporting of individual DTI
performance data except as specified below for the
Pre-Ordering/Ordering/Provisioning and Interconnection PMs.
Financial Incentives will apply to Maintenance/Repair PMs without restriction
other than DTI's participation in the Forecasting PM.
Financial Incentives will apply to Pre-Ordering/Ordering/Provisioning and
Interconnection PMs subject to DTI's participation in the Forecasting PM and the
required per month ordering threshold. DTI must place a 150 orders per month
minimum for Service Units, by state, for three (3) consecutive months (hereafter
the "150-order requirement"). Once DTI's order volume reaches the "150-order
requirement", a ninety (90) day grace period will begin wherein data will be
accumulated and reviewed. At the end of that ninety (90) day grace period,
applicable Financial Incentives shall apply. The three (3) consecutive months
and the subsequent ninety (90) day grace period may be concurrent with all or
part of the beginning six (6) month period after recording of official data
begins, between initial order activity and the implementation of performance
reporting (i.e., month 7 data).
For purposes of applying Financial Incentives to the Forecasting PM, if DTI's
actual order activity for Service Units in a given month is below the forecast
for that month by more than 10%, Financial Incentives will apply only to the
incremental Service Units that were forecasted but not ordered; i.e., the
difference between the actual quantity ordered and the quantity which reflects
the forecast less 10%.
For purposes of applying Financial Incentives to the Pre-ordering/Ordering/
Provisioning and Interconnection PM, if DTI's actual order activity for Service
Units in a given month exceeds the forecast for that month by more than 10%,
Financial Incentives will not apply.
Average Non-Recurring Charges - The averages are calculated by dividing the sum
of all non-recurring charges applied to service orders issued by DTI to GTE by
the total number of orders or the total number of Service Units ordered. These
calculations will be made by service activity and service category: Business
(Single/Multi-line, Centranet, PBX, Trunks), Residence, etc. The average
Non-Recurring Charges will be separately calculated for field work and non-field
work orders. These averages and a weighting factor for field and non-field work
will be calculated during a study period to be mutually agreed between the
Parties. The initial average Non-Recurring Charge calculation will occur within
three (3) months of DTI's initial issuance of official orders. The average
Non-Recurring Charge shall be recalculated annually as mutually agreed between
the Parties.
Average Recurring Charges - The averages are calculated by dividing the sum of
all recurring charges applied to service orders issued by DTI to GTE by the
total number of orders or Service Units ordered. These averages will be
calculated during a study period to be mutually agreed between the Parties.
These calculations will be made by service activity and service category,
Business, Residence, etc. The initial average Recurring Charge calculation will
occur within three (3) months of DTI's initial issuance of official orders. The
average Recurring Charges shall be recalculated annually as mutually agreed
between the Parties.
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GTE PERFORMANCE MEASURES WITH FINANCIAL INCENTIVES
PRE-ORDERING/ORDERING/PROVISIONING
<TABLE>
<CAPTION>
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
<S> <C> <C> <C> <C> <C>
1 GTE National Prompt transmission 85% of CSR's sent to 5% of average NRC
of Customer Service DTI by the close of incurred by DTI
Record (CSR) business on business for the number of
Information day following CSR's for which
receipt of request the Quality
Standard is not
met in the
reported month
- --------------- --------------- ------------------- --------------------- ---------------------- ------------------
2 GTE National Prompt transmission 85% of LSC's sent 20% of average NRC
of Local Service to DTI by the close of incurred by DTI
Confirmation (LSC) business on business for the lines
day following ordered for which
receipt of request GTE failed to meet
the Quality
Standard in the
reported month
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
3 GTE State Due Date Percent of DTI Waiver of the
commitments met customer install, average NRC
transfer, and change installation
service orders for charges for the
which service is number of lines by
installed by close which GTE fails to
of business on the meet the Quality
committed due date Standard in the
is not more than reported month
2.5% below the
percent of GTE
customer install,
transfer, and change
service orders
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
</TABLE>
A-4
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<TABLE>
<CAPTION>
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
<S> <C> <C> <C> <C> <C>
4 GTE State % reporting trouble Percent of DTI One month's
within 30 days of customer install, average MRC per
the date installed transfer, and change trouble report
service orders which exceeding the
are followed by a Quality Standard
customer trouble in the reported
report within 30 month (not to
days of service exceed one month's
order completion credit per
date is not more customer line
than 2.5% worse than month)
the percent GTE
customer install,
transfer, and change
service orders which
are followed by a
customer trouble
report within 30
days of service
order completion
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
5 GTE State Service Order 80% of LSR's Payment by DTI to
discrepancy: LSR's initiated by DTI's GTE equal to 20%
issued without do not contain an of the average NRC
material errors order discrepancy or installation
error: 90% in 12 charges for the
months. Final number of lines
target - 95% which DTI fails to
meet the Quality
Standard in the
reported month
- --------------- --------------- ------------------- --------------------- ---------------------- --------------------
</TABLE>
A-5
<PAGE> 82
<TABLE>
<CAPTION>
INTERCONNECTION
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Trunk orders Percent of trunk Waiver of 100% of
completed on or orders by DTI average NRC for
before the completed by GTE on trunks ordered fro
Committed Due Date or before the which GTE failed to
commitment date is meet the Quality
not more than 10% Standard in the
below the percent reported month
of FG B/D Switched
access orders by
all ordering
companies completed
by GTE on or before
the commitment date
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
2 GTE National Firm Order Percent of trunk Waiver of 20%
Confirmation (FOC) orders by DTI average of average
on time delivery completed by GTE on NRC installation for
or before the trunks for which GTE
commitment date is failed to meet the
not more than 5% Quality Standard in
below the percent the reported month
of FG B/D Switched
access by all
ordering companies
for which GTE sends
FOC (within 5 days,
or longer , as
requested by DTI)
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
A-6
<PAGE> 83
<TABLE>
<CAPTION>
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
3 DTI National Service Order 80% of ASR's Charge equal to 20%
discrepancy: ASR's initiated by DTI do of average NRC
issued without not contain installation of
material errors material error or trunks ordered for
result in which DTI failed to
discrepancy; 90% in meet the Quality
12 months. Final Standard in the
target 95% reported month
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
A-7
<PAGE> 84
<TABLE>
<CAPTION>
MAINTENANCE/REPAIR
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Percent Commitments Percent of DTI One month's flat
Met customer Network rate average MRC per
trouble reports line out of service
where commitment for which Quality
was meet more than Standard is not met
2.5% worse than the in the reported month
percent of GTE's
customer Network
trouble reports
where commitment
was met (excluding
reports which are
cleared CPE, DTI
customer error)
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
A-8
<PAGE> 85
<TABLE>
<CAPTION>
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
2 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed hours/ line OOS for which
Designed minutes for OOS DTI Quality Standard is
customer Network not met in the
trouble reports reported month
divided by total
number OOS customer
Network trouble
reports) for DTI
customers is more
than 10% of the
average repair time
for GTE customers
(includes only
"Designed" services)
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
A-9
<PAGE> 86
<TABLE>
<CAPTION>
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
3 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed line OOS for which
Non-Designed hours/minutes for Quality Standard is
OOS DTI customer not met in the
Network trouble reported month
reports divided by
total number OOS
customer Network
trouble reports)
for DTI customers
is more than 10% of
the average repair
time for GTE
customers (includes
only POTS and
circuits which do
not require a
design)
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
4 GTE State Percent reports per Percent of DTI Within six (6)
100 (Failure customers making months of effective
Frequency) trouble reports date, GTE will have
(total number of established a
DTI customer minimum access line
Network trouble threshold.
reports divided by
the total access One month's flat
lines multiplied by rate average MRC per
100) is not worse line OOS for which
than .5 percent Quality Standard is
points of the not met in the
percentage of GTE reported month.
customers making
trouble reports
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
A-10
<PAGE> 87
<TABLE>
<CAPTION>
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
5 GTE State Percent repeat Percent of DTI One month's flat
reports in 30 days customer repeat rate average MRC per
trouble reports line OOS for which
(total number of Quality Standard is
DTI customer not met in the
Network trouble reported month
reports which had a
previous Network
trouble report
within the last 30
days divided by the
total of customer
Network trouble
reports multiplied
by 100) is not more
than 2.5% worse
than the percent of
GTE customer repeat
trouble reports
- --------------- --------------- ------------------ --------------------- --------------------- ----------------------
</TABLE>
**NOTE: OUTAGE CREDITS: LOCAL SERVICE AND UNBUNDLED NETWORK ELEMENTS: OUTAGE
CREDITS APPLY TO INTERRUPTIONS OF LOCAL SERVICES AND UNBUNDLED NETWORK ELEMENTS
IN ACCORDANCE WITH APPLICABLE STATE PUBLIC SERVICE COMMISSION REQUIREMENTS. IF A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED, DTI WILL BE ENTITLED
TO OUTAGE CREDITS. AN INTERRUPTION PERIOD BEGINS WHEN DTI REPORTS TO GTE THAT A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED (OR GTE HAS KNOWLEDGE
THAT AN INTERRUPTION HAS OCCURRED THROUGH SERVICE MONITORING OR OTHER MEANS). AN
INTERRUPTION PERIOD ENDS WHEN THE LOCAL SERVICE IS REPAIRED AND RETURNED TO DTI.
A LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS CONSIDERED TO BE INTERRUPTED
WHEN THERE HAS BEEN A LOSS OF CONTINUITY, THE LOCAL SERVICE OR UNBUNDLED NETWORK
ELEMENT DOES NOT OPERATE IN ACCORDANCE WITH THE APPLICABLE SERVICE STANDARDS, OR
IT IS OTHERWISE UNAVAILABLE FOR USE BY DTI. THIS DEFINITION IS NOT INTENDED TO
CONFLICT WITH STATE PUBLIC UTILITY COMMISSION REQUIREMENTS.
A-11
<PAGE> 88
FORECASTING
<TABLE>
<CAPTION>
- --------------- --------------- ----------------- ---------------------- --------------------- ----------------------
ISSUE NO. OBLIGATION DATA LEVEL PERFORMANCE QUALITY FINANCIAL
MEASURE (PM) STANDARD INCENTIVE
- --------------- --------------- ----------------- ---------------------- --------------------- ----------------------
<S> <C> <C> <C> <C> <C>
1 DTI State Service Units Volume of DTI's 20% of the average
requirements Service Units NRC for the number of
accurately forecast requirements in a service units below the
all volumes for each month is not forecast when the
month contained in greater than 10% actual volumes are
the quarterly report. below the amount greater than 10%
forecast by DTI in and less than or
it's most recent equal to 30% under
quarterly forecast forecast. 40% of
(which shall have the average NRC for
been made not later the number of
than 30 days prior service units below
to the quarter in the forecast when
question) the actual volumes
are greater than 30%
and less than or
equal to 40% under
the forecast. 50%
of the average NRC
for the number of
service units below
the forecast when the
actual volumes are over
40% under the forecast.
- --------------- --------------- ----------------- ---------------------- --------------------- ----------------------
</TABLE>
A-12
<PAGE> 89
APPENDIX B
SERVICE MATRIX
Date
------------------
<TABLE>
<CAPTION>
Service Location
(identified by tandem serving IP Services
area) (identified by CLLI code) (identified by )
---------------
- --------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
TO BE DETERMINED TO BE DETERMINED TO BE DETERMINED
</TABLE>
B-1
<PAGE> 90
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT
BETWEEN
GTE ARKANSAS INCORPORATED
GTE MIDWEST INCORPORATED
AND
DIGITAL TELEPORT, INC.
AMENDMENT NO.
THIS AMENDMENT (herein so called) is made effective as of __________________,
199__ , by and between GTE Arkansas Incorporated/GTE Midwest Incorporated
("GTE") and Digital Teleport, Inc. ("DTI"). GTE and DTI are sometimes referred
to herein collectively as the "Parties" and individually as a "Party." Either
GTE or DTI may be referred to as "Provider" or "Customer" as the context
requires.
WHEREAS, Provider is providing to Customer and Customer is purchasing from
Provider those Services described in that certain Interconnection,
Telecommunications Services and Facilities Agreement for the State of
_______________ by and between GTE and DTI dated effective as of
______________, 199__ (the "Agreement"); and
WHEREAS, the Parties desire to amend the Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the terms and conditions contained in this
Amendment, the Parties agree as follows:
1.
2. ADDITIONAL SERVICES [IF APPLICABLE]
2.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following services under the terms and conditions set
forth in the Agreement and within the service attachment listed below
and attached to this Amendment:
Service Attachment _______ - ________________________
2.2 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, ___________________is made a part of
the Services provided under the Agreement and Service Attachment
___________________shall be deemed to be a Service Attachment to the
Agreement.
2.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect the additional
Services and related Service Locations.
C-1
<PAGE> 91
3. SERVICE LOCATIONS [IF APPLICABLE]
3.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following Services in the following locations:
C-2
<PAGE> 92
Service Location Services
(identified by tandem IP (identified by Service
serving area) (identified by CLLI code) Attachment Number)
- --------------------------------------------------------------------------------
3.2 As of the effective date of this Amendment, the locations set forth in
Section 3.1 above shall be deemed Service Locations under the
Agreement.
3.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect additional
Service Locations.
4. INTERPRETATION
All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement.
5. EFFECT
Except as modified herein, the Agreement shall remain in full force and
effect.
6. AUTHORITY
Each person whose signature appears below represents and warrants that
he or she has the authority to bind the Party on whose behalf he or she
has executed this Amendment.
7. MULTIPLE COUNTERPARTS
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which shall constitute but one
and the same instrument.
8. NO OFFER
Submission of this Amendment for examination or signature does not
constitute an offer by Provider for the provision of the products or
services described herein. This Amendment will be effective only upon
execution by both Provider and Customer.
C-3
<PAGE> 93
IN WITNESS WHEREOF, the Parties have executed this Amendment on the date or
dates written below effective as of the date first above written.
GTE ARKANSAS INCORPORATED DIGITAL TELEPORT, INC.
GTE MIDWEST INCORPORATED
By By
------------------------------- ------------------------------
Name Name
----------------------------- ----------------------------
Title Title
---------------------------- ---------------------------
Date Date
----------------------------- ----------------------------
C-4
<PAGE> 94
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC
General. The rates contained in this Appendix D are the rates as defined in
Article V and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
Each Party will bill the other Party as appropriate:
A. The Local Interconnection rate element that applies to Local
Traffic on a minute of use basis that each Party switches for
termination purposes at its wire centers. The local
interconnection rate is $0.0056564.
B. The Tandem Switching rate element that applies to tandem
routed Local Traffic on a minute of use basis. This rate
includes tandem transport, but does not include the local
interconnection charge. The tandem switching rate is
$0.0006351.
C. The Common Transport Facility rate element that applies to
tandem routed Local Traffic on a per minute/per mile basis.
The Common Transport Facility rate is $0.0000106.
D. The Common Transport Terminal element that applies to tandem
routed Local Traffic on a per minute/per termination basis.
The Common Transport Termination rate is $0.0001333.
D-1
<PAGE> 95
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF
General. The rates contained in this Appendix E are as defined in Article V,
Section 7, and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
In addition, as defined in Article V, Section 3.2.3, the Party providing the
ported number will pay the other Party the rate per line per month for each
ported business line and the rate per line per month for each ported residential
line for the sharing of Access Charges on calls to ported numbers.
Business Rate Per Line Per Month: $ 4.72
Residential Rate Per Line Per Month: $ 2.60
SERVICE NUMBER PORTABILITY
Remote Call Forwarding $ 4.60 line/month
Simultaneous Call Capability $ 3.40 path/month
Non-recurring for Portability $10.50
E-1
<PAGE> 96
APPENDIX F
SERVICES AVAILABLE FOR RESALE
General. The rates contained in this Appendix F are based upon an avoided cost
discount from GTE's retail rates as provided in Article VI, Section 5.3 of the
Agreement to which this Appendix F is attached and are subject to change
resulting from future Commission or other proceedings, including but not limited
to any generic proceeding to determine GTE's unrecovered costs (e.g., historic
costs, contribution, undepreciated reserve deficiency, or similar unrecovered
GTE costs (including GTE's interim Universal Service Support Surcharge)), the
establishment of a competitively neutral universal service system, or any appeal
or other litigation.
NON-RECURRING CHARGES FOR RESALE SERVICES
Initial Service Order, per order $41.50
Subsequent Service Order, per order $24.00
Installation, per line $28.75
Outside Facility Connection Charge, per order* $Tariffed
*This charge will apply when field work is required for establishment of new
resale service. The terms, conditions and rates that apply for this work are
described in GTE's retail local service tariffs.
F-1
<PAGE> 97
Issue Date: 06/26/97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
5 BASIC LOCAL EXCHANGE SERVICES:
SCHEDULE A STRUCTURE - RATE GROUP 1 - FLAT RATE SERVICE
OK GTE Business:
OK GTE One Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
OK GTE Residence:
OK GTE One Party MRC No No
SCHEDULE A STRUCTURE - RATE GROUP 2 - FLAT RATE SERVICE
Business:
OK GTE One Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
Residence:
OK GTE One Party MRC No No
SCHEDULE A STRUCTURE - RATE GROUP 3 - FLAT RATE SERVICE
Business:
OK GTE One Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
Residence:
OK GTE One Party MRC No No
OK GTE SCHEDULE A NETWORK MODERNIZATION SURCHARGE (PER ACCESS LINE) MRC Yes No
SCHEDULE B STRUCTURE - RATE GROUP 1 - FLAT RATE SERVICE
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
5 BASIC LOCAL EXCHANGE SERVICES:
SCHEDULE A STRUCTURE - RATE GROUP 1 - FLAT RATE SERVICE
OK GTE Business:
OK GTE One Party $24.25 $2.65 $21.60
OK GTE Manual Trunk $24.25 $2.65 $21.60
OK GTE Automatic Trunk $24.25 $2.65 $21.60
OK GTE Residence:
OK GTE One Party $11.80 N/A N/A
SCHEDULE A STRUCTURE - RATE GROUP 2 - FLAT RATE SERVICE
Business:
OK GTE One Party $27.30 $2.98 $24.32
OK GTE Manual Trunk $27.30 $2.98 $24.32
OK GTE Automatic Trunk $27.30 $2.98 $24.32
Residence:
OK GTE One Party $12.90 N/A N/A
SCHEDULE A STRUCTURE - RATE GROUP 3 - FLAT RATE SERVICE
Business:
OK GTE One Party $35.63 $3.89 $31.74
OK GTE Manual Trunk $35.63 $3.89 $31.74
OK GTE Automatic Trunk $35.63 $3.89 $31.74
Residence:
OK GTE One Party $12.97 N/A N/A
OK GTE Schedule A Network Modernization Surcharge (per access line) $1.86 n/a $1.86
SCHEDULE B STRUCTURE - RATE GROUP 1 - FLAT RATE SERVICE
</TABLE>
Page 1
<PAGE> 98
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION> BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Business:
OK GTE One Party MRC Yes Yes
OK GTE Rural Four Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
Residence:
OK GTE One Party MRC No No
Two Party MRC No No
SCHEDULE B STRUCTURE - RATE GROUP 2 - FLAT RATE SERVICE
OK GTE Business:
OK GTE One Party MRC Yes Yes
OK GTE Rural Four Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
Residence:
OK GTE One Party MRC No No
OK GTE Two Party MRC No No
SCHEDULE B STRUCTURE - RATE GROUP 3 - FLAT RATE SERVICE
Business:
OK GTE One Party MRC Yes Yes
OK GTE Rural Four Party MRC Yes Yes
OK GTE Manual Trunk MRC Yes Yes
OK GTE Automatic Trunk MRC Yes Yes
Residence:
OK GTE One Party MRC No No
OK GTE Two Party MRC No No
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ -------
<S> <C> <C> <C> <C> <C> <C>
Business:
OK GTE One Party $24.25 $2.65 $21.60
OK GTE Rural Four Party $23.45 $2.56 $20.89
OK GTE Manual Trunk $24.25 $2.65 $21.60
OK GTE Automatic Trunk $24.25 $2.65 $21.60
Residence:
OK GTE One Party $11.80 N/A N/A
Two Party $10.65 N/A N/A
SCHEDULE B STRUCTURE - RATE GROUP 2 - FLAT RATE SERVICE
OK GTE Business:
OK GTE One Party $27.30 $2.98 $24.32
OK GTE Rural Four Party $25.70 $2.81 $22.89
OK GTE Manual Trunk $27.30 $2.98 $24.32
OK GTE Automatic Trunk $27.30 $2.98 $24.32
Residence:
OK GTE One Party $12.90 N/A N/A
OK GTE Two Party $11.60 N/A N/A
SCHEDULE B STRUCTURE - RATE GROUP 3 - FLAT RATE SERVICE
Business:
OK GTE One Party $36.09 $3.94 $32.15
OK GTE Rural Four Party $33.82 $3.70 $30.12
OK GTE Manual Trunk $36.09 $3.94 $32.15
OK GTE Automatic Trunk $36.09 $3.94 $32.15
Residence:
OK GTE One Party $12.97 N/A N/A
OK GTE Two Party $11.62 N/A N/A
</TABLE>
Page 2
<PAGE> 99
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OPTIONAL MEASURED SERVICE:
Metro:
OK GTE Business Access Line MRC Yes Yes
OK GTE Residence Access Line MRC No No
Non-Metro:
OK GTE Business Access Line MRC Yes Yes
OK GTE Residence Access Line MRC No No
Detail Billing Option:
OK GTE Subscription Fee MRC No No
OK GTE Charge per Bill Page USAGE No No
OK GTE Associate Number Non-Aggregation MRC No No
Local Usage: (See Footnote: 5)
OK GTE Day Rate - Home Exchange - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 0 to 7 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 8 to 14 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 15 to 21 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 21 to 28 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - Over 28 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - Home Exchange - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 0 to 7 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 8 to 14 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 15 to 21 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 21 to 28 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - Over 28 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - Home Exchange - Each Additional Minute Charge USAGE Yes Yes
OK GTE Day Rate - 0 to 7 Miles - Each Additional Minute Charge USAGE Yes Yes
OK GTE Day Rate - 8 to 14 Miles - Each Additional Minute Charge USAGE Yes Yes
OK GTE Day Rate - 15 to 21 Miles - Each Additional Minute Charge USAGE Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
OPTIONAL MEASURED SERVICE:
Metro:
OK GTE Business Access Line $18.00 $1.97 $16.03
OK GTE Residence Access Line $6.50 N/A N/A
Non-Metro:
OK GTE Business Access Line $14.00 $1.53 $12.47
OK GTE Residence Access Line $5.80 N/A N/A
Detail Billing Option:
OK GTE Subscription Fee $1.00 N/A N/A
OK GTE Charge per Bill Page $0.20 N/A N/A
OK GTE Associate Number Non-Aggregation $1.00 N/A N/A
Local Usage: (See Footnote: 5)
OK GTE Day Rate - Home Exchange - Initial Minute Charge $0.041 $0.004 $0.037
OK GTE Day Rate - 0 to 7 Miles - Initial Minute Charge $0.051 $0.006 $0.045
OK GTE Day Rate - 8 to 14 Miles - Initial Minute Charge $0.071 $0.008 $0.063
OK GTE Day Rate - 15 to 21 Miles - Initial Minute Charge $0.091 $0.010 $0.081
OK GTE Day Rate - 21 to 28 Miles - Initial Minute Charge $0.111 $0.012 $0.099
OK GTE Day Rate - Over 28 Miles - Initial Minute Charge $0.130 $0.014 $0.116
OK GTE Night/Weekend Rate - Home Exchange - Initial Minute Charge $0.025 $0.003 $0.022
OK GTE Night/Weekend Rate - 0 to 7 Miles - Initial Minute Charge $0.031 $0.003 $0.028
OK GTE Night/Weekend Rate - 8 to 14 Miles - Initial Minute Charge $0.043 $0.005 $0.038
OK GTE Night/Weekend Rate - 15 to 21 Miles - Initial Minute Charge $0.055 $0.006 $0.049
OK GTE Night/Weekend Rate - 21 to 28 Miles - Initial Minute Charge $0.067 $0.007 $0.060
OK GTE Night/Weekend Rate - Over 28 Miles - Initial Minute Charge $0.078 $0.009 $0.069
OK GTE Day Rate - Home Exchange - Each Additional Minute Charge $0.016 $0.002 $0.014
OK GTE Day Rate - 0 to 7 Miles - Each Additional Minute Charge $0.020 $0.002 $0.018
OK GTE Day Rate - 8 to 14 Miles - Each Additional Minute Charge $0.028 $0.003 $0.025
OK GTE Day Rate - 15 to 21 Miles - Each Additional Minute Charge $0.036 $0.004 $0.032
</TABLE>
Page 3
<PAGE> 100
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Day Rate - 21 to 28 Miles - Each Additional Minute Charge USAGE Yes Yes
OK GTE Day Rate - Over 28 Miles - Each Additional Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - Home Exchange - Each Additional Minute USAGE Yes Yes
OK GTE Night/Weekend Rate - 0 to 7 Miles - Each Additional Minute Char USAGE Yes Yes
OK GTE Night/Weekend Rate - 8 to 14 Miles - Each Additional Minute Cha USAGE Yes Yes
OK GTE Night/Weekend Rate - 15 to 21 Miles - Each Additional Minute Ch USAGE Yes Yes
OK GTE Night/Weekend Rate - 21 to 28 Miles - Each Additional Minute Ch USAGE Yes Yes
OK GTE Night/Weekend Rate - Over 28 Miles - Each Additional Minute Ch USAGE Yes Yes
OK GTE CENTRAL OFFICE BRIDGING FOR FIRE BAR MRC Yes No
7 DIRECTORY LISTINGS:
Business
OK GTE Additional Listing MRC No No
OK GTE NonPublish Service MRC No No
Residence:
OK GTE Additional Listing MRC No No
OK GTE NonPublish Service MRC No No
OK GTE Family Plan MRC No No
9 MISCELLANEOUS SERVICES:
OK GTE Rotary Hunting Line Charge MRC Yes Yes
OK GTE Multiple Copies of Customer Bills MRC No No
OK GTE Special Billing Numbers (incremenets of 1-25 numbers) MRC No No
OK GTE DID Trunk Termination MRC Yes Yes
OK GTE DID Trunk Termination NRC Yes No
OK GTE DID - Block of 20 Numbers MRC Yes Yes
OK GTE DID - Block of 100 Numbers MRC Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Day Rate - 21 to 28 Miles - Each Additional Minute Charge $0.044 $0.005 $0.039
OK GTE Day Rate - Over 28 Miles - Each Additional Minute Charge $0.051 $0.006 $0.045
OK GTE Night/Weekend Rate - Home Exchange - Each Additional Minute $0.010 $0.001 $0.009
OK GTE Night/Weekend Rate - 0 to 7 Miles - Each Additional Minute Char $0.012 $0.001 $0.011
OK GTE Night/Weekend Rate - 8 to 14 Miles - Each Additional Minute Cha $0.017 $0.002 $0.015
OK GTE Night/Weekend Rate - 15 to 21 Miles - Each Additional Minute Ch $0.022 $0.002 $0.020
OK GTE Night/Weekend Rate - 21 to 28 Miles - Each Additional Minute Ch $0.026 $0.003 $0.023
OK GTE Night/Weekend Rate - Over 28 Miles - Each Additional Minute Ch $0.031 $0.003 $0.028
OK GTE CENTRAL OFFICE BRIDGING FOR FIRE BAR $1.00 N/A $1.00
7 DIRECTORY LISTINGS:
Business
OK GTE Additional Listing $1.25 N/A N/A
OK GTE NonPublish Service $1.90 N/A N/A
Residence:
OK GTE Additional Listing $0.60 N/A N/A
OK GTE NonPublish Service $1.90 N/A N/A
OK GTE Family Plan $0.75 N/A N/A
9 MISCELLANEOUS SERVICES:
OK GTE Rotary Hunting Line Charge $2.90 $0.32 $2.58
OK GTE Multiple Copies of Customer Bills $1.00 N/A N/A
OK GTE Special Billing Numbers (incremenets of 1-25 numbers) $3.15 N/A N/A
OK GTE DID Trunk Termination $25.00 $2.73 $22.27
OK GTE DID Trunk Termination $150.00 N/A $150.00
OK GTE DID - Block of 20 Numbers $8.00 $0.87 $7.13
OK GTE DID - Block of 100 Numbers $22.00 $2.40 $19.60
</TABLE>
Page 4
<PAGE> 101
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Reserved Telephone Number NRC Yes No
OK GTE Returned Check Charge NRC No No
OK GTE Personalized Telephone Number - Business MRC Yes Yes
OK GTE Personalized Telephone Number - Business NRC Yes No
OK GTE Personalized Telephone Number - Residence MRC Yes Yes
OK GTE Personalized Telephone Number - Residence NRC Yes No
OK GTE Local Operator Interrupt USAGE Yes No
OK GTE Verification USAGE Yes No
OK GTE Toll Blocking - All 1+ Calls NRC Yes No
OK GTE Toll Blocking - All 1+ Calls MRC Yes Yes
OK GTE Toll Blocking - All 1+, 0+ and 0- Calls NRC Yes No
OK GTE Toll Blocking - All 1+, 0+ and 0- Calls MRC Yes Yes
OK GTE Billed Number Screening - Third Number Billing NRC Yes No
OK GTE Billed Number Screening - Third Number Billing MRC Yes Yes
OK GTE Billed Number Screening - Collect Calling Billing NRC Yes No
OK GTE Billed Number Screening - Collect Calling Billing MRC Yes Yes
OK GTE Billed Number Screening - Collect and Third Number Billing NRC Yes No
OK GTE Billed Number Screening - Collect and Third Number Billing MRC Yes Yes
OK GTE Selective Class of Call Screening (per Line Charge) NRC Yes No
OK GTE Selective Class of Call Screening (per Line Charge) MRC Yes Yes
OK GTE Selective Class of Call Screening (per Trunk Charge) NRC Yes No
OK GTE Selective Class of Call Screening (per Trunk Charge) MRC Yes Yes
OK GTE 12 Local Message Coin Service USAGE Yes No
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Reserved Telephone Number $5.00 N/A $5.00
OK GTE Returned Check Charge $10.00 N/A N/A
OK GTE Personalized Telephone Number - Business $3.50 $0.38 $3.12
OK GTE Personalized Telephone Number - Business $50.00 N/A $50.00
OK GTE Personalized Telephone Number - Residence $1.50 $0.16 $1.34
OK GTE Personalized Telephone Number - Residence $25.00 N/A $25.00
OK GTE Local Operator Interrupt $2.50 N/A $2.50
OK GTE Verification $1.50 N/A $1.50
OK GTE Toll Blocking - All 1+ Calls $10.00 N/A $10.00
OK GTE Toll Blocking - All 1+ Calls $3.00 $0.33 $2.67
OK GTE Toll Blocking - All 1+, 0+ and 0- Calls $10.00 N/A $10.00
OK GTE Toll Blocking - All 1+, 0+ and 0- Calls $3.00 $0.33 $2.67
OK GTE Billed Number Screening - Third Number Billing $10.00 N/A $10.00
OK GTE Billed Number Screening - Third Number Billing $3.00 $0.33 $2.67
OK GTE Billed Number Screening - Collect Calling Billing $10.00 N/A $10.00
OK GTE Billed Number Screening - Collect Calling Billing $3.00 $0.33 $2.67
OK GTE Billed Number Screening - Collect and Third Number Billing $10.00 N/A $10.00
OK GTE Billed Number Screening - Collect and Third Number Billing $3.00 $0.33 $2.67
OK GTE Selective Class of Call Screening (per Line Charge) $10.00 N/A $10.00
OK GTE Selective Class of Call Screening (per Line Charge) $3.00 $0.33 $2.67
OK GTE Selective Class of Call Screening (per Trunk Charge) $10.00 N/A $10.00
OK GTE Selective Class of Call Screening (per Trunk Charge) $10.00 $1.09 $8.91
OK GTE 12 Local Message Coin Service $0.25 N/A $0.25
</TABLE>
Page 5
<PAGE> 102
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE 17 Local Directory Assistance USAGE Yes No
OK GTE Local Directory Assistance Call Completion USAGE Yes No
OK GTE 9 Business Dial DataLink Service MRC Yes Yes
OK GTE Business Dial DataLink Service NRC Yes No
OK GTE Residence Dial DataLink Service MRC Yes Yes
OK GTE Residence Dial DataLink Service NRC Yes No
OK GTE 900 Call Restriction - Business NRC Yes No
OK GTE 900 Call Restriction - Residence NRC Yes No
OK GTE 23 Establishment of TSP Service NRC Yes No
OK GTE Restoration Priority MRC Yes Yes
9 CUSTOM CALLING VERTICAL SERVICES:
OK GTE Call Waiting - Business MRC Yes Yes
OK GTE Call Waiting - Residence MRC Yes Yes
OK GTE Call Forwarding - Business MRC Yes Yes
OK GTE Call Forwarding - Residence MRC Yes Yes
OK GTE Call Forwarding Multipath - Business MRC Yes Yes
OK GTE Call Forwarding Multipath - Residence MRC Yes Yes
OK GTE Call Waiting and Call Forwarding - Business MRC Yes Yes
OK GTE Call Waiting and Call Forwarding - Residence MRC Yes Yes
OK GTE Call Waiting and Speed Call 8 - Business MRC Yes Yes
OK GTE Call Waiting and Speed Call 8 - Residence MRC Yes Yes
OK GTE Call Forwarding and Speed Call 8 - Residence MRC Yes Yes
OK GTE Call Waiting and Speed Call 30 - Residence MRC Yes Yes
OK GTE Call Forwarding and Speed Call 30 - Business MRC Yes Yes
OK GTE Call Waiting, Call Forwarding and Speed Call 8 - Residence MRC Yes Yes
OK GTE Call Waiting, Call Forwarding and Speed Call 30 - Business MRC Yes Yes
OK GTE Call Waiting, Call Forwarding and Speed Call 30 - Residence MRC Yes Yes
OK GTE Three Way Calling - One Feature - Business MRC Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------- -------- -----
<S> <C> <C> <C> <C> <C> <C>
OK GTE 17 Local Directory Assistance $0.25 N/A $0.25
OK GTE Local Directory Assistance Call Completion $0.50 N/A $0.50
OK GTE 9 Business Dial DataLink Service $5.00 $0.55 $4.45
OK GTE Business Dial DataLink Service $25.00 N/A $25.00
OK GTE Residence Dial DataLink Service $5.00 $0.55 $4.45
OK GTE Residence Dial DataLink Service $25.00 N/A $25.00
OK GTE 900 Call Restriction - Business $3.50 N/A $3.50
OK GTE 900 Call Restriction - Residence $3.50 N/A $3.50
OK GTE 23 Establishment of TSP Service $14.50 N/A $14.50
OK GTE Restoration Priority $4.90 $0.54 $4.36
9 CUSTOM CALLING VERTICAL SERVICES:
OK GTE Call Waiting - Business $3.50 $0.38 $3.12
OK GTE Call Waiting - Residence $2.45 $0.27 $2.18
OK GTE Call Forwarding - Business $2.70 $0.30 $2.40
OK GTE Call Forwarding - Residence $2.10 $0.23 $1.87
OK GTE Call Forwarding Multipath - Business $2.70 $0.30 $2.40
OK GTE Call Forwarding Multipath - Residence $2.10 $0.23 $1.87
OK GTE Call Waiting and Call Forwarding - Business $6.40 $0.70 $5.70
OK GTE Call Waiting and Call Forwarding - Residence $4.70 $0.51 $4.19
OK GTE Call Waiting and Speed Call 8 - Business $6.40 $0.70 $5.70
OK GTE Call Waiting and Speed Call 8 - Residence $4.70 $0.51 $4.19
OK GTE Call Forwarding and Speed Call 8 - Residence $4.70 $0.51 $4.19
OK GTE Call Waiting and Speed Call 30 - Residence $5.85 $0.64 $5.21
OK GTE Call Forwarding and Speed Call 30 - Business $8.15 $0.89 $7.26
OK GTE Call Waiting, Call Forwarding and Speed Call 8 - Residence $5.85 $0.64 $5.21
OK GTE Call Waiting, Call Forwarding and Speed Call 30 - Business $9.70 $1.06 $8.64
OK GTE Call Waiting, Call Forwarding and Speed Call 30 - Residence $6.95 $0.76 $6.19
OK GTE Three Way Calling - One Feature - Business $6.25 $0.68 $5.57
</TABLE>
Page 6
<PAGE> 103
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Three Way Calling - One Feature - Residence MRC Yes Yes
OK GTE Three Way Calling - More than One Feature -Business MRC Yes Yes
OK GTE Three Way Calling - More than One Feature - Residence MRC Yes Yes
OK GTE Cancel Call Waiting - Business MRC Yes Yes
OK GTE Cancel Call Waiting - Residence MRC Yes Yes
OK GTE Last Number Redial and Saved-Number Redial - Business MRC Yes Yes
OK GTE Last Number Redial and Saved-Number Redial - Residence MRC Yes Yes
OK GTE Call Forward/Busy/No Answer - Business (Variable) MRC Yes Yes
OK GTE Call Forward/Busy/No Answer - Residence (Variable) MRC Yes Yes
OK GTE Smart Ring - One Feature - Business MRC Yes Yes
OK GTE Smart Ring - One Feature - Residence MRC Yes Yes
OK GTE Fixed Call Forwarding/Busy - Business MRC Yes Yes
OK GTE Fixed Call Forwarding/Busy - Residence MRC Yes Yes
OK GTE Fixed Call Forwarding/No Answer - Business MRC Yes Yes
OK GTE Fixed Call Forwarding/No Answer - Residence MRC Yes Yes
OK GTE Fixed Call Forwarding/All Calls - Business MRC Yes Yes
OK GTE Fixed Call Forwarding/All Calls - Residence MRC Yes Yes
OK GTE SMART Package - Business MRC Yes Yes
OK GTE SMART Package - Residence MRC Yes Yes
OK GTE SMARTER Package - Business MRC Yes Yes
OK GTE SMARTER Package - Residence MRC Yes Yes
OK GTE Smart Call PAK With Smart Ring - Business MRC Yes Yes
OK GTE Smart Call PAK With Smart Ring - Residence MRC Yes Yes
OK GTE Smarter Call PAK With Smart Ring - Business MRC Yes Yes
OK GTE Smarter Call PAK With Smart Ring - Residence MRC Yes Yes
OK GTE SMARTEST Package -Business MRC Yes Yes
OK GTE SMARTEST Package - Residence MRC Yes Yes
OK GTE Smartest Call PAK With Smart Ring - Business MRC Yes Yes
OK GTE Smartest Call PAK With Smart Ring - Residence MRC Yes Yes
OK GTE Remote Call Forwarding - Business MRC Yes Yes
OK GTE Remote Call Forwarding - Residence MRC Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Three Way Calling - One Feature - Residence $5.65 $0.62 $5.03
OK GTE Three Way Calling - More than One Feature -Business $5.00 $0.55 $4.45
OK GTE Three Way Calling - More than One Feature - Residence $4.40 $0.48 $3.92
OK GTE Cancel Call Waiting - Business $2.00 $0.22 $1.78
OK GTE Cancel Call Waiting - Residence $1.00 $0.11 $0.89
OK GTE Last Number Redial and Saved-Number Redial - Business $3.50 $0.38 $3.12
OK GTE Last Number Redial and Saved-Number Redial - Residence $3.00 $0.33 $2.67
OK GTE Call Forward/Busy/No Answer - Business (Variable) $3.50 $0.38 $3.12
OK GTE Call Forward/Busy/No Answer - Residence (Variable) $2.50 $0.27 $2.23
OK GTE Smart Ring - One Feature - Business $6.00 $0.66 $5.34
OK GTE Smart Ring - One Feature - Residence $6.00 $0.66 $5.34
OK GTE Fixed Call Forwarding/Busy - Business $1.25 $0.14 $1.11
OK GTE Fixed Call Forwarding/Busy - Residence $1.25 $0.14 $1.11
OK GTE Fixed Call Forwarding/No Answer - Business $1.25 $0.14 $1.11
OK GTE Fixed Call Forwarding/No Answer - Residence $1.25 $0.14 $1.11
OK GTE Fixed Call Forwarding/All Calls - Business $3.50 $0.38 $3.12
OK GTE Fixed Call Forwarding/All Calls - Residence $3.50 $0.38 $3.12
OK GTE SMART Package - Business $4.75 $0.52 $4.23
OK GTE SMART Package - Residence $3.75 $0.41 $3.34
OK GTE SMARTER Package - Business $5.75 $0.63 $5.12
OK GTE SMARTER Package - Residence $4.75 $0.52 $4.23
OK GTE Smart Call PAK With Smart Ring - Business $7.75 $0.85 $6.90
OK GTE Smart Call PAK With Smart Ring - Residence $6.75 $0.74 $6.01
OK GTE Smarter Call PAK With Smart Ring - Business $8.75 $0.96 $7.79
OK GTE Smarter Call PAK With Smart Ring - Residence $7.75 $0.85 $6.90
OK GTE SMARTEST Package -Business $6.75 $0.74 $6.01
OK GTE SMARTEST Package - Residence $5.75 $0.63 $5.12
OK GTE Smartest Call PAK With Smart Ring - Business $9.75 $1.07 $8.68
OK GTE Smartest Call PAK With Smart Ring - Residence $8.75 $0.96 $7.79
OK GTE Remote Call Forwarding - Business $14.50 $1.58 $12.92
OK GTE Remote Call Forwarding - Residence $14.50 $1.58 $12.92
</TABLE>
Page 7
<PAGE> 104
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
TEL-TEEN SERVICE CUSTOM FEATURE PACKAGES:
OK GTE Touch Call, Three-Way Calling, Speed Call 8, Toll Control MRC Yes Yes
OK GTE Touch Call, Call Waiting, Speed Call 8, Toll Control MRC Yes Yes
OK GTE Touch Call, Three-Way Calling, Toll Control MRC Yes Yes
OK GTE Touch Call, Call Waiting, Speed Call 8 MRC Yes Yes
CLASS VERTICAL SERVICES:
OK GTE Automatic Busy Redial - Business MRC Yes Yes
OK GTE Automatic Busy Redial - Residence MRC Yes Yes
OK GTE Automatic Call Return - Business MRC Yes Yes
OK GTE Automatic Call Return - Residence MRC Yes Yes
OK GTE Call Back - Business MRC Yes Yes
OK GTE Call Back - Residence MRC Yes Yes
OK GTE Special Call Acceptance - Business MRC Yes Yes
OK GTE Special Call Acceptance - Residence MRC Yes Yes
OK GTE Special Call Forwarding - Business MRC Yes Yes
OK GTE Special Call Forwarding - Residence MRC Yes Yes
OK GTE Special Call Waiting - Business MRC Yes Yes
OK GTE Special Call Waiting - Residence MRC Yes Yes
OK GTE VIP Alert - Business MRC Yes Yes
OK GTE VIP Alert - Residence MRC Yes Yes
OK GTE Call Tracing Service - Business MRC Yes Yes
OK GTE Call Tracing Service - Residence MRC Yes Yes
OK GTE Cancel Calling Number ID - Business MRC Yes Yes
OK GTE Cancel Calling Number ID - Residence MRC Yes Yes
OK GTE Calling Number ID - Business MRC Yes Yes
OK GTE Calling Number ID - Residence MRC Yes Yes
OK GTE SmartCall PAK 4400- Residence MRC Yes Yes
OK GTE SmartCall PAK 4900 - Residence MRC Yes Yes
6 SERVICE CHARGES:
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
TEL-TEEN SERVICE CUSTOM FEATURE PACKAGES:
OK GTE Touch Call, Three-Way Calling, Speed Call 8, Toll Control $0.00 $0.00 $0.00
OK GTE Touch Call, Call Waiting, Speed Call 8, Toll Control $0.00 $0.00 $0.00
OK GTE Touch Call, Three-Way Calling, Toll Control $0.00 $0.00 $0.00
OK GTE Touch Call, Call Waiting, Speed Call 8 $0.00 $0.00 $0.00
CLASS VERTICAL SERVICES:
OK GTE Automatic Busy Redial - Business $4.00 $0.44 $3.56
OK GTE Automatic Busy Redial - Residence $3.00 $0.33 $2.67
OK GTE Automatic Call Return - Business $4.00 $0.44 $3.56
OK GTE Automatic Call Return - Residence $3.00 $0.33 $2.67
OK GTE Call Back - Business $4.00 $0.44 $3.56
OK GTE Call Back - Residence $3.00 $0.33 $2.67
OK GTE Special Call Acceptance - Business $4.00 $0.44 $3.56
OK GTE Special Call Acceptance - Residence $3.00 $0.33 $2.67
OK GTE Special Call Forwarding - Business $6.00 $0.66 $5.34
OK GTE Special Call Forwarding - Residence $5.00 $0.55 $4.45
OK GTE Special Call Waiting - Business $6.00 $0.66 $5.34
OK GTE Special Call Waiting - Residence $5.00 $0.55 $4.45
OK GTE VIP Alert - Business $4.00 $0.44 $3.56
OK GTE VIP Alert - Residence $3.00 $0.33 $2.67
OK GTE Call Tracing Service - Business $6.00 $0.66 $5.34
OK GTE Call Tracing Service - Residence $5.00 $0.55 $4.45
OK GTE Cancel Calling Number ID - Business $0.00 $0.00 $0.00
OK GTE Cancel Calling Number ID - Residence $0.00 $0.00 $0.00
OK GTE Calling Number ID - Business $10.00 $1.09 $8.91
OK GTE Calling Number ID - Residence $7.00 $0.77 $6.23
OK GTE SmartCall PAK 4400- Residence $8.75 $0.96 $7.79
OK GTE SmartCall PAK 4900 - Residence $13.25 $1.45 $11.80
6 SERVICE CHARGES:
</TABLE>
PAGE 8
<PAGE> 105
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
BUSINESS:
OK GTE Primary Service Order Charge NRC No No
OK GTE Secondary Service Order Charge NRC No No
OK GTE Line Connection Charge NRC Yes No
OK GTE Restoral From Vacation Service (prior to min vacation period) NRC No No
OK GTE Restore Service After Temporary Denial Nonpay NRC No No
OK GTE Expedited Due Date Charge (non system) NRC No No
OK GTE Operator Referral NRC No No
RESIDENCE:
OK GTE Primary Service Order Charge NRC No No
OK GTE Secondary Service Order Charge NRC No No
OK GTE Line Connection Charge NRC Yes No
OK GTE Restoral From Vacation Service (prior to min vacation period) NRC No No
OK GTE Restore Service After Temporary Denial Nonpay NRC No No
OK GTE Expedited Due Date Charge NRC No No
OK GTE Operator Referral NRC No No
LDMT GTE LONG DISTANCE TELECOMMUNICATIONS SERVICES:
1 INTRALATA TWO POINT SERVICE
OK GTE Day Rate - 1 to 8 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 9 to 12 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 13 to 17 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 18 to 22 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 23 to 27 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 28 to 32 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 33 to 42 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 43 to 54 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 55 to 66 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 67 to 82 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 83 to 100 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 101 to 122 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 123 to 168 Miles - Initial Minute Charge USAGE Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
BUSINESS:
OK GTE Primary Service Order Charge $32.50 N/A N/A
OK GTE Secondary Service Order Charge $13.70 N/A N/A
OK GTE Line Connection Charge $20.70 N/A $20.70
OK GTE Restoral From Vacation Service (prior to min vacation period) $23.00 N/A N/A
OK GTE Restore Service After Temporary Denial Nonpay $20.70 N/A N/A
OK GTE Expedited Due Date Charge (non system) $10.00 N/A N/A
OK GTE Operator Referral $ 5.00 N/A N/A
RESIDENCE:
OK GTE Primary Service Order Charge $23.00 N/A N/A
OK GTE Secondary Service Order Charge $12.00 N/A N/A
OK GTE Line Connection Charge $20.70 N/A $20.70
OK GTE Restoral From Vacation Service (prior to min vacation period) $23.00 N/A N/A
OK GTE Restore Service After Temporary Denial Nonpay $20.70 N/A N/A
OK GTE Expedited Due Date Charge $10.00 N/A N/A
OK GTE Operator Referral $ 5.00 N/A N/A
LDMT GTE LONG DISTANCE TELECOMMUNICATIONS SERVICES:
1 INTRALATA TWO POINT SERVICE
OK GTE Day Rate - 1 to 8 Miles - Initial Minute Charge $ 0.12 $0.01 $0.11
OK GTE Day Rate - 9 to 12 Miles - Initial Minute Charge $ 0.15 $0.02 $0.13
OK GTE Day Rate - 13 to 17 Miles - Initial Minute Charge $ 0.16 $0.02 $0.16
OK GTE Day Rate - 18 to 22 Miles - Initial Minute Charge $ 0.19 $0.02 $0.17
OK GTE Day Rate - 23 to 27 Miles - Initial Minute Charge $ 0.23 $0.03 $0.20
OK GTE Day Rate - 28 to 32 Miles - Initial Minute Charge $ 0.27 $0.03 $0.24
OK GTE Day Rate - 33 to 42 Miles - Initial Minute Charge $ 0.30 $0.03 $0.27
OK GTE Day Rate - 43 to 54 Miles - Initial Minute Charge $ 0.34 $0.04 $0.30
OK GTE Day Rate - 55 to 66 Miles - Initial Minute Charge $ 0.37 $0.04 $0.33
OK GTE Day Rate - 67 to 82 Miles - Initial Minute Charge $ 0.41 $0.04 $0.37
OK GTE Day Rate - 83 to 100 Miles - Initial Minute Charge $ 0.45 $0.05 $0.40
OK GTE Day Rate - 101 to 122 Miles - Initial Minute Charge $ 0.48 $0.05 $0.43
</TABLE>
Page 9
<PAGE> 106
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Day Rate - 123 to 168 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - 169 to 252 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Day Rate - Over 252 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 1 to 8 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 9 to 12 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 13 to 17 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 18 to 22 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 23 to 27 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 28 to 32 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 33 to 42 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 43 to 54 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 55 to 66 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 67 to 82 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 83 to 100 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 101 to 122 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 123 to 168 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - 169 to 252 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Evening Rate - Over 252 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 1 to 8 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 9 to 12 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 13 to 17 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 18 to 22 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 23 to 27 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 28 to 32 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 33 to 42 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 43 to 54 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 55 to 66 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 67 to 82 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 83 to 100 Miles - Initial Minute Charge USAGE Yes Yes
OK GTE Night/Weekend Rate - 101 to 122 Miles - Initial Minute Charge USAGE Yes Yes
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Day Rate - 123 to 168 Miles - Initial Minute Charge $0.51 $0.06 $0.45
OK GTE Day Rate - 169 to 252 Miles - Initial Minute Charge $0.53 $0.06 $0.47
OK GTE Day Rate - Over 252 Miles - Initial Minute Charge $0.55 $0.06 $0.49
OK GTE Evening Rate - 1 to 8 Miles - Initial Minute Charge $0.09 $0.01 $0.08
OK GTE Evening Rate - 9 to 12 Miles - Initial Minute Charge $0.11 $0.01 $0.10
OK GTE Evening Rate - 13 to 17 Miles - Initial Minute Charge $0.14 $0.02 $0.12
OK GTE Evening Rate - 18 to 22 Miles - Initial Minute Charge $0.14 $0.02 $0.12
OK GTE Evening Rate - 23 to 27 Miles - Initial Minute Charge $0.17 $0.02 $0.15
OK GTE Evening Rate - 28 to 32 Miles - Initial Minute Charge $0.20 $0.02 $0.18
OK GTE Evening Rate - 33 to 42 Miles - Initial Minute Charge $0.16 $0.02 $0.14
OK GTE Evening Rate - 43 to 54 Miles - Initial Minute Charge $0.26 $0.03 $0.23
OK GTE Evening Rate - 55 to 66 Miles - Initial Minute Charge $0.28 $0.03 $0.25
OK GTE Evening Rate - 67 to 82 Miles - Initial Minute Charge $0.31 $0.03 $0.28
OK GTE Evening Rate - 83 to 100 Miles - Initial Minute Charge $0.34 $0.04 $0.30
OK GTE Evening Rate - 101 to 122 Miles - Initial Minute Charge $0.36 $0.04 $0.32
OK GTE Evening Rate - 123 to 168 Miles - Initial Minute Charge $0.38 $0.04 $0.34
OK GTE Evening Rate - 169 to 252 Miles - Initial Minute Charge $0.40 $0.04 $0.36
OK GTE Evening Rate - Over 252 Miles - Initial Minute Charge $0.41 $0.04 $0.37
OK GTE Night/Weekend Rate - 1 to 8 Miles - Initial Minute Charge $0.07 $0.01 $0.06
OK GTE Night/Weekend Rate - 9 to 12 Miles - Initial Minute Charge $0.09 $0.01 $0.08
OK GTE Night/Weekend Rate - 13 to 17 Miles - Initial Minute Charge $0.11 $0.01 $0.10
OK GTE Night/Weekend Rate - 18 to 22 Miles - Initial Minute Charge $0.11 $0.01 $0.10
OK GTE Night/Weekend Rate - 23 to 27 Miles - Initial Minute Charge $0.14 $0.02 $0.12
OK GTE Night/Weekend Rate - 28 to 32 Miles - Initial Minute Charge $0.16 $0.02 $0.14
OK GTE Night/Weekend Rate - 33 to 42 Miles - Initial Minute Charge $0.18 $0.02 $0.16
OK GTE Night/Weekend Rate - 43 to 54 Miles - Initial Minute Charge $0.20 $0.02 $0.18
OK GTE Night/Weekend Rate - 55 to 66 Miles - Initial Minute Charge $0.22 $0.02 $0.20
OK GTE Night/Weekend Rate - 67 to 82 Miles - Initial Minute Charge $0.25 $0.03 $0.22
OK GTE Night/Weekend Rate - 83 to 100 Miles - Initial Minute Charge $0.27 $0.03 $0.24
OK GTE Night/Weekend Rate - 101 to 122 Miles - Initial Minute Charge $0.29 $0.03 $0.26
</TABLE>
PAGE 10
<PAGE> 107
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- ------- -------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Night/Weekend Rate - 123 to 168 Miles - Initial Minute Charge USAGE Yes Yes $0.31 $0.03 $0.28
OK GTE Night/Weekend Rate - 169 to 252 Miles - Initial Minute Charge USAGE Yes Yes $0.32 $0.03 $0.29
OK GTE Night/Weekend Rate - Over 252 Miles - Initial Minute Charge USAGE Yes Yes $0.33 $0.04 $0.29
OK GTE Day Rate - 1 to 8 Miles - Each Additional Minute Charge USAGE Yes Yes $0.07 $0.01 $0.06
OK GTE Day Rate - 9 to 12 Miles - Each Additional Minute Charge USAGE Yes Yes $0.09 $0.01 $0.08
OK GTE Day Rate - 13 to 17 Miles - Each Additional Minute Charge USAGE Yes Yes $0.11 $0.01 $0.10
OK GTE Day Rate - 18 to 22 Miles - Each Additional Minute Charge USAGE Yes Yes $0.14 $0.02 $0.12
OK GTE Day Rate - 23 to 27 Miles - Each Additional Minute Charge USAGE Yes Yes $0.18 $0.02 $0.16
OK GTE Day Rate - 28 to 32 Miles - Each Additional Minute Charge USAGE Yes Yes $0.20 $0.02 $0.18
OK GTE Day Rate - 33 to 42 Miles - Each Additional Minute Charge USAGE Yes Yes $0.24 $0.03 $0.21
OK GTE Day Rate - 43 to 54 Miles - Each Additional Minute Charge USAGE Yes Yes $0.27 $0.03 $0.24
OK GTE Day Rate - 55 to 66 Miles - Each Additional Minute Charge USAGE Yes Yes $0.31 $0.03 $0.28
OK GTE Day Rate - 67 to 82 Miles - Each Additional Minute Charge USAGE Yes Yes $0.35 $0.04 $0.31
OK GTE Day Rate - 83 to 100 Miles - Each Additional Minute Charge USAGE Yes Yes $0.39 $0.04 $0.35
OK GTE Day Rate - 101 to 122 Miles - Each Additional Minute Charge USAGE Yes Yes $0.41 $0.04 $0.37
OK GTE Day Rate - 123 to 168 Miles - Each Additional Minute Charge USAGE Yes Yes $0.44 $0.05 $0.39
OK GTE Day Rate - 169 to 252 Miles - Each Additional Minute Charge USAGE Yes Yes $0.45 $0.05 $0.40
OK GTE Day Rate - Over 252 Miles - Each Additional Minute Charge USAGE Yes Yes $0.47 $0.05 $0.42
OK GTE Evening Rate - 1 to 8 Miles - Each Additional Minute Charge USAGE Yes Yes $0.05 $0.01 $0.04
OK GTE Evening Rate - 9 to 12 Miles - Each Additional Minute Charge USAGE Yes Yes $0.07 $0.01 $0.06
OK GTE Evening Rate - 13 to 17 Miles - Each Additional Minute Charge USAGE Yes Yes $0.08 $0.01 $0.07
OK GTE Evening Rate - 18 to 22 Miles - Each Additional Minute Charge USAGE Yes Yes $0.11 $0.01 $0.10
OK GTE Evening Rate - 23 to 27 Miles - Each Additional Minute Charge USAGE Yes Yes $0.14 $0.02 $0.12
OK GTE Evening Rate - 28 to 32 Miles - Each Additional Minute Charge USAGE Yes Yes $0.15 $0.02 $0.13
OK GTE Evening Rate - 33 to 42 Miles - Each Additional Minute Charge USAGE Yes Yes $0.18 $0.02 $0.16
OK GTE Evening Rate - 43 to 54 Miles - Each Additional Minute Charge USAGE Yes Yes $0.20 $0.02 $0.18
OK GTE Evening Rate - 55 to 66 Miles - Each Additional Minute Charge USAGE Yes Yes $0.23 $0.03 $0.20
OK GTE Evening Rate - 67 to 82 Miles - Each Additional Minute Charge USAGE Yes Yes $0.26 $0.03 $0.23
OK GTE Evening Rate - 83 to 100 Miles - Each Additional Minute Charge USAGE Yes Yes $0.29 $0.03 $0.26
OK GTE Evening Rate - 101 to 122 Miles - Each Additional Minute Charge USAGE Yes Yes $0.31 $0.03 $0.28
</TABLE>
PAGE 11
<PAGE> 108
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE
-- -- --- ------------------- ---- -------- -------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
OK GTE Evening Rate - 123 to 168 Miles - Each Additional Minute Charge USAGE Yes Yes $0.33
OK GTE Evening Rate - 169 to 252 Miles - Each Additional Minute Charge USAGE Yes Yes $0.34
OK GTE Evening Rate - Over 252 Miles - Each Additional Minute Charge USAGE Yes Yes $0.35
OK GTE Night/Weekend Rate - 1 to 8 Miles - Each Additional Minute Charge USAGE Yes Yes $0.04
OK GTE Night/Weekend Rate - 9 to 12 Miles - Each Additional Minute Charge USAGE Yes Yes $0.05
OK GTE Night/Weekend Rate - 13 to 17 Miles - Each Additional Minute Charg USAGE Yes Yes $0.07
OK GTE Night/Weekend Rate - 18 to 22 Miles - Each Additional Minute Charg USAGE Yes Yes $0.08
OK GTE Night/Weekend Rate - 23 to 27 Miles - Each Additional Minute Charg USAGE Yes Yes $0.11
OK GTE Night/Weekend Rate - 28 to 32 Miles - Each Additional Minute Charg USAGE Yes Yes $0.12
OK GTE Night/Weekend Rate - 33 to 42 Miles - Each Additional Minute Charg USAGE Yes Yes $0.14
OK GTE Night/Weekend Rate - 43 to 54 Miles - Each Additional Minute Charg USAGE Yes Yes $0.16
OK GTE Night/Weekend Rate - 55 to 66 Miles - Each Additional Minute Charg USAGE Yes Yes $0.19
OK GTE Night/Weekend Rate - 67 to 82 Miles - Each Additional Minute Charg USAGE Yes Yes $0.21
OK GTE Night/Weekend Rate - 83 to 100 Miles - Each Additional Minute Char USAGE Yes Yes $0.23
OK GTE Night/Weekend Rate - 101 to 122 Miles - Each Additional Minute Ch USAGE Yes Yes $0.25
OK GTE Night/Weekend Rate - 123 to 168 Miles - Each Additional Minute Ch USAGE Yes Yes $0.26
OK GTE Night/Weekend Rate - 169 to 252 Miles - Each Additional Minute Ch USAGE Yes Yes $0.27
OK GTE Night/Weekend Rate - Over 252 Miles - Each Additional Minute Char USAGE Yes Yes $0.28
INTRALATA TWO POINT SERVICE:
OK GTE Service Charge - Dial Calling Card - Station to Station USAGE Yes No $0.35
OK GTE Service Charge - Operator - Station to Station USAGE Yes No $1.20
OK GTE Service Charge - Person to Person USAGE Yes No $2.70
OK GTE
2 INTRALATA OPTIONAL TOLL CALLING PLANS:
Extended Community Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour MRC Yes Yes $3.60
OK GTE Additional Per Minute USAGE Yes Yes $0.05
OK GTE Service Charge NRC Yes No $5.00
<CAPTION>
AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION COST RATE
-- -- --- ------------------- ------ ------
<S> <C> <C> <C> <C> <C>
OK GTE Evening Rate - 123 to 168 Miles - Each Additional Minute Charge $0.04 $0.29
OK GTE Evening Rate - 169 to 252 Miles - Each Additional Minute Charge $0.04 $0.30
OK GTE Evening Rate - Over 252 Miles - Each Additional Minute Charge $0.04 $0.31
OK GTE Night/Weekend Rate - 1 to 8 Miles - Each Additional Minute Charge $0.00 $0.04
OK GTE Night/Weekend Rate - 9 to 12 Miles - Each Additional Minute Charg $0.01 $0.04
OK GTE Night/Weekend Rate - 13 to 17 Miles - Each Additional Minute Char $0.01 $0.06
OK GTE Night/Weekend Rate - 18 to 22 Miles - Each Additional Minute Char $0.01 $0.07
OK GTE Night/Weekend Rate - 23 to 27 Miles - Each Additional Minute Char $0.01 $0.10
OK GTE Night/Weekend Rate - 28 to 32 Miles - Each Additional Minute Char $0.01 $0.11
OK GTE Night/Weekend Rate - 33 to 42 Miles - Each Additional Minute Char $0.02 $0.12
OK GTE Night/Weekend Rate - 43 to 54 Miles - Each Additional Minute Char $0.02 $0.14
OK GTE Night/Weekend Rate - 55 to 66 Miles - Each Additional Minute Char $0.02 $0.17
OK GTE Night/Weekend Rate - 67 to 82 Miles - Each Additional Minute Char $0.02 $0.19
OK GTE Night/Weekend Rate - 83 to 100 Miles - Each Additional Minute Cha $0.03 $0.20
OK GTE Night/Weekend Rate - 101 to 122 Miles - Each Additional Minute Ch $0.03 $0.22
OK GTE Night/Weekend Rate - 123 to 168 Miles - Each Additional Minute Ch $0.03 $0.23
OK GTE Night/Weekend Rate - 169 to 252 Miles - Each Additional Minute Ch $0.03 $0.24
OK GTE Night/Weekend Rate - Over 252 Miles - Each Additional Minute Cha $0.03 $0.25
INTRALATA TWO POINT SERVICE:
OK GTE Service Charge - Dial Calling Card - Station to Station N/A $0.35
OK GTE Service Charge - Operator - Station to Station N/A $1.20
OK GTE Service Charge - Person to Person N/A $2.70
OK GTE
2 INTRALATA OPTIONAL TOLL CALLING PLANS:
Extended Community Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour $0.39 $3.21
OK GTE Additional Per Minute $0.01 $0.04
OK GTE Service Charge N/A $5.00
</TABLE>
Page 12
<PAGE> 109
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- -------- -------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Business:
Block-of-Time:
OK GTE Monthly Rate for First Hour MRC Yes Yes $4.20 $0.46 $3.74
OK GTE Additional Per Minute USAGE Yes Yes $0.06 $0.01 $0.05
OK GTE Service Charge NRC Yes No $7.50 N/A $7.50
Residence:
OK GTE Unlimited Usage MRC Yes Yes $20.00 $2.19 $17.81
OK GTE Service Charge NRC Yes No $5.00 N/A $5.00
OK GTE Business:
OK GTE Unlimited Usage MRC Yes Yes $30.00 $3.28 $26.72
OK GTE Service Charge NRC Yes No $7.50 N/A $7.50
Circle Saver:
Residence Block-of-Time:
17 Mile Radius:
OK GTE Monthly Rate for First Hour MRC Yes Yes $4.80 $0.52 $4.28
OK GTE Additional Per Minute USAGE Yes Yes $0.07 $0.01 $0.06
OK GTE Service Charge NRC Yes No $5.00 N/A $5.00
32 Mile Radius:
OK GTE Monthly Rate for First Hour MRC Yes Yes $6.25 $0.68 $5.57
OK GTE Additional Per Minute USAGE Yes Yes $0.09 $0.01 $0.08
OK GTE Service Charge NRC Yes No $5.00 N/A $5.00
Business Block-of-Time:
17 Mile Radius:
OK GTE Monthly Rate for First Hour MRC Yes Yes $6.25 $0.68 $5.57
OK GTE Additional Per Minute USAGE Yes Yes $0.09 $0.01 $0.08
OK GTE Service Charge NRC Yes No $7.50 N/A $7.50
32 Mile Radius:
OK GTE Monthly Rate for First Hour MRC Yes Yes $8.25 $0.90 $7.35
OK GTE Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
OK GTE Service Charge NRC Yes No $7.50 N/A $7.50
</TABLE>
PAGE 13
<PAGE> 110
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
1+Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour MRC Yes Yes
OK GTE Additional Per Minute USAGE Yes Yes
OK GTE Service Charge NRC Yes No
Business:
Block-of-Time:
OK GTE Monthly Rate for First Hour MRC Yes Yes
OK GTE Additional Per Minute USAGE Yes Yes
OK GTE Service Charge NRC Yes No
Residence:
Discount Plan:
OK GTE 15% Discount MRC Yes Yes
OK GTE Service Charge NRC Yes No
Business:
Discount Plan:
OK GTE 10% Discount MRC Yes Yes
OK GTE Service Charge NRC Yes No
Discount Plan:
OK GTE 15% Discount MRC Yes Yes
OK GTE Service Charge NRC Yes No
Discount Plan:
OK GTE 20% Discount MRC Yes Yes
OK GTE Service Charge NRC Yes No
Corridor Optional Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour (1-Way Originating Calling) MRC Yes Yes
OK GTE Additional Per Minute USAGE Yes Yes
OK GTE Service Charge NRC Yes No
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour $10.25 $1.12 $9.13
OK GTE Additional Per Minute $0.16 $0.02 $0.14
OK GTE Service Charge $5.00 N/A $5.00
Business:
Block-of-Time:
OK GTE Monthly Rate for First Hour $14.40 $1.57 $12.83
OK GTE Additional Per Minute $0.23 $0.03 $0.20
OK GTE Service Charge $7.50 N/A $7.50
Residence:
Discount Plan:
OK GTE 15% Discount $3.00 $0.33 $2.67
OK GTE Service Charge $5.00 N/A $5.00
Business:
Discount Plan:
OK GTE 10% Discount $3.00 $0.33 $2.67
OK GTE Service Charge $7.50 N/A $7.50
Discount Plan:
OK GTE 15% Discount $8.00 $0.87 $7.13
OK GTE Service Charge $7.50 N/A $7.50
Discount Plan:
OK GTE 20% Discount $20.00 $2.19 $17.81
OK GTE Service Charge $7.50 N/A $7.50
Corridor Optional Saver:
Residence:
Block-of-Time:
OK GTE Monthly Rate for First Hour (1-Way Originating Calling) $4.80 $0.52 $4.28
OK GTE Additional Per Minute $0.07 $0.01 $0.06
OK GTE Service Charge $5.00 N/A $5.00
</TABLE>
PAGE 14
<PAGE> 111
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Business:
Block-of-Time:
OK GTE Monthly Rate for First Hour (1-Way Originating Calling) MRC Yes Yes
OK GTE Additional Per Minute USAGE Yes Yes
OK GTE Service Charge NRC Yes No
Residence:
OK GTE Unlimited Usage (1-Way Originating Calling) MRC Yes Yes
OK GTE Service Charge NRC Yes No
Business:
OK GTE Unlimited Usage (1-Way Originating Calling) MRC Yes Yes
OK GTE Service Charge NRC Yes No
Residence:
OK GTE Unlimited Usage (2-Way Calling) MRC Yes Yes
OK GTE Service Charge NRC Yes No
Business:
OK GTE Unlimited Usage (2-Way Calling) MRC Yes Yes
OK GTE Service Charge NRC Yes No
SWB WIDE AREA TELECOMMUNICATIONS SERVICES:
800 Service:
OK GTE Access Line MRC Yes Yes
OK GTE Service Charge - Installation or Move NRC Yes No
OK GTE Service Charge - Number Change NRC Yes No
Usage Rates (per Hour):
OK GTE Day - First 10 Hours USAGE Yes Yes
OK GTE Day - Next 16 Hours USAGE Yes Yes
OK GTE Day - Next 25 Hours USAGE Yes Yes
OK GTE Day - Over 51 Hours USAGE Yes Yes
OK GTE Evening - First 10 Hours USAGE Yes Yes
OK GTE Evening - Next 16 Hours USAGE Yes Yes
OK GTE Evening - Next 25 Hours USAGE Yes Yes
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Business:
Block-of-Time:
OK GTE Monthly Rate for First Hour (1-Way Originating Calling) $6.25 $0.68 $5.57
OK GTE Additional Per Minute $0.09 $0.01 $0.08
OK GTE Service Charge $7.50 N/A $7.50
Residence:
OK GTE Unlimited Usage (1-Way Originating Calling) $20.00 $2.19 $17.81
OK GTE Service Charge $5.00 N/A $5.00
Business:
OK GTE Unlimited Usage (1-Way Originating Calling) $30.00 $3.28 $26.72
OK GTE Service Charge $7.50 N/A $7.50
Residence:
OK GTE Unlimited Usage (2-Way Calling) $30.00 $3.28 $26.72
OK GTE Service Charge $5.00 N/A $5.00
Business:
OK GTE Unlimited Usage (2-Way Calling) $40.00 $4.37 $35.63
OK GTE Service Charge $7.50 N/A $7.50
SWB WIDE AREA TELECOMMUNICATIONS SERVICES:
800 Service:
OK GTE Access Line $37.30 $4.08 $33.22
OK GTE Service Charge - Installation or Move $307.00 N/A $307.00
OK GTE Service Charge - Number Change $18.50 N/A $18.50
Usage Rates (per Hour):
OK GTE Day - First 10 Hours $23.29 $2.55 $20.74
OK GTE Day - Next 16 Hours $22.16 $2.42 $19.74
OK GTE Day - Next 25 Hours $21.08 $2.30 $18.78
OK GTE Day - Over 51 Hours $20.05 $2.19 $17.86
OK GTE Evening - First 10 Hours $17.22 $1.88 $15.34
OK GTE Evening - Next 16 Hours $16.37 $1.79 $14.58
OK GTE Evening - Next 25 Hours $15.56 $1.70 $13.86
</TABLE>
PAGE 15
<PAGE> 112
Issue Date: 06/26/97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Evening - Over 51 Hours USAGE Yes Yes $14.79 $1.62 $13.17
OK GTE Night/Weekend - First 10 Hours USAGE Yes Yes $13.58 $1.48 $12.10
OK GTE Night/Weekend - Next 16 Hours USAGE Yes Yes $12.90 $1.41 $11.49
OK GTE Night/Weekend - Next 25 Hours USAGE Yes Yes $12.25 $1.34 $10.91
OK GTE Night/Weekend - Over 51 Hours USAGE Yes Yes $11.63 $1.27 $10.36
Outward WATS:
OK GTE Access Line MRC Yes Yes $36.60 $4.00 $32.60
OK GTE Service Charge - Installation or Move NRC Yes No $307.00 N/A $307.00
OK GTE Service Charge - Number Change NRC Yes No $18.50 N/A $18.50
Usage Rates (per Hour):
OK GTE Day - First 9 Hours USAGE Yes Yes $19.40 $2.12 $17.28
OK GTE Day - Next 16 Hours USAGE Yes Yes $18.45 $2.02 $16.43
OK GTE Day - Next 25 Hours USAGE Yes Yes $17.55 $1.92 $15.63
OK GTE Day - Over 50 Hours USAGE Yes Yes $16.69 $1.82 $14.87
OK GTE Evening - First 9 Hours USAGE Yes Yes $14.30 $1.56 $12.74
OK GTE Evening - Next 16 Hours USAGE Yes Yes $13.59 $1.49 $12.10
OK GTE Evening - Next 25 Hours USAGE Yes Yes $12.92 $1.41 $11.51
OK GTE Evening - Over 50 Hours USAGE Yes Yes $12.27 $1.34 $10.93
OK GTE Night/Weekend - First 9 Hours USAGE Yes Yes $11.24 $1.23 $10.01
OK GTE Night/Weekend - Next 16 Hours USAGE Yes Yes $10.67 $1.17 $9.50
OK GTE Night/Weekend - Next 25 Hours USAGE Yes Yes $10.13 $1.11 $9.02
OK GTE Night/Weekend - Over 50 Hours USAGE Yes Yes $9.62 $1.05 $8.57
Business Line 800:
OK GTE Change Number Charge (1 or 2 terms) NRC Yes No $20.00 N/A $20.00
OK GTE Change Number Charge (3 to 10 terms) NRC Yes No $90.00 N/A $90.00
OK GTE Change Number Charge (over 10 terms) NRC Yes No $225.00 N/A $225.00
</TABLE>
Page 16
<PAGE> 113
Issue Date: 06/26/97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- -------- -------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Call Detail Information NRC Yes No $12.50 N/A $12.50
OK GTE Access Line MRC Yes Yes $10.00 $1.09 $8.91
Usage Rates (per hour):
OK GTE First 10 Hours USAGE Yes Yes $12.00 $1.31 $10.69
OK GTE Over 10 Hours USAGE Yes Yes $10.80 $1.18 $9.62
OK GTE Residence Line 800:
OK GTE Change Number Charge (1 or 2 terms) NRC Yes No $20.00 N/A $20.00
OK GTE Change Number Charge (3 to 10 terms) NRC Yes No $90.00 N/A $90.00
OK GTE Change Number Charge (over 10 terms) NRC Yes No $225.00 N/A $225.00
OK GTE Call Detail Information NRC Yes No $12.50 N/A $12.50
OK GTE Access Line MRC Yes Yes $3.95 $0.43 $3.52
OK GTE Charge to Change Usage Plans NRC Yes No $5.00 N/A $5.00
Usage Rates:
Per Minute of Use Plan:
OK GTE Day Rate USAGE Yes Yes $0.20 $0.02 $0.18
OK GTE Evening/Night/Weekend Rate USAGE Yes Yes $0.18 $0.02 $0.16
Block of Time Plan:
1 Hour Block Plan:
OK GTE Monthly Rate for First Hour MRC Yes Yes $9.00 $0.98 $8.02
OK GTE Additional Per Minute USAGE Yes Yes $0.14 $0.02 $0.12
2 Hour Block Plan
OK GTE Monthly Rate for Two Hours MRC Yes Yes $15.00 $1.64 $13.36
OK GTE Additional Per Minute USAGE Yes Yes $0.12 $0.01 $0.11
EXCHG
NET TA CENTRANET:
</TABLE>
Page 17
<PAGE> 114
Issue Date: 06/26/97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST
-- -- --- ------------------- ---- -------- -------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE 19 Centrex Local Line - First 25 Lines (2-25) Month-to-Month C MRC Yes Yes $16.75 $1.83
OK GTE Centrex Local Line - Next 25 Lines (26-50) Month-to-Month C MRC Yes Yes $16.50 $1.80
OK GTE Centrex Local Line - Next 50 Lines (51-100) 12 Month Contrac MRC Yes Yes $16.25 $1.78
OK GTE Centrex Local Line - Next 50 Lines (51-100) 36 Month Contrac MRC Yes Yes $16.00 $1.75
OK GTE Network Access Register - Rate Groups 1 and 2 MRC Yes No $23.00 N/A
OK GTE Network Access Register - Rate Group 3 MRC Yes No $31.06 N/A
OK GTE Restricted Station MRC Yes Yes $6.00 $0.66
OK GTE PAK1000 Per Customer Group NRC NRC Yes No $100.00 N/A
OK GTE PAK1000 Per Station MRC Yes Yes $2.00 $0.22
OK GTE PAK2000 Per Customer Group NRC NRC Yes No $150.00 N/A
OK GTE PAK2000 Per Station MRC Yes Yes $2.30 $0.25
OK GTE PAK3000 Per Customer Group NRC NRC Yes No $215.00 N/A
OK GTE PAK3000 Per Station MRC Yes Yes $2.50 $0.27
OK GTE PACKAGE Programming ARS/FRS NRC NRC Yes No $120.00 N/A
Line Connection Charge:
OK GTE Line Size: 2 NRC Yes No $18.00 N/A
OK GTE Line Size: 3 to 5 NRC Yes No $12.00 N/A
OK GTE Line Size: 6 to 10 NRC Yes No $10.00 N/A
OK GTE Line Size: 11 to 25 NRC Yes No $6.40 N/A
OK GTE Line Size: 26 to 50 NRC Yes No $4.00 N/A
OK GTE Line Size: 51 to 75 NRC Yes No $3.20 N/A
OK GTE Line Size: 76 to 100 NRC Yes No $3.00 N/A
Optional System Features:
OK GTE WATS Access NRC Yes No $25.00 N/A
OK GTE 800 Service Access NRC Yes No $25.00 N/A
OK GTE Tie Facility Access NRC Yes No $25.00 N/A
OK GTE FX Access NRC Yes No $25.00 N/A
</TABLE>
<TABLE>
<CAPTION>
RESALE
ST CO SEC SERVICE DESCRIPTION RATE
-- -- --- ------------------- -----
<S> <C> <C> <C> <C>
OK GTE 19 Centrex Local Line - First 25 Lines (2-25) Month-to-Month C $14.92
OK GTE Centrex Local Line - Next 25 Lines (26-50) Month-to-Month C $14.70
OK GTE Centrex Local Line - Next 50 Lines (51-100) 12 Month Contrac $14.47
OK GTE Centrex Local Line - Next 50 Lines (51-100) 36 Month Contrac $14.25
OK GTE Network Access Register - Rate Groups 1 and 2 $23.00
OK GTE Network Access Register - Rate Group 3 $31.06
OK GTE Restricted Station $5.34
OK GTE PAK1000 Per Customer Group NRC $100.00
OK GTE PAK1000 Per Station $1.78
OK GTE PAK2000 Per Customer Group NRC $150.00
OK GTE PAK2000 Per Station $2.05
OK GTE PAK3000 Per Customer Group NRC $215.00
OK GTE PAK3000 Per Station $2.23
OK GTE PACKAGE Programming ARS/FRS NRC $120.00
Line Connection Charge:
OK GTE Line Size: 2 $18.00
OK GTE Line Size: 3 to 5 $12.00
OK GTE Line Size: 6 to 10 $10.00
OK GTE Line Size: 11 to 25 $6.40
OK GTE Line Size: 26 to 50 $4.00
OK GTE Line Size: 51 to 75 $3.20
OK GTE Line Size: 76 to 100 $3.00
Optional System Features:
OK GTE WATS Access $25.00
OK GTE 800 Service Access $25.00
OK GTE Tie Facility Access $25.00
OK GTE FX Access $25.00
</TABLE>
Page 18
<PAGE> 115
Issue Date: 06/26/97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- -------- -------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Limited Auto Call Distribution NRC Yes No $25.00 N/A $25.00
OK GTE Preferential Hunting NRC Yes No $25.00 N/A $25.00
OK GTE Stop Hunt NRC Yes No $25.00 N/A $25.00
OK GTE Priority Queuing NRC Yes No $25.00 N/A $25.00
OK GTE Authorization Codes NRC Yes No $25.00 N/A $25.00
OK GTE Terminal Make Busy NRC Yes No $25.00 N/A $25.00
OK GTE Paging/Public Address Access NRC Yes No $140.00 N/A $140.00
OK GTE Paging/Public Address Access MRC Yes Yes $30.00 $3.28 $26.72
OK GTE Dictation Access NRC Yes No $140.00 N/A $140.00
OK GTE Dictation Access MRC Yes Yes $30.00 $3.28 $26.72
OK GTE Code Calling Access NRC Yes No $140.00 N/A $140.00
OK GTE Code Calling Access MRC Yes Yes $30.00 $3.28 $26.72
OK GTE Music on Hold NRC Yes No $50.00 N/A $50.00
OK GTE Music on Hold MRC Yes Yes $10.00 $1.09 $8.91
OK GTE Custom Recorded Announcement NRC Yes No $260.00 N/A $260.00
OK GTE Custom Recorded Announcement MRC Yes Yes $45.00 $4.92 $40.08
OK GTE 8 Port Conference Calling NRC Yes No $160.00 N/A $160.00
OK GTE 8 Port Conference Calling MRC Yes Yes $110.00 $12.02 $97.98
OK GTE Mag Tape SMDR (per line) NRC Yes No $0.30 N/A $0.30
OK GTE T1 Access NRC Yes No $100.00 N/A $100.00
OK GTE T1 Access MRC Yes Yes $105.00 $11.48 $93.52
OK GTE Priority Set Interface MRC Yes Yes $5.00 $0.55 $4.45
OK GTE Pseudo Numbers MRC Yes Yes $6.00 $0.66 $5.34
OK GTE Automatic Route Selection MRC Yes Yes $175.00 $19.13 $155.87
Optional Attendant Features:
OK GTE Non-Data Link Console Interface NRC Yes No $50.00 N/A $50.00
OK GTE Data Link Console Interface NRC Yes No $210.00 N/A $210.00
OK GTE Data Link Console Interface MRC Yes Yes $90.00 $9.84 $80.16
OK GTE Attendant Identification
Multiple Directory Number NRC Yes No $25.00 N/A $25.00
OK GTE Pre-Determined Night Answer NRC Yes No $25.00 N/A $25.00
OK GTE Universal Night Answer NRC Yes No $65.00 N/A $65.00
</TABLE>
Page 19
<PAGE> 116
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- --- ------------------- ---- -------- -------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Universal Night Answer MRC Yes Yes $10.00 $1.09 $8.91
OK GTE Mixed Night Answer NRC Yes No $65.00 N/A $65.00
OK GTE Mixed Night Answer MRC Yes Yes $10.00 $1.09 $8.91
OK GTE Additional Console Member NRC Yes No $185.00 N/A $185.00
OK GTE Additional Console Member MRC Yes Yes $90.00 $9.84 $80.16
OK GTE Flexible Night Answer MRC Yes Yes $0.25 $0.03 $0.22
Data Base Changes:
OK GTE Major Software Additions NRC Yes No $100.00 N/A $100.00
OK GTE Routine Software Change NRC Yes No $50.00 N/A $50.00
OK GTE Minor Software Change NRC Yes No $25.00 N/A $25.00
OK GTE Hourly Rate For Non-Listed Additions
or Changes NRC Yes No $50.00 N/A $50.00
29 SWITCHED DATA CUSTOMER LINE SERVICES
OK GTE Individual Line Loop Extension Access MRC Yes Yes $50.00 $5.47 $44.54
OK GTE Individual Line Loop Extension Access NRC Yes No $50.00 N/A $50.00
OK GTE Individual Line Loop Extension Channel MRC Yes Yes $12.00 $1.31 $10.69
OK GTE Individual Line Loop Extension Channel NRC Yes No $50.00 N/A $50.00
OK GTE Central Office Termination MRC Yes Yes $150.00 $16.40 $133.61
OK GTE Central Office Termination NRC Yes No $125.00 N/A $125.00
OK GTE Central Office Channelization MRC Yes Yes $5.00 $0.55 $4.45
OK GTE Data Direct Connect MRC Yes Yes $1.00 $0.11 $0.89
OK GTE Data Closed User Group MRC Yes Yes $1.00 $0.11 $0.89
OK GTE Feature Package Data 1000 MRC Yes Yes $3.00 $0.33 $2.67
OK GTE Software Reconfiguration NRC Yes No $12.75 N/A $12.75
SWB PRIVATE LINE TARIFF
INTRALATA INTEREXCHANGE PRIVATE LINES
Series 200
2 Type 102
OK GTE Local Channel, ea MRC Yes No $11.00 N/A $11.00
</TABLE>
PAGE 20
<PAGE> 117
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE NRC Yes No $210.00 N/A $210.00
OK GTE Interoffice Channel, ea mi MRC Yes No $5.25 N/A $5.25
OK GTE Interoffice Channel Terminal, per terminal,
2 req. per ch. MRC Yes No $6.30 N/A $6.30
IX Channel, per mi, per channel
OK GTE 0 to 150 mi, ea mi MRC Yes No $5.25 N/A $5.25
OK GTE Ea additional mi over 150 MRC Yes No $5.25 N/A $5.25
OK GTE IX Channel terminal per channel MRC Yes No $11.65 N/A $11.65
2 TYPE 250
OK GTE Local Channel, ea NRC Yes No $280.00 N/A $280.00
OK GTE Half-duplex MRC Yes No $19.00 N/A $19.00
OK GTE Duplex MRC Yes No $27.40 N/A $27.40
Interoffice Channel, ea mi
OK GTE Half-duplex MRC Yes No $3.00 N/A $3.00
OK GTE Duplex MRC Yes No $4.00 N/A $4.00
Interoffice Channel Terminal, per
terminal, 2 req. per ch.
OK GTE Half-duplex MRC Yes No $12.35 N/A $12.35
OK GTE Duplex MRC Yes No $12.35 N/A $12.35
IX Channel, ea mi
Half-duplex
OK GTE 0 to 150 mi, ea mi MRC Yes No $4.20 N/A $4.20
OK GTE Ea additional mi over 150 MRC Yes No $2.30 N/A $2.30
Duplex
OK GTE 0 to 150 mi, ea mi MRC Yes No $4.20 N/A $4.20
OK GTE Ea additional mi over 150 MRC Yes No $2.30 N/A $2.30
2 IXC Terminal, per terminal, 2 required per IXC
OK GTE Half-duplex MRC Yes No $42.65 N/A $42.65
OK GTE Duplex MRC Yes No $43.45 N/A $43.45
2 Type 251
OK GTE Local Channel, ea NRC Yes No $280.00 N/A $280.00
OK GTE Half-duplex MRC Yes No $22.85 N/A $22.85
OK GTE Duplex MRC Yes No $31.25 N/A $31.25
Interoffice Channel, ea mi
</TABLE>
PAGE 21
<PAGE> 118
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- --- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Half-duplex MRC Yes No $3.00 N/A $3.00
OK GTE Duplex MRC Yes No $4.00 N/A $4.00
Interoffice Channel Terminal, per
terminal, 2 req. per ch.
OK GTE Half-duplex MRC Yes No $6.85 N/A $6.85
OK GTE Duplex MRC Yes No $6.85 N/A $6.85
IX Channel, ea mi
Half-duplex
OK GTE 0 to 150 mi, ea mi MRC Yes No $3.60 N/A $3.60
OK GTE Ea additional mi over 150 MRC Yes No $2.60 N/A $2.60
Duplex
OK GTE 0 to 150 mi, ea mi MRC Yes No $3.60 N/A $3.60
OK GTE Ea additional mi over 150 MRC Yes No $2.60 N/A $2.60
2 IXC Terminal, per terminal, 2 required per IXC
OK GTE Half-duplex MRC Yes No $40.40 N/A $40.40
OK GTE Duplex MRC Yes No $41.15 N/A $41.15
2 Series 300 and 400
Local Channel, ea
OK GTE Type 314B (1) MRC Yes No $39.25 N/A $39.25
OK GTE Type 314B (1) NRC Yes No $535.00 N/A $535.00
OK GTE Type 314C NRC Yes No $450.00 N/A $450.00
OK GTE Type 315 MRC Yes No $12.95 N/A $12.95
OK GTE Type 315 NRC Yes No $240.00 N/A $240.00
OK GTE Type 317A MRC Yes No $16.00 N/A $16.00
OK GTE Type 317A NRC Yes No $405.00 N/A $405.00
OK GTE Type 317B MRC Yes No $14.75 N/A $14.75
OK GTE Type 317B NRC Yes No $410.00 N/A $410.00
OK GTE Type 322 MRC Yes No $32.00 N/A $32.00
OK GTE Type 322 NRC Yes No $470.00 N/A $470.00
OK GTE Type 342 MRC Yes No $17.00 N/A $17.00
OK GTE Type 342 NRC Yes No $260.00 N/A $260.00
OK GTE Type 343 MRC Yes No $40.00 N/A $40.00
OK GTE Type 343 NRC Yes No $275.00 N/A $275.00
</TABLE>
PAGE 22
<PAGE> 119
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
Issue Date: 06/26/97
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ---- -------- -------- ------ ----- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE Type 420 MRC Yes No $29.50 N/A $29.50
OK GTE Type 420 NRC Yes No $265.00 N/A $265.00
OK GTE Type 422 MRC Yes No $28.75 N/A $28.75
OK GTE Type 422 NRC Yes No $265.00 N/A $265.00
OK GTE Type 423 MRC Yes No $11.00 N/A $11.00
OK GTE Type 423 NRC Yes No $260.00 N/A $260.00
OK GTE Type 424 (1) MRC Yes No $30.25 N/A $30.25
OK GTE Type 424 (1) NRC Yes No $310.00 N/A $310.00
OK GTE Type 425 MRC Yes No $22.50 N/A $22.50
OK GTE Type 425 NRC Yes No $260.00 N/A $260.00
OK GTE Type 428 MRC Yes No $12.75 N/A $12.75
OK GTE Type 428 NRC Yes No $260.00 N/A $260.00
OK GTE Type 435 MRC Yes No $31.25 N/A $31.25
OK GTE Type 435 NRC Yes No $250.00 N/A $250.00
OK GTE Interoffice Channel, ea mi MRC Yes No $3.50 N/A $3.50
OK GTE Interoffice Channel Terminal MRC Yes No $4.20 N/A $4.20
IX Channel, mi
OK GTE 0 to 150 mi, ea mi MRC Yes No $2.70 N/A $2.70
OK GTE Ea additional mi over 150 MRC Yes No $2.15 N/A $2.15
2 Interexchange Channel Terminal
OK GTE Type 314B MRC Yes No $12.95 N/A $12.95
OK GTE Type 314C MRC Yes No $15.00 N/A $15.00
OK GTE Type 317A MRC Yes No $18.85 N/A $18.85
OK GTE Type 317B MRC Yes No $12.95 N/A $12.95
OK GTE Type 322 MRC Yes No $19.40 N/A $19.40
OK GTE Type 342 MRC Yes No $12.95 N/A $12.95
OK GTE Type 343 MRC Yes No $12.95 N/A $12.95
OK GTE Type 420 MRC Yes No $15.15 N/A $15.15
OK GTE Type 422 MRC Yes No $15.15 N/A $15.15
OK GTE Type 423 MRC Yes No $12.95 N/A $12.95
OK GTE Type 424 MRC Yes No $12.95 N/A $12.95
OK GTE Type 425 MRC Yes No $12.95 N/A $12.95
</TABLE>
Page 23
<PAGE> 120
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE Type 428 MRC Yes No
OK GTE Type 435 MRC Yes No
OK GTE 2 Bridging Charge, (multi point service), per bridged channel MRC Yes No
Channel Conditioning
Type C1
OK GTE Two-point not arranged for switching, per station MRC Yes No
OK GTE Two-point not arranged for switching, per station NRC Yes No
OK GTE Two-point arranged for switching, per station MRC Yes No
OK GTE Two-point arranged for switching, per station NRC Yes No
OK GTE Multi-point channel, per station MRC Yes No
OK GTE Multi-point channel, per station NRC Yes No
Type C2
OK GTE Two-point not arranged for switching, per station MRC Yes No
OK GTE Two-point not arranged for switching, per station NRC Yes No
OK GTE Two-point arranged for switching, per station MRC Yes No
OK GTE Two-point arranged for switching, per station NRC Yes No
OK GTE Multi-point channel, per station MRC Yes No
OK GTE Multi-point channel, per station NRC Yes No
2 Type C4
OK GTE Two-point channel, per channel MRC Yes No
OK GTE Two-point channel, per channel NRC Yes No
OK GTE Three or four-point channel, per station MRC Yes No
OK GTE Three or four-point channel, per station NRC Yes No
Type C5
OK GTE On a two-point channel not arr. for switch., per sta. MRC Yes No
OK GTE On a two-point channel not arr. for switch., per sta. NRC Yes No
Type D1
OK GTE Two-point channel not arr. for switching, per channel MRC Yes No
OK GTE Two-point channel not arr. for switching, per channel NRC Yes No
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C>
OK GTE Type 428 $12.95 N/A $12.95
OK GTE Type 435 5.70 N/A $12.95
OK GTE 2 Bridging Charge, (multi point service), per bridged channel $5.70 N/A $5.70
Channel Conditioning
Type C1
OK GTE Two-point not arranged for switching, per station $6.90 N/A $6.90
OK GTE Two-point not arranged for switching, per station $75.00 N/A $75.00
OK GTE Two-point arranged for switching, per station $12.40 N/A $12.40
OK GTE Two-point arranged for switching, per station $75.00 N/A $75.00
OK GTE Multi-point channel, per station $6.90 N/A $6.90
OK GTE Multi-point channel, per station $75.00 N/A $75.00
Type C2
OK GTE Two-point not arranged for switching, per station $27.60 N/A $27.60
OK GTE Two-point not arranged for switching, per station $75.00 N/A $75.00
OK GTE Two-point arranged for switching, per station $41.40 N/A $41.40
OK GTE Two-point arranged for switching, per station $75.00 N/A $75.00
OK GTE Multi-point channel, per station $20.70 N/A $20.70
OK GTE Multi-point channel, per station $75.00 N/A $75.00
2 Type C4
OK GTE Two-point channel, per channel $96.60 N/A $96.60
OK GTE Two-point channel, per channel $150.00 N/A $150.00
OK GTE Three or four-point channel, per station $62.10 N/A $62.10
OK GTE Three or four-point channel, per station $75.00 N/A $75.00
Type C5
OK GTE On a two-point channel not arr. for switch., per sta. $69.00 N/A $69.00
OK GTE On a two-point channel not arr. for switch., per sta. $75.00 N/A $75.00
Type D1
OK GTE Two-point channel not arr. for switching, per channel $16.55 N/A $16.55
OK GTE Two-point channel not arr. for switching, per channel $150.00 N/A $150.00
</TABLE>
PAGE 24
<PAGE> 121
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
GTESW OKLAHOMA STATE ACCESS TARIFF
<S> <C> <C> <C> <C> <C> <C>
OK GTE 5 Design Change Charge per ASR/Per Occurrance NRC Yes No
OK GTE Special Transport, per airline mile MRC Yes No
OK GTE Special Access Line - Two-Wire NRC Yes No
OK GTE Special Access Line - Two-Wire MRC Yes No
OK GTE Special Access Line - Four-Wire NRC Yes No
OK GTE Special Access Line - Four-Wire MRC Yes No
Supplemental Features, Per Port
OK GTE Multi-point Data Bridging MRC Yes No
OK GTE Voice Conference Bridging MRC Yes No
OK GTE Alarm Distributing Bridging - Common Equipment MRC Yes No
OK GTE Alarm Distributing Bridging - Per Two-Wire Port MRC Yes No
OK GTE Conditioning Arrangements - Data Type C MRC Yes No
OK GTE Conditioning Arrangements - Data Type DA MRC Yes No
OK GTE Conditioning Arrangements - Data Type C - Improved MRC Yes No
OK GTE Signaling Arrangement/per SAL-Loop Signaling Range Extension MRC Yes No
OK GTE Signaling Arrangement/per SAL-Loop or E&M to SF MRC Yes No
OK GTE Signaling Arrangement/per SAL-E&M to DX MRC Yes No
OK GTE Signaling Arrangement/per SAL-E&M to Loop MRC Yes No
OK GTE Signaling Arrangement/per SAL-Loop or E&M to PCM MRC Yes No
OK GTE Signaling Arrangement/per SAL-Automatic Ringdown MRC Yes No
OK GTE Signaling Arrang/per SAL-Echo Control-Echo Suppression/per CKT MRC Yes No
OK GTE Signaling Arrang/per SAL-Echo Control-Echo Canceller/per CKT MRC Yes No
OK GTE Impoved Return Loss/per SAL MRC Yes No
OK GTE Impoved Termination Option/per SAL MRC Yes No
OK GTE Impoved Equal Level Echo Path Loss/per SAL MRC Yes No
OK GTE Voicebank Facility Switching Arrangement MRC Yes No
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- -----
GTESW OKLAHOMA STATE ACCESS TARIFF
<S> <C> <C> <C> <C> <C> <C>
OK GTE 5 Design Change Charge per ASR/Per Occurrance $38.18 N/A $38.18
OK GTE Special Transport, per airline mile $4.50 N/A $4.50
OK GTE Special Access Line - Two-Wire $200.00 N/A $200.00
OK GTE Special Access Line - Two-Wire $30.00 N/A $30.00
OK GTE Special Access Line - Four-Wire $200.00 N/A $200.00
OK GTE Special Access Line - Four-Wire $48.00 N/A $48.00
Supplemental Features, Per Port
OK GTE Multi-point Data Bridging $9.73 N/A $9.73
OK GTE Voice Conference Bridging $10.05 N/A $10.05
OK GTE Alarm Distributing Bridging - Common Equipment $30.00 N/A $30.00
OK GTE Alarm Distributing Bridging - Per Two-Wire Port $4.42 N/A $4.42
OK GTE Conditioning Arrangements - Data Type C $3.15 N/A $3.15
OK GTE Conditioning Arrangements - Data Type DA $2.99 N/A $2.99
OK GTE Conditioning Arrangements - Data Type C - Improved $30.00 N/A $30.00
OK GTE Signaling Arrangement/per SAL-Loop Signaling Range Extension $10.00 N/A $10.00
OK GTE Signaling Arrangement/per SAL-Loop or E&M to SF $16.00 N/A $16.00
OK GTE Signaling Arrangement/per SAL-E&M to DX $14.00 N/A $14.00
OK GTE Signaling Arrangement/per SAL-E&M to Loop $12.00 N/A $12.00
OK GTE Signaling Arrangement/per SAL-Loop or E&M to PCM $10.54 N/A $10.54
OK GTE Signaling Arrangement/per SAL-Automatic Ringdown $10.00 N/A $10.00
OK GTE Signaling Arrang/per SAL-Echo Control-Echo Suppression/per CK $30.00 N/A $30.00
OK GTE Signaling Arrang/per SAL-Echo Control-Echo Canceller/per CKT $85.00 N/A $85.00
OK GTE Impoved Return Loss/per SAL $3.75 N/A $3.75
OK GTE Impoved Termination Option/per SAL $10.00 N/A $10.00
OK GTE Impoved Equal Level Echo Path Loss/per SAL $3.75 N/A $3.75
OK GTE Voicebank Facility Switching Arrangement $11.02 N/A $11.02
</TABLE>
PAGE 25
<PAGE> 122
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION
-- -- --- ------------------- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C>
OK GTE PA (200-3500 Hz)-Special Transport per ALM MRC Yes No
OK GTE PA (200-3500 Hz)-Special Transport per ALM DAILY Yes No
OK GTE PA (200-3500 Hz)-Special Access Line NRC Yes No
OK GTE PA (200-3500 Hz)-Special Access Line MRC Yes No
OK GTE PA (200-3500 Hz)-Special Access Line DAILY Yes No
OK GTE PA (100-5000 Hz)-Special Transport per ALM MRC Yes No
OK GTE PA (100-5000 Hz)-Special Transport per ALM DAILY Yes No
OK GTE PA (100-5000 Hz)-Special Access Line NRC Yes No
OK GTE PA (100-5000 Hz)-Special Access Line MRC Yes No
OK GTE PA (100-5000 Hz)-Special Access Line DAILY Yes No
OK GTE PA (50-8000 Hz)-Special Transport per ALM MRC Yes No
OK GTE PA (50-8000 Hz)-Special Transport per ALM DAILY Yes No
OK GTE PA (50-8000 Hz)-Special Access Line NRC Yes No
OK GTE PA (50-8000 Hz)-Special Access Line MRC Yes No
OK GTE PA (50-8000 Hz)-Special Access Line DAILY Yes No
OK GTE PA (50-15000 Hz)-Special Transport per ALM MRC Yes No
OK GTE PA (50-15000 Hz)-Special Transport per ALM DAILY Yes No
OK GTE PA (50-15000 Hz)-Special Access Line NRC Yes No
OK GTE PA (50-15000 Hz)-Special Access Line MRC Yes No
OK GTE PA (50-15000 Hz)-Special Access Line DAILY Yes No
OK GTE PA (50-15000 Hz)-Conditioning Program Audio, Stereo Conditioning MRC Yes No
OK GTE PA (50-15000 Hz)-Conditioning Program Audio, Stereo Conditioning DAILY Yes No
OK GTE PA (All Bandwidths)-Program Audio Bridging per port MRC Yes No
OK GTE PA (All Bandwidths)-Program Audio Bridging per port DAILY Yes No
OK GTE PA (All Bandwidths)-Conditioning Program Audio Zero Loss per SAL MRC Yes No
OK GTE PA (All Bandwidths)-Conditioning Program Audio Zero Loss per SAL DAILY Yes No
OK GTE DDS(2.4, 4.8, 9.6, 19.2, 56, 64 Kbps) Special Transport Per ALM MRC Yes No
</TABLE>
<TABLE>
<CAPTION>
RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION RATE COST RATE
-- -- --- ------------------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C>
OK GTE PA (200-3500 Hz)-Special Transport per ALM $4.70 N/A $4.70
OK GTE PA (200-3500 Hz)-Special Transport per ALM $0.47 N/A $0.47
OK GTE PA (200-3500 Hz)-Special Access Line $200.00 N/A $200.00
OK GTE PA (200-3500 Hz)-Special Access Line $30.00 N/A $30.00
OK GTE PA (200-3500 Hz)-Special Access Line $3.00 N/A $3.00
OK GTE PA (100-5000 Hz)-Special Transport per ALM $9.00 N/A $9.00
OK GTE PA (100-5000 Hz)-Special Transport per ALM $0.90 N/A $0.90
OK GTE PA (100-5000 Hz)-Special Access Line $200.00 N/A $200.00
OK GTE PA (100-5000 Hz)-Special Access Line $41.00 N/A $41.00
OK GTE PA (100-5000 Hz)-Special Access Line $4.10 N/A $4.10
OK GTE PA (50-8000 Hz)-Special Transport per ALM $14.45 N/A $14.45
OK GTE PA (50-8000 Hz)-Special Transport per ALM $1.45 N/A $1.45
OK GTE PA (50-8000 Hz)-Special Access Line $200.00 N/A $200.00
OK GTE PA (50-8000 Hz)-Special Access Line $42.00 N/A $42.00
OK GTE PA (50-8000 Hz)-Special Access Line $4.20 N/A $4.20
OK GTE PA (50-15000 Hz)-Special Transport per ALM $21.66 N/A $21.66
OK GTE PA (50-15000 Hz)-Special Transport per ALM $2.17 N/A $2.17
OK GTE PA (50-15000 Hz)-Special Access Line $200.00 N/A $200.00
OK GTE PA (50-15000 Hz)-Special Access Line $43.00 N/A $43.00
OK GTE PA (50-15000 Hz)-Special Access Line $4.30 N/A $4.30
OK GTE PA (50-15000 Hz)-Conditioning Program Audio, Stereo Conditioning $15.81 N/A $15.81
OK GTE PA (50-15000 Hz)-Conditioning Program Audio, Stereo Conditioning $1.58 N/A $1.58
OK GTE PA (All Bandwidths)-Program Audio Bridging per port $10.84 N/A $10.84
OK GTE PA (All Bandwidths)-Program Audio Bridging per port $1.08 N/A $1.08
OK GTE PA (All Bandwidths)-Conditioning Program Audio Zero Loss per SAL $15.81 N/A $15.81
OK GTE PA (All Bandwidths)-Conditioning Program Audio Zero Loss per SAL $1.58 N/A $1.58
OK GTE DDS(2.4, 4.8, 9.6, 19.2, 56, 64 Kbps) Special Transport Per ALM $4.50 N/A $4.50
</TABLE>
PAGE 26
<PAGE> 123
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE
-- -- --- ------------------- ---- -------- -------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
OK GTE DDS(2.4, 4.8, 9.6, 19.2 56, 64 Kbps) SAL NRC Yes No $250.00
OK GTE DDS(2.4, 4.8, 9.6, 19.2 Kbps) SAL MRC Yes No $68.00
OK GTE DDS(56, 64 Kbps) SAL MRC Yes No $85.00
OK GTE DDS Bridging (per port) MRC Yes No $11.00
OK GTE DDS Secondary Channel MRC Yes No $7.00
OK GTE Multiplexing-DS1 to Voice NRC Yes No $800.00
OK GTE Multiplexing-DS1 to Voice MRC Yes No $190.00
OK GTE Multiplexing-DS3 to DS1 NRC Yes No $450.00
OK GTE Multiplexing-DS3 to DS1 MRC Yes No $490.00
OK GTE Digital Data Carrier Multiplexer NRC Yes No $1,500.00
OK GTE Digital Data Carrier Multiplexer MRC Yes No $550.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to twenty 2.4 Kbps NRC Yes No $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to twenty 2.4 Kbps MRC Yes No $160.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to ten 4.8 Kbps NRC Yes No $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to ten 4.8 Kbps MRC Yes No $120.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to Five 9.6 Kbps NRC Yes No $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to Five 9.6 Kbps MRC Yes No $100.00
OK GTE DS1 Special Access Line-First System NRC Yes No $254.00
OK GTE DS1 Special Access Line-First System MRC Yes No $254.00
OK GTE DS1 Special Access Line-Each Additional Sysytem NRC Yes No $900.00
OK GTE DS1 Special Access Line-Each Additional Sysytem MRC Yes No $254.00
OK GTE DS1 Special Access Line-Special Transport Termination MRC Yes No $30.00
OK GTE DS1 Special Access Line-Special Transport per ALM MRC Yes No $15.00
OK GTE DS1-Automatic Protecting Switching NRC Yes No $700.00
OK GTE DS1-Automatic Protecting Switching MRC Yes No $100.00
OK GTE DS1 OPP "First System" SAL-One Year MRC Yes No $250.00
OK GTE DS1 OPP "First System" SAL-Three Year MRC Yes No $210.00
OK GTE DS1 OPP "First System" SAL-Five Year MRC Yes No $175.00
<CAPTION> AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION COST RATE
-- -- --- ------------------- ------- ------
<S> <C> <C> <C> <C> <C>
OK GTE DDS(2.4, 4.8, 9.6, 19.2 56, 64 Kbps) SAL N/A $250.00
OK GTE DDS(2.4, 4.8, 9.6, 19.2 Kbps) SAL N/A $68.00
OK GTE DDS(56, 64 Kbps) SAL N/A $85.00
OK GTE DDS Bridging (per port) N/A $11.00
OK GTE DDS Secondary Channel N/A $7.00
OK GTE Multiplexing-DS1 to Voice N/A $800.00
OK GTE Multiplexing-DS1 to Voice N/A $190.00
OK GTE Multiplexing-DS3 to DS1 N/A $450.00
OK GTE Multiplexing-DS3 to DS1 N/A $490.00
OK GTE Digital Data Carrier Multiplexer N/A $1,500.00
OK GTE Digital Data Carrier Multiplexer N/A $550.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to twenty 2.4 Kbps N/A $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to twenty 2.4 Kbps N/A $160.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to ten 4.8 Kbps N/A $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to ten 4.8 Kbps N/A $120.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to Five 9.6 Kbps N/A $800.00
OK GTE Digital Data Carrier Subrate Multiplexer-one DSO to Five 9.6 Kbps N/A $100.00
OK GTE DS1 Special Access Line-First System N/A $254.00
OK GTE DS1 Special Access Line-First System N/A $254.00
OK GTE DS1 Special Access Line-Each Additional Sysytem N/A $900.00
OK GTE DS1 Special Access Line-Each Additional Sysytem N/A $254.00
OK GTE DS1 Special Access Line-Special Transport Termination N/A $30.00
OK GTE DS1 Special Access Line-Special Transport per ALM N/A $15.00
OK GTE DS1-Automatic Protecting Switching N/A $700.00
OK GTE DS1-Automatic Protecting Switching N/A $100.00
OK GTE DS1 OPP "First System" SAL-One Year N/A $250.00
OK GTE DS1 OPP "First System" SAL-Three Year N/A $210.00
OK GTE DS1 OPP "First System" SAL-Five Year N/A $175.00
</TABLE>
PAGE 27
<PAGE> 124
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ---- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OK GTE DS3 Electrical Interface SAL - One Year - 3system NRC Yes No $2,500.00 N/A $2,500.00
OK GTE DS3 Electrical Interface SAL - One Year - 3 system MRC Yes No $3,800.00 N/A $3,800.00
OK GTE DS3 Electrical Interface SAL - Three Year - 3 system NRC Yes No $2,500.00 N/A $2,500.00
OK GTE DS3 Electrical Interface SAL - Three Year - 3 system MRC Yes No $2,700.00 N/A $2,700.00
OK GTE DS3 Electrical Interface SAL - Five Year - 3 system NRC Yes No $2,500.00 N/A $2,500.00
OK GTE DS3 Electrical Interface SAL - Five Year - 3 system MRC Yes No $2,400.00 N/A $2,400.00
OK GTE DS3 Electrical Interface SAL - Seven Year -3 system NRC Yes No $2,500.00 N/A $2,500.00
OK GTE DS3 Electrical Interface SAL - Seven Year - 3 system MRC Yes No $2,250.00 N/A $2,250.00
OK GTE DS3 Electrical Interface each add'l SAL - One Year (Max of 2) NRC Yes No $400.00 N/A $400.00
OK GTE DS3 Electrical Interface each add'l SAL - One Year (Max of 2) MRC Yes No $500.00 N/A $500.00
OK GTE DS3 Electrical Interface each add'l SAL - Three Year (Max of 2) NRC Yes No $400.00 N/A $400.00
OK GTE DS3 Electrical Interface each add'l SAL - Three Year (Max of 2) MRC Yes No $400.00 N/A $400.00
OK GTE DS3 Electrical Interface each add'l SAL - Five Year (Max of 2) NRC Yes No $400.00 N/A $400.00
OK GTE DS3 Electrical Interface each add'l SAL - Five Year (Max of 2) MRC Yes No $300.00 N/A $300.00
OK GTE DS3 Electrical Interface each add'l SAL - Seven Year (Max of 2) NRC Yes No $400.00 N/A $400.00
OK GTE DS3 Electrical Interface each add'l SAL - Seven Year (Max of 2) MRC Yes No $200.00 N/A $200.00
OK GTE DS3 Electrical Interface each SAL - One Year NRC Yes No $900.00 N/A $900.00
OK GTE DS3 Electrical Interface each SAL - One Year MRC Yes No $900.00 N/A $900.00
OK GTE DS3 Electrical Interface each SAL - Three Year NRC Yes No $900.00 N/A $900.00
OK GTE DS3 Electrical Interface each SAL - Three Year MRC Yes No $700.00 N/A $700.00
OK GTE DS3 Electrical Interface each SAL - Five Year NRC Yes No $900.00 N/A $900.00
OK GTE DS3 Electrical Interface each SAL - Five Year MRC Yes No $650.00 N/A $650.00
OK GTE DS3 Electrical Interface each SAL - Seven Year NRC Yes No $900.00 N/A $900.00
OK GTE DS3 Electrical Interface each SAL - Seven Year MRC Yes No $610.00 N/A $610.00
OK GTE DS3 Electrical Interface SAL - Spec Trans Term - 3 system MRC Yes No $300.00 N/A $300.00
OK GTE DS3 Electrical Interface SAL - Spec Trans Fac per ALM - 3 system MRC Yes No $60.00 N/A $60.00
OK GTE DS3 Electrical Interface SAL - Multiplexer Cross Connect Arrang MRC Yes No $65.00 N/A $65.00
OK GTE Clear Channel Capability NRC Yes No $90.00 N/A $90.00
OK GTE Clear Channel Capability MRC Yes No $24.00 N/A $24.00
</TABLE>
Footnote: (1) The retail rates above do not include the End User Subscriber
Line Charge (ECSLC) The ALEC will be resp
Page 28
<PAGE> 125
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF OKLAHOMA
GTESW EXCHANGE NETWORK TARIFF
<TABLE>
<CAPTION>
BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO SEC SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- --- ------------------- ---- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Footnote: (2) This document is subject to the terms and conditions of the
nondisclosure agreement between the ALEC and GTE.
Footnote: (3) This matrix is subject to Legal and/or Regulatory constraints.
Footnote: (4) Prices contained in this price list have been calculated
according to the formula: (1) retail price, less (2) avoided
retail costs.
Footnote: (5) Resale with discount to Business Customers only. No Resale
and No Discount to Residential Customers
Page 29
<PAGE> 126
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS
General. The rates contained in this Appendix G are the rates as defined in
Article VII and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Service Support Surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
<TABLE>
<S> <C> <C>
(1) Local Loops
Local Loop
2 Wire Loop $ 34.00
4 Wire Loop $ 54.00
Network Interface Device
Basic NID $ 1.60
12x NID $ 2.30
(2) Local Switching (Must purchase Port)
Ports
2 Wire Basic Port $ 6.20
DS-1 Port $ 71.00
Local Switching
Originating MOU $ 0.0056564
Terminating MOU $ 0.0056564
Intrastate End Office Switching
Originating MOU $ 0.0056564
Terminating MOU $ 0.0056564
Interconnection Charge $ 0.0100320
CCL
-Originating $ 0.0122000
-Terminating $ 0.0122000
Interstate End Office Switching
Originating MOU $ 0.0056564
Terminating MOU $ 0.0056564
Interconnection Charge $ 0.0037789
CCL
-Originating $ 0.0100000
-Terminating $ 0.0215610
(3) Features See Attached
(4) Dedicated Transmission Links
Entrance Facility
2 Wire Voice $ 34.00
4 Wire Voice $ 54.00
DS1 Standard 1st System $ 275.00
DS1 Standard Add'l System $ 140.00
DS3 Protected, Electrical $1,250.00
DS1 to Voice Multiplexing $ 195.00
</TABLE>
G-1
<PAGE> 127
<TABLE>
<S> <C>
DS3 to Voice Multiplexing $ 350.00
Direct Trunked Transport
Voice Facility Per ALM $ 4.44
DS1 Facility Per ALM $ 4.75
DS1 Per Termination $ 30.00
DS3 Facility Per ALM $ 25.00
DS3 Per Termination $ 300.00
(5) Common/Shared Transmission Links
Transport Termination MOU/Term $ 0.0001333
Transport Facility MOU/Mile $ 0.0000106
(6) Tandem Switching MOU $ 0.0006351
(7) Databases and Signaling Systems
Signaling Links and STP
56 Kbps Links $ 78.98
DS-1 Link $ 90.78
Signal Transfer Point (STP) Port Term $ 178.90
Call Related Databases
Line Information Database (ABS-Queries) $ 0.035
Toll Free Calling Database Transport (ABS-Queries) $ 0.0046
Toll Free Calling Database (DB800 Queries) $ 0.0086010
Non-Recurring Charges for Unbundled Services
Service Ordering (loop or port)
Initial Service Order, per order $ 47.25
Transfer of Service Charges, per order $ 16.00
Subsequent Service Order, per order $ 24.00
Customer Service Record Research, per request $ 5.25
Installation
Unbundled Loop, per loop $ 11.75
Unbundled Port, per port $ 11.75
Loop Facility Charge, per order $ 68.25
This charge will apply when field
work is required for establishment of new unbundled loop service.
Monthly Recurring Charge for EIS
DS0 Level Connection $ 2.21
DS1 Level Connection $ 5.30
</TABLE>
G-2
<PAGE> 128
OKLAHOMA FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
- ------------- ------------------
<S> <C> <C>
1. Speed Call 8 (Changeable) $ 0.25
2. Speed Call 30 (Changeable) $ 0.25
3. Cancel Call Waiting $ 0.25
4. Call Forward Variable $ 0.25
5. Call Waiting $ 0.25
6. Dual Tone Multifrequency (DTMF) $ 0.25
7. Three-Way Calling $ 0.75
8. Account Codes For AFR $ 0.25
9. Add On - Consultation Hold - Incoming Only $ 0.25
10 Attendant BL Verification $ 0.75
11. Attendant camp-on (NonDL Console) $ 0.25
12. Attendant Conference $ 5.00
13. Authorization Codes for AFR $ 0.50
14. Basic Business Group $ 1.50
15. Dual Tone Multifrequency (DTMF) $ 0.25
16. Station-to-Station Dialing (Intercom) $ 2.75
17. Business Group Automatic Callback (BGAC) $ 0.25
18. Call Forwarding Variable $ 0.25
19. Business Group - Speed Call - 8 $ 0.25
20. Business Group - Speed Call - 30 $ 0.25
21. Business Group - Three Way Calling (TWC) $ 0.75
22. Code Calling $ 0.25
23. Call Forward Busy Line $ 0.25
24. Call Forward Don't Answer $ 0.25
25. Call Forward Fixed $ 0.25
26. Call Forwarding - Incoming Only $ 0.25
27. Call Flip/Flop $ 0.25
28. Call Forwarding - Withing Group $ 0.25
29. Call Hold $ 0.25
30. Circular Hunting $ 0.25
31. Call Park $ 0.25
32. Call Pick-Up $ 0.25
33. Code Restrictions and Diversion $ 2.00
34. Call Transfer Individual - All Calls $ 0.25
35. Call Waiting Originating $ 0.25
36. Call Waiting Terminating $ 0.25
37. Direct Connect $ 0.25
38. Directed Call Pickup W/BI $ 0.25
39. Directed Call Pickup WO/BI $ 0.25
40. Dial Call Waiting $ 0.25
</TABLE>
G-3
<PAGE> 129
OKLAHOMA FEATURES
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
- ------------- ------------------
<S> <C> <C>
41. Remote Access to (Business Group) Features $ 0.25
42. Distinctve Ringing $ 0.25
43. Executive Busy Override $ 0.25
44. Fixed Night Service - Call Fwd $ 0.25
45. Fixed Night Service - Key $ 0.25
46. Fully Restricted (Orig/Term) $ 0.50
47. Facility Restriction Level $ 2.00
48. Foreign Exchange Facilities $ 0.25
49. Last Number Redial $ 0.25
50. Loud Speaker Paging $ 0.25
51. Make Busy Key $ 1.25
52. Off-Hook Queuing $ 0.25
53. On-Hook Queuing $ 0.25
54. Preferential Multiline Hunting $ 0.25
55. Recorded Telephone Dictation $ 0.25
56. Speed Calling Individual 1 Digit $ 0.25
57. Speed Calling Individual 2 Digit $ 0.25
58. Stop Hunt Key $ 1.25
59. Special Intercept Announcements $ 0.50
60. Station Restricted (Orig/Term) $ 0.50
61. Time of Day Routing Control $ 0.50
62. Toll Restricted Service $ 2.00
63. Two-way Splitting $ 0.25
64. Uniform Call Distribution (UCD) Hunting $ 0.25
65. Auto Alt Rt $ 1.25
66. Auto Rt Sel $ 0.75
67. Meet Me Conf $ 62.00
68. Auto Call Back $ 0.25
69. Anon Call Rej $ 0.25
70. Auto Recall $ 0.25
71. Call Num Deliver $ 0.25
72. Call Num DeliverBlk $ 0.25
73. Cust Ord Trace $ 0.25
74. Dist Ring/VIP $ 0.25
75. Select Call Accept $ 0.25
76. Select Call Frwd $ 0.25
77. Select Call Reject $ 0.25
78. Select Call Wait $ 0.25
---------------- -------
TOTAL $101.25
</TABLE>
G-4
<PAGE> 130
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS
The following services are offered by GTE for purchase by DTI, where an
individual item is not superseded by a tariffed offering.
<TABLE>
<CAPTION>
NRC MRC
--- ---
<S> <C> <C> <C>
1. 9-1-1 Selective Router Map $125.00 n/a
Provided is a color map showing a selective router's
location and the GTE central offices that send their 9-1-1
call to it. The selective router and central office information
will include CLLI codes and NPA/NXXs served. The map
will include boundaries of each central office and show major
streets and the county boundary. Permission to reproduce
within DTI for its internal use is granted without further fee.
Non-tariffed price.
2. 9-1-1 Selective Router Pro-Rata Fee/trunk $0 $100.77
This fee covers the cost of selective routing switch capacity
per trunk to cover investment to handle the additional capacity
without going to the 9-1-1 districts for additional funding.
3. PS ALI Software $790.80
a personal computer software program running on Windows
3.1(TM)for formatting subscriber records into NENA Verison #2
format to create files for uploading to GTE's ALI Gateway.
Fee includes software, warranty and 1 800 872-3356 support
at no additional cost.
4. ALI Gateway Service $135.00 $36.12
Interface for delivery of ALI records to GTE's Data Base
Management System. This provides a computer access port for
DTI to transmit daily subscriber record updates to GTE for
loading into ALI databases. It includes support at
1 800 872-3356 at no additional cost.
5. 9-1-1 Interoffice Trunk Tariff Tariff
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
6. ALI Database Tariff Tariff
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
7. Selective Router Database per Record Charge Tariff Tariff
Fee for each ALI record used in a GTE selective router.
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
</TABLE>
H-1
<PAGE> 131
<TABLE>
<CAPTION>
NRC MRC
--- ---
<S> <C> <C> <C>
8. MSAG Copy
Production of one copy of a 9-1-1 Customer's Master Street Address Guide,
postage paid.
a. Copy provided in paper format $238.50 $54.00
b. Copy provided in flat ASCII file on a 3 1/2" diskette $276.00 $36.00
</TABLE>
H-2
<PAGE> 132
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE
1. Service Ordering, Provisioning, and Billing Systems Generally. The
following describes generally the operations support systems that GTE
will use and the related functions that are available for ordering,
provisioning and billing for resold services, interconnection
facilities and services and unbundled network elements. Except as
specifically provided otherwise in this Agreement, service ordering,
provisioning, billing and maintenance shall be governed by the GTE
Guide. Before orders can be taken, DTI will provide GTE with its
Operating Company Number ("OCN") and Company Code ("CC") as follows:
(a) The ALEC must provide their OCN (four-digit alpha-numeric
assigned by Bellcore or number administrator) on the ALEC
Profile. The GTE Guide provides the necessary information for
the ALEC to contact Bellcore to obtain the OCN. There are no
optional fields on the Profile.
(b) Before the Local Service Request ("LSR") and Directory Service
Request ("DSR") order forms can be processed DTI must provide
the OCN and Customer Carrier Name Abbreviation ("CCNA").
1.1 Operations Support Systems for Trunk-Side Interconnection
1.1.1 DTI will be able to order trunk-side interconnector
services and facilities from GTE through a direct
electronic interface over the GTE Network Data Mover
("NDM") in a nondiscriminatory manner. Orders for
trunk-side interconnection will be initiated by an
Access Service Request ("ASR") sent electronically by
DTI over the NDM. ASRs for trunk-side interconnection
will be entered electronically into GTE's Carrier
Access Management System ("CAMS") to validate the
request, identify any errors, and resolve any errors
back to DTI. CAMS is a family of GTE systems
comprised primarily of EXACT/TUF, SOG/SOP, and CABS.
1.1.2 The use of CAMS to support DTI's requests for
trunk-side interconnection will operate in the
following manner: GTE will route the ASR through its
data center to one of two National Access Ordering
Centers ("NACC"). The ASR will be entered
electronically into the EXACT/TUF system for
validation and correction of errors. Errors will be
referred back to DTI. DTI then will correct any
errors that GTE has identified and resubmit the
request to GTE electronically through a supplemental
ASR, without penalty or charge (e.g., order
modification charge) to DTI. Similarly, errors
committed by GTE subsequent to the receipt of a valid
ASR from DTI will be expeditiously identified and
corrected by GTE without the need for DTI's
submission of a supplemental ASR. GTE then will
translate the ASR into a service order for
provisioning and billing. In order to convert the ASR
into a service order, GTE personnel must apply the
necessary elements to provision the service and
include the billable elements necessary for GTE to
bill DTI for the services provided. This application
also requires a determination of the access tandem to
end office relationships with the service requested.
1.1.3 At the next system level, translated service orders
will be distributed electronically through the
SOG/SOP systems to several destinations. The SOG/SOP
system will begin the actual provisioning of the
service for DTI. Other GTE provisioning systems are
CNAS and ACES. The GTE Database Administrative Group
("DBA")
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and the Special Services Control Center ("SSCC") will
be the two most important destinations at this level.
The DBA location will identify codes for the
appropriate GTE switch in order to provide the
functions required by the ASR. The SSCC will provide
the engineering for the facilities over which the
services will be handled. Information from these two
groups (and others) then will be transmitted
electronically to GTE's field service personnel
(Customer Zone Technicians or "CZTs") who will
establish the trunks and facilities, thus connecting
the GTE facilities to a connecting company, if one is
required, and to DTI. GTE's CZTs also will contact
DTI directly to perform testing, and upon acceptance
by DTI, will make the necessary entries into the GTE
system to complete the order. The completed orders
then will pass to GTE's Carrier Access Billing System
("CABS") which will generate the bill to DTI. The
billing process under CABS requires coordination with
several other systems.
1.1.4 Billing for transport and termination services cannot
be accomplished without call records from GTE's
central office switches. Records of usage will be
generated at GTE's end office switches or the access
tandems. Call usage records will be transmitted
electronically from GTE's switches through GTE's
Billing Intermediate Processor ("BIP"). This system
will collect the call records, perform limited
manipulations to the record and transfer them to a
centralized data center where they will be processed
through the Universal Measurement System ("UMS") to
determine the validity and accuracy of the records.
UMS also will sort the records and send them to the
CABS billing system, from which GTE will produce a
bill and send it to DTI.
1.2 Operations Support Systems for Resold Services and Unbundled Elements
1.2.1 DTI will also be able to order services for resale
and unbundled network elements, as well as interim
number portability, directly from GTE through an
electronic interface. To initiate an order for these
services or elements, DTI will submit a Local Service
Request ("LSR") from its data center to GTE's Data
Center using the same electronic NDM interface used
for trunk-side interconnection. If no NDM interface
exists or if DTI chooses to establish a separate NDM
interface, DTI must request an NDM facility. For new
entrants that elect not to interface electronically,
GTE will accommodate submission of LSR orders by
facsimile, E-mail, Internet or a dial NDM
arrangement. An LSR is very similar to an ASR, except
that it will be used exclusively for line-side
interconnection requests. GTE will transfer LSRs to
GTE's NOMC centralized service order processing
center electronically.
1.2.2 Most LSRs will be used either to transfer an existing
GTE customer to DTI or to request service for a new
customer who is not an existing GTE customer.
Depending on the situation, different information
will be required on the LSR. LSRs for a conversion of
a GTE local customer to DTI must include information
relating to all existing, new and disconnected
services for that customer, including the customer's
name, type of service desired, location of service
and features or options the customer desires. DTI
will be able to obtain this customer information
after GTE has received the customer's written consent
as specified in Article VI.3.3. For service to a new
customer who is not an existing GTE customer, the LSR
must contain the customer's name, service address,
service type, services, options, features and ALEC
data. If known, the LSR should include the telephone
number and due date/desired due date.
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1.2.3 While DTI would have its own customer information and
may have the SAG/GTE products on tape from GTE, DTI
would not have the due date or new telephone number
for new customers since that information is contained
in GTE's systems. Therefore, a process is required to
provide this information to DTI. GTE itself does not
have uniform access to this information
electronically. Until GTE and DTI have agreed and
established electronic interfaces, DTI agrees that an
800 number is the method that will be used. The 800
telephone number will connect DTI directly to GTE's
NOMC service representatives. When DTI receives a
request for basic services from a new local service
customer, DTI will call GTE's NOMC through the 800
number, and, while the new customer is on hold, GTE
will provide the due date for service and the new
telephone number for that customer. At the same time,
DTI will give GTE the new customer's name, service
address and type of requested service (i.e., R1, B1).
GTE will enter that information into its SORCES or
SOLAR service ordering systems to be held in suspense
until DTI sends the confirming LSR. DTI will then
return to its customer holding on the line and
provide the due date and new telephone number.
1.2.4 After concluding the telephone call with the new
customer, DTI will complete a confirming LSR for the
new service and send it electronically to GTE's data
center for processing. Upon receipt, GTE will match
the LSR with the service order suspended in GTE's
system, and if there is a match, GTE will process the
LSR. After the LSR is processed, GTE will transmit
confirmation electronically to DTI through the NDM
that the LSR has been processed, providing a record
of the telephone number and due date. DTI will be
required to submit the confirming LSR by 12:00 p.m.
each day local time, as defined by the location of
the service address. If DTI fails to submit the LSR
in a timely manner, the suspended LSR will be
considered in jeopardy, at which time GTE will assign
a new due date upon receipt of the delayed LSR for
such customer requests and notify DTI of the change.
1.2.5 Number assignments and due date schedules for
services other than single line service and hunt
groups up to 12 lines will be assigned within
approximately twenty-four (24) hours after GTE's
receipt of the LSR using the standard Local
Confirmation ("LSC") report sent electronically to
DTI over the NDM, thereby providing a record of the
newly established due date. An exception would be a
multi-line hunt group for 12 lines or fewer. The
other numbers then will be provided through the
normal electronic confirmation process.
1.2.6 The processing of specifically requested telephone
numbers (called "vanity numbers") is as follows. GTE
will work with DTI on a real time interface to
process vanity numbers while DTI's customer is still
on the line. If a number solution can be established
expeditiously, it will be done while the customer is
still on the line. If extensive time will be required
to find a solution, GTE service representatives will
work with DTI representatives off line as GTE would
for its own customers. For all of this, the basic
tariff guidelines for providing telephone numbers
will be followed.
1.2.7 Once the order for line-side interconnection service
is established, it is moved for provisioning to the
next system level. Here, GTE will validate and
process the LSR to establish an account for DTI and,
if GTE continues to provide some residual services to
the customer, GTE will maintain a GTE account. In
GTE's system, GTE's account is called the Residual
Account and DTI's account is referred to as DTI
Account. If any engineering for the service is
necessary, the account would be distributed to the
SSCC. Otherwise, it will be distributed for facility
assignment.
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1.2.8 With the account established and any engineering and
facility assignment complete, GTE then will transmit
electronically a record to GTE's CZT field personnel
if physical interconnection or similar activity is
required. The CZTs will provision the service and
then electronically confirm such provision in the
SOLAR/SORCES system when completed. The accounts then
will be transmitted to GTE's Customer Billing
Services System ("CBSS"). GTE shall provide to DTI a
service completion report. Call records for actual
service provided to DTI's customers on GTE facilities
will be transmitted from GTE's switches through some
usage rating systems (BIP, UMS), screened and
eventually delivered to CBSS for the generation of
bills.
1.2.9 CBSS is a different system than CABS, and it is the
one that GTE will utilize to produce the required
bills for resold services, unbundled elements and
local number portability. CBSS will create a bill to
DTI for resold services and unbundled elements along
with a summary bill master. Daily unrated records for
intraLATA toll usage and local usage (in collect
usage data will be provided on rated basis) on DTI's
accounts will be generated and transmitted
electronically to DTI.
1.2.10 On resold accounts, GTE will provide usage in EMR
format per existing file exchange schedules. The
usage billing will be in agreed upon level of detail
for DTI to issue a bill to its end users.
1.2.11 GTE will provide DTI with detailed monthly billing
information in a paper format until an agreed upon
Electronic Data Interchange 811 electronic bill
format is operational.
1.2.12 State or sub-state level billing will include up to
ten (10) summary bill accounts.
1.2.13 GTE accepts DTI's control reports and agrees to
utilize industry standard return codes for unbillable
messages. Transmission will occur via the NDM. Tape
data will conform to Attachment "A" of the LRDTR.
Data will be delivered Monday through Friday except
for Holidays as agreed. Data packages will be tracked
by invoice sequencing criteria. GTE contacts will be
provided for sending/receiving usage files.
1.2.14 GTE will retain data backup for 45 Business Days. To
the extent this retention is exclusively for DTI, DTI
shall reimburse GTE for all expenses related to this
retention.
1.2.15 In addition to the LSR delivery process, DTI will
distribute directory assistance and directory listing
information (together sometimes referred to hereafter
as "DA/DL information") to GTE via the LSR ordering
process over the NDM. GTE will provide listings
service via its "listing continuity" offering.
1.2.16 Charges and credits for PIC changes ordered via an
LSR will appear on the wholesale bill. As DTI places
a request for a PIC change via LSR, the billing will
be made on DTI account associated with each
individual end user. GTE will process all PIC changes
from IXCs that are received for DTI end users by
rejecting back to the IXC with DTI OCN. Detail is
provided so that DTI can identify the specific
charges for rebilling to their end user.
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1.2.17 CMDS. The parties provide for the distribution of
intraLATA CMDS incollect messages and/or selected
local measured service messages as follows:
1.2.17.1 Messages to be Screened. GTE
receives CMDS I transmissions
containing intraLATA incollect
messages from the state RBOC CMDS
host each business day. Per DTI's
request, GTE will screen the
incollects by NPA and line number
and accumulate the Collect, Third
Number Billed and Credit Card
(collectively called incollects)
messages in a data file. The
screening will be for end users who
have chosen DTI as their local
service provider through a Resale or
Unbundled Network arrangement. The
screened incollect messages and any
Local Measured Service (LMS) usage
will be accumulated and forwarded to
DTI. The Parties will mutually agree
on the frequency of the data
exchange and the method of
transmission (i.e., magnetic tape or
direct electronic transmission). GTE
will forward the screened messages
in the industry standard EMR format.
GTE intraLATA toll messages that are
recorded by GTE and dialed on a one
plus or zero plus basis are not part
of this section and will not be
screened.
1.2.17.2 Compensation. GTE will bill DTI
monthly for all services related to
the screening, accumulating,
processing and transmitting of
incollect messages and LMS usage, if
applicable, at a reasonable and
mutually agreeable charge. In
addition, any message processing fee
associated with DTI's incollect
messages that are charged to GTE by
the CMDS Host will be passed on to
DTI on the monthly statement. All
revenue, surcharges, taxes and any
other amounts due to the CMDS Host
for DTI's incollect messages will be
billed on the monthly statement. It
is DTI's responsibility to bill and
collect all incollect and LMS
amounts due from its end users. The
incollect and LMS revenue amounts
that are listed on the monthly
invoice are payable to GTE in total.
The Parties agree that the
arrangement for invoicing the
incollect and LMS revenue amounts
due GTE is not a settlement process
with DTI.
1.2.17.3 Administration. The Parties agree to
develop a process whereby DTI's end
user information is available in a
timely manner to allow GTE to build
tables to screen the CMDS incollect
files and LMS files on behalf of
DTI.
1.2.18 Backbilling. GTE shall bill DTI on a timely basis. In
no case shall GTE bill DTI for previously unbilled
charges that are for more than one year prior to the
current bill date.
1.3 Order Processing.
1.3.1 Order Expectations. DTI agrees to warrant to GTE that
it is a certified provider of telecommunications
service. DTI will document its Certificate of
Operating Authority on DTI Profile and agrees to
update this DTI Profile as required to reflect its
current certification. The Parties agree to exchange
and to update end user contact and referral numbers
for order inquiry, trouble reporting, billing
inquiries,
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and information required to comply with law
enforcement and other security agencies of the
government. The Parties also agree to exchange and to
update internal order, repair and billing point of
contacts. Prior to submitting an order under this
Agreement, DTI shall obtain such documentation as may
be required by state and federal laws and
regulations.
1.3.2 GTE shall provide DTI with a specified customer
contact center for purposes of placing service orders
and coordinating the installation of services. These
activities shall be accomplished by telephone call or
facsimile until electronic interface capability has
been established. The Parties adopt the OBF LSR and
DSR forms for the ordering, confirmation and billing
of resale and unbundled services. The Parties adopt
the OBF ASR forms for the ordering, confirmation and
billing of trunk-side interconnection.
1.3.3 GTE will process such service orders during normal
operating hours, at a minimum on each Business Day
between the hours of 8 a.m. to 8 p.m. Eastern Time
and shall implement service orders within the same
time intervals used to implement service orders for
similar services for its own users.
1.3.4 GTE will provide current GTE customer proprietary
network information (name, address, telephone number
and description of services provided by GTE including
PIC and white page directory listing information) as
provided in Article VI, Section 3. The return of
customer information will be via facsimile or via
electronic transmission.
1.3.5 Transfer Between Local Service Providers - GTE will
provide a displacement/out service report to a Local
Service Provider (LSP) whenever an end user leaves
that LSP and procures service from another LSP. When
DTI end user changes to another LSP, GTE will notfiy
DTI when such activity occurs the day after
completion or within 48 hours of such disconnect.
2. Maintenance Systems.
2.1 General Overview
2.1.1 If DTI requires maintenance for its local service
customers, DTI will initiate a request for repair
(sometimes referred to as a "trouble report") by
calling GTE's Customer Care Repair Center. During
this call, GTE service representatives will verify
that the end-user is DTI customer and will then
obtain the necessary information from DTI to process
the trouble report. While DTI representatives are
still on the line, GTE personnel will perform an
initial analysis of the problem and remote line
testing for resale services. If engineered services
are involved, the call will be made to the GTE SSCC
for handling. If no engineering is required and the
line testing reveals that the trouble can be repaired
remotely, GTE personnel will correct the problem and
close the trouble report while DTI representatives
are still on the line. If on-line resolution is not
possible, GTE personnel will provide DTI
representatives a commitment time for repair, and the
GTE personnel then will enter the trouble ticket into
the GTE service dispatch queue. DTI's repair service
commitment times will be within the same intervals as
GTE provides to its own end users. Maintenance and
repair of GTE facilities is the responsibility of GTE
and will be performed at no incremental charge to
DTI. If, as a result of DTI-initiated trouble report,
trouble is found to be the responsibility of DTI
(e.g., non-network cause) GTE will charge DTI for
trouble isolation. DTI will have the ability to
report
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trouble for its end users to appropriate trouble
reporting centers 24 hours a day, 7 days a
week. DTI will be assigned a customer contact center
when initial service agreements are made.
2.1.2 Repair calls to the SSCC for engineered services will
be processed in essentially the same manner as those
by the GTE Customer Care Center. GTE personnel will
analyze the problem, provide DTI representative with
a commitment time while they are still on the line,
and then place the trouble ticket in the dispatch
queue.
2.1.3 GTE then will process all DTI trouble reports in the
dispatch queue along with GTE trouble reports in the
order they were filed (first in, first out), with
priority given to out-of-service conditions. If, at
any time, GTE would determine that a commitment time
given to DTI becomes in jeopardy, GTE service
representatives will contact DTI by telephone to
advise of the jeopardy condition and provide a new
commitment time.
2.1.4 Trouble reports in the dispatch queue will be
transmitted electronically to GTE CZT service
technicians who will repair the service problems and
clear the trouble reports. For cleared DTI trouble
reports, GTE service technicians will make a
telephone call to DTI directly to clear the trouble
ticket. GTE service technicians will make the
confirmation call to the telephone number provided by
DTI. If DTI is unable to process the call or places
the GTE technician on hold, the call will be
terminated. To avoid disconnect, DTI may develop an
answering system, such as voice mail, to handle the
confirmation calls expeditiously.
2.1.5 GTE will provide electronic interface access to
operation support systems functions which provide the
capability to initiate, status and close a repair
trouble ticket. GTE will not provide to DTI real time
testing capability on DTI end user services. GTE will
not provide to DTI an interface for network
surveillance (performance monitoring).
2.1.6 GTE will resolve repair requests by or for DTI local
service customers using GTE's existing repair system
in parity with repair requests by GTE end users. GTE
will respond to service requests for DTI using the
same time parameters and procedures that GTE uses.
DTI then would call GTE's Customer Care Center or
SSCC while the customers were on hold.
2.2 Network Mananement Controls.
2.2.1 Network Maintenance and Management. The Parties will
work cooperatively to install and maintain a reliable
network.
2.2.2 Neither Party shall be responsible to the other if
necessary changes in network configurations render
any facilities of the other obsolete or necessitate
equipment changes.
2.2.3 Network Management Controls. Each Party shall provide
a 24-hour contact number for Network Traffic
Management issues to the other's network surveillance
management center. A fax number must also be provided
to facilitate event notifications for planned mass
calling events. Additionally, both Parties agree that
they shall work cooperatively that all such events
shall attempt to be conducted in such a manner as to
avoid degradation or loss of service to other end
users. Each
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Party shall maintain the capability of respectively
implementing basic protective controls such as
"Cancel To" and "Call Gap."
3. Electronic Interface. The Parties shall work cooperatively in the
implementation of electronic gateway access to GTE operational support
systems functions in the long-term in accordance with established
industry standards. DTI shall compensate GTE for the full costs
including but not limited to design, development, testing,
implementation and deployment, for access to GTE's Operational Support
System functions. Where subsequent parties request use of GTE's
operation support systems, cost recovery for such electronic interface
systems shall be allocated among all requesting users.
3.1 DTI shall have immediate access to the following OSS electronic
interfaces that will provide functionality to enable DTI to service
customers in an equal and non-discriminatory manner:
3.1.1 Pre-Order functions, e.g., TN Assignment, DD
Reservation, Address Validation, Product
Availability, that are available on a dial-up or
dedicated basis using the Secure Integrated Gateway
System (SIGS).
3.1.2 Order functions that are available on a dial-up or
dedicated basis using CONNECT: Mail file transfer.
3.1.3 Repair functions, e.g., trouble report repair
functions, to allow DTI to determine status and close
trouble reports.
3.1.4 Electronic transfer of DTI bill in electronic data
811 format.
3.2 DTI may migrate to fully interactive system to system
interconnectivity. GTE, with input from DTI and other carriers, shall
provide general interface specifications for electronic access to this
functionality. These specifications will be provided to enable DTI to
design system interface capabilities. Development will be in accordance
with applicable national standards committee guidelines. Such
interfaces will be available as expeditiously as possible.
3.3 All costs and expenses for any new or modified electronic interfaces
exclusively to meet DTI requirements that GTE determines are
technically feasible and GTE agrees to develop will be paid by DTI.
Costs for development of systems intended for common use by competing
carriers will be assessed based on a mutually agreed method of cost
recovery.
3.4 DTI shall be responsible for modifying and connecting any of its
pre-ordering and ordering systems with GTE provided interfaces as
described in this Appendix.
4. GTE Initiated Electronic System Redesigns. GTE will not charge
DTI when GTE initiates its own electronic system
redesigns/reconfigurations.
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APPENDIX J
SS7 SERVICES
ARTICLE 1.
DEFINITIONS
In addition to the definitions contained elsewhere in the Agreement to which
this Appendix J is attached and made a part, for purposes of this Appendix J the
following terms shall have the following meanings.
1.1 "A" Link: An access signaling link that connects SPs and/or SSPs to
STPs.
1.2 "B" Link: A bridge signaling link that connects two (2) sets or pairs
of STPs, not the STPs within a mated pair, but on the same hierarchical
level.
1.3 Compatibility Testing: Certification testing performed by
representatives of GTE and DTI to ensure proper interconnection of CCS
network facilities for accurate transmission of system signals and
messages. This certification testing shall be performed in accordance
with the following ANSI documents:
T1.234 Telecommunications - Signaling System Number 7 (SS7) -
MTP Levels 2 and 3 Compatibility Testing (ATIS)
T1.235 Telecommunications - Signaling System Number 7 (SS7) -
SCCP Class 0 Compatibility Testing (ATIS)
T1.236 Telecommunications Signaling System Number 7 (SS7) -
ISDN User Part Compatibility Testing (ATIS)
1.4 Service: The service described in Article 2 of this Appendix.
1.5 Signaling Link: An end-to-end high-capacity data link (56 kbps) that
transmits supervision and control signals from one network SS7 node to
another in a CCS network. The link type identifies the functionality of
the signaling link sets. The two link types associated with the Service
are "a" Links and "B" Links.
1.6 Signaling Point Code (SPC): A code that identifies the Signaling Point
address in the CCS network. Signaling Point Codes consist of three (3)
segments of three (3) digits each, identifying the network ID, network
cluster, and cluster member, respectively.
1.7 Signaling Point of Interface (SPOI): The point at which GTE hands off
signaling information to DTI.
ARTICLE 2.
SERVICE DESCRIPTION
2.1 Provision. Subject to the terms and conditions of this Appendix, GTE
agrees to provide the Service to DTI.
2.2 Interconnection. This Agreement is for DTI's interconnection with GTE
at GTE's ____________ STPs to support local exchange services. DTI
shall not submit signaling messages in support of interexchange
services.
2.3 Service. The "Service" consists of the following:
(a) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network is via an "a" Link connection between DTI's SP or SSP
and GTE's STP. The "a" Link connection is made by a
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dedicated 56 kbps channel between the SP or SSP and the STP.
Any connection from an SSP or an SP to an STP pair will have a
link to each individual STP (i.e., two (2) links). DTI and GTE
shall mutually agree upon the location of the SPOI.
(b) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network via a "B" Link connection between DTI's STPs and GTE's
STPs. The "B" Link connection is a dedicated 56 kbps channel.
Connections between two (2) pairs of STPs will have four (4)
connections; i.e., one (1) link from each individual STP to
each individual STP. DTI and GTE shall mutually agree upon the
location of the SPOI.
(c) Local and IntraLATA call set-up signaling, allowing DTI to
use the out-of-band trunk signaling provided by GTE's CCS/SS7
network to carry its calls on the intraLATA toll network.
(d) The Service shall include access to: (1) all switching systems
served by a given STP which have been converted to SS7
signaling, including switching systems owned by other local
service providers; (2) databases directly connected to a given
STP, with the exception of 800/888 databases which can be
accessed through any STP; (3) other local service provider
STPs on an intraLATA basis; and (4) other Third Party local
service provider STPs on an intraLATA basis.
(e) It is the responsibility of DTI to populate the "privacy
indicator" portion of all SS7 signaling messages forwarded to
GTE's network. GTE agrees to deliver the information forwarded
by DTI in the SS7 signaling message. DTI, by entering into
this Agreement, agrees to deliver "privacy indicator"
information forwarded by GTE in its signaling message.
(f) DTI acknowledges that call set-up times may be greater when
DTI employs intermediate access tandems (IATs) in its network.
(g) If selected on the order form attached to this Appendix, the
Service shall also include IXC call set-up signaling service
(ISUP) as described in Article 2.4 of this Appendix.
Additional charges as set forth in Exhibit A shall apply.
2.4 ISUP Service Charge. This is an optional service that allows DTI to
utilize SS7 signaling to an SS7 capable interexchange carrier (IXC)
for Feature Group D access service and other intraLATA interexchange
services. The ISUP service is a monthly charge.
(a) The rate for ISUP signaling is per connection in situations
when GTE does not provide any underlying call messages for DTI
on GTE's network trunks. The rate for ISUP signaling is shown
in Exhibit a.
(b) Where GTE has a mated pair of STPs and has CCS/SS7
interconnection facilities to an IXC within the same LATA, for
interexchange telecommunications services, GTE shall provide
call set-up signaling between DTI and the IXC.
(c) DTI agrees to provide to GTE such information as deemed
necessary by GTE for network planning in connection with this
offering and as may be requested by GTE from time to time.
(d) DTI must provide the Signaling Point Codes of the IXCs for
which it is providing call setup via GTE's SS7 signaling
network, so that GTE screening and translation tables can be
updated.
2.5 Technical Specifications. The technical specifications for the
Services described above are defined in Bellcore TR-TSV-000905. GTE
will provide SS7 via OR-394-SS7 and/or OR-317-SS7 format(s).
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2.6 Other Services. If DTI desires to order SS7-related services other than
the Service, such services will be governed by separate agreements.
2.7 Applicable Traffic. The Service applies to the traffic of DTI and its
subtending LECs only. DTI must provide GTE with thirty (30) calendar
days' written notice and a letter of agency before the traffic of any
party other than DTI or its subtending LECs may be transmitted through
DTI's facilities on to GTE's SS7 network.
ARTICLE 3.
MANNER OF PROVISIONING
3.1 Link Facilities. The link facilities to GTE STPs in the same LATA can
be either:
(a) "a" Link sets from DTI's SP or SSP. A minimum of two (2) links
is required, one (1) from the SP or SSP to each STP; or,
(b) "B" Link sets from DTI's STPs that are connected to GTE's
mated pairs of STPs. A minimum of four (4) links is required
between the two (2) pairs of STPs.
3.2 Port Termination. An STP port termination is required for each 56 kbps
access link utilized for the Service. STP locations are set forth in
the National Exchange Carrier Association, Inc. (NECA) Tariff, F.C.C.
No. 4.
3.3 Signaling Point Codes. GTE shall install all applicable Signaling Point
codes for each signaling link at each of GTE's interconnecting STPs.
3.4 Protocol. GTE shall provision the Service in accordance with ANSI
T1.226 Telecommunications - Operations, Administration, Maintenance,
and Provisioning (OAM&P) -Management of functions for Signaling System
No. 7 (SS7) Network Interconnections (ATIS) with the exception of
references to OMAP protocol elements. The Service cannot be established
until Compatibility Testing has been successfully completed between DTI
and GTE.
3.5 56 kbps Channel. Unless DTI elects to provide such links, GTE shall
provide two (2) or four (4) 56 kbps circuits as link facilities at
rates set forth in Article 4 herein. If approved by GTE, DTI may
utilize a 56 kbps channel of an intraLATA DS1 (1.544 mbps) facility,
which is in place at the time of ordering, as an "A" Link or a "B"
Link, for the STP access connection between the SPOI and GTE's STP.
WHEN THIS OPTION IS CHOSEN, DTI UNDERSTANDS AND ACCEPTS THAT THE
SERVICE PERFORMANCE STANDARDS AS OUTLINED IN BELLCORE DOCUMENT
TR-TSV-000905 MAY NOT BE MET IN THE PROVISION OF THE TOTAL SERVICE. If
such a channel is not utilized, DTI must order DS1 (1.544 Mbps)
service.
3.6 Multiplexing. Where technically required, GTE shall provide
multiplexing arrangements to DTI at no charge.
3.7 Diversity. Where technically feasible and not unreasonably economically
burdensome, GTE agrees to allow interoffice and intraoffice diversity.
ARTICLE 4.
RATES AND CHARGES
4.1 Payment. DTI agrees to pay to GTE for the Service at the rates and
charges set forth in Exhibit A attached to this Appendix and made a
part hereof.
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4.2 Period. Subject to Article 4.3 below, the rates and charges shall
remain in effect and are firm for a period of twelve (12) months from
the effective date of this Appendix. Thereafter, GTE shall give DTI
sixty (60) calendar days' notice any price change. If the new prices
are not acceptable to DTI, DTI may terminate this Appendix upon thirty
(30) calendar days' advance written notice without penalties for either
Party.
4.3 Rate Basis. The rates are based upon rates and charges reflected in
GTE's approved CCS/SS7 interconnection tariffs. To the extent that
tariff rates are adjusted, rates and charges for similar rate elements
in this Appendix will be adjusted accordingly on the date the new
tariff rates become effective. If a state or federal regulatory agency
requires, or GTE elects, to offer the Service by tariff, the tariff
shall supersede this Appendix. If the Service becomes tariffed, DTI has
the right to terminate this Appendix upon sixty (60) calendar days'
advance written notice effective on the effective date of such tariff,
without penalty to either Party.
4.4 Mileage. Mileage is calculated on the airline distance between the
locations involved, using the V&H coordinates method, as set forth in
the National Exchange Carrier Association, Inc. Tariff, F.C.C. No. 4.
4.5 Rates and Charges. Rates and charges for each component of the Service
are described as follows:
(a) "A" Link connection - Charges for the "a" Link connection to
GTE's CCS/SS7 network consist of the STP port termination
charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from
DTI's SSP or SP.
(2) DTI will lease facilities between its SSPs/SPs and
GTE's STPs.
(b) "B" Link connection - Charges for the "B" Link connection to
GTE's CCS/SS7 network consist of the STP port termination
charges.
(1) The STP port termination charges are for the
termination of a 56 kbps channel at each STP from
DTI's STPs.
(2) DTI and GTE shall mutually agree upon the rates for
"B" Link interconnections within thirty (30) calendar
days of the execution of this Agreement.
(c) STP Interconnection nonrecurring charge - STP interconnection
nonrecurring charge shall apply for each "A" Link and "B" Link
interconnection to GTE's SS7 network.
4.6 Rearrangement. Charges for rearrangement of the Service that are not
specifically addressed will be determined by GTE on an individual case
basis.
4.7 Applicable Traffic. The rates apply only to the traffic of DTI and its
subtending LECs. Any traffic from any other party will be subject to
additional charges.
ARTICLE 5.
ORDERING THE SERVICE
5.1 Order. To order the Service, DTI shall submit a completed CCS/SS7 Order
Form to GTE. DTI may change its Service order by submitting a new Order
Form which shall be effective when executed by both Parties. Service
shall be implemented for DTI thirty (30) calendar days after the
execution of this Agreement by both Parties.
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5.2 Port Terminations. GTE shall reserve STP port terminations only upon
receipt of a fully executed copy of this Agreement and the Order Form
referred to in this Appendix. GTE shall reserve ports on a first come,
first served basis. Should DTI fail to use a port within sixty (60)
Business Days of availability, GTE may reassign the port and, DTI must
resubmit an Order Form for interconnection.
ARTICLE 6.
RESPONSIBILITIES OF GTE
6.1 Managing the Network. GTE is responsible for managing the network
provided by GTE as part of the Service and applying protective controls
which it can invoke as a result of occurrences including, but not
limited to, failure or overload of GTE or DTI facilities due to natural
disasters, mass calling or national security demands.
6.2 Performance Standards. GTE is responsible for meeting service
performance standards as outlined in Bellcore TR-TSV-000905 except as
otherwise provided herein.
6.3 Invoice. GTE shall include with the monthly invoice such data GTE and
DTI mutually agree is necessary for DTI to verify the accuracy of the
billing it receives from GTE for the Service.
ARTICLE 7.
RESPONSIBILITIES OF DTI
7.1 Signaling Link. DTI shall provision the signaling links from its
premises to the SPOIs in a manner technically compatible to the GTE
network.
7.2 Privacy Indicator. DTI shall populate the "privacy indicator" portion
of the CCS/SS7 initial address message forwarded to GTE's network for
call processing.
7.3 Accuracy of Information. DTI shall verify the accuracy of information
provided by DTI concerning the Service ordered by DTI.
7.4 Forecast. DTI shall furnish to GTE, at the time the Service is ordered
and annually thereafter, an updated three year forecast of usage for
the 56 kbps channel and the STP port termination for each STP pair. The
forecast shall include total annual volume and busy hour busy month
volume. GTE shall utilize the forecast in its own efforts to project
further facility requirements.
7.5 Changes. DTI agrees to inform GTE in writing at least thirty (30)
Business Days in advance of any change in its use of the Service that
alters by ten percent (10%) or more for any thirty (30) day period the
volume of signaling transactions to be forwarded to GTE's CCS/SS7
network. DTI will provide the reason for the change in volume by
individual SS7 service.
ARTICLE 8.
SIGNALING POINT CODES
8.1 Interconnection. DTI may utilize either the GTE CCS/SS7 network SPC or
its own SPC for interconnection purposes when interconnecting its SPs
or SSPs at the "A" Link level. DTI shall utilize its own SPC when
interconnecting its STP at the "B" Link level. DTI agrees to obtain its
own initial SPC if it has short or long range plans to provide its own
STPs.
8.2 SPC. When the SPC is utilized, GTE shall be responsible for DTI code
assignment. When DTI obtains its own SPC, DTI shall be responsible for
code assignments and shall be responsible for notifying GTE and other
CCS/SS7 network providers of such assignments.
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8.3 SPC Change. Due to the complexities and potential DTI signaling network
downtime required for changing working SPCs, DTI agrees to give GTE a
written notice of an SPC change as soon as possible but no later than
thirty (30) Business Days prior to the effective date of the SPC
change.
ARTICLE 9.
MONTHLY BILLING
Billing statements shall be rendered monthly by GTE to DTI. The monthly charge
shall be the total of all monthly rate element charges associated with the
Service. Payment to GTE for bills rendered to DTI shall be due thirty (30)
calendar days after receipt of the invoice and DTI agrees to pay all billed
amounts. Beginning the day after the due date of the bill, interest charges of
twelve per cent (12%) per annum or the maximum allowed by law, whichever is
less, shall be added to DTI's bill. Payments shall be applied to the oldest
outstanding amounts first.
ARTICLE 10.
LIABILITY AND INDEMNIFICATION
10.1 Release from Liability. Each Party releases the other from any
liability for loss or damage arising out of errors, interruptions,
defects, failures, delays, or malfunctions of the Service, including
any and all associated equipment and data processing systems, not
caused by gross negligence or willful misconduct. Any losses or damages
for which either Party is held liable under this Agreement shall in no
event exceed the amount of the charges for the Service during the
period beginning at the time notice of the error, interruption, defect,
failure, or malfunction is received, to the time Service is restored.
10.2 Limitation of Liability. IN ADDITION TO THE LIMITATION OF LIABILITY SET
FORTH AT SECTION 24.4 OF ARTICLE III OF THE AGREEMENT, NEITHER PARTY
SHALL BE LIABLE FOR ANY LOSS OF REVENUE OR PROFIT OR FOR ANY LOSS OR
DAMAGE ARISING OUT OF THIS AGREEMENT OR OUT OF THE USE OF THE CCS OR
ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT THAT IS SUFFERED BY
THE OTHER PARTY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER OR
NOT INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER
PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES.
10.3 Third Parties. Each Party agrees to release, defend, indemnify, and
hold harmless the other Party from and against any and all losses,
damages, or other liability, including reasonable attorneys' fees, that
it may incur as a result of claims, demands, wrongful death actions, or
other suits brought by third parties, arising out of the use of the
Service and resulting from the gross negligence or willful misconduct
by the indemnifying Party, its employees, agents, or contractors in the
performance of this Agreement. In addition, to the extent that the
Parties' interests do not conflict, DTI shall defend GTE against all
end users' claims just as if DTI had provided such service to its end
users with its own employees. In any event, DTI shall assert its tariff
limitation of liability for the benefit of both GTE and DTI.
10.4 Infringement. Each Party agrees to release, defend, indemnify, and hold
harmless the other Party from and against any claim, demands or suit
that asserts any infringement or invasion of privacy or confidentiality
of any person(s), caused or claimed to be caused, directly or
indirectly, by the indemnifying Party's employees or equipment
associated with provision of the Service. This includes, but is not
limited to, suits arising from disclosure of any customer-specific
information associated with either the originating or terminating
numbers used to provision the Service.
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10.5 No Warranties. IN ADDITION TO THE DISCLAIMER SET FORTH AT SECTION 24.3
OF ARTICLE III OF THE AGREEMENT, NEITHER GTE NOR DTI MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD PARTY
CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES PROVIDED UNDER OR IN
CONNECTION WITH THIS APPENDIX, THAT THE SERVICES PROVIDED UNDER THIS
APPENDIX WILL BE ERROR FREE OR THAT THE FACILITIES WILL OPERATE WITHOUT
INTERRUPTION. GTE AND DTI DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OR
GUARANTEE OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR PURPOSE,
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR FROM USAGES OF
TRADE.
ARTICLE 11.
RESERVATION OF RIGHTS
11.1 Rights Reserved. By entering into this Appendix to the Agreement,
neither Party waives, releases or compromises any rights it may have to
argue, in any federal or state regulatory proceeding (or in any
judicial appeal following such a proceeding), in support of, or in
opposition to any position, including but not limited to: (a)
Accounting for deregulated (or detariffed) data base services; (b)
removal from regulated accounts of expenses and investment associated
with deregulated (or detariffed) data base services; and (c) any other
issue pertinent to regulation or deregulation of costs which were, are
now, or may in the future be, associated with the provisions of data
base services. Each Party expressly reserves all its rights in
connection with such matters.
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EXHIBIT A
RATES AND CHARGES
for Interconnection at
GTE's___________-________,____ STP
<TABLE>
<CAPTION>
Rates & Charges
Rate Element Nonrecurring Monthly
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. STP Port Termination for an "A" Link Per Port $ 65.00 $229.00
2. STP Port Termination for a "B" Link Per Port $ 65.00 $229.00
3. 56 Kbps Digital Facility
Dedicated Switched Access Transport
Per Airline Mile $4.91
4. 56 Kbps Dedicated Switched Access Line $100.00 $91.06
5. 1.544 Mbps (DS1) High Capacity Digital $11.50
Facility Dedicated Switched Access Transport
Per Airline Mile
6. 1.544 Mbps (DS1) Dedicated Switched Access $1500.00 $168.67
Line
7. Facility Charge for "B" Links Depends negotiated
interconnection agreement
8. ISUP Charge per Interconnection $500.00
8.1 For ISUP Service an additional SCP charge shall apply per interconnection.
</TABLE>
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APPENDIX K
POLE ATTACHMENT AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE ARKANSAS INCORPORATED/GTE
MIDWEST INCORPORATED, a State of ____________ corporation having its
principal office at __________ ("GTE"), and DIGITAL TELEPORT, INC., a
corporation of the State of ________, having its principal office at
_______ ("Licensee").
2. Definitions.
2.1 "GTE's poles" or "GTE pole(s)" means a pole or poles solely owned by
GTE, jointly owned by GTE and another entity, and space on poles
obtained by GTE through arrangements with the owner(s) thereof.
2.2 "Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used.
2.3 "Cable Television Services" means the transmission to subscribers of
off-the-air pickup of broadcast signals or the transmission, without
separate charge, of locally originated closed circuit television to the
subscribers of off-the-air service.
2.4 "Attachments" means the equipment reasonably required by Licensee to
provide its Telecommunications Services or Cable Television Services
that is placed on GTE's poles.
2.5 "Make-Ready Work" means all work, including, but not limited to,
rearrangement, removal, or transfer of existing attachments, placement,
repair, or replacement of poles, or any other changes required to
accommodate the Licensee's Attachments on a pole.
2.6 "Hazardous Materials" means (i) any substance, material or waste now or
hereafter defined or characterized as hazardous, extremely hazardous,
toxic or dangerous within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, or any similar law, ordinance, statute, rule or regulation of
any governmental body or authority, (ii) any substance, material or
waste now or hereafter classified as a contaminant or pollutant under
any law, ordinance, statute, rule or regulation of any governmental
body or authority or (iii) any other substance, material or waste, the
manufacture, processing, distribution, use, treatment, storage,
placement, disposal, removal or transportation of which is now or
hereafter subject to regulation under any law, ordinance, statute, rule
or regulation of any governmental body or authority.
2.7 "Attachment Fee" means the fee assessed per pole and paid by Licensee
to place Attachments on GTE's poles.
3. Purpose.
3.1 Licensee represents to GTE that Licensee has a need to occupy, place
and maintain Attachments on GTE's poles for the purpose of providing
Telecommunications Services.
3.2 GTE agrees to permit Licensee to occupy, place and maintain its
Attachments on such GTE poles as GTE may allow pursuant to the terms of
this Agreement.
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4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space
on specified GTE poles Licensee's Attachments on the terms and
conditions set forth herein. Licensee shall have no further right,
title, or other interest in connection with GTE's poles. GTE shall have
the right to grant, renew or extend privileges to others not parties to
this Agreement to occupy, place or maintain Attachments on or otherwise
use any or all GTE poles. Nothing herein is intended to, nor should it
be construed to require GTE to construct or modify any facilities not
needed for its own service requirements. GTE grants this license in
reliance on the representation of Licensee that Licensee intends to
provide Telecommunications Services with the Attachments covered by
this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue
in effect for consecutive one (1) year terms until either Party gives
the other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement
shall remain in effect for ninety (90) calendar days after such notice
is received, provided, that in no case shall the term be extended
beyond ninety (90) calendar days after the end of the current term.
6. Pole Attachment Requests (PARs).
6.1 Licensee shall submit a written Pole Attachment Request ("PAR") to GTE
identifying the GTE poles upon which it desires to place Attachments.
Each PAR shall be in a form specified by GTE and may be revised from
time to time by GTE. All PARs submitted to GTE shall be processed on a
first come, first served basis. GTE, in its sole judgment, will
determine the availability of space on the GTE pole(s) specified in the
PAR and will provide its response to the PAR within thirty (30)
Business Days of its submission. Upon approval of the PAR, GTE shall
return one copy thereof to Licensee bearing an endorsement
acknowledging GTE's authorization. All Attachments placed on GTE's
poles pursuant to an approved PAR shall become subject to all of the
terms and conditions of this Agreement. Licensee may submit subsequent
PARs for approval by GTE as needed. GTE is under no obligation to
provide general information respecting the location and availability of
GTE poles, except as may be necessary to process a PAR. No Attachment
shall be placed on any GTE pole identified in a PAR until that PAR has
been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a PAR to compensate GTE for
the general administrative costs as well as the actual engineering
costs reasonably incurred. The fee for engineering costs shall be
computed by multiplying the fully loaded hourly rate for an engineer
times the number of hours reasonably required by each engineer to
inspect the GTE poles included in the PAR. GTE will charge its then
current rates for administrative and engineering costs, as may be
changed from time to time by GTE to remain consistent with prevailing
costs.
6.3 Upon receiving an approved PAR, Licensee shall have the right, subject
to the terms of this License, to place and maintain the facilities
described in the PAR in the space designated on the GTE poles
identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate Licensee's
Attachments, GTE shall notify Licensee of such fact and provide
Licensee with a good faith estimate of the total cost of such
Make-Ready Work needed to accommodate Licensee's Attachments. Within
fifteen (15)
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days after receiving such notice from GTE, Licensee shall notify GTE
either (1) that Licensee shall pay all of the costs actually incurred
to perform the Make-Ready Work and shall pay the total estimated amount
to GTE at least ten (10) days prior to the date the Make-Ready Work is
to begin or (2) that it desires to cancel its PAR.
6.5 GTE shall not be responsible to Licensee for any loss sustained by
Licensee by reason of the refusal or failure of any other party with
attachments on GTE's poles to rearrange or modify its attachments as
may be required to accommodate Licensee's Facilities.
6.6 Licensee is not authorized and shall have no right to place facilities
on any GTE pole unless that GTE pole is identified in an approved PAR.
7. Availability of Information Regarding Space on Poles.
GTE will provide information regarding the availability of pole space
within thirty (30) Business Days of a written request by Licensee.
Because GTE will endeavor to determine available space as quickly as
possible, a shorter interval may be experienced for requests of a
limited scope where physical field verification is not necessary. In
the event the thirty (30) Business Day time frame cannot be met, GTE
shall so advise Licensee and shall seek a mutually satisfactory
alternative response date. No representation regarding the availability
of space shall be made in the absence of a physical field verification.
8. Authority to Place Attachments.
8.1 Before Licensee places any Attachments on GTE's poles pursuant to an
approved PAR, Licensee shall submit evidence satisfactory to GTE of its
authority to erect and maintain the facilities to be placed on GTE's
poles within the public streets, highways and other thoroughfares or on
private property. Licensee shall be solely responsible for obtaining
all rights-of-way, easements, licenses, authorizations, permits and
consents from federal, state and municipal authorities or private
property owners that may be required to place Attachments on GTE's
poles. In the event Licensee must obtain any additional easements,
permits, approvals, licenses and/or authorizations from any
governmental authority or private individual or entity in order to
utilize GTE's poles under an approved PAR, GTE shall, upon Licensee's
request, provide written confirmation of its consent to Licensee's
utilization of poles in a particular location in accordance with this
Agreement, if needed by Licensee to obtain such additional approvals or
authorizations. GTE shall also provide maps or drawings of its
facilities' locations to the extent reasonably required by such
governmental authority or private individual or entity for purposes of
considering or granting Licensee's request to it for authority or
approval.
8.2 GTE shall not unreasonably intervene in or attempt to delay the
granting of any rights-of-way, easements, licenses, authorizations,
permits and consents from federal, state or municipal authorities or
private property owners that may be required for Licensee to place its
Attachments on GTE's poles.
8.3 If any right-of-way, easement, license, authorization, permit or
consent obtained by Licensee is subsequently revoked or denied for any
reason, Licensee's permission to attach to GTE's poles shall terminate
immediately and Licensee shall promptly remove its Attachments. Should
Licensee fail to remove its Attachments within one hundred twenty (120)
days of receiving notice to do so from GTE, GTE shall have the option
to remove all such Attachments and store them in a public warehouse or
elsewhere at the expense of and for the account of Licensee without GTE
being deemed guilty of trespass or conversion, and without GTE becoming
liable for any loss or damages to Licensee occasioned thereby. All
costs incurred by GTE to remove Licensee's Attachments shall be
reimbursed to GTE by Licensee upon demand.
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8.4 Upon notice from GTE to Licensee that the cessation of the use of any
one or more of GTE's poles is necessary for reasons of safety or has
been directed by any federal, state or municipal authority, or private
property owner, permission to attach to such pole or poles shall
terminate immediately and Licensee promptly shall remove its
Attachments. Should Licensee fail to remove its Attachments within the
time frame provided by the requesting or directing party or one hundred
twenty (120) days of receiving notice to do so from GTE, whichever is
less, GTE shall have the option to remove all such Attachments and
store them in a public warehouse or elsewhere at the expense of and for
the account of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or damages to
Licensee occasioned thereby. All costs incurred by GTE to remove
Licensee's Attachments shall be reimbursed to GTE by Licensee upon
demand by GTE.
9. Placement of Attachments.
9.1 Licensee shall, at its own expense, place and maintain its Attachments
on GTE's poles in accordance with (I) such requirements and
specifications as GTE shall from time to time prescribe in writing,
(ii) all rules or orders now in effect or that hereafter may be issued
by any regulatory agency or other authority having jurisdiction, and
(iii) all currently applicable requirements and specifications of the
National Electrical Safety Code, and the applicable rules and
regulations of the Occupational Safety and Health Act. Licensee agrees
to comply, at its sole risk and expense, with all specifications
included in Exhibits _____ through _____ hereto, as may be revised
from time to time by GTE.
9.2 Licensee's Facilities shall be tagged at maximum intervals of 300 feet
so as to identify Licensee as the owner of the Facilities. The tags
shall be of sufficient size and lettering so as to be easily read from
ground level.
10. Failure of Licensee to Place Attachments.
Once Licensee has obtained an approved PAR, Licensee shall have sixty
(60) days from the date the PAR is approved to begin the placement of
its Attachments on the GTE poles covered by the PAR. If Licensee has
not begun placing its Attachments within that sixty (60) day period,
Licensee shall so advise GTE with a written explanation for the delay.
If Licensee fails to advise GTE of its delay, with a written
explanation therefor, or if Licensee fails to act in good faith by not
making a bona fide effort to begin placing its Attachments within the
sixty (60) days prescribed by this Section, the previously approved PAR
shall be deemed rescinded by GTE and Licensee shall have no further
right to place Attachments pursuant to that PAR.
11. Attachment Fees.
11.1 Licensee shall pay to GTE an Attachment Fee, as specified in Exhibit
_____ hereto, for each GTE pole upon which Licensee obtains
authorization to place an Attachment. The Attachment Fee may be
increased by GTE from time to time as permitted by law upon sixty
(60) days written notice to Licensee.
11.2 Attachments Fees shall become due and payable on the date a PAR is
approved by GTE for all GTE poles identified in that PAR on a pro rata
basis until the end of the then current year and thereafter on an
annual basis within thirty (30) days of the date of a statement from
GTE specifying the fees to be paid. Any payment after thirty (30) days
shall bear interest at the rate of eighteen percent (18%) per annum or
the maximum rate allowed by law, whichever is less.
11.3 GTE shall maintain an inventory of the total number of GTE poles
occupied by Licensee based upon the cumulative number of poles
specified in all PARs approved by GTE. GTE may, at its
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option, conduct a physical inventory of Licensee's Attachments under
this Section. It shall be Licensee's sole responsibility to notify GTE
of any and all removals of Attachments from GTE's poles. Except as
provided in Section 18 of this Agreement in connection with the
termination of this Agreement, such notice shall be provided to GTE at
least thirty (30) days prior to the removal of the Attachments. Each
Notice of Removal shall be in a form specified by GTE and may be
revised from time to time at GTE's sole discretion. Licensee shall
remain liable for Attachment Fees until Licensee's Attachments have
been physically removed from GTE's poles.
12. Modifications, Additions or Replacements to Existing Attachments.
12.1 Licensee shall not modify, add to or replace Facilities on any
pre-existing Attachment without first notifying GTE in writing of the
intended modification, addition or replacement at least thirty (30)
days prior to the date the activity is scheduled to begin. The required
notification shall include: (1) the date the activity is scheduled to
begin, (2) a description of the planned modification, addition or
replacement, (3) a representation that the modification, addition or
replacement will not require any space other than the space previously
designated for Licensee's Attachments, and (4) a representation that
the modification, addition or replacement will not impair the
structural integrity of the poles involved.
12.2 Should GTE determine that the modification, addition or replacement
specified by Licensee in its notice will require more space than that
allocated to Licensee or will require the reinforcement of, replacement
of or an addition of support equipment to the poles involved in order
to accommodate Licensee's modification, addition or replacement, GTE
will so notify Licensee, whereupon Licensee will be required to submit
a PAR in compliance with this Agreement in order to obtain
authorization for the modification, addition or replacement of its
Attachments.
12.3 Access to GTE's poles for repairs, modifications, additions, or
replacements required in emergency situations shall be governed by
Section 22 of this Agreement.
12.4 Should Licensee request GTE to expand capacity or purchase additional
plant, Licensee agrees to pay all costs.
13. Rearrangements to Accommodate Other Licensees.
Licensee acknowledges that at some point in the future it may become
necessary to rearrange Licensee's Facilities in order to create space
to accommodate the facilities of another licensee. Licensee agrees that
in such event Licensee will cooperate in good faith with such other
licensee to come to a mutually agreeable understanding regarding the
manner in which the rearrangement of Licensee's Facilities will be
achieved.
14. Unauthorized Attachments.
14.1 The parties agree that because it would be impracticable and extremely
difficult to determine the actual amount of damages resulting from
Licensee's unauthorized Attachment(s), a charge equal to five (5) times
the amount of the then current Attachment Fee shall be paid by Licensee
to GTE for each unauthorized Attachment to a GTE pole. Such payment
shall be deemed liquidated damages and not a penalty. Licensee also
shall pay GTE an Attachment Fee for each unauthorized Attachment
accruing from the date the unauthorized Attachment was first placed on
the GTE pole. In the event that the date the unauthorized Attachment
was first placed on a GTE pole cannot be determined, such date shall be
deemed the date of the last physical inventory made in accordance with
this Agreement or, if no physical inventory has been conducted, the
date the first PAR from Licensee was approved in accordance with this
Agreement. Licensee also shall pay to GTE all costs incurred by GTE to
rearrange any
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unauthorized Attachment(s) of Licensee if such rearrangement is
required to safeguard GTE's Attachment(s) or to accommodate the
Attachment(s) of another party whose Attachment(s) would not have
required a rearrangement but for the presence of Licensee's
unauthorized Attachment(s). Licensee shall also pay to GTE all costs
incurred by GTE to reinforce, replace or modify any GTE pole, which
reinforcement, replacement or modification was required as a result of
the unauthorized Attachment of Licensee. The Attachment Fee referenced
in this subsection 14.1 shall be determined in the same manner as such
fee would have been determined if the attachment had been authorized by
GTE.
14.2 For purposes of this section, an unauthorized Attachment shall include,
but not be limited to:
14.2.1 An Attachment to a GTE pole which pole is not identified in
any PAR approved in accordance with this Agreement;
14.2.2 An Attachment that occupies more space than that allocated to
Licensee by GTE;
14.2.3 An Attachment that is not placed in accordance with the
provisions of this Agreement or the appropriate PAR issued
pursuant to this Agreement;
14.2.4 An addition or modification by Licensee to its pre-existing
Attachment(s) that impairs the structural integrity of the
involved GTE pole(s).
14.2.5 An Attachment that consists of facilities owned or controlled
by, and for the use of a party other than Licensee.
15. Surveys and Inspections of Pole Attachments.
15.1 Upon written notice to Licensee, the total number and exact location of
Licensee's Attachments on GTE's poles may be determined, at GTE's
discretion, through a survey to be made not more than once per calendar
year by GTE. If so requested, Licensee and/or any other entity owning
or jointly owning the poles with GTE may participate in the survey. The
costs incurred by GTE to conduct the survey shall be reimbursed to GTE
by Licensee upon demand by GTE. If the Attachments of more than one
Licensee are surveyed, each such Licensee shall contribute a
proportionate share of the costs reimbursed to GTE.
15.2 Apart from surveys conducted in accordance with this section, GTE
shall have the right to inspect any Attachment of Licensee on GTE's
poles as conditions may warrant upon written notice to Licensee.
Licensee shall, upon demand by GTE, reimburse GTE all costs incurred
to conduct its inspection. No joint survey or inspection, or lack
thereof, by GTE shall operate to relieve Licensee of any
responsibility, obligation or liability assumed under this Agreement.
16. Notice of Modification or Alteration of Poles by GTE.
16.1 In the event GTE plans to modify or alter any GTE pole(s) upon which
Licensee has Attachments, GTE shall provide Licensee notice of the
proposed modification or alteration at least thirty (30) days prior to
the time the proposed modification or alteration is scheduled to take
place. Should Licensee decide to modify or alter its Attachments on the
GTE poles to be modified or altered by GTE, Licensee shall so notify
GTE in writing. In such event, Licensee shall bear a proportionate
share of the total costs incurred by GTE to make such poles accessible
to Licensee.
16.2 In the event GTE is required by a federal, state, or local authority to
move, replace or change the location of any GTE pole(s), Licensee shall
concurrently relocate Licensee's Attachments. GTE
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and each Licensee required to relocate its Attachments shall bear its
own costs for such relocation.
17. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
18. Default and Remedies.
18.1 The occurrence of any one of the following shall be deemed a Material
Default by Licensee under this Agreement:
18.1.1 Failure by Licensee to pay any fee or other sum required to be
paid under the terms of this Agreement and such default
continues for a period of ten (10) days after written notice
thereof to Licensee;
18.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this Agreement
and such default continues for a period of thirty (30) days
after written notice thereof from GTE (provided that if such
default is not curable within such thirty (30) day period, the
period will be extended if Licensee commences to cure such
default within such thirty (30) day period and proceeds
diligently thereafter to effect such cure);
18.1.3 The filing of any tax or mechanic's lien against GTE's poles
which is not bonded or discharged within thirty (30) days of
the date Licensee receives notice that such lien has been
filed;
18.1.4 Licensee's voluntary or involuntary bankruptcy;
18.1.5 Licensee's knowing use or maintenance of its Attachments in
violation of any law or regulation, or in aid of any unlawful
act or undertaking;
18.1.6 If any authorization which may be required of the Licensee by
any governmental or private authority for the placement,
operation or maintenance of Licensee's Attachments is denied
or revoked.
18.2 In the event of a Material Default, GTE, without any further notice to
the Licensee (except where expressly provided for below or required by
applicable law) may do any one or more of the following:
18.2.1 Perform, on behalf and at the expense of Licensee, any
obligation of Licensee under this Agreement which Licensee has
failed to perform and of which GTE shall have given Licensee
notice, the cost of which performance shall be paid by
Licensee to GTE upon demand;
18.2.2 Terminate this Agreement by giving notice of such termination
to Licensee and remove Licensee's Attachments and store them
in a public warehouse or elsewhere at the expense of and for
the account of Licensee without GTE being deemed guilty of
trespass or conversion, and without GTE becoming liable for
any loss or damages to Licensee occasioned thereby; or
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18.2.3 Exercise any other legal or equitable right or remedy which
GTE may have.
18.3 Any costs and expenses incurred by GTE (including, without limitation,
reasonable attorneys' fees) in enforcing this Agreement shall be repaid
to GTE by Licensee upon demand.
18.4 Upon termination of this Agreement by GTE because of a material default
by Licensee, Licensee shall remain liable to GTE for any and all fees,
other payments and damages which may be due or sustained prior to such
termination, all reasonable costs, fees and expenses, including,
without limitation, reasonable attorneys' fees incurred by GTE in
pursuit of its remedies hereunder, and additional liquidated damages
which shall be an amount equal to one full year of Pole Attachment
fees.
18.5 All rights and remedies of each party set forth in this Agreement shall
be cumulative and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule of
court, or the common law, either at law or in equity, or both.
19. Indemnification.
19.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is related
to this Agreement or activities undertaken pursuant to this Agreement
(including, without limitation, the installation, construction,
operation or maintenance of Licensee's Attachments).
19.2 Licensee will further indemnify, defend and hold harmless GTE and GTE's
agents, officers, employees and assigns, from any and all losses,
damages, costs, expenses (including, without limitation, reasonable
attorneys' fees), statutory fines or penalties, actions or claims for
personal injury (including death), damage to property, or other damage
or financial loss of whatever nature in any way arising out of or
connected with this Agreement or activities undertaken pursuant to this
Agreement (including, without limitation, the installation,
construction, operation or maintenance of Licensee's Attachments),
except to the extent caused by the gross negligence or willful
misconduct on the part of GTE or GTE's agents, officers, employees and
assigns. Licensee further indemnifies GTE from subsequent taxes and
fees that may be levied by municipalities ROWs in association with
these agreements. Such fees that are levied would be in addition to the
attachment/occupancy fees reflected in this Agreement. Licensee
expressly assumes all liability for actions brought against GTE and
GTE's agents, officers, employees and assigns, by Licensee's agents,
officers or employees and Licensee expressly waives any immunity from
the enforcement of this indemnification provision that might otherwise
be provided by workers' compensation law or by other state or federal
laws.
19.3 Without limiting any of the foregoing, Licensee assumes all risk of,
and agrees to relieve GTE of any and all liability for, loss or damage
(and the consequences of loss or damage) to any Attachments placed on
GTE's poles and any other financial loss sustained by Licensee, whether
caused by fire, extended coverage perils, or other casualty, except to
the extent caused by the gross negligence or willful misconduct on the
part of GTE or GTE's agents, officers, employees and assigns.
19.4 Without limiting the foregoing, Licensee expressly agrees to indemnify,
defend and hold harmless GTE and GTE's agents, officers, employees and
assigns from any and all claims asserted by customers of Licensee in
any way arising out of or in connection with this Agreement or
Licensee's Attachments, except to the extent caused by the gross
negligence or willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns.
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19.5 Notwithstanding anything to the contrary in this Agreement, Licensee
further shall indemnify and hold harmless GTE, its agents, officers,
and assigns from and against any claims, liabilities, losses, damages,
fines, penalties and costs (including, without limitation, reasonable
attorneys' fees) whether foreseen or unforeseen, which the indemnified
parties suffer or incur because of: (I) any discharge of Hazardous
Waste resulting from acts or omissions of Licensee or the Licensee's
predecessor in interest; (ii) acts or omissions of the Licensee, it
agents, employees, contractors or representatives in connection with
any cleanup required by law, or (iii) failure of Licensee to comply
with Environmental, Safety and Health Laws.
19.6 In no event shall either party be liable to the other party for any
special, consequential or indirect damages (including, without
limitation, lost revenues and lost profits) arising out this Agreement
or any obligation arising hereunder, whether in an action for or
arising out of breach of contract, tort or otherwise.
19.7 Licensee shall indemnify, protect and hold harmless GTE from and
against any and all claims for libel and slander, copyright and/or
patent infringement arising directly or indirectly by reason of
installation of Licensee's equipment on GTE's poles pursuant to this
Agreement.
20. Insurance.
20.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set
forth in Section 19 of this Agreement. Such insurance shall
include, but not be limited to, coverage against liability due
to personal injury or death of persons in the amount of
$500,000 as to any one person and $1,000,000 as to any one
accident; coverage against liability due to property damage in
the amount of $500,000 as to each accident and $500,000
aggregate; and coverage necessary to fully protect both it and
GTE from all claims under any worker's compensation laws that
may be applicable.
20.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The
company or companies issuing such insurance shall be approved
by GTE and GTE shall be named as an additional insured in each
such policy. Licensee shall submit to GTE certificates by each
insurer to the effect that the insurer has insured Licensee
for all potential liabilities of Licensee under this
Agreement, and that it will not cancel or change any policy of
insurance issued to Licensee except upon thirty (30) days
notice to GTE. In the event Licensee's insurance coverage is
to be canceled by reason of non-payment of premiums due, GTE
shall have the option of paying any amount due and Licensee
shall forthwith reimburse GTE the full amount paid by GTE.
20.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising
out of or in any manner related, directly or indirectly, to
the presence or use of Licensee's Attachments.
20.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be
subject to GTE's approval, in the amount of ten thousand
dollars ($10,000) to guarantee the payment of any sums which
may become due to GTE for rentals, inspections or for work
performed by GTE for the benefit of Licensee under this
Agreement, including the removal of Licensee's equipment
pursuant to any of the provisions hereof. All bonds must
specify that GTE be notified thirty (30) days prior to the
expiration or cancellation of the policy.
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21. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation as
GTE requires that qualifies the obligated Party for a full or partial
exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated Party
may contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The collecting Party shall cooperate in
any such contest by the other Party. The other Party will indemnify the
collecting Party from any sales or use taxes that may be subsequently
levied on payments by the other Party by the collecting Party.
22. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Attachments. While GTE shall not be
responsible for the repair of Licensee's Attachments that are damaged
(except by mutual written agreement), GTE shall nonetheless control
access to its poles if the restoration is to be achieved in an orderly
fashion.
22.1 Where GTE and Licensee are involved in emergency restorations,
access to GTE's poles will be controlled by GTE's Maintenance
District Manager or his/her on-site representative according
to the following guidelines:
22.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or
outages, while exercising its right to first
access, GTE shall make all reasonable efforts
to grant access to as many other entities with
Attachments as is reasonably safe.
(b) Where simultaneous access is not possible,
access will be granted by GTE on a first come,
first served basis.
22.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies
not resulting in service disruptions or
outages, while exercising its right to first
access, GTE shall make all reasonable efforts
to grant access to as many other entities with
Attachments as is reasonably safe.
(b) Where GTE is unable to grant simultaneous
access to all other entities with Attachments,
access will granted according to the level of
damage to the Attachments of each entity and
the likelihood that a given level of damage
will result in service disruption. Where the
likelihood that a service disruption will
result is not clearly discernible, access will
be on a first come, first served basis.
22.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Attachments, or any action
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or failure to act by GTE, under this Section 22 shall not
constitute a basis for any claim by Licensee against GTE for
any damage to Licensee's Attachments or disruption of
Licensee's services, or any other direct or indirect damages
of any kind whatsoever incurred by Licensee.
23. Damage Suspected to Licensee's Facilities Only.
23.1 In the event Licensee receives information that Licensee's
Attachments are damaged, Licensee shall notify GTE of said
damage at a number to be provided later by GTE. This is a
24-hour, 7 days per week notification number. Licensee shall
provide GTE all information known to it regarding the damage
to Licensee's Attachments.
23.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by
telephone at the Licensee's emergency telephone number. GTE
shall provide Licensee all information known to it regarding
the damage to Licensee's Attachments.
23.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's
Attachments, subject to the provisions of this Agreement.
23.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Licensee's Attachments, or
any action or failure to act by GTE, appropriately or
inappropriately, under this Section shall not be the basis for
any claim by Licensee against GTE for any damage to Licensee's
Attachments or disruption of Licensee's services, or any other
direct or indirect damages of any kind whatsoever incurred by
Licensee and Licensee shall indemnify and hold GTE harmless
from any such claim.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any poles
or other GTE property used for Licensee's Attachments; provided,
however, that GTE shall condition any such sale, assignment or other
disposition subject to the rights granted to Licensee pursuant to this
Agreement. GTE shall promptly notify Licensee of any proposed sale,
assignment or other disposition of any poles or other GTE property used
for Licensee's Attachments.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee:
-------------------------------
-------------------------------
-------------------------------
To GTE:
-------------------------------
-------------------------------
-------------------------------
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Any notice given by personal delivery shall be deemed to have been
given on the day of actual delivery and, if given by registered or
certified mail, return receipt requested, on the date of receipt
thereof and, if given by facsimile transmission, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the next business day if not given during normal
business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any
of term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition
or other provision of this Agreement.
27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify
GTE pursuant to this Agreement or (ii) a suit, action or
proceeding to compel either party to comply with the dispute
resolution procedures set forth in this section, the parties
agree to use the following procedure to resolve any dispute,
controversy or claim arising out of or relating to this
Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute, controversy or
claim arising under this Agreement. The parties intend that
these negotiations be conducted by non-lawyer, business
representatives. The substance of the negotiations shall be
left to the discretion of the representatives. Upon mutual
agreement, the representatives may utilize other alternative
dispute resolution procedures such as mediation to assist in
the negotiations. Discussions and correspondence between the
representatives for purposes of these negotiations shall be
treated as confidential, undertaken for purposes of
settlement, shall be exempt from discovery and production, and
shall not be admissible in the arbitration described below or
in any subsequent lawsuit without the concurrence of all
parties. Documents identified in or provided during such
negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent
proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request,
the dispute, controversy or claim shall be submitted to
binding arbitration by a single arbitrator pursuant to the
rules of the American Arbitration Association (AAA), except as
hereinafter provided. Discovery in any proceeding before the
AAA shall be controlled by the arbitrator and shall be
permitted to the extent set forth in this section. Parties may
exchange, in any combination, up to thirty-five (35) (none of
which may contain subparts) written interrogatories, demands
to produce documents and requests for admission. Each party
may also to take the oral deposition of one (1) witness.
Additional discovery may be permitted upon mutual agreement of
the parties. The arbitration hearing shall be commenced within
sixty (60) days of the demand for arbitration and shall be
held in the city where GTE's local offices are located. The
arbitrator shall rule on the dispute, controversy or claim by
issuing a written opinion within thirty (30) days after the
close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing
procedures. A party seeking discovery shall reimburse the
responding
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party the cost of reproducing documents (to include search
time and reproduction time costs). The fees associated with
any arbitration, including the fees of the arbitrator, shall
be divided equally between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, each party
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (i) workers' compensation
laws, (ii) unemployment compensation laws, (iii) the Federal Social
Security Law, (iv) the Fair Labor Standards Act, and (v) all laws,
regulations, rules, guidelines, policies, orders, permits and approvals
of any governmental authority relating to environmental matters and/or
occupational safety.
29. Force Majeure.
Neither party shall have any liability for its delays or its failure in
performance due to fire, flood, explosion, pest damage, power failures,
strikes or labor disputes, acts of God, the Elements, war, civil
disturbances, acts of civil or military authorities or the public
enemy, inability to secure raw materials, transportation facilities,
fuel or energy shortages, or other cause beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole
or in part, without the prior written consent of GTE. An
assignment, transfer or sub-license of this Agreement by
Licensee shall not relieve Licensee of its obligations under
this Agreement. Any assignment attempted without the prior
written consent of GTE shall be void.
30.2 GTE shall have the right to assign this Agreement and to
assign its rights and delegate its obligations and liabilities
under this Agreement, either in whole or in part. GTE shall
provide notice to Licensee of any assignment which shall state
the effective date thereof. Upon the effective date and to the
extent of the assignment, GTE shall be released and discharged
from all obligations and liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall
be governed and construed under the laws of the State of _______
without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations, guidelines, orders, or tariffs
that are currently in force or that may be prescribed by any federal,
state or local governmental authority. The parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to
bring them into compliance with such law, rule, regulation, guideline,
order, or tariff. Should any term of this Agreement be determined by a
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court or other entity with competent jurisdiction to be unenforceable,
all other terms of this Agreement shall remain in full force and
effect.
33. Headings.
All headings contained in this Agreement are for convenience only and
are not intended to affect the meaning or interpretation of any part of
this Agreement.
34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
- --------------------------------------- ------------------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
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EXHIBIT
----
ATTACHMENT FEES
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APPENDIX L
CONDUIT OCCUPANCY AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE ARKANSAS INCORPORATED/GTE
MIDWEST INCORPORATED, a State of _______________ corporation having
its principal office at _______________ ("GTE"), and DIGITAL TELEPORT,
INC., a corporation of the State of _______________, having its
principal office at _______________ ("Licensee").
2. Definitions.
2.1 "GTE's conduit(s)" or "GTE conduit(s)" means any reinforced
passage or opening in, on, under/over or through the ground
capable of containing communications facilities.
2.2 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
2.3 "Cable Television Services" means the transmission to
subscribers of off-the-air pickup of broadcast signals or the
transmission, without separate charge, of locally originated
closed circuit television to the subscribers of off-the-air
service.
2.4 "Conduit" or "Duct" means a single enclosed raceway used to
house Innerduct.
2.5 "Innerduct," unless otherwise specified or approved by GTE,
shall mean a single enclosed raceway 1" or 1-1/4" in diameter,
placed within duct and used for housing communications
facilities.
2.6 "Facilities" means all facilities, including, but not limited
to, cables, equipment and associated hardware, owned and
utilized by the Licensee which occupy an innerduct.
2.7 "Make-Ready Work" means all work, including, but not limited
to, rearrangement, removal, or transfer of existing
facilities, placement, repair, or replacement of duct or
innerduct, or any other changes required to accommodate the
Licensee's Facilities in a conduit.
2.8 "Manholes" and "handholes" mean subsurface enclosures which
personnel may enter and use for the purpose of installing,
operating and maintaining communications facilities.
2.9 "Hazardous Materials" means (I) any substance, material or
waste now or hereafter defined or characterized as hazardous,
extremely hazardous, toxic or dangerous within the meaning of
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law,
ordinance, statute, rule or regulation of any governmental
body or authority, (ii) any substance, material or waste now
or hereafter classified as a contaminant or pollutant under
any law, ordinance, statute, rule or regulation of any
governmental body or authority or (iii) any other substance,
material or waste, the manufacture, processing, distribution,
use, treatment, storage, placement, disposal, removal or
transportation of which is now or hereafter subject to
regulation under any law, ordinance, statute, rule or
regulation of any governmental body or authority.
2.10 "Occupancy Fee" means the fee paid by Licensee to GTE per
linear foot for each innerduct occupied by Licensee's
Facilities in GTE's Conduit(s).
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3. Purpose.
Licensee represents to GTE that Licensee has a need to occupy, place
and maintain communications facilities within GTE's conduit(s) for the
purpose of providing Telecommunications Service. GTE agrees to permit
Licensee to occupy, place and maintain communications facilities within
GTE's conduit(s) as GTE may allow pursuant to the terms of this
Agreement.
4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space
in specified GTE conduits Licensee's Facilities on the terms and
conditions set forth herein. Licensee shall have no further right,
title, or other interest in connection with GTE's conduit(s). GTE shall
have the right to grant, renew or extend privileges to others not
parties to this Agreement to occupy, place and maintain facilities in
or otherwise use any or all of GTE's conduit(s). Nothing herein is
intended to, nor should it be construed to require GTE to construct or
modify any facilities not needed for its own service requirements. GTE
grants this license in reliance on the representation of Licensee that
Licensee intends to provide Telecommunications Service with Licensee's
Facilities covered by this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue
in effect for consecutive one (1) year terms until either Party gives
the other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement
shall remain in effect for ninety (90) calendar days after such notice
is received, provided, that in no case shall the term be extended
beyond ninety (90) calendar days after the end of the current term.
6. Conduit Occupancy Requests.
6.1 Upon execution of this Agreement, Licensee shall have the
right to submit a written Conduit Occupancy Request ("COR") to
GTE specifying the GTE conduits in which it desires to place
its Facilities. Each COR shall be in a form specified by GTE,
which form may be revised from time to time by GTE. CORs
received by GTE shall be processed on a first come, first
served basis. GTE will determine the availability of space for
Licensee's Facilities in the GTE conduit(s) specified in the
COR within thirty (30) Business Days of its submission. Upon
approval of the COR, GTE shall return a copy thereof to
Licensee bearing an endorsement acknowledging GTE's
authorization. All of Licensee's Facilities placed in GTE's
conduit(s) pursuant to an approved COR shall become subject to
all of the terms and conditions of this Agreement. Licensee
may submit subsequent CORs for approval by GTE as needed. All
of Licensee's Facilities shall be placed in innerduct unless
otherwise approved by GTE. No facilities of any kind shall be
placed in any GTE conduit(s) identified in a COR until that
COR has been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a COR to
compensate GTE for the general administrative costs as well as
the actual engineering costs reasonably incurred. The fee for
engineering costs shall be computed by multiplying the fully
loaded hourly rate for an engineer times the number of hours
reasonably required by each engineer to inspect the GTE
conduits included in the COR. GTE will charge its then current
rates for
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administrative and engineering costs, as may be changed from
time to time by GTE to remain consistent with prevailing
costs.
6.3 Upon receiving an approved COR, Licensee shall have the right,
subject to the terms of this Agreement, to place and maintain
Licensee's Facilities described in the COR in the innerducts
of the GTE conduit(s) identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate
Licensee's Facilities, GTE shall notify Licensee of such fact
and provide Licensee with an estimate of the total cost of
such Make-Ready Work. Within fifteen (15) days after receiving
such notice from GTE, Licensee shall notify GTE either (1)
that Licensee shall pay all of the costs actually incurred to
perform the Make-Ready Work and shall pay the total estimated
amount to GTE at least ten (10) days prior to the date the
Make-Ready Work is to begin or (2) that it desires to cancel
its COR.
6.5 Nothing herein shall confer any right upon Licensee to place
power cables or related power equipment in GTE conduit(s) or
Manholes. Licensee shall place equipment of this nature in its
own pull boxes outside of GTE's Conduit(s) or Manholes. Cable
connectors or splicing devices shall not be used by Licensee
in GTE's conduit(s) or innerducts.
7. Availability of Conduit Maps.
Existing conduit maps will be made available for viewing by Licensee
for the purpose of pre-order planning at the GTE area engineering
offices during normal business hours, subject to reasonable advance
notification. While a formal written request will not be required in
connection with the first request by Licensee to view conduit maps, GTE
reserves the right to refuse any subsequent viewing request or require
written justification for the request if Licensee has demonstrated that
it does not have a good faith intention to submit a COR. If the
availability of specific point-to-point conduits can be determined at
the time of viewing conduit maps, maps reflecting such point-to-point
conduits may be made available for copying. Licensee shall pay to GTE a
fee for making such copies available sufficient to cover the general
administrative costs incurred. IN MAKING CONDUIT MAPS AVAILABLE, GTE
WILL BE MAKING NO EXPRESS OR IMPLIED WARRANTY REGARDING THEIR ACCURACY
OTHER THAN THAT THEY ARE THE SAME CONDUIT MAPS USED BY GTE IN ITS
DAY-TO-DAY OPERATIONS.
8. Availability of Information Regarding Space In Conduits.
GTE will provide information regarding the availability of conduit
space within thirty (30) Business Days of a written request by
Licensee. Because GTE will endeavor to determine available space as
quickly as possible, a shorter interval may be experienced for requests
of a limited scope where physical field verification is not necessary.
In the event the thirty (30) Business Day time frame cannot be met, GTE
shall so advise Licensee and shall seek a mutually satisfactory
alternative response date. No representation regarding the availability
of space shall be made in the absence of a physical field verification.
9. Authority to Place Licensee's Facilities.
9.1 Before Licensee places any of Licensee's Facilities in GTE's
conduit(s) pursuant to an approved COR, Licensee, upon
request, shall submit sufficient evidence to GTE of its
authority to maintain the Facilities to be placed in GTE's
conduit(s) within the public streets, highways and other
thoroughfares or on private property. Licensee shall be solely
responsible for obtaining all licenses, authorizations,
permits and consents from federal,
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state and municipal authorities or private property owners
that may be required to place and maintain Licensee's
Facilities in GTE's conduit(s).
9.2 GTE shall not attempt to prevent or delay the granting of any
rights-of-way, easements, licenses, authorizations, permits
and consents from any federal, state or municipal authorities,
or private property owners that may be required by Licensee to
place Licensee's Facilities in GTE's conduit(s).
9.3 If any right-of-way, easement, license, authorization, permit
or consent obtained by Licensee is subsequently revoked or
denied for any reason, Licensee's permission to occupy GTE's
conduit(s) shall terminate immediately and Licensee shall
promptly remove Licensee's Facilities. Should Licensee fail to
remove Licensee's Facilities within thirty (30) days of
receiving notice to do so from GTE, GTE shall have the option
to remove Licensee's Facilities and store them in a public
warehouse or elsewhere at the expense of and for the account
of Licensee without GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable for any loss or
damages to Licensee occasioned thereby. All costs incurred by
GTE to remove Licensee's Facilities shall be reimbursed to GTE
by Licensee upon demand.
9.4 Upon notice from GTE to Licensee that the cessation of the use
of any portion of GTE's conduit(s) has been ordered or
directed by any federal, state or municipal authority, or
private property owner, Licensee's permission to occupy such
GTE conduit(s) shall terminate immediately and Licensee
promptly shall remove Licensee's Facilities. Should Licensee
fail to remove Licensee's Facilities within thirty (30) days
of receiving notice to do so from GTE, GTE shall have the
option to remove Licensee's Facilities and store them in a
public warehouse or elsewhere at the expense of and for the
account of Licensee without GTE being deemed guilty of
trespass or conversion, and without GTE becoming liable for
any loss or damages to Licensee occasioned thereby. All costs
incurred by GTE to remove Licensee's Facilities shall be
reimbursed to GTE by Licensee upon demand by GTE.
10. Placement of Licensee's Facilities.
10.1 Licensee shall, at its sole expense, place and maintain
Licensee's Facilities in GTE's conduit(s) in accordance with
(I) such requirements and specifications as GTE shall from
time to time prescribe in writing, (ii) all rules or orders
now in effect or that hereafter may be issued by any
regulatory agency or other authority having jurisdiction, and
(iii) all currently applicable requirements and specifications
of the National Electrical Safety Code, and the applicable
rules and regulations of the Occupational Safety And Health
Act. Licensee agrees to comply, at its sole risk and expense,
with all specifications included in Exhibits _______________
through _______________ hereto, as may be revised from time to
time by GTE.
10.2 Licensee's Facilities shall be tagged at each manhole so as to
identify Licensee as the owner of the Facilities. The tags
shall be of sufficient size and lettering so as to be easily
read.
11. Failure of Licensee to Occupy Conduit Space.
Upon approval of a COR, Licensee shall have sixty (60) days in which to
begin the placement of Licensee's Facilities in the GTE conduit(s)
covered by the COR. If Licensee has not begun placing its Facilities
within that sixty (60) day period, Licensee shall so advise GTE with a
written explanation for the delay. If Licensee fails to advise GTE of
its delay, with a written explanation
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therefor, or if Licensee fails to act in good faith by not making a
bona fide effort to begin placing its Facilities within the sixty (60)
days prescribed by this Section, the previously approved COR shall be
deemed rescinded by GTE and Licensee shall have no further right to
place Licensee's Facilities pursuant to that COR.
12. Occupancy Fees.
12.1 Licensee shall pay to GTE an Occupancy Fee, as specified in
Exhibit _______________ hereto, for each linear foot of
innerduct occupied by Licensee's Facilities in GTE's
conduit(s). If Licensee's Facilities occupy more than one
innerduct, a separate Occupancy Fee shall be paid by Licensee
for each innerduct occupied. The Occupancy Fee specified in
Exhibit _______________ hereto is the fee applicable to 1" or
1-1/4" diameter innerduct. GTE reserves the right to charge a
higher fee for innerduct of greater diameter. The Occupancy
Fee may be increased by GTE from time to time as permitted by
law upon sixty (60) days written notice to Licensee.
12.2 Occupancy Fees shall become due and payable on the date a COR
is approved by GTE for all GTE innerducts identified in that
COR on a pro rata basis until the end of the calendar year and
thereafter on an annual basis within thirty (30) days of the
receipt of a statement from GTE specifying the fees to be
paid. Any payment after thirty (30) days shall bear interest
at the rate of eighteen percent (18%) per annum or the maximum
rate allowed by law, whichever is less.
12.3 GTE shall maintain an inventory of the total linear footage of
innerduct occupied by Licensee's Facilities in GTE's
conduit(s) based upon the cumulative linear footage per
innerduct from all CORs approved by GTE. GTE may, at its
option, conduct a physical inventory of Licensee's Facilities
for purposes of determining the Occupancy Fees to be paid by
Licensee under this section. It shall be Licensee's sole
responsibility to notify GTE of any and all removals of
Licensee's Facilities from GTE's conduit(s). Written notice of
such removals (unless they are covered by Section 17 of this
Agreement) shall be provided to GTE at least thirty (30) days
prior to the removal. Each Notice of Removal shall be in a
form specified by GTE. Licensee shall remain liable for all
Occupancy Fees until Licensee's Facilities have been
physically removed from GTE's conduits.
13. Modifications, Additions or Replacements of Licensee's Facilities.
13.1 Licensee shall not modify, add to or replace Licensee's
Facilities in any GTE conduit(s) without first notifying GTE
in writing of the intended modification, addition or
replacement at least thirty (30) days prior to the date the
activity is scheduled to begin. The required notification
shall include: (1) the date the activity is scheduled to
begin, (2) a description of the planned modification, addition
or replacement, (3) a representation that the modification,
addition or replacement will not require any space other than
the space previously designated for Licensee's Facilities, and
(4) a representation that the modification, addition or
replacement will not impair the structural integrity of the
GTE conduit(s) involved.
13.2 Should GTE determine that the modification, addition or
replacement specified by Licensee in its notice will require
more space than that allocated to Licensee or will require any
modification, replacement or reinforcement of the GTE
conduit(s) involved in order to accommodate Licensee's
modification, addition or replacement, GTE will so notify
Licensee, whereupon Licensee shall be required to submit a COR
in compliance with this Agreement in order to obtain
authorization for the modification, addition or replacement of
Licensee's Facilities.
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13.3 Access to GTE's conduit(s) for repairs, modifications,
additions, or replacements required in emergency situations
shall be governed by the provisions of Section 21 of this
Agreement.
14. Unauthorized Occupancy of GTE Conduit.
14.1 It is agreed that a charge equal to five (5) times the amount
of the then current Occupancy Fee shall be paid by Licensee to
GTE for each unauthorized occupancy of GTE's conduit(s) by
Licensee. Such payment shall be deemed liquidated damages and
not a penalty. Licensee also shall pay GTE an Occupancy Fee
for each unauthorized occupancy accruing from the date the
unauthorized occupancy first began. In the event that the date
the unauthorized occupancy first began cannot be determined,
such date shall be deemed the date of the last physical
inventory made in accordance with this Agreement or, if no
physical inventory has been conducted, the date the first COR
from Licensee was approved in accordance with this Agreement.
Licensee also shall pay to GTE all costs incurred by GTE to
rearrange Licensee's Facilities that are unauthorized if such
rearrangement is required to safeguard GTE's facilities or to
accommodate the facilities of another party whose facilities
would not have required a rearrangement but for the presence
of Licensee's unauthorized facilities. Licensee also shall pay
to GTE all costs incurred by GTE to reinforce, replace or
modify any GTE conduit(s), which reinforcement, replacement or
modification is required as a result of the unauthorized
occupancy by Licensee. The Occupancy Fee referenced in this
subsection 14.1 shall be determined in the same manner as such
a fee would have been determined if the occupancy had been
authorized by GTE.
14.2 For purposes of this section, an unauthorized occupancy shall
include, but not be limited to:
14.2.1 The presence of Licensee's Facilities in any GTE
conduit which conduit is not identified in any COR
approved in accordance with this Agreement;
14.2.2 The presence of Licensee's Facilities in any GTE
conduit that occupies more space than that
allocated to Licensee by GTE;
14.2.3 Licensee's Facilities that are not placed in
accordance with the provisions of this Agreement
or the appropriate COR issued pursuant to this
Agreement;
14.2.4 An addition or modification by Licensee to its
pre-existing Facilities in any GTE conduit that
impairs the structural integrity of that GTE
conduit.
14.2.5 The presence of facilities in GTE's conduit(s)
placed by Licensee that are owned or controlled by
and for the use of a party other than Licensee.
15. Modification or Alteration GTE Conduits.
15.1 In the event GTE plans to modify or alter any GTE conduit(s)
that house Licensee's Facilities, GTE shall provide Licensee
notice of the proposed modification or alteration at least
fourteen (14) days prior to the time the proposed modification
or alteration is scheduled to take place. Should Licensee
decide to modify or alter Licensee's Facilities in the GTE
conduit(s) to be modified or altered by GTE, Licensee shall so
notify GTE in
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writing. In such event, Licensee shall bear a proportionate
share of the total costs incurred by GTE to make the GTE
conduit(s) accessible. Licensee's proportionate share of the
total cost shall be based on the ratio of the amount of new
space occupied by Licensee to the total amount of new space
occupied by all of the parties joining in the modification.
15.2 In the event GTE moves, replaces or changes the location,
alignment or grade of GTE's conduit(s) ("relocation") for
reasons beyond GTE's control, Licensee concurrently shall
relocate Licensee's Facilities. Licensee shall be solely
responsible for the costs of the relocation of Licensee's
Facilities.
16. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
17. Default and Remedies.
17.1 The occurrence of any one of the following shall be deemed a
Material Default by Licensee under this Agreement:
17.1.1 Failure by Licensee to pay any fee or other sum
required to be paid under the terms of this
Agreement and such default continues for a period
of five (5) days after written notice thereof to
Licensee;
17.1.2 Failure by Licensee to perform or observe any
other term, condition, covenant, obligation or
provision of this Agreement and such default
continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if
such default is not curable within such thirty
(30) day period, the period will be extended if
Licensee commences to cure such default within
such thirty (30) day period and proceeds
diligently thereafter to effect such cure);
17.1.3 The filing of any tax or mechanic's lien against
any GTE conduit(s) which is not bonded or
discharged within thirty (30) days of the date
Licensee receives notice that such lien has been
filed;
17.1.4 Licensee's voluntary or involuntary bankruptcy;
17.1.5 Licensee's knowing use or maintenance of
Licensee's Facilities in violation of any law or
regulation, or in aid of any unlawful act or
undertaking;
17.1.6 If any authorization which may be required of the
Licensee by any governmental or private authority
for the placement, operation or maintenance of
Licensee's Facilities is denied or revoked.
17.2 In the event of a Material Default, GTE, without any further
notice to the Licensee (except where expressly provided for
below or required by applicable law) may do any one or more
of the following:
17.2.1 Perform, on behalf and at the expense of
Licensee, any obligation of Licensee under this
Agreement which Licensee has failed to perform
and of which GTE shall have given Licensee
notice, the cost of which performance shall be
paid by Licensee to GTE upon demand;
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17.2.2 Terminate this Agreement by giving notice of
such termination to Licensee and remove
Licensee's Facilities and store them in a
public warehouse or elsewhere at the expense
of and for the account of Licensee without
GTE being deemed guilty of trespass or
conversion, and without GTE becoming liable
for any loss or damages to Licensee
occasioned thereby; or
17.2.3 Exercise any other legal or equitable right
or remedy which GTE may have.
17.3 Any costs and expenses incurred by GTE (including,
without limitation, reasonable attorneys' fees) in
enforcing this Agreement shall be paid to GTE by Licensee
upon demand.
17.4 Upon termination of this Agreement by GTE, Licensee shall
remain liable to GTE for any and all fees, other payments
and damages which may be due or sustained prior to such
termination, all reasonable costs, fees and expenses,
including, without limitation, reasonable attorneys' fees
incurred by GTE in pursuit of its remedies hereunder, and
additional liquidated damages which shall be an amount
equal to one full year of Occupancy Fees.
17.5 All rights and remedies of GTE set forth in this
Agreement shall be cumulative and none shall exclude any
other right or remedy, now or hereafter allowed by or
available under any statute, ordinance, rule of court, or
the common law, either at law or in equity, or both.
18. Indemnification.
18.1 Licensee shall compensate GTE for the full actual loss, damage
or destruction of GTE's property that in any way arises from
or is related to this Agreement or activities undertaken
pursuant to this Agreement (including, without limitation, the
installation, construction, operation or maintenance of
Licensee's Facilities).
18.2 Licensee will further indemnify, defend and hold harmless GTE
and GTE's agents, officers, employees and assigns, from any
and all losses, damages, costs, expenses (including, without
limitation, reasonable attorneys' fees), statutory fines or
penalties, actions or claims for personal injury (including
death), damage to property, or other damage or financial loss
of whatever nature in any way arising out of or connected with
this Agreement or activities undertaken pursuant to this
Agreement (including, without limitation, the installation,
construction, operation or maintenance of Licensee's
Facilities), except to the extent caused by the negligence or
willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns. Licensee further indemnifies
GTE from subsequent taxes and fees that may be levied by
municipalities ROWs in association with these agreements. Such
fees that are levied would be in addition to the
attachment/occupancy fees reflected in this Agreement.
Licensee expressly assumes all liability for actions brought
against GTE and GTE's agents, officers, employees and assigns,
by Licensee's agents, officers or employees and Licensee
expressly waives any immunity from the enforcement of this
indemnification provision that might otherwise be provided by
workers' compensation law or by other state or federal laws.
18.3 Without limiting any of the foregoing, Licensee assumes all
risk of, and agrees to relieve GTE of any and all liability
for, loss or damage (and the consequences of loss or damage)
to any of Licensee's Facilities placed in any GTE conduit(s)
and any other financial loss sustained by Licensee, whether
caused by fire, extended coverage perils, or other casualty,
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except to the extent caused by the negligence or willful
misconduct on the part of GTE or GTE's agents, officers,
employees and assigns.
18.4 Without limiting the foregoing, Licensee expressly agrees to
indemnify, defend and hold harmless GTE and GTE's agents,
officers, employees and assigns from any and all claims
asserted by customers of Licensee in any way arising out of or
in connection with this Agreement or Licensee's Attachments,
except to the extent caused by the negligence or willful
misconduct on the part of GTE or GTE's agents, officers,
employees and assigns.
18.5 Notwithstanding anything to the contrary in this Agreement,
Licensee further shall indemnify and hold harmless GTE, its
agents, officers, employees and assigns from and against any
claims, liabilities, losses, damages, fines, penalties and
costs (including, without limitation, reasonable attorneys'
fees) whether foreseen or unforeseen, which the indemnified
parties suffer or incur because of: (I) any discharge of
Hazardous Waste resulting from acts or omissions of Licensee
or the Licensee's predecessor in interest; (ii) acts or
omissions of the Licensee, it agents, employees, contractors
or representatives in connection with any cleanup required by
law, or (iii) failure of Licensee to comply with
Environmental, Safety and Health Laws.
18.6 In no event shall GTE be liable to Licensee for any special,
consequential or indirect damages (including, without
limitation, lost revenues and lost profits) arising out this
Agreement or any obligation arising hereunder, whether in an
action for or arising out of breach of contract, tort or
otherwise.
18.7 Licensee shall indemnify, protect and hold harmless GTE from
and against any and all claims for libel and slander,
copyright and/or patent infringement arising directly or
indirectly by reason of installation of Licensee's equipment
in GTE's Ducts pursuant to this Agreement.
19. Insurance.
19.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set
forth in Section 18 of this Agreement. Such insurance shall
include, but not be limited to, coverage against liability due
to personal injury or death of persons in the amount of
$500,000 as to any one person and $1,000,000 as to any one
accident; coverage against liability due to property damage in
the amount of $500,000 as to each accident and $500,000
aggregate; and coverage necessary to fully protect both it and
GTE from all claims under any worker's compensation laws that
may be applicable.
19.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The
company or companies issuing such insurance shall be approved
by GTE and GTE shall be named as an additional insured in each
such policy. Licensee shall submit to GTE certificates by each
insurer to the effect that the insurer has insured Licensee
for all potential liabilities of Licensee under this
Agreement, and that it will not cancel or change any policy of
insurance issued to Licensee except upon thirty (30) days
notice to GTE. In the event Licensee's insurance coverage is
to be canceled by reason of non-payment of premiums due, GTE
shall have the option of paying any amount due and Licensee
shall forthwith reimburse GTE the full amount paid by GTE.
19.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising
out of or in any manner related, directly or indirectly, to
the presence or use of Licensee's Facilities.
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19.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be
subject to GTE's approval, in the amount of ten thousand
dollars ($10,000) to guarantee the payment of any sums which
may become due to GTE for rentals, inspections or for work
performed by GTE for the benefit of Licensee under this
Agreement, including the removal of Licensee's equipment
pursuant to any of the provisions hereof. All bonds must
specify that the GTE be notified thirty (30) days prior to the
expiration or cancellation of the policy.
20. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation as
GTE requires that qualifies the obligated Party for a full or partial
exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated Party
may contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The collecting Party shall cooperate in
any such contest by the other Party. The other Party will indemnify the
collecting Party from any sales or use taxes that may be subsequently
levied on payments by the other Party by the collecting Party.
21. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Facilities in GTE's conduit(s). While GTE
shall not be responsible for the repair of Licensee's Facilities that
are damaged (except by mutual written agreement), GTE shall nonetheless
control access to its Conduits if the restoration is to be achieved in
an orderly fashion.
21.1 Where GTE and Licensee are involved in emergency restorations,
access to GTE's conduit(s) will be controlled by GTE's
Maintenance District Manager or his/her on-site representative
according to the following guidelines:
21.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or
outages, while exercising its right to first
access, GTE shall make all reasonable efforts to
grant access to as many other entities with
facilities in GTE's conduit(s) as is reasonably
safe.
(b) Where simultaneous access is not possible, access
will be granted by GTE on a first come, first
served basis.
21.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies not
resulting in service disruptions or outages,
while exercising its right to first access, GTE
shall make all reasonable efforts to grant access
to as many other entities with facilities in
GTE's conduit(s) as is reasonably safe.
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(b) Where GTE is unable to grant simultaneous access
to all other entities with facilities in GTE's
conduit(s), access will granted according to the
level of damage to the facilities of each entity
and the likelihood that a given level of damage
will result in service disruption. Where the
likelihood that a service disruption will result
is not clearly discernible, access will be on a
first come, first served basis.
21.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Licensee's Facilities, or
any action or failure to act by GTE under this Section 21
shall not constitute a basis for any claim by Licensee against
GTE for any damage to Licensee's Facilities or disruption of
Licensee's services, or any other direct or indirect damages
of any kind whatsoever incurred by Licensee.
22. Damage Suspected to Licensee's Facilities Only.
22.1 In the event Licensee receives information that Licensee's
Facilities are damaged, Licensee shall notify GTE of said
damage at [---TELEPHONE NUMBER---]. This is a 24-hour, 7 days
per week notification number. Licensee shall provide GTE all
information known to it regarding the damage to Licensee's
Facilities.
22.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by
telephone at the Licensee's emergency telephone number. GTE
shall provide Licensee all information known to it regarding
the damage to Licensee's Facilities.
22.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency restoration
maintenance activities in connection with Licensee's
Facilities, subject to the provisions of this Agreement.
22.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Licensee's facilities, or
any action or failure to act by GTE, appropriately or
inappropriately, under this Section shall not be the basis for
any claim by Licensee against GTE for any damage to Licensee's
Facilities or disruption of Licensee's services, or any other
direct or indirect damages of any kind whatsoever incurred by
Licensee and Licensee shall indemnify and hold GTE harmless
from any such claim.
23. Access to GTE's Manholes/Handholes.
23.1 GTE will allow Licensee to audit manholes/handholes that are
included in any COR submitted to GTE to confirm usability.
Licensee shall give GTE at least fourteen (14) days advance
written notice of its desire to audit and shall obtain all
authorizations from appropriate authorities required to open
the manholes/handholes. GTE shall have the right to have a GTE
employee or agent present when its manholes/handholes are
being opened. Such GTE employee or agent shall have the
authority to suspend Licensee's activities in and around GTE's
manholes/handholes if, in the sole discretion of said employee
or agent, any hazardous conditions arise or any unsafe
practices are being followed by Licensee's employees, agents,
or contractors. Licensee agrees to reimburse GTE the cost of
having GTE's employee or agent present. Such charge shall be
GTE's fully loaded labor rates then in effect.
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23.2 For purposes other than to audit usability, GTE's
manholes/handholes shall be opened only as permitted by GTE
and only after Licensee has obtained all necessary
authorizations from appropriate authorities to open
manholes/handholes and conduct work operations therein. GTE
shall have the right to have a GTE employee or agent present
at any site at which its manholes/handholes are being opened.
Such GTE employee or agent shall have the authority to suspend
Licensee's work operations in and around GTE's
manholes/handholes if, in the sole discretion of said employee
or agent, any hazardous conditions arise or any unsafe
practices are being followed by Licensee's employees, agents,
or contractors. Licensee agrees to reimburse GTE the cost of
having GTE's employee or agent present. Such charge shall be
GTE's fully loaded labor rates then in effect. The presence
of GTE's authorized employee or agent shall not relieve
Licensee of its responsibility to conduct all of its work
operations in and around GTE's conduit(s) in a safe and
workmanlike manner, in accordance with the terms of this
Agreement.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities; provided, however, that GTE shall condition any such sale,
assignment or other disposition subject to the rights granted to
Licensee pursuant to this Agreement. GTE shall promptly notify Licensee
of any proposed sale, assignment or other disposition of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee:
-------------------------------
-------------------------------
-------------------------------
To GTE:
-------------------------------
-------------------------------
-------------------------------
Any notice given by personal delivery shall be deemed to have been
given on the day of actual delivery and, if given by registered or
certified mail, return receipt requested, on the date of receipt
thereof and, if given by facsimile transmission, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the next business day if not given during normal
business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any
of term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition
or other provision of this Agreement.
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27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by GTE
to compel Licensee to comply with its obligations to indemnify
GTE pursuant to this Agreement or (ii) a suit, action or
proceeding to compel either party to comply with the dispute
resolution procedures set forth in this section, the parties
agree to use the following procedure to resolve any dispute,
controversy or claim arising out of or relating to this
Agreement or its breach.
27.2 At the written request of a party, each party shall designate
a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute, controversy or
claim arising under this Agreement. The parties intend that
these negotiations be conducted by non-lawyer, business
representatives. The substance of the negotiations shall be
left to the discretion of the representatives. Upon mutual
agreement, the representatives may utilize other alternative
dispute resolution procedures such as mediation to assist in
the negotiations. Discussions and correspondence between the
representatives for purposes of these negotiations shall be
treated as confidential, undertaken for purposes of
settlement, shall be exempt from discovery and production, and
shall not be admissible in the arbitration described below or
in any subsequent lawsuit without the concurrence of all
parties. Documents identified in or provided during such
negotiations, which are not prepared for purposes of the
negotiations, shall not be so exempt and may, if otherwise
admissible, be admitted as evidence in any subsequent
proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written request,
the dispute, controversy or claim shall be submitted to
binding arbitration by a single arbitrator pursuant to the
rules of the American Arbitration Association (AAA), except as
hereinafter provided. Discovery in any proceeding before the
AAA shall be controlled by the arbitrator and shall be
permitted to the extent set forth in this section. Parties may
exchange, in any combination, up to thirty-five (35) (none of
which may contain subparts) written interrogatories, demands
to produce documents and requests for admission. Each party
may also to take the oral deposition of one (1) witness.
Additional discovery may be permitted upon mutual agreement of
the parties. The arbitration hearing shall be commenced within
sixty (60) days of the demand for arbitration and shall be
held in the city where GTE's local offices are located. The
arbitrator shall rule on the dispute, controversy or claim by
issuing a written opinion within thirty (30) days after the
close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing
procedures. A party seeking discovery shall reimburse the
responding party the cost of reproducing documents (to include
search time and reproduction time costs). The fees associated
with any arbitration, including the fees of the arbitrator,
shall be divided equally between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, Licensee
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (i) workers' compensation
laws, (ii) unemployment compensation laws, (iii) the Federal Social
Security Law, (iv) the Fair Labor Standards Act, and (v) all laws,
regulations, rules, guidelines, policies, orders, permits and
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approvals of any governmental authority relating to environmental
matters and/or occupational safety.
29. Force Majeure.
Except for payment of the Occupancy Fees and other amounts payable
under this Agreement, neither party shall have any liability for its
delays or its failure in performance due to fire, flood, explosion,
pest damage, power failures, strikes or labor disputes, acts of God,
the Elements, war, civil disturbances, acts of civil or military
authorities or the public enemy, inability to secure raw materials,
transportation facilities, fuel or energy shortages, or other cause
beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole
or in part, without the prior written consent of GTE. An
assignment, transfer or sub-license of this Agreement by
Licensee shall not relieve Licensee of its obligations under
this Agreement. Any assignment attempted without the prior
written consent of GTE shall be void.
30.2 GTE shall have the right to assign this Agreement and to
assign its rights and delegate its obligations and liabilities
under this Agreement, either in whole or in part. GTE shall
provide notice to Licensee of any assignment which shall state
the effective date thereof. Upon the effective date and to the
extent of the assignment, GTE shall be released and discharged
from all obligations and liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the
benefit of any person or entity not a signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall
be governed and construed under the laws of the State of _______
without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations or guidelines that subsequently
may be prescribed by any federal, state or local governmental
authority. To the extent required by any such subsequently prescribed
law, rule, regulation or guideline, the parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to
bring them into compliance with such law, rule, regulation or
guideline. Should any term of this Agreement be determined by a court
or other entity with competent jurisdiction to be unenforceable, all
other terms of this Agreement shall remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and
are not intended to affect the meaning or interpretation of any part of
this Agreement.
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34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
- ----------------------------------------- ---------------------------------
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
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EXHIBIT
----
OCCUPANCY FEES
L-16
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APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION
1. This document describes the reciprocal compensation arrangements
between DTI and GTE for Local Tariff, Toll and Switched Access
Services. The Parties shall compensate each other for transport and
termination of such traffic at the rates provided in Appendix D and/or
the appropriate Parties' Switched Access Tariff.
2. Compensation for Call Termination
A. Reciprocal compensation does not apply in a resale
environment.
B. The following compensation terms shall apply in all cases
where DTI purchases GTE's unbundled Local Switching:
1. For local intra-switch calls between lines connected
to GTE's switch where DTI has purchased GTE's
unbundled Local Switching, the Parties agree to
impose no call termination charges on each other.
GTE's Local Switching charge will apply as described
below where the call is:
(a) Originated by DTI's customer and completed
to a GTE customer:
(1) (For use of the local switch): Local
Switching charge at the originating
office will apply to DTI.
(b) Originated by DTI's customer and completed
to the customer of a Third Party LEC (not
affiliated with DTI) using GTE's unbundled
Local Switching:
(1) (For use of the local switch): Local
Switching charge at the originating
office will apply to DTI.
(c) Originated by DTI's customer and completed
to another DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local
Switching charge at the originating
office will apply to DTI.
(d) Originated by a GTE customer and terminated
to DTI's customer using GTE's unbundled
Local Switching.
(1) No Local Switching charge will
apply.
(e) Originated by the customer of a Third Party
LEC (not affiliated with DTI) using GTE's
unbundled Local Switching and terminated to
DTI's customers using GTE's unbundled Local
Switching.
(1) No Local Switching charge will apply
to DTI.
2. For Local inter-switch calls where DTI has purchased GTE's unbundled
Local Switching.
GTEs charges will apply to DTI described below where the call is:
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(a) Originated from DTI's end-user customer using GTE's unbundled
Local Switching and completed to a GTE customer.
(1) (For use of the local switch): Local Switching charge at
the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(3) (For call termination): Charges for local
interconnection/call termination, when applicable.
(b) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to a Third Party LEC (not affiliated
with DTI) customer using GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching charge at
the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(c) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to the interconnected network of a
Third Party LEC (not affiliated with DTI).
(1) (For use of the local switch): Local Switching charge at
the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport, and mileage shall be measured
between the originating office and the POI of the Third
Party's network.
(d) Originated from DTI's customer using GTE's unbundled Local
Switching and completed to DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local Switching charge at
the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(3) (For use of the local switch): Local Switching charge at
the terminating office.
(d) Originated by a GTE customer and terminated to DTI's customer
using GTE's unbundled Local Switching.
(1) (For use at local switch): Local Switching Charge at the
terminating office.
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(2) (For call termination): DTI shall charge GTE for local
interconnection/call termination, when applicable.
(f) Originated by a customer of a third-party LEC (not affiliated
with DTI) using GTE's unbundled Local Switching and terminated
to DTI's customer using GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching charge at
the terminating office.
(g) Originated by a customer of the interconnected network of a
third-party LEC (not affiliated with DTI) and terminated to
DTI's customer using GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching charge at
the terminating office.
3. For intraLATA toll calls where DTI has purchased GTE's unbundled Local
Switching, charges per Unbundled Network Element pricing shall apply as
follows:
a. Originated by DTI's customer and completed to a GTE customer.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC (Residual Interconnection Charge) at the originating
office.
2. Shared transport charge between the two offices will apply
when DTI uses GTE's transport.
3. (For call termination): End Office Switching charge at the
terminating office (Switched Access Rate).
4. RIC and CCLC at the terminating office.
B. Originated by DTI's customer and completed to the customer of a
third-party LEC (not affiliated with DTI) using GTE's unbundled
Local Switching in a distant end office.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the originating office.
2. Shared transport charge between the two offices will apply
when DTI uses GTE's transport.
C. Originated by DTI customer and completed to the network of a
third-party LEC (not affiliated with DTI) interconnected with GTE's
network.
1. (For use of the local switch): Local Switching charge, plus
RIC and CCLC, at the originating office.
2. Common transport charge will apply when DTI uses GTE's
transport, and mileage shall be measured between the
originating office and the POI of the Third Party's network.
3. Tandem Switching, where applicable.
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D. Originated by DTI's customer and completed by another of DTI's
customers being served through GTE's unbundled Local Switching in a
distant office.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the originating office.
2. Shared transport charge between the two offices will apply
when DTI uses GTE's transport.
3. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the terminating office.
E. Originated by a GTE customer and terminated to DTI's customer using
GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the terminating office.
2. (For call termination): DTI will charge GTE Local Switching at
the terminating office (Switched Access Rate).
3. (For call termination): DTI will charge GTE NIC and CCLC at
the terminating office.
F. Originated by the customer of a third-party LEC (not affiliated
with DTI) using GTE's unbundled Local Switching in a distant end
office and terminated to DTI's customer using GTE's unbundled Local
Switching.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the terminating office.
G. Originated by a customer of the network of a third-party LEC (not
affiliated with DTI) interconnected with GTE's network and
terminated to DTI's customer using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching charge plus RIC
and CCLC at the terminating office.
4. For intrastate Switched Access calls where DTI's is using GTE's
unbundled Local Switching for calls originated from or terminated to
an IXC for completion:
a. For calls originated from DTI's customer to DTI's own IXC switch
(or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge at the
terminating office.
2. Originating RIC and CCLC.
3. GTE will charge DTI's IXC affiliate the following Switched
Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
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4. DTI will charge DTI's IXC affiliate the following Switched
Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
B. For calls originating from DTI's customer to an IXC's switch not
affiliated with DTI.
1. (For use of the local switch): DTI's customer to an IXC's
switch not affiliated with DTI.
2. Originating RIC and CCLC.
3. GTE shall charge the non-affiliated IXC for the following
originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge the non-affiliated IXC for the following
Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
C. For calls terminating to DTI's end-user customer from DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge at the
terminating office.
2. Terminating RIC and CCLC.
3. GTE will charge DTI's IXC (affiliate) the following Switched
Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC (affiliate) for the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC and CCLC.
(b) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch not
affiliated with DTI.
1. (For use of the local switch): Local Switching charge at the
terminating office.
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2. Terminating RIC and CCLC.
3. GTE shall charge the IXC for the following terminating
Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC for the following Switched Access elements
on a meet-point basis:
(a) Terminating RIC and CCLC;
(b) Local Switching.
5. For interstate Switched Access calls where DTI is using GTE's unbundled
Local Switching for calls originated from or terminated to an IXC for
completion:
a. For calls originated from DTI's customer to DTI's own IXC switch
(or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge at the
originating office.
2. Originating Residual Interconnection Charge (RIC) and CCL.
3. GTE shall charge DTI's IXC affiliate for the following
originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following Switched
Access elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
B. For calls originated from DTI's customer to an IXC's switch not
affiliated to DTI.
1. (For use of the local switch): Local Switching charge at the
terminating office.
2. Originating RIC and CCLC.
3. GTE shall charge the IXC for the following originating
Switched Access on a meet-point basis:
(a) Local Transport;
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(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access elements
on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
C. For calls terminating to DTI's customer for DTI's own IXC switch
(or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge at the
terminating office.
2. Terminating RIC and CCL.
3. GTE will charge DTI's IXC (affiliate) the following Switched
Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following Switched
Access elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch not
affiliated with DTI.
1. (For use of the local switch): Local Switching charge at the
terminating office.
2. Terminating RIC and CCL.
3. GTE will charge the non-affiliated IXC for the following
terminating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access elements on
a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
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APPENDIX 46A
GTE TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III to the GTE/Digital Teleport, Inc.
Interconnection Agreement and subject to all of the terms and conditions of that
Section, each of the following rates or terms may be replaced or supplemented by
the correlative rate or term set forth in the Arbitrating CLEC Terms listed in
Appendix 46, as and when provided in Section 46 and only until, as long as, and
under the conditions prescribed by Section 46.
1. Substitute the Avoided Cost Discount in Appendix F with the resale
discount rate(s) that may be indicated in Appendix 46B.
2. Substitute the list of services excluded from resale under Section 2.2
of Article VI to remove those services to be made available for resale
that may be indicated in Appendix 46B.
3. Substitute the list of services available for resale but not at a
discount under Section 2.3 if Article VI to remove those services to be
made available for resale at a discount that may be indicated in
Appendix 46B.
4. Substitute the rates for transport and termination of traffic in
Appendix D with the rates that may be indicated in Appendix 46B.
5. Substitute the prices for unbundled elements in Appendix G with prices
that may be indicated in Appendix 46B.
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APPENDIX 46B
OTHERCLEC TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III of the GTE/Digital Teleport, Inc.
Interconnection Agreement, and subject to all of the terms and condition
thereof, and after notice as called for in Section 46, the following terms as
written in the "Arbitrating CLEC" Agreement referred to in Section 46 will be
substituted for the GTE Terms which are set out in Appendix 46A as and when
Section 46 calls for them to be substituted.
When the identity of the Arbitrating CLEC Agreement is established pursuant to
the provisions of Section 46, the parties shall modify this Appendix by
replacing the descriptions of subjects below with the specific rates and terms
of the Arbitrating CLEC Agreement that describes those precise points.
1. The resale discount percentages(s) ordered by the arbitrator to apply
to the services that will be provided under Article VI of this
Agreement for resale at a discount.
2. The services that were ordered by the arbitrator to be made available
for resale which would otherwise be excluded from available resale
services under Article VI, Section 2.2 of this Agreement.
3. The services that were ordered by the arbitrator to be made available
for resale at a discount which would otherwise be made available but
not at a discount under Article VI, Section 2.3. of this Agreement.
4. The rates for transport and termination of traffic ordered by the
arbitrator to apply to the services that will be provided under Article
V of this Agreement.
5. The rates for unbundled elements ordered by the arbitrator to apply to
the services that will be provided under Article VII of this Agreement.
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EXHIBIT 10.26
INTERCONNECTION, RESALE AND UNBUNDLING AGREEMENT
BETWEEN
GTE SOUTHWEST INCORPORATED
AND
DIGITAL TELEPORT, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
SCOPE AND INTENT OF AGREEMENT.......................................................................... I-1
ARTICLE II
DEFINITIONS ........................................................................................... II-1
1. General Definitions.................................................................................... II-1
1.1 "ACCESS SERVICE REQUEST" ................................................................ II-1
1.2 "ACT" ................................................................................... II-1
1.3 "AFFILIATE" ............................................................................. II-1
1.4 "AMA" ................................................................................... II-1
1.5 "APPLICABLE LAW" ........................................................................ II-1
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM (ALI/DMS)" .................... II-1
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" .............................................. II-1
1.8 "BELLCORE" .............................................................................. II-1
1.9 "BILL-AND-KEEP ARRANGEMENT" ............................................................. II-1
1.10 "BONA FIDE REQUEST (BFR)" ............................................................... II-2
1.11 "BUSINESS DAY" .......................................................................... II-2
1.12 "CENTRAL OFFICE SWITCH" ................................................................. II-2
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) ........................................ II-2
1.14 "CLLI CODES" ............................................................................ II-2
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) ............................................... II-2
1.16 "COMMISSION" ............................................................................ II-2
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" ..................................................... II-2
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) ............................................. II-2
1.19 "COMPLIANCE" ............................................................................ II-2
1.20 "CUSTOMER" .............................................................................. II-2
1.21 "CUSTOMER USAGE DATA" ................................................................... II-2
1.22 "DS-1" .................................................................................. II-3
1.23 "DS-3" .................................................................................. II-3
1.24 "ELECTRONIC FILE TRANSFER" .............................................................. II-3
1.25 "EMR".................................................................................... II-3
1.26 "E-911 SERVICE" ......................................................................... II-3
1.27 "EXCHANGE SERVICE" ...................................................................... II-3
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" ............................................. II-3
1.29 "FACILITY" .............................................................................. II-3
1.30 "FCC" ................................................................................... II-3
1.31 "GENERATOR" ............................................................................. II-3
1.32 "GTOC" .................................................................................. II-3
1.33 "GUIDE".................................................................................. II-3
1.34 "HAZARDOUS CHEMICAL" .................................................................... II-4
1.35 "HAZARDOUS WASTE" ....................................................................... II-4
1.36 "IMMINENT DANGER" ....................................................................... II-4
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) ............................................... II-4
1.38 "INTERIM NUMBER PORTABILITY (INP)" ...................................................... II-4
1.39 "INTERCONNECTION POINT" ("IP") .......................................................... II-4
1.40 "ISDN USER PART (ISUP)" ................................................................. II-4
1.41 "IXC" OR "INTEREXCHANGE CARRIER" ........................................................ II-4
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" ................................. II-4
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1.43 "LATA" .................................................................................. II-4
1.44 "LINE INFORMATION DATA BASE (LIDB)" ..................................................... II-4
1.45 "LINE SIDE" ............................................................................. II-4
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" ....................................................... II-5
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" ................................................ II-5
1.48 "LOCAL NUMBER PORTABILITY (LNP)" ........................................................ II-5
1.49 "LOCAL TRAFFIC" ......................................................................... II-5
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" ...................................................... II-5
1.51 "MEET-POINT BILLING" OR "MPB" ........................................................... II-5
1.52 "MECAB" ................................................................................. II-5
1 53 "MECOD" ................................................................................. II-5
1.54 "MID-SPAN FIBER MEET" ................................................................... II-5
1.55 "NANP" .................................................................................. II-6
1.56 "NETWORK ELEMENT" ....................................................................... II-6
1.57 "NID" OR "NETWORK INTERFACE DEVICE" ..................................................... II-6
1.58 "NUMBERING PLAN AREA" OR "NPA" .......................................................... II-6
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" ................................... II-6
1.60 "911 SERVICE" ........................................................................... II-6
1.61 "OWNER AND OPERATOR" .................................................................... II-6
1 62 "POI" ................................................................................... II-6
1.63 "POLE ATTACHMENT" ....................................................................... II-6
1.64 "PROVIDER" .............................................................................. II-6
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" ............................................... II-6
1.66 "RATE CENTER" ........................................................................... II-7
1.67 "RIGHT-OF-WAY" OR "ROW" ................................................................. II-7
1.68 "ROUTING POINT" ......................................................................... II-7
1.69 "SERVICE CONTROL POINT" OR "SCP" ........................................................ II-7
1.70 "SERVICE SWITCHING POINT" OR "SSP" ...................................................... II-7
1.71 "SIGNALING POINT" OR "SP" ............................................................... II-7
1.72 "SIGNALING SYSTEM 7" OR "SS7" ........................................................... II-7
1.73 "SIGNAL TRANSFER POINT" OR "STP" ........................................................ II-7
1.74 "SUBSIDIARY" ............................................................................ II-7
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" ................................................ II-7
1.76 "SWITCHED ACCESS SERVICE" ............................................................... II-8
1.77 "TELECOMMUNICATIONS SERVICES" ........................................................... II-8
1.78 "THIRD PARTY CONTAMINATION" ............................................................. II-8
1.79 "TRUNK SIDE" ............................................................................ II-8
1.80 "UNDEFINED TERMS" ....................................................................... II-8
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") ........................................ II-8
1.82 "WIRE CENTER" ........................................................................... II-8
ARTICLE III
GENERAL PROVISIONS..................................................................................... III-1
1. Scope of General Provisions............................................................................ III-1
2. Term and Termination................................................................................... III-1
2.1 Term..................................................................................... III-1
2.2 Post-Termination Arrangements............................................................ III-1
2.3 Termination Upon Default................................................................. III-1
2.4 Termination Upon Sale.................................................................... III-1
2.5 Liability upon Termination............................................................... III-1
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3. Amendments........................................................................................ III-2
4. Assignment........................................................................................ III-2
5. Authority......................................................................................... III-2
6. Responsibility for Payment........................................................................ III-2
7. Billing and Payment............................................................................... III-2
7.1 Dispute.......................................................................... III-2
7.2 Late Payment Charge.............................................................. III-2
7.3 Due Date......................................................................... III-2
7.4 Audits........................................................................... III-2
8. Binding Effect.................................................................................... III-3
9. Capacity Planning and Forecasting................................................................. III-3
10. Compliance with Laws and Regulations.............................................................. III-3
11. Confidential Information.......................................................................... III-3
11.1 Identification................................................................... III-3
11.2 Handling......................................................................... III-3
11.3 Exceptions....................................................................... III-4
11.4 Survival......................................................................... III-4
12. Consent ....................................................................................... III-4
13. Cooperation on Fraud Minimization................................................................. III-4
14. Dispute Resolution................................................................................ III-4
14.1 Alternative to Litigation........................................................ III-4
14.2 Negotiations..................................................................... III-5
14.3 Arbitration...................................................................... III-5
14.4 Expedited Arbitration Procedures................................................. III-5
14.5 Costs............................................................................ III-5
14.6 Continuous Service............................................................... III-6
15. Entire Agreement.................................................................................. III-6
16. Expenses............................................................................. ............ III-6
17. Force Majeure..................................................................................... III-6
18. Good Faith Performance............................................................................ III-6
19. Governing Law..................................................................................... III-6
20. Standard Practices................................................................................ III-6
21. Headings ....................................................................................... III-6
22. Independent Contractor Relationship............................................................... III-6
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23. Law Enforcement Interface......................................................................... III-7
24. Liability and Indemnity........................................................................... III-7
24.1 Indemnification.................................................................. III-7
24.2 End User and Content-Related Claims.............................................. III-7
24.3 DISCLAIMER....................................................................... III-8
24.4 Limitation of Liability.......................................................... III-8
24.5 Intellectual Property............................................................ III-8
25. Multiple Counterparts............................................................................. III-8
26. No Offer.......................................................................................... III-8
27. No Third Party Beneficiaries...................................................................... III-8
28. Notices........................................................................................... III-8
29. Protection........................................................................................ III-9
29.1 Impairment of Service............................................................ III-9
29.2 Resolution....................................................................... III-9
30. Publicity......................................................................................... III-9
31. Regulatory Agency Control......................................................................... III-9
32. Changes in Legal Requirements..................................................................... III-10
33. Effective Date.................................................................................... III-10
34. Regulatory Matters................................................................................ III-10
35. Rule of Construction.............................................................................. III-10
36. Section References................................................................................ III-10
37. Service Standards................................................................................. III-10
37.1 ................................................................................. III-10
37.2 ................................................................................. III-10
37.3 ................................................................................. III-10
38. Severability...................................................................................... III-10
39. Subcontractors.................................................................................... III-10
40. Subsequent Law.................................................................................... III-10
41. Taxes............................................................................................. III-11
42. Trademarks and Trade Names........................................................................ III-11
43. Waiver............................................................................................ III-11
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44. Environmental Responsibility...................................................................... III-11
45. TBD Prices........................................................................................ III-13
ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS............................................................................ IV-1
1. General .......................................................................................... IV-1
2. Liability of GTE.................................................................................. IV-1
2.1 Inapplicability of Tariff Liability.............................................. IV-1
2.2 DTI Tariffs or Contracts......................................................... IV-1
2.3 No Liability for Errors.......................................................... IV-1
3. Unauthorized Changes.............................................................................. IV-1
3.1 Procedures....................................................................... IV-1
3.2 Option to Restrict Changes Without Evidence of Authorization..................... IV-2
4. Impact of Payment of Charges on Service........................................................... IV-2
5. Unlawful Use of Service........................................................................... IV-2
6. Timing of Messages................................................................................ IV-3
7. Procedures For Preordering, Ordering, Provisioning, Etc. ......................................... IV-3
8. Customer Contacts................................................................................. IV-3
ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC.......................................... V-1
1. Services Covered by This Article.................................................................. V-1
1.1 Types of Services................................................................ V-1
1.2 Service Locations for Interconnection Services and Facilities.................... V-1
1.3 Additional Services or Service Locations......................................... V-1
2. Billing and Rates................................................................................. V-1
2.1 Rates and Charges................................................................ V-1
2.2 Billing.......................................................................... V-1
3. Transport and Termination of Traffic.............................................................. V-1
3.1 Traffic to be Exchanged.......................................................... V-1
3.2 Compensation For Exchange Of Traffic............................................. V-2
3.3 Tandem Switching Traffic......................................................... V-3
3.4 Inter-Tandem Switching........................................................... V-3
4. Direct Network Interconnection.................................................................... V-3
4.1 Network Interconnection Architecture............................................. V-3
4.2 Compensation..................................................................... V-4
4.3 Trunking Requirements............................................................ V-5
4.4 Network Redesigns Initiated by GTE............................................... V-6
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4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection............................... V-6
5. Indirect Network Interconnection.................................................................. V-6
6. Number Resources.................................................................................. V-6
6.1 Number Assignment................................................................ V-6
6.2 Rate Centers..................................................................... V-6
6.3 Routing Points................................................................... V-6
6.4 Code and Numbers Administration.................................................. V-7
6.5 Programming Switches............................................................. V-7
7. Interim Number Portability (INP).................................................................. V-7
8. Meet-Point Billing................................................................................ V-7
8.1 Meet-Point Arrangements.......................................................... V-7
8.2 Compensation..................................................................... V-8
9. Common Channel Signaling.......................................................................... V-8
9.1 Service Description.............................................................. V-8
9.2 Signaling Parameters............................................................. V-8
9.3 Privacy Indicators............................................................... V-8
9.4 Connection Through STP........................................................... V-8
9.5 Third Party Signaling Providers.................................................. V-9
9.6 Multi-Frequency Signaling........................................................ V-9
10. Service Quality and Performance................................................................... V-9
11. Network Outages................................................................................... V-9
ARTICLE VI
RESALE OF SERVICES................................................................................ VI-1
1. General........................................................................................... VI-1
2. Terms and Conditions.............................................................................. VI-1
2.1 Quality and Performance.......................................................... VI-1
2.2 Restrictions on Resale........................................................... VI-1
2.3 Restrictions on Discount of Retail Services...................................... VI-1
2.4 Resale to Other Carriers......................................................... VI-2
3. Ordering and Billing.............................................................................. VI-2
3.1 Local Service Request............................................................ VI-2
3.2 Certificate of Operating Authority............................................... VI-2
3.3 Letter of Authorization.......................................................... VI-2
3.4 Directory Assistance Listings.................................................... VI-2
3.5 Nonrecurring Charges............................................................. VI-2
3.6 Transfers Between DTI and Another Reseller of GTE Services....................... VI-2
3.7 Local Calling Detail............................................................. VI-2
3.8 Procedures....................................................................... VI-2
3.9 LIDB............................................................................. VI-2
3.10 "OLN"............................................................................ VI-3
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4. Maintenance....................................................................................... VI-3
4.1 Maintenance, Testing and Repair.................................................. VI-3
4.2 Specifics and Procedures for Maintenance......................................... VI-3
5.1 Description of Local Exchange Services Available for Resale...................... VI-3
5.2 List of Services Available for Resale............................................ VI-3
5.3 Rates............................................................................ VI-4
5.4 Grandfathered Services........................................................... VI-4
5.5 Access........................................................................... VI-4
5.6 Operator Services (OS) and Directory Assistance (DA)............................. VI-4
ARTICLE VII
UNBUNDLED NETWORK ELEMENTS........................................................................ VII-1
1. General........................................................................................... VII-1
2. Unbundled Network Elements........................................................................ VII-1
2.1 Categories....................................................................... VII-1
2.2 Prices........................................................................... VII-1
2.3 Interconnection to Unbundled Elements............................................ VII-1
2.4 Service Quality.................................................................. VII-2
3. Network Interface Device.......................................................................... VII-2
3.1 Direct Connection................................................................ VII-2
3.2 NID to NID Connection............................................................ VII-2
3.3 Removal of Cable Pairs........................................................... VII-3
3.4 Maintenance...................................................................... VII-3
4. Loop Elements..................................................................................... VII-3
4.1 Service Description.............................................................. VII-3
4.2 Categories of Loops.............................................................. VII-3
4.3 Conditioned Loops................................................................ VII-4
4.4 Features, Functions, Attributes.................................................. VII-4
4.5 Digital Loop Carrier............................................................. VII-4
4.6 Unbundled Loop Facility Certification............................................ VII-4
4.7 Unbundled Loop Facility Notification............................................. VII-5
4.8 Subloops......................................................................... VII-5
5. Port and Local Switching Elements................................................................. VII-5
5.1 Port............................................................................. VII-5
5.2 Ports Available as Unbundled Network Elements.................................... VII-6
5.3 Port Prices...................................................................... VII-6
5.4 ................................................................................. VII-6
Local Switching.......................................................................... VII-6
5.5 Compliance with Section.......................................................... VII-6
6. Transport Facility................................................................................ VII-6
6.1 Service Description.............................................................. VII-6
6.2 Categories/Types................................................................. VII-7
7. SS7 Transport and Signaling....................................................................... VII-7
7.1 ................................................................................. VII-7
8. LIDB Services..................................................................................... VII-7
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9. Database 800-Type Services........................................................................ VII-7
10. Data Switching.................................................................................... VII-7
10.1 Access........................................................................... VII-7
10.2 Nondiscrimination................................................................ VII-7
10.3 Testing, Monitoring, Administration and Maintenance.............................. VII-7
11. Digital Cross Connect System (DCS)................................................................ VII-7
11.1 Access........................................................................... VII-7
11.2 Optional Characteristics......................................................... VII-7
11.3 Alternate Provisioning........................................................... VII-7
11.4 Elements......................................................................... VII-7
11.5 Capabilities..................................................................... VII-8
11.6 Protection and Performance....................................................... VII-8
11.7 Provisioning, Administration and Maintenance..................................... VII-8
12. Operator Services (OS) and Directory Assistance (DA).............................................. VII-8
12.1 Customized Routing............................................................... VII-8
13. Advanced Intelligent Network Access (AIN)......................................................... VII-9
14. Nondiscrimination Provision and Support........................................................... VII-9
15. Provisioning Intervals............................................................................ VII-9
16. Directory Assistance Listing...................................................................... VII-9
ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS.......................................... VIII-1
1. Bona Fide Request Process......................................................................... VIII-1
1.1 Intent .......................................................................... VIII-1
1.2 Process ......................................................................... VIII-1
2. Transfer of Service Announcements................................................................. VIII-1
3. Misdirected Calls................................................................................. VIII-1
3.1 ................................................................................. VIII-2
3.2 ................................................................................. VIII-2
4. 911/E911 Arrangements............................................................................. VIII-2
4.1 Description of Service........................................................... VIII-2
4.2 Transport........................................................................ VIII-2
4.3 Cooperation and Level of Performance............................................. VIII-2
4.4 Basic 911 and E911 General Requirements.......................................... VIII-2
4.5 Compensation..................................................................... VIII-6
5. Information Services Traffic...................................................................... VIII-7
5.1 Routing.......................................................................... VIII-7
5.2 Billing and Collection and Information Service Provider (ISP) Remuneration....... VIII-7
5.3 900-976 Call Blocking............................................................ VIII-7
5.4 Miscellaneous ................................................................... VIII-7
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6. Telephone Relay Service........................................................................... VIII-7
7. Directory Assistance (DA) and Operator Services (OS).............................................. VIII-7
7.1 Directory Assistance Calls....................................................... VIII-7
7.2 Operator Services Calls.......................................................... VIII-8
8. Directory Assistance Listings Information......................................................... VIII-8
8.1 ................................................................................. VIII-8
8.2 ................................................................................. VIII-8
8.3 ................................................................................. VIII-8
9. Directory Listings and Directory Distribution..................................................... VIII-8
10. Busy Line Verification and Busy Line Verification Interrupt....................................... VIII-9
11. SAG .............................................................................................. VIII-9
12. Dialing Format Changes............................................................................ VIII-9
13. Operational Support Systems (OSS)................................................................. VIII-9
ARTICLE IX
COLLOCATION....................................................................................... IX-1
1. Physical Collocation.............................................................................. IX-1
1.1 Space Planning................................................................... IX-1
1.2 Connection to Customer Loops and Ports........................................... IX-1
1.3 Connection to Other Collocated Carriers.......................................... IX-1
1.4 Choice of Vendor................................................................. IX-2
1.5 Monitoring....................................................................... IX-2
1.6 Phone Service.................................................................... IX-2
1.7 Intraoffice Diversity............................................................ IX-2
1.8 DTI Proprietary Information...................................................... IX-2
1.9 Notification of Modifications.................................................... IX-2
1.10 Drawings......................................................................... IX-2
1.11 Construction of Space............................................................ IX-2
1.12 Connection Equipment............................................................. IX-3
1.13 Access to DTI Collocation Space.................................................. IX-3
2. Virtual Collocation............................................................................... IX-4
2.1 Existing Virtual Collocation..................................................... IX-4
2.2 Conversion from Physical to Virtual.............................................. IX-4
2.3 Vendors.......................................................................... IX-4
2.4 Inspection....................................................................... IX-5
ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY ............................................... X-1
APPENDIX A
GTE PERFORMANCE MEASURES (PM)..................................................................... A-1
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APPENDIX B
SERVICE MATRIX.................................................................................... B-1
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT.......................................................................... C-1
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC.............................................................. D-1
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF.......................................... E-1
APPENDIX F
SERVICES AVAILABLE FOR RESALE..................................................................... F-2
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS..................................................................... G-1
APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS....................................................... H-1
APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE........................................... I-1
APPENDIX J
SS7 SERVICES...................................................................................... J-1
APPENDIX K
POLE ATTACHMENT AGREEMENT......................................................................... K-1
APPENDIX L
CONDUIT OCCUPANCY AGREEMENT....................................................................... L-1
APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION...................................................... M-1
APPENDIX 46A
MCIm TERMS........................................................................................ N-1
APPENDIX 46B
GTE TERMS......................................................................................... O-1
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This Interconnection, Resale and Unbundling Agreement (the "Agreement"), is made
effective as of ____________ 199__ , by and between GTE Southwest Incorporated,
with its address for purposes of this Agreement at 600 Hidden Ridge Drive,
Irving, Texas 75038 ("GTE"), and Digital Teleport, Inc., in its capacity as a
certified provider of local dial-tone service ("DTI"), with its address for this
Agreement at 11111 Dorsett Road, St. Louis, Missouri 63043 (GTE and DTI being
referred to collectively as the "Parties" and individually as a "Party"). This
Agreement covers services in the State of Texas only (the "State").
WHEREAS, interconnection between competing Local Exchange Carriers ("LECs") is
necessary and desirable for the mutual exchange and termination of traffic
originating on each LEC's network; and
WHEREAS, the Parties desire to exchange such traffic and related signaling in a
technically and economically efficient manner at defined and mutually agreed
upon interconnection points; and
WHEREAS, the Parties wish to enter into an agreement to interconnect their
respective telecommunications networks on terms that are fair and equitable to
both Parties; and
WHEREAS, Section 251 of the Telecommunications Act of 1996 (the "Act") imposes
specific obligations on LECs with respect to the interconnection of their
networks, resale of their telecommunications services, access to their poles,
ducts, conduits and rights-of-way and, in certain cases, the offering of certain
unbundled network elements and physical collocation of equipment in LEC
premises; and
WHEREAS, GTE is entering, under protest, into certain aspects of
this Agreement that incorporate adverse results from the arbitrated agreements
approved or which may be approved by the Commission in this state and is doing
so in order to avoid the expense of arbitration while at the same time
preserving its legal positions, rights and remedies.
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, GTE and DTI hereby covenant and agree as follows:
<PAGE> 13
ARTICLE I
SCOPE AND INTENT OF AGREEMENT
Pursuant to this Agreement, the Parties will extend certain arrangements to one
another within each area in which they both operate within the State for
purposes of interconnection and the exchange of traffic between their respective
end user customers, and reciprocal access to poles, ducts, conduits and
rights-of-way. This Agreement also governs the purchase by DTI of certain
telecommunications services provided by GTE in its franchise areas for resale by
DTI, the purchase by DTI of certain unbundled network elements from GTE, and the
terms and conditions of the collocation of certain equipment of DTI in the
premises of GTE. This Agreement is an integrated package that reflects a
balancing of interests critical to the Parties. This Agreement will be submitted
to the Texas Public Utility Commission (the "Commission") for approval. The
Parties agree that their entrance into this Agreement is without prejudice to
and does not waive any positions they may have taken previously, or may take in
the future, in any legislative, regulatory, judicial or other public forum
addressing any matters, including matters related to the same types of
arrangements and/or matters related to GTE's cost recovery covered in this
Agreement. DTI agrees to negotiate reciprocal terms and conditions with GTE
based on this Agreement. GTE's execution of this Agreement is not a concession
or waiver in any manner concerning its position that certain of the rates, terms
and conditions contained herein are unlawful, illegal and improper.
The services and facilities to be provided to DTI by GTE in satisfaction of this
Agreement may be provided pursuant to GTE tariffs and then current practices.
Should such services and facilities be modified by tariff or by Order, including
any modifications resulting from other Commission proceedings, federal court
review or other judicial action, such modifications will be deemed to
automatically supersede any rates and terms and conditions of this Agreement.
GTE will provide notification to DTI before such a tariff becomes effective, and
DTI may provide input on such proposed tariff. The Parties shall cooperate with
one another for the purpose of incorporating required modifications into this
agreement.
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ARTICLE II
DEFINITIONS
1. General Definitions. Except as otherwise specified herein, the
following definitions shall apply to all Articles and Appendices
contained in this Agreement. Additional definitions that are specific
to the matters covered in a particular Article may appear in that
Article. To the extent that there may be any conflict between a
definition set forth in this Article II and any definition in a
specific Article or Appendix, the definition set forth in the specific
Article or Appendix shall control with respect to that Article or
Appendix.
1.1 "ACCESS SERVICE REQUEST" (ASR) means an industry standard form
used by the Parties to add, establish, change or disconnect
services or trunks for the purposes of Interconnection.
1.2 "ACT" means the Telecommunications Act of 1996, Public Law 104-104
of the 104th United States Congress effective February 8, 1996.
1.3 "AFFILIATE" of a Party means a person, corporation or other legal
entity that, directly or indirectly, owns or controls a Party, or
is owned or controlled by, or is under common ownership or control
with a Party.
1.4 "AMA" means the Automated Message Accounting structure inherent in
switch technology that initially records telecommunication message
information. AMA format is contained in the Automated Message
Accounting document, published by Bellcore as GR-1100-CORE which
defines the industry standard for message recording.
1.5 "APPLICABLE LAW" shall mean all laws, statutes, common law,
regulations, ordinances, codes, rules, guidelines, orders,
permits, and approvals of any Governmental Authority, which apply
or relate to the subject matter of this Agreement.
1.6 "AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM
(ALI/DMS)" means the emergency services (E911/911) database
containing customer location information (including name, address,
telephone number, and sometimes special information from the local
service provider) used to process subscriber access records into
Automatic Location Identification (ALI) records. From this
database, records are forwarded to GTE's ALI Gateway for
downloading by local ALI database systems to be available for
retrieval in response to ANI from a 9-1-1 call. Also, from this
database, GTE will upload to its selective routers the selective
router ALI (SR/ALI) which is used to determine to which Public
Safety Answering Point ("PSAP") to route the call.
1.7 "AUTOMATIC NUMBER IDENTIFICATION" OR "ANI" refers to the number
transmitted through the network identifying the calling party.
1.8 "BELLCORE" means an organization owned jointly by the Bell
regional holding companies and that may in the future be owned
partially or totally by other persons, that conducts research and
development projects for its owners, including development of new
telecommunications services. Bellcore also provides certain
centralized technical and management services for the regional
holding companies and also provides generic requirements for the
telecommunications industry for products, services and
technologies.
1.9 "BILL-AND-KEEP ARRANGEMENT" means a compensation arrangement
whereby the Parties do not render bills to each other for the
termination of local traffic specified in this
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Agreement and whereby the Parties terminate local exchange traffic
originating from end-users served by the networks of the other
Party without explicit charging among or between said carriers for
such traffic exchange.
1.10 "BONA FIDE REQUEST (BFR)" process is intended to be used when
requesting customized Service Orders for certain services,
features, capabilities or functionality defined and agreed upon by
the Parties as services to be ordered as Bona Fide Requests.
1.11 "BUSINESS DAY" shall mean Monday through Friday, except for
holidays on which the U.S. mail is not delivered.
1.12 "CENTRAL OFFICE SWITCH" means a switch used to provide
telecommunications services including (I) "End Office Switches"
which are Class 5 switches from which end user Exchange Services
are directly connected and offered, and (ii) "Tandem Office
Switches" which are Class 4 switches which are used to connect and
switch trunk circuits between and among central office switches.
Central office switches may be employed as combination end
office/tandem office switches (combination Class 5/Class 4).
1.13 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS) means the billing
record and clearing house transport system that the Regional Bell
Operating Companies ("RBOCs") and other incumbent LECs use to
efficiently exchange out collects and in collects as well as
Carrier Access Billing System ("CABS") records.
1.14 "CLLI CODES" means Common Language Location Identifier Codes.
1.15 "COMMERCIAL MOBILE RADIO SERVICES" (CMRS) means a radio
communication service between mobile stations or receivers and
land stations, or by mobile stations communicating among
themselves that is provided for profit and that makes
interconnected service available to the public or to such classes
of eligible users as to be effectively available to a substantial
portion of the public.
1.16 "COMMISSION" means the Texas Public Utility Commission.
1.17 "COMMON CHANNEL SIGNALING" OR "CCS" means a high-speed specialized
packet-switched communications network that is separate
(out-of-band) from the public packet-switched and message
networks. CCS carries addressed signaling messages for individual
trunk circuits and/or database-related services between Signaling
Points in the CCS network using SS7 signaling protocol.
1.18 "COMPETITIVE LOCAL EXCHANGE CARRIER" (CLEC) means any company or
person authorized to provide local exchange services in
competition with an ILEC.
1.19 "COMPLIANCE" means environmental and safety laws and regulations
are based upon a federal regulatory framework, with certain
responsibilities delegated to the States. An environmental/safety
compliance program may include review of applicable
laws/regulations, development of written procedures, training of
employees and auditing.
1.20 "CUSTOMER" may mean GTE or DTI depending on the context and which
Party is receiving the service from the other Party.
1.21 "CUSTOMER USAGE DATA" means that the local telecommunications
services usage data of a CLEC customer, measured in minutes,
sub-minute increments, message units, or otherwise, that is
recorded and exchanged by the Parties.
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1.22 "DS-1" is a digital signal rate of 1.544 Mbps.
1.23 "DS-3" is a digital signal rate of 44.736 Mbps.
1.24 "ELECTRONIC FILE TRANSFER" refers to a system or process which
utilizes an electronic format and protocol to send/receive data
files.
1.25 "EMR" means the Exchange Message Record which is an industry
standard record used to exchange telecommunications message
information among CLECs for billable, non-billable, sample,
settlement and study data. EMR format is defined in BR-010-200-010
CRIS Exchange Message Record, published by Bellcore and which
defines the industry standard for exchange message records.
1.26 "E-911 SERVICE" is a method of routing 911 calls to a Public
Service Answering Point that uses a customer location database to
determine the location to which a call should be routed. E-9-1-1
service includes the forwarding of the caller's Automatic Number
Identification (ANI) to the PSAP where the ANI is used to retrieve
and display the Automatic Location Identification (ALI) on a
terminal screen at the answering Attendant's position. It usually
includes selective routing.
1.27 "EXCHANGE SERVICE" refers to all basic access line services, or
any other services offered to end users which provide end users
with a telephonic connection to, and a unique telephone number
address on, the public switched telecommunications network
("PSTN"), and which enable such end users to place or receive
calls to all other stations on the PSTN.
1.28 "EIS" OR "EXPANDED INTERCONNECTION SERVICE" means a service
that provides interconnecting carriers with the capability to
terminate basic fiber optic transmission facilities, including
optical terminating equipment and multiplexers, at GTE's wire
centers and access tandems and interconnect those facilities with
the facilities of GTE. Microwave is available on a case-by-case
basis where feasible.
1.29 "FACILITY" means all buildings, equipment, structures and other
items located on a single site or contiguous or adjacent sites
owned or operated by the same persons or person as used in Article
III, Section 44.
1.30 "FCC" means the Federal Communications Commission.
1.31 "GENERATOR" means under Resource Conservation Recovery Act (RCRA),
the person whose act produces a hazardous waste (40 CFR 261) or
whose act first causes a hazardous waste to become subject to
regulation. The generator is legally responsible for the proper
management and disposal of hazardous wastes in accordance with
regulations.
1.32 "GTOC" means GTE Telephone Operating Company.
1.33 "GUIDE" means the GTE Open Market Transition Order/Processing
Guide/ALEC Customer Guide, which contains GTE's operating
procedures for ordering, provisioning, trouble reporting and
repair for resold services and unbundled elements. Except as
specifically provided otherwise in this Agreement, service
ordering, provisioning, billing and maintenance shall be governed
by the "Guide" which may be amended from time to time by GTE as
needed.
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1.34 "HAZARDOUS CHEMICAL" means as defined in the U.S. Occupational
Safety and Health (OSHA) hazard communication standard (29 CFR
1910.1200), any chemical which is a health hazard or physical
hazard.
1.35 "HAZARDOUS WASTE" means as described in Resource Conservation
Recovery Act (RCRA), a solid waste(s) which may cause, or
significantly contribute to an increase in mortality or illness or
pose a substantial hazard to human health or the environment when
improperly treated, stored, transported or disposed of or
otherwise managed because of its quantity, concentration or
physical or chemical characteristics.
1.36 "IMMINENT DANGER" means as described in the Occupational Safety
and Health Act and expanded for environmental matters, any
conditions or practices at a facility which are such that a danger
exists which could reasonably be expected to cause death or
serious harm or significant damage to the environment or natural
resources.
1.37 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) means any local exchange
carrier that was as of February 8, 1996, deemed to be a member of
the Exchange Carrier Association as set forth in 47 C.F.R.
ss.69.601(b) of the FCC's regulations.
1.38 "INTERIM NUMBER PORTABILITY (INP)" means the delivery of LNP
capabilities, from a customer standpoint in terms of call
completion, with as little impairment of functioning, quality,
reliability, and convenience as possible and from a carrier
standpoint in terms of compensation, through the use of existing
and available call routing, forwarding, and addressing
capabilities.
1.39 "INTERCONNECTION POINT" ("IP") means the physical point on the
network where the two parties interconnect. The "IP" is the
demarcation point between ownership of the transmission facility.
1.40 "ISDN USER PART (ISUP)" means a part of the SS7 protocol that
defines call setup messages and call takedown messages.
1.41 "IXC" OR "INTEREXCHANGE CARRIER" means a telecommunications
service provider authorized by the FCC to provide interstate long
distance communications services between LATAs and are authorized
by the State to provide inter- and/or intraLATA long distance
communications services within the State.
1.42 "INTERNETWORK FACILITIES" OR "INTERCONNECTION FACILITY" means the
physical connection of separate pieces of equipment, transmission
facilities, etc., within, between and among networks, for the
transmission and routing of exchange service and exchange access.
1.43 "LATA" means Local Access and Transport Area. A LATA denotes a
geographic area for the provision and administration of
communications service; i.e., intraLATA or interLATA.
1.44 "LINE INFORMATION DATA BASE (LIDB)" means one or all, as the
context may require, of the Line Information databases owned
individually by GTE and other entities which provide, among other
things, calling card validation functionality for telephone line
number cards issued by GTE and other entities. A LIDB also
contains validation data for collect and third number-billed
calls; i.e., Billed Number Screening.
1.45 "LINE SIDE" refers to an end office switch connection that has
been programmed to treat the circuit as a local line connected to
an ordinary telephone station set. Line side
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connections offer only those transmission and signaling features
appropriate for a connection between an end office and an ordinary
telephone set.
1.46 "LOCAL EXCHANGE CARRIER" OR "LEC" means any company certified by
the Commission to provide local exchange telecommunications
service. This includes the Parties to this Agreement.
1.47 "LOCAL EXCHANGE ROUTING GUIDE" OR "LERG" means the Bellcore
reference customarily used to identify NPA-NXX routing and homing
information, as well as network element and equipment designation.
1.48 "LOCAL NUMBER PORTABILITY (LNP)" means the ability of users of
telecommunications services to retain, at the same location,
existing telecommunications numbers without impairment of quality,
reliability, or convenience when switching from one
telecommunications carrier to another.
1.49 "LOCAL TRAFFIC" means traffic that is originated by an end user of
one Party and terminates to the end user of the other Party within
GTE's then current local serving area, including mandatory local
calling scope arrangements. A mandatory local calling scope
arrangement is an arrangement that provides end users a local
calling scope, Extended Area Service ("EAS"), beyond their basic
exchange serving area. Local Traffic does not include optional
local calling scopes (i.e., optional rate packages that permit the
end user to choose a local calling scope beyond their basic
exchange serving area for an additional fee), referred to
hereafter as "optional EAS." Local Traffic excludes Information
Service Provider ("ISP") traffic (e.g., Internet, paging, 900-976,
etc.).
1.50 "MDF" OR "MAIN DISTRIBUTION FRAME" means the distribution frame
used to interconnect cable pairs and line trunk equipment
terminating on a switching system.
1.51 "MEET-POINT BILLING" OR "MPB" refers to an arrangement whereby two
LECs jointly provide the transport element of a switched access
service to one of the LEC's end office switches, with each LEC
receiving an appropriate share of the transport element revenues
as defined by their effective access tariffs.
1.52 "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 Telecommunications Industry Solutions ("ATIS"). The MECAB
document, published by Bellcore as Special Report SR-BDS-000983,
contains the recommended guidelines for the billing of an access
service provided by two or more LECs, or by one LEC in two or more
states within a single LATA.
1.53 "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 under the auspices 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, establish methods for processing
orders for access service which is to be provided by two or more
LECs.
1.54 "MID-SPAN FIBER MEET" means an Interconnection architecture
whereby two carriers' fiber transmission facilities meet at a
mutually agreed-upon POI.
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1.55 "NANP" means the "North American Numbering Plan", the system of
telephone numbering employed in the United States, Canada, and the
Caribbean countries that employ NPA 809.
1.56 "NETWORK ELEMENT" means a facility or equipment used in the
provision of a telecommunications service. Network Element
includes features, functions, and capabilities that are provided
by means of such facility or equipment, including subscriber
numbers, databases, signaling systems, and information sufficient
for billing and collection or used in the transmission, routing,
or other provision of a telecommunications service.
1.57 "NID" OR "NETWORK INTERFACE DEVICE" means the point of demarcation
between the end user's inside wiring and GTE's facilities.
1.58 "NUMBERING PLAN AREA" OR "NPA" is also sometimes referred to as an
area code. This is the three digit indicator which is defined by
the "A", "B", and "C" digits of each 10-digit telephone number
within the NANP. Each NPA contains 800 possible NXX Codes. There
are two general categories of NPA, "Geographic NPAs" and
"Non-Geographic NPAs". A Geographic NPA is associated with a
defined geographic area, and all telephone numbers bearing such
NPA are associated with services provided within that geographic
area. A Non-Geographic NPA, also known as a "Service Access Code"
or "SAC Code" is typically associated with a specialized
telecommunications service which may be provided across multiple
geographic NPA areas. 800, 900, 700, and 888 are examples of
Non-Geographic NPAs.
1.59 "NXX", "NXX CODE", "CENTRAL OFFICE CODE" OR "CO CODE" is the three
digit switch entity indicator which is defined by the "D", "E",
and "F" digits of a 10-digit telephone number within the NANP.
Each NXX Code contains 10,000 station numbers.
1.60 "911 SERVICE" means a universal telephone number which gives the
public direct access to the PSAP. Basic 911 service collects 911
calls from one or more local exchange switches that serve a
geographic area. The calls are then sent to the correct authority
designated to receive such calls.
1.61 "OWNER AND OPERATOR" means as used in OSHA regulations, owner is
the legal entity, including a lessee, which exercises control over
management and record keeping functions relating to a building or
facility. As used in the Resource Conservation and Recovery Act
(RCRA), operator means the person responsible for the overall (or
part of the) operations of a facility.
1.62 "POI" means Point of Interconnection designated for routing of
local interconnection trunks.
1.63 "POLE ATTACHMENT" has the meaning as set forth in Article X and
Appendix K of this Agreement.
1.64 "PROVIDER" may mean GTE or DTI depending on the context and which
Party is providing the service to the other Party.
1.65 "PUBLIC SAFETY ANSWERING POINT" OR "PSAP" means an answering
location for 9-1-1 calls originating in a given area. A PSAP may
be designated as Primary or Secondary, which refers to the order
in which calls are directed for answering. Primary PSAPs respond
first; Secondary PSAPs receive calls on a transfer basis only, and
generally serve as a centralized answering location for a
particular type of emergency call. PSAPs are staffed
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by employees of Emergency Response Agencies ("ERAs") such as
police, fire or emergency medical agencies or by employees of a
common bureau serving a group of such entities.
1.66 "RATE CENTER" means the specific geographic point and
corresponding geographic area that are associated with one or more
particular NPA-NXX Codes that have been assigned to a LEC for its
provision of Exchange Services. The geographic point is identified
by a specific Vertical and Horizontal (V&H) coordinate that is
used to calculate distance-sensitive end user traffic to/from the
particular NPA-NXXs associated with the specific Rate Center.
1.67 "RIGHT-OF-WAY" OR "ROW" means the right to use the land or other
property of another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such
structures and equipment. A ROW may run under, on, or above public
or private property (including air space above public or private
property) and may include the right to use discrete space in
buildings, building complexes, or other locations.
1.68 "ROUTING POINT" denotes a location that a LEC has designated on
its network as the homing (routing) point for traffic that
terminates to Exchange Services provided by the LEC that bear a
certain NPA-NXX designation. The Routing Point is used to
calculate airline mileage for the distance-sensitive transport
element charges of Switched Access Services. Pursuant to Bellcore
Practice BR795-100-100, the Routing Point may be an end office
location, or a "LEC Consortium Point of Interconnection." The
Routing Point must be in the same LATA as the associated NPA-NXX.
1.69 "SERVICE CONTROL POINT" OR "SCP" is the node in the signaling
network to which informational requests for service handling, such
as routing, are directed and processed. The SCP is a real time
database system that, based on a query from the SSP, performs
subscriber or application-specific service logic, and then sends
instructions back to the SSP on how to continue call processing.
1.70 "SERVICE SWITCHING POINT" OR "SSP" means a Signaling Point that
can launch queries to databases and receive/interpret responses
used to provide specific customer services.
1.71 "SIGNALING POINT" OR "SP" means a node in the CCS network that
originates and/or receives signaling messages, or transfers
signaling messages from one signaling link to another, or both.
1.72 "SIGNALING SYSTEM 7" OR "SS7" means the signaling protocol,
Version 7, of the CCS network, based upon American National
Standards Institute ("ANSI") standards.
1.73 "SIGNAL TRANSFER POINT" OR "STP" means a packet switch in the CCS
network that is used to route signaling messages among SSPs, SCPs
and other STPs in order to set up calls and to query databases for
advanced services. GTE's network includes mated pairs of local and
regional STPs. STPs are provided in pairs for redundancy. GTE STPs
conform to ANSI T1.111-8 standards.
1.74 "SUBSIDIARY" of a Party means a corporation or other legal entity
that is majority owned by such Party.
1.75 "SYNCHRONOUS OPTICAL NETWORK" OR "SONET" means synchronous
electrical ("STS") or optical channel ("OC") connections between
LECs.
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1.76 "SWITCHED ACCESS SERVICE" means the offering of facilities for the
purpose of the origination or termination of traffic to or from
Exchange Service customers in a given area pursuant to a switched
access tariff. Switched Access Services include: Feature Group A,
Feature Group B. Feature Group C, Feature Group D, 800 access and
900 access services.
1.77 "TELECOMMUNICATIONS SERVICES" means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.
1.78 "THIRD PARTY CONTAMINATION" means environmental pollution that is
not generated by the LEC or DTI but results from off-site
activities impacting a facility.
1.79 "TRUNK SIDE" refers to a central office switch connection that is
capable of, and has been programmed to treat the circuit as,
connecting to another switching entity, for example, to another
central office switch. Trunk side connections offer those
transmission and signaling features appropriate for the connection
of switching entities and cannot be used for the direct connection
of ordinary telephone station sets.
1.80 "UNDEFINED TERMS" means the Parties acknowledge that terms may
appear in this Agreement which are not defined and agree that any
such terms shall be construed in accordance with their customary
usage in the telecommunications industry as of the effective date
of this Agreement.
1.81 "VERTICAL FEATURES" (INCLUDING "CLASS FEATURES") means vertical
services and switch functionalities provided by GTE, including:
Automatic Call Back; Automatic Recall; Call Forwarding Busy
Line/Don't Answer; Call Forwarding Don't Answer; Call Forwarding
Variable; Call Forwarding - Busy Line; Call Trace; Call Waiting;
Call Number Delivery Blocking Per Call; Calling Number Blocking
Per Line; Cancel Call Waiting; Distinctive Ringing/Call Waiting;
Incoming Call Line Identification Delivery; Selective Call
Forward; Selective Call Rejection; Speed Calling; and Three Way
Calling/Call Transfer.
1.82 "WIRE CENTER" means a building or space within a building that
serves as an aggregation point on a LEC's network, where
transmission facilities and circuits are connected or switched.
"Wire center" can also denote a building in which one or more
Central Offices, used for the provision of exchange services and
access services, are located.
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ARTICLE III
GENERAL PROVISIONS
1. Scope of General Provisions. Except as may otherwise be set forth in a
particular Article or Appendix of this Agreement, in which case the
provisions of such Article or Appendix shall control, these General
Provisions apply to all Articles and Appendices of this Agreement.
2. Term and Termination.
2.1 Term. Subject to the termination provisions contained in this
Agreement, the term of this Agreement shall be two (2) years from
the effective date referenced in the first paragraph of this
Agreement and shall continue in effect for consecutive one (1)
year terms until either Party gives the other Party at least
ninety (90) calendar days written notice of termination, which
termination shall be effective at the end of the then-current
term. In the event notice is given less than 90 calendar days
prior to the end of the current term, this Agreement shall remain
in effect for 90 calendar days after such notice is received,
provided, that in no case shall the term be extended beyond 90
calendar days after the end of the current term.
2.2 Post-Termination Arrangements. Except in the case of termination
as a result of either Party's default or a termination upon sale,
for service arrangements made available under this Agreement and
existing at the time of termination, those arrangements may
continue without interruption (a) under a new agreement
voluntarily executed by the Parties; (b) standard terms and
conditions approved and made generally effective by the
Commission, if any; (c) tariff terms and conditions made generally
available to all CLECs; or (d) any rights under Section 252(I) of
the Act.
2.3 Termination Upon Default. Either Party may terminate this
Agreement in whole or in part in the event of a default by the
other Party; provided however, that the non-defaulting Party
notifies the defaulting party in writing of the alleged default
and that the defaulting Party does not cure the alleged default
within sixty (60) calendar days of receipt of written notice
thereof. Default is defined to include:
(a) A Party's insolvency or the initiation of bankruptcy or
receivership proceedings by or against the Party; or
(b) A Party's refusal or failure in any material respect properly
to perform its obligations under this Agreement, or the
violation any of the material terms or conditions of this
Agreement.
2.4 Termination Upon Sale. Notwithstanding anything to the contrary
contained herein, a Party may terminate this Agreement as to a
specific operating area or portion thereof of such Party if such
Party sells or otherwise transfers the area or portion thereof.
The Party shall provide the other Party with at least ninety (90)
calendar days' prior written notice of such termination, which
shall be effective on the date specified in the notice.
Notwithstanding termination of this Agreement as to a specific
operating area, this Agreement shall remain in full force and
effect in the remaining operating areas.
2.5 Liability upon Termination. Termination of this Agreement, or any
part hereof, for any cause shall not release either Party from any
liability which at the time of termination had already accrued to
the other Party or which thereafter accrues in any respect to any
act or omission occurring prior to the termination or from an
obligation which is expressly stated in this Agreement to survive
termination.
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3. Amendments. Any amendment, modification, or supplement to this
Agreement must be in writing and signed by an authorized
representative of each Party. The term "this Agreement" shall include
future amendments, modifications, and supplements.
4. Assignment. Any assignment by either Party of any right, obligation,
or duty, in whole or in part, or of any interest, without the written
consent of the other Party shall be void, except that either Party may
assign all of its rights, and delegate its obligations, liabilities
and duties under this Agreement, either in whole or in part, to any
entity that is, or that was immediately preceding such assignment, a
Subsidiary or Affiliate of that Party without consent, but with
written notification. The effectiveness of an assignment shall be
conditioned upon the assignee's written assumption of the rights,
obligations, and duties of the assigning Party.
5. Authority. Each person whose signature appears on this Agreement
represents and warrants that he or she has authority to bind the Party
on whose behalf he or she has executed this Agreement.
6. Responsibility for Payment. All charges for Services provided under
this Agreement will be billed to DTI, including all applicable
taxes and surcharges. In addition, the End User Common Line (EUCL)
Charge from GTOC Tariff FCC No. 1 is applicable to Resold Services.
DTI is responsible for payment of charges billed regardless of any
billing arrangements or situation between DTI and its end user
customer.
7. Billing and Payment. Except as provided elsewhere in this
Agreement and where applicable, in conformance with MECAB and MECOD
guidelines, DTI and GTE agree to exchange all information to
accurately, reliably, and properly bill for features, functions and
services rendered under this Agreement.
7.1 Dispute. If one Party disputes a billing statement issued by
the other Party, the billed Party shall notify Provider in
writing regarding the nature and the basis of the dispute within
six (6) months of the statement date or the dispute shall be
waived. The Parties shall diligently work toward resolution of
all billing issues.
7.2 Late Payment Charge. If any undisputed amount due on the billing
statement is not received by Provider on the payment due
date, Provider may charge, and Customer agrees to pay, at
Provider's option, interest on the past due balance at a rate
equal to the lesser of the interest rates set forth in the
applicable GTE/Contel state access tariffs or the GTOC/GSTC FCC
No. 1 tariff, one and one-half percent (1 1/2%) per month or the
maximum nonusurious rate of interest under applicable law. Late
payment charges shall be included on the next statement.
7.3 Due Date. Payment is due 30 calendar days from the bill date.
7.4 Audits. Either Party may conduct an audit of the other Party's
books and records pertaining to the Services provided under this
Agreement, no more frequently than once per twelve (12) month
period, to evaluate the other Party's accuracy of billing, data
and invoicing in accordance with this Agreement. Any audit shall
be performed as follows: (i) following at least thirty (30)
Business Days' prior written notice to the audited Party; (ii)
subject to the reasonable scheduling requirements and limitations
of the audited Party: (iii) at the auditing Party's sole cost and
expense; (iv) of a reasonable scope and duration; (v) in a manner
so as not to interfere with the audited Party's business
operations; and (vi) in compliance with the audited Party's
security rules.
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8. Binding Effect. This Agreement shall be binding on and inure to
the benefit of the respective successors and permitted assigns of the
Parties.
9. Capacity Planning and Forecasting. Within thirty (30) days from
the Effective Date of this Agreement, the Parties agree to have met
and developed joint planning and forecasting responsibilities which
are applicable to Local Services, including Features, Network
Elements, INP, Interconnection Services, Collocation, Poles, Conduits
and Rights of Way (ROW). Such responsibilities shall include but are
not limited to the following:
(a) The Parties will establish periodic reviews of network and
technology plans and will notify one another no later than
six (6) months in advance of changes that would impact either
Party's provision of services.
(b) DTI will furnish to GTE information that provides for
state-wide annual forecasts of order activity, in-service
quantity forecasts, and facility/demand forecasts.
(c) The Parties will develop joint forecasting responsibilities
for traffic utilization over trunk groups and yearly
forecasted trunk quantities.
(d) DTI shall notify GTE promptly of changes to current forecasts
(increase or decrease) that generate a shift in the demand
curve for the following forecasting period.
10. Compliance with Laws and Regulations. Each Party shall comply with
all federal, state, and local statutes, regulations, rules,
ordinances, judicial decisions, and administrative rulings applicable
to its performance under this Agreement.
11. Confidential Information.
11.1 Identification. Either Party may disclose to the other
proprietary or confidential customer, technical, or business
information in written, graphic, oral or other tangible or
intangible forms ("Confidential Information"). In order for
information to be considered Confidential Information under
this Agreement, it must be marked "Confidential" or
"Proprietary," or bear a marking of similar import. Orally or
visually disclosed information shall be deemed Confidential
Information only if contemporaneously identified as such and
reduced to writing and delivered to the other Party with a
statement or marking of confidentiality within thirty (30)
calendar days after oral or visual disclosure.
Notwithstanding the foregoing, preorders and all orders for Services
or network elements placed by DTI pursuant to this Agreement, and
information that would constitute customer proprietary network
information of DTI end user customers pursuant to the Act and the
rules and regulations of the FCC, as well as recorded usage
information with respect to DTI end users, whether disclosed by DTI to
GTE or otherwise acquired by GTE in the course of its performance
under this Agreement, and where GTE is the NANP Number Plan
Administrator, DTI information submitted to GTE in connection with
such responsibilities shall be deemed Confidential Information of DTI
for all purposes under this Agreement whether or not specifically
marked or designated as confidential or proprietary.
11.2 Handling. In order to protect such Confidential Information
from improper disclosure, each Party agrees:
(a) That all Confidential Information shall be and shall remain
the exclusive property of the source;
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(b) To limit access to such Confidential Information to
authorized employees who have a need to know the Confidential
Information for performance of this Agreement;
(c) To keep such Confidential Information confidential and to use
the same level of care to prevent disclosure or unauthorized
use of the received Confidential Information as it exercises
in protecting its own Confidential Information of a similar
nature;
(d) Not to copy, publish, or disclose such Confidential
Information to others or authorize anyone else to copy,
publish, or disclose such Confidential Information to others
without the prior written approval of the source;
(e) To return promptly any copies of such Confidential
Information to the source at its request; and
(f) To use such Confidential Information only for purposes of
fulfilling work or services performed hereunder and for other
purposes only upon such terms as may be agreed upon between
the Parties in writing.
11.3 Exceptions. These obligations shall not apply to any
Confidential Information that was legally in the recipient's
possession prior to receipt from the source, was received in
good faith from a Third Party not subject to a confidential
obligation to the source, now is or later becomes publicly
known through no breach of confidential obligation by the
recipient, was developed by the recipient without the
developing persons having access to any of the Confidential
Information received in confidence from the source, or that
is required to be disclosed pursuant to subpoena or other
process issued by a court or administrative agency having
appropriate jurisdiction, provided, however, that the
recipient shall give prior notice to the source and shall
reasonably cooperate if the source deems it necessary to seek
protective arrangements.
11.4 Survival. The obligation of confidentiality and use with
respect to Confidential Information disclosed by one Party to
the other shall survive any termination of this Agreement for
a period of three (3) years from the date of the initial
disclosure of the Confidential Information.
12. Consent. Where consent, approval, or mutual agreement is required
of a Party, it shall not be unreasonably withheld or delayed.
13. Cooperation on Fraud Minimization. DTI assumes responsibility for
all fraud associated with its end user customers and accounts. GTE
shall have no responsibility for, nor is it required to investigate or
make adjustments to DTI's account in cases of fraud. The Parties agree
that they shall cooperate with one another to resolve cases of fraud.
The Parties' fraud minimization procedures are to be cost effective
and implemented so as not to unduly burden or harm one Party as
compared to the other.
14. Dispute Resolution.
14.1 Alternative to Litigation. Except as provided under Section
252 of the Act with respect to the approval of this Agreement
by the Commission, the Parties desire to resolve disputes
arising out of or relating to this Agreement without
litigation. Accordingly, except for action seeking a
temporary restraining order or an injunction related to the
purposes of this Agreement, or suit to compel compliance with
this dispute resolution process, the Parties agree to use the
following alternative dispute resolution procedures as their
sole remedy
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with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
14.2 Negotiations. At the written request of a Party, each Party
will appoint a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute
arising out of or relating to this Agreement. The Parties
intend that these negotiations be conducted by non-lawyer,
business representatives. The location, format, frequency,
duration, and conclusion of these discussions shall be left
to the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute
resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes of
settlement, exempt from discovery, and shall not be
admissible in the arbitration described below or in any
lawsuit without the concurrence of all Parties. Documents
identified in or provided with such communications, which are
not prepared for purposes of the negotiations, are not so
exempted and may, if otherwise discoverable, be discovered or
otherwise admissible, be admitted in evidence, in the
arbitration or lawsuit.
14.3 Arbitration. If the negotiations do not resolve the dispute
within sixty (60) Business Days of the initial written
request, the dispute shall be submitted to binding
arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association
except that the Parties may select an arbitrator outside
American Arbitration Association rules upon mutual agreement.
A Party may demand such arbitration in accordance with the
procedures set out in those rules. Discovery shall be
controlled by the arbitrator and shall be permitted to the
extent set out in this section. Each Party may submit in
writing to a Party, and that Party shall so respond to, a
maximum of any combination of thirty-five (35) (none of which
may have subparts) of the following: interrogatories, demands
to produce documents, or requests for admission. Each Party
is also entitled to take the oral deposition of one
individual of another Party. Additional discovery may be
permitted upon mutual agreement of the Parties. The
arbitration hearing shall be commenced within sixty (60)
Business Days of the demand for arbitration. The arbitration
shall be held in a mutually agreeable city. The arbitrator
shall control the scheduling so as to process the matter
expeditiously. The Parties may submit written briefs. The
arbitrator shall rule on the dispute by issuing a written
opinion within thirty (30) Business Days after the close of
hearings. The times specified in this section may be extended
upon mutual agreement of the Parties or by the arbitrator
upon a showing of good cause. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
14.4 Expedited Arbitration Procedures. If the issue to be resolved
through the negotiations referenced in Section 14.2 directly
and materially affects service to either Party's end user
customers, then the period of resolution of the dispute
through negotiations before the dispute is to be submitted to
binding arbitration shall be five (5) Business Days. Once
such a service affecting dispute is submitted to arbitration,
the arbitration shall be conducted pursuant to the expedited
procedures rules of the Commercial Arbitration Rules of the
American Arbitration Association (i.e., rules 53 through 57).
14.5 Costs. Each Party shall bear its own costs of these
procedures. A Party seeking discovery shall reimburse the
responding Party the costs of production of documents
(including search time and reproduction costs). The Parties
shall equally split the fees of the arbitration and the
arbitrator.
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14.6 Continuous Service. The Parties shall continue providing
services to each other during the pendency of any dispute
resolution procedure, and the Parties shall continue to
perform their obligations (including making payments in
accordance with Article IV, Section 4) in accordance with
this Agreement.
15. Entire Agreement. This Agreement constitutes the entire agreement
of the Parties pertaining to the subject matter of this Agreement
and supersedes all prior agreements, negotiations, proposals, and
representations, whether written or oral, and all contemporaneous
oral agreements, negotiations, proposals, and representations
concerning such subject matter. No representations,
understandings, agreements, or warranties, expressed or implied,
have been made or relied upon in the making of this Agreement
other than those specifically set forth herein.
16. Expenses. Except as specifically set out in this Agreement, each
Party shall be solely responsible for its own expenses involved in
all activities related to the subject of this Agreement.
17. Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is either directly or indirectly prevented,
restricted, or interfered with by reason of fire, flood,
earthquake or likes acts of God, wars, revolution, civil
commotion, explosion, acts of public enemy, embargo, acts of the
government in its sovereign capacity, labor difficulties,
including without limitation, strikes, slowdowns, picketing, or
boycotts, unavailability of equipment from vendor, changes
requested by Customer, or any other circumstances beyond the
reasonable control and without the fault or negligence of the
Party affected, the Party affected, upon giving prompt notice to
the other party, shall be excused from such performance on a
day-to-day basis to the extent of such prevention, restriction, or
interference (and the other Party shall likewise be excused from
performance of its obligations on a day-to-day basis until the
delay, restriction or interference has ceased); provided however,
that the Party so affected shall use diligent efforts to avoid or
remove such causes of nonperformance and both Parties shall
proceed whenever such causes are removed or cease.
18. Good Faith Performance. In the performance of their obligations
under this Agreement, the Parties shall act in good faith. In
situations in which notice, consent, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, such action shall not be unreasonably delayed, withheld
or conditioned.
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the state where the
Services are provided or the facilities reside and shall be
subject to the exclusive jurisdiction of the courts therein.
20. Standard Practices. The Parties acknowledge that GTE shall be
adopting some industry standard approaches and/or establishing its
own standard approaches to various requirements hereunder
applicable to DTI industry which may be added in the Guide. DTI
agrees that GTE may implement such approaches to satisfy any GTE
obligations under this Agreement. A copy is attached hereto as
Appendix A and is incorporated by reference into this Agreement.
21. Headings. The headings in this Agreement are inserted for
convenience and identification only and shall not be considered in
the interpretation of this Agreement.
22. Independent Contractor Relationship. The persons provided by each
Party shall be solely that Party's employees and shall be under
the sole and exclusive direction and control of that Party. They
shall not be considered employees of the other Party for any
purpose. Each Party shall remain an independent contractor with
respect to the other and shall be responsible for compliance with
all laws, rules and regulations involving, but not limited to,
employment of labor,
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<PAGE> 28
hours of labor, health and safety, working conditions and payment
of wages. Each Party shall also be responsible for payment of
taxes, including federal, state and municipal taxes, chargeable or
assessed with respect to its employees, such as Social Security,
unemployment, workers' compensation, disability insurance, and
federal and state withholding. Each Party shall indemnify the
other for any loss, damage, liability, claim, demand, or penalty
that may be sustained by reason of its failure to comply with this
provision.
23. Law Enforcement Interface.
23.1 Except to the extent not available in connection with GTE's
operation of its own business, GTE shall provide seven day a
week/twenty-four hour a day assistance to law enforcement
persons for emergency traps, assistance involving emergency
traces and emergency information retrieval on customer
invoked CLASS services, including, without limitation, call
traces requested by DTI.
23.2 GTE agrees to work jointly with DTI in security matters to
support law enforcement agency requirements for taps, traces,
court orders, etc. Charges for providing such services for
DTI Customers will be billed to DTI.
23.3 GTE will, in non emergency situations, inform the requesting
law enforcement agencies that the end-user to be wire tapped,
traced, etc. is a DTI Customer and shall refer them to DTI.
24. Liability and Indemnity.
24.1 Indemnification. Subject to the limitations set forth in
Section 24.4 of this Article III, each Party agrees to
release, indemnify, defend, and hold harmless the other Party
from all losses, claims, demands, damages, expenses, suits,
or other actions, or any liability whatsoever, including, but
not limited to, costs and attorney's fees, whether suffered,
made, instituted, or asserted by any other party or person,
for invasion of privacy, personal injury to or death of any
person or persons, or for losses, damages, or destruction of
property, whether or not owned by others, proximately caused
by the indemnifying Party's negligence or willful misconduct,
regardless of form of action. The indemnified Party agrees to
notify the other Party promptly, in writing, of any written
claims, lawsuits, or demands for which it is claimed that the
indemnifying Party is responsible under this Section and to
cooperate in every reasonable way to facilitate defense or
settlement of claims. The indemnifying Party shall have
complete control over defense of the case and over the terms
of any proposed settlement or compromise thereof. The
indemnifying Party shall not be liable under this Section for
settlement by the indemnified Party or any claim, lawsuit, or
demand, if the indemnifying Party has not approved the
settlement in advance, unless the indemnifying Party has had
the defense of the claim, lawsuit, or demand tendered to it
in writing and has failed to assume such defense. In the
event of such failure to assume defense, the indemnifying
Party shall be liable for any reasonable settlement made by
the indemnified Party without approval of the indemnifying
Party.
24.2 End User and Content-Related Claims. Each Party agrees to
release, indemnify, defend, and hold harmless the other
Party, its affiliates, and any third-party provider or
operator of facilities involved in the provision of Services,
Unbundled Network Elements or Facilities under this Agreement
(collectively, the "Indemnified Party") from all losses,
claims, demands, damages, expenses, suits, or other actions,
or any liability whatsoever, including, but not limited to,
costs and attorney's fees, suffered, made, instituted, or
asserted by either Party's end users against an Indemnified
Party arising from Services, Unbundled Network Elements or
Facilities. Each Party further agrees to release, indemnify,
defend, and hold
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<PAGE> 29
harmless the Indemnified Party from all losses, claims,
demands, damages, expenses, suits, or other actions, or any
liability whatsoever, including, but not limited to, costs
and attorney's fees, suffered, made, instituted, or asserted
by any Third Party against an Indemnified Party arising from
or in any way related to actual or alleged defamation, libel,
slander, interference with or misappropriation of proprietary
or creative right, or any other injury to any person or
property arising out of content transmitted by the
Indemnified Party or such Party's end users, or any other act
or omission of the Indemnified Party or such Party's end
users.
24.3 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY
IN THIS AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR
WARRANTIES TO CUSTOMER CONCERNING THE SPECIFIC QUALITY OF ANY
SERVICES, UNBUNDLED NETWORK ELEMENTS OR FACILITIES PROVIDED
UNDER THIS AGREEMENT. PROVIDER DISCLAIMS, WITHOUT LIMITATION,
ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR FROM USAGES OF TRADE.
24.4 Limitation of Liability. Each Party's liability, whether in
contract, tort or otherwise, shall be limited to direct
damages, which shall not exceed the monthly charges for the
Services, Unbundled Network Elements or facilities for the
month during which the claim of liability arose. Under no
circumstance shall either Party be responsible or liable for
indirect, incidental, or consequential damages, including,
but not limited to, economic loss or lost business or
profits, damages arising from the use or performance of
equipment or software, or the loss of use of software or
equipment, or accessories attached thereto, delay, error, or
loss of data. Should either Party provide advice, make
recommendations, or supply other analysis related to the
Services, unbundled network elements or facilities described
in this Agreement, this limitation of liability shall apply
to provision of such advice, recommendations, and analysis.
24.5 Intellectual Property. Neither Party shall have any
obligation to defend, indemnify or hold harmless, or acquire
any license or right for the benefit of, or owe any other
obligation or have any liability to, the other based on or
arising from any claim, demand, or proceeding by any Third
Party alleging or asserting that the use of any circuit,
apparatus, or system, or the use of any software, or the
performance of any service or method, or the provision or use
of any facilities by either Party under this Agreement
constitutes direct or contributory infringement, or misuse or
misappropriation of any patent, copyright, trademark, trade
secret, or any other proprietary or intellectual property
right of any Third Party.
25. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all
of which shall together constitute but one and the same document.
26. No Offer. This Agreement will be effective only upon execution and
delivery by both Parties and approval by the Commission in
accordance with Section 252 of the Act.
27. No Third Party Beneficiaries. Except as may be specifically set
forth in this Agreement, this Agreement does not provide and shall
not be construed to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other right or
privilege.
28. 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 U.S. mail, or on the date
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<PAGE> 30
stated on the receipt if delivered by certified or registered mail
or by a courier service that obtains a written receipt. Upon prior
immediate oral agreement of the parties' designated recipients
identified below, notice may also be provided by facsimile,
internet or electronic messaging system, which shall be effective
if sent before 5:00 p.m. on that day, or if sent after 5:00 p.m.
it will be effective on the next Business Day following the date
sent. 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:
If to GTE: GTE Central
Attention: Regulatory Directory
816 Congress
Suite 1500
Austin, Texas 78701
Facsimile number: (512) 370-4275
Internet Address:
----------------------
If to DTI: Digital Teleport, Inc.
Attention: J.W. Sheehy, Vice President,
I.C. Support
11111 Dorsett Road
St. Louis, Missouri 63043
Facsimile number: (314) 253-6699
Internet Address:
----------------------
29. Protection.
29.1 Impairment of Service. The characteristics and methods of
operation of any circuits, facilities or equipment of either
Party connected with the services, facilities or equipment of
the other Party pursuant to this Agreement shall not
interfere with or impair service over any facilities of the
other Party, its affiliated companies, or its connecting and
concurring carriers involved in its services, cause damage to
their plant, violate any applicable law or regulation
regarding the invasion of privacy of any communications
carried over the Party's facilities or create hazards to the
employees of either Party or to the public (each hereinafter
referred to as an "Impairment of Service").
29.2 Resolution. If either Party causes an Impairment in Service,
the Party whose network or service is being impaired (the
"Impaired Party") shall promptly notify the Party causing the
Impairment of Service (the "Impairing Party") of the nature
and location of the problem and that, unless promptly
rectified, a temporary discontinuance of the use of any
circuit, facility or equipment may be required. The Impairing
Party and the Impaired Party agree to work together to
attempt to promptly resolve the Impairment of Service. If the
Impairing Party is unable to promptly remedy the Impairment
of Service, then the Impaired Party may at its option
temporarily discontinue the use of the affected circuit,
facility or equipment.
30. Publicity. Any news release, public announcement, advertising, or
any form of publicity pertaining to this Agreement, provision of
Services, Unbundled Network Elements or Facilities pursuant to it,
or association of the Parties with respect to provision of the
services described in this Agreement shall be subject to prior
written approval of both GTE and DTI.
31. Regulatory Agency Control. This Agreement shall at all times be
subject to changes, modifications, orders, and rulings by the
Federal Communications Commission and/or the
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<PAGE> 31
applicable state utility regulatory commission to the extent the
substance of this Agreement is or becomes subject to the
jurisdiction of such agency.
32. Changes in Legal Requirements. GTE and DTI further agree that the
terms and conditions of this Agreement were composed in order to
effectuate the legal requirements in effect at the time the
Agreement was produced. Any modifications to those requirements
will be deemed to automatically supersede any terms and conditions
of this Agreement.
33. Effective Date. If this Agreement or changes or modifications
thereto are subject to approval of a regulatory agency, the
"effective date" of this Agreement for such purposes will be ten
(10) Business Days after such approval or in the event this
Agreement is developed in whole or in part through arbitration,
sixty (60) Business Days after such approval. Such date (i.e., ten
(10) or, if arbitrated, sixty (60) Business Days after the
approval) shall become the "effective date" of this Agreement for
all purposes.
34. Regulatory Matters. Each Party shall be responsible for obtaining
and keeping in effect all their own FCC, state regulatory
commission, franchise authority and other regulatory approvals
that may be required in connection with the performance of its
obligations under this Agreement.
35. Rule of Construction. No rule of construction requiring
interpretation against the drafting party hereof shall apply in
the interpretation of this Agreement.
36. Section References. Except as otherwise specified, references
within an Article of this Agreement to a Section refer to Sections
within that same Article.
37. Service Standards.
37.1 The Parties shall meet applicable quality of local service
standards imposed by the Commission and will provide a level
of services to each other under this Agreement in compliance
with the nondiscrimination requirements of the Act.
37.2 GTE and DTI agree to implement the performance measures
defined in Appendix A.
37.3 The Parties will alert each other to any network events that
can result or have resulted in service interruption, blocked
calls, and/or changes in network performance.
38. Severability. If any provision of this Agreement is held by a
court or regulatory agency of competent jurisdiction to be
unenforceable, the rest of the Agreement shall remain in full
force and effect and shall not be affected unless removal of that
provision results, in the opinion of either Party, in a material
change to this Agreement. If a material change as described in
this paragraph occurs as a result of action by a court or
regulatory agency, the Parties shall negotiate in good faith for
replacement language. If replacement language cannot be agreed
upon within a reasonable period, either Party may terminate this
Agreement without penalty or liability for such termination upon
written notice to the other Party.
39. Subcontractors. Provider may enter into subcontracts with third
parties or affiliates for the performance of any of Provider's
duties or obligations under this Agreement.
40. Subsequent Law. The terms and conditions of this Agreement shall
be subject to any and all applicable laws, rules, or regulations
that subsequently may be prescribed by any federal, state or local
governmental authority. To the extent required by any such
subsequently prescribed law, rule, or regulation, the Parties
agree to modify, in writing, the affected term(s) and condition(s)
of this Agreement to bring them into compliance with such law,
rule, or regulation.
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<PAGE> 32
41. Taxes. Any state or local excise, sales, or use taxes (excluding
any taxes levied on income) resulting from the performance of
this Agreement shall be borne by the Party upon which the
obligation for payment is imposed under applicable law, even if
the obligation to collect and remit such taxes is placed upon the
other Party. The collecting Party shall charge and collect from
the obligated Party, and the obligated Party agrees to pay to the
collecting Party, all applicable taxes, except to the extent that
the obligated Party notifies the collecting Party and provides to
the collecting Party appropriate documentation as GTE requires
that qualifies the obligated Party for a full or partial
exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated
Party may contest the same in good faith, at its own expense, and
shall be entitled to the benefit of any refund or recovery,
provided that such Party shall not permit any lien to exist on
any asset of the other Party by reason of the contest. The
collecting Party shall cooperate in any such contest by the other
Party. The other Party will indemnify the collecting Party from
any sales or use taxes that may be subsequently levied on
payments by the other Party by the collecting Party.
41.1 Tax - A charge which is statutorily imposed by the state or
local jurisdiction and is either (a) imposed on the seller
with the seller having the right or responsibility to pass
the charge(s) on to the purchaser and the seller is
responsible for remitting the charge(s) to the state or local
jurisdiction or (b) imposed on the purchaser with the seller
having an obligation to collect the charge(s) from the
purchaser and remit the charge(s) to the state or local
jurisdiction.
Taxes shall include but not be limited to: federal excise tax,
state/local sales and use tax, state/local utility user tax,
state/local telecommunication excise tax, state/local gross
receipts tax, and local school taxes. Taxes shall not include
income, income-like, gross receipts on the revenue of a provider,
or property taxes. Taxes shall not include payroll withholding
taxes unless specifically required by statute or ordinance.
41.2 Fees/Regulatory Surcharges - A charge imposed by a regulatory
authority, other agency, or resulting from a contractual
obligation, in which the seller is responsible or required to
collect the fee/surcharge from the purchaser and the seller
is responsible for remitting the charge to the regulatory
authority, other agency, or contracting party.
Fees/Regulatory Surcharges shall include but not be limited to
E911/911, E311/311, franchise fees, Lifeline, hearing impaired,
and Commission surcharges.
42. Trademarks and Trade Names. Except as specifically set out in this
Agreement, 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 any purpose
whatsoever.
43. Waiver. The failure of either Party to insist upon the performance
of any provision of this Agreement, or to exercise any right or
privilege granted to it under this Agreement, shall not be
construed as a waiver of such provision or any provisions of this
Agreement, and the same shall continue in full force and effect.
44. Environmental Responsibility.
44.1 GTE and DTI agree to comply with applicable federal, state
and local environmental and safety laws and regulations
including U.S. Environmental Protection Agency (EPA)
regulations issued under the Clean Air Act, Clean Water Act,
Resource Conservation and Recovery Act, Comprehensive
Environmental Response, Compensation and Liability Act,
Superfund Amendments and Reauthorization Act and the Toxic
Substances Control Act and OSHA regulations issued under the
Occupational Safety and Health Act of 1970.
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Each Party has the responsibility to notify the other if
Compliance inspections occur and/or citations are issued that
impact any aspect of this Agreement such as occurring on a LEC
Facility or involving DTI potential employee exposure.
44.2 GTE and DTI shall provide notice of known and recognized
physical hazards or hazardous chemicals that must include
providing Material Safety Data Sheets (MSDSs) for materials
existing on site or brought on site to the Facility. Each
Party is required to provide specific notice for potential
imminent danger conditions which could include, but is not
limited to, a defective utility pole or significant petroleum
contamination in a manhole.
44.3 GTE will make available additional environmental control or
safety procedures for DTI to review and follow when working
at a GTE Facility. Providing these procedures, beyond
government regulatory Compliance requirements, is the
decision of GTE. These practices/procedures will represent
the regular work practices required to be followed by the
employees and contractors of GTE for safety and environmental
protection.
44.4 Any materials brought, used or remaining at the Facility by
DTI are owned by DTI. DTI will indemnify GTE for these
materials. No substantial new safety or environmental hazards
can be created or new hazardous materials can be used at a
GTE Facility. DTI must demonstrate adequate emergency
response capabilities for its materials used or remaining at
the GTE Facility.
44.5 When Third Party contamination is discovered at a GTE
Facility, the Party uncovering the condition must notify the
proper safety or environmental authority, if required under
applicable laws or regulations. DTI must also notify GTE of
Third Party contamination it discovers at GTE facilities. The
cost causer (requiring access) will become the generator, as
owner or operator, of any waste materials such as petroleum
contaminated water, sewage or manhole sediment.
Notwithstanding Section 24 and Section 44.9 of this Article
III, the cost causer (requiring access) shall indemnify the
other Party hereunder.
44.6 DTI should obtain and use its own environmental permits, if
necessary. If GTE's permit or EPA identification number must
be used, DTI must comply with all of GTE's environmental
processes including environmental "best management practices
(BMP)" and/or selection of disposition vendors and disposal
sites.
44.7 DTI visitors must comply with GTE security, fire safety,
safety, environmental and building practices/codes including
equivalent employee training when working in GTE facilities.
44.8 GTE and DTI shall coordinate plans or information required to
be submitted to government agencies, such as emergency
response plans and community reporting. If fees are
associated with filing, GTE and DTI must develop a cost
sharing procedure.
44.9 Notwithstanding Section 23, with respect to environmental
responsibility under this Section 44, GTE and DTI shall
indemnify, defend and hold harmless the other party from and
against any claims (including, without limitation, Third
Party claims for personal injury or real or personal property
damage), judgments, damages (including direct and indirect
damage, and punitive damages), penalties, fines, forfeitures,
cost, liabilities, interest and losses proximately caused by
the indemnifying Party's negligent or willful misconduct
regardless of form, or in connection with the violation or
alleged violation of any applicable requirement with respect
to the presence or alleged presence of contamination arising
out of the indemnifying party's acts or omissions concerning
its operations at the Facility.
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44.10 Activities impacting safety or the environment of a Right of
Way must be harmonized with the specific agreement and the
relationship between GTE and the private land owner. This
could include limitations on equipment access due to
environmental conditions (e.g., wetland area with equipment
restrictions).
45. TBD Prices. Numerous provisions in this Agreement and its
Attachments refer to pricing principles. If a provision references
prices in an Attachment and there are no corresponding prices in
such Attachment, such price shall be considered "To Be Determined"
(TBD). With respect to all TBD prices, prior to DTI ordering any
such TBD item, the Parties shall meet and confer to establish a
price. If the Parties are unable to reach agreement on a price for
such item, an interim price shall be set for such item that is
equal to the price for the nearest analogous item for which a
price has been established (for example, if there is not an
established price for a nonrecurring charge (NRC) for a specific
network element, the Parties would use the NRC for the most
analogous retail service for which there is an established price).
Any interim prices so set shall be subject to modification by any
subsequent decision of the Commission. If an interim price is
different from the rate subsequently established by the
Commission, any underpayment shall be paid by DTI to GTE, and any
overpayment shall be refunded by GTE to DTI, within 45 Business
Days after the establishment of the price by the Commission.
46. Amendment of Certain Rates, Terms and Conditions. The rates, terms
and conditions in this Agreement that are specified in Appendix 46A
(the "MCIm Terms") were taken from the Interconnection, Resale and
Unbundling Agreement between GTE and MCImetro Access Transmission
Services, Inc. (the "MCIm Agreement") approved by the Commission in
Docket No. 16355. The rates, terms and conditions not included in this
Agreement but referenced in Appendix 46B (the "GTE Terms") were
excluded from the MCIm Agreement by the Commission in Docket No.
16355. GTE and DTI agree that if the MCIm Terms are deemed to be
unlawful, or are stayed, enjoined or otherwise modified, in whole or
in part, by a court or commission of competent jurisdiction, then this
Agreement shall be deemed to have been amended accordingly, by
modification of the MCIm Terms or, as appropriate, the substitution
of GTE Terms for all stayed or enjoined MCIm Terms, and such
amendments shall be effective retroactive to the Effective Date of
this Agreement.
GTE and DTI further agree that the terms and conditions of this
Agreement reflect certain requirements of the FCC's First Report
and Order in CC Docket No. 96-98. The terms and conditions of this
Agreement shall be subject to any and all actions by any court or
other governmental authority that invalidate, stay, vacate or
otherwise modify the FCC's First Report and Order, in whole or in
part ("subsequent action"). To the extent warranted by any such
subsequent action, the Parties agree that this Agreement shall be
deemed to have been modified accordingly as in the first paragraph
of this Section 46. The Parties agree to immediately apply any
affected terms and conditions, including any in other sections and
articles of this Agreement, consistent with such subsequent
action, and within a reasonable time incorporate such modified
terms and conditions in writing into this Agreement. If the MCIm
Terms are affected by such subsequent action and GTE determines
they cannot be consistently applied therewith, the GTE Terms shall
apply. DTI acknowledges that GTE may seek to enforce such
subsequent action before a commission or court of competent
jurisdiction. GTE does not waive any position regarding the
illegality or inappropriateness of the FCC's First Report and
Order.
The rates, terms and conditions (including rates which may be
applicable under true-up) specified in both the GTE Terms and the
MCIm Terms are further subject to amendment, retroactive to the
Effective Date of the Agreement, to provide for charges or rate
adjustments resulting from future Commission or other proceedings,
including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution,
undepreciated reserve deficiency, or similar unrecovered GTE costs
(including GTE's end user
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surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
If the Commission (or any other commission or federal or state
court) in reviewing this Agreement pursuant to applicable state or
federal laws, including Section 252(e) of the Telecommunications
Act of 1996, deletes or modifies in any way this Section 46, then
the Parties agree that they will reopen negotiations within ten
(10) days after receipt of the final decision making such deletion
or modification in order to attempt to craft the new provision
that will provide substantially the same protections to GTE and
DTI as this Section 46. If the Parties cannot reach agreement on
such a provision within twenty (20) calendar days thereafter, the
Parties agree that this entire Agreement is void and will not
become effective, and DTI agrees to withdraw this Agreement from
consideration by the Commission (or any other commission or
federal or state court). In such event, each Party shall have 25
days following the close of the 20-day negotiation period within
which to file a petition for arbitration before the Commission
under Section 252(e) of the Telecommunications Act of 1996 of the
issues that remain in dispute under this paragraph.
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ARTICLE IV
GENERAL RULES GOVERNING RESOLD SERVICES
AND UNBUNDLED ELEMENTS
1. General. General regulations, terms and conditions governing rate
applications, technical parameters, service availability, definitions
and feature interactions, as described in the appropriate GTE
intrastate local, toll and access tariffs, apply to retail services
made available by GTE to DTI for resale and unbundled network elements
provided by GTE to DTI, when appropriate, unless otherwise specified in
this Agreement. As applied to services or network elements offered
under this Agreement, the term "Customer" contained in the GTE Retail
Tariff shall be deemed to mean "DTI" as defined in this Agreement.
2. Liability of GTE.
2.1 Inapplicability of Tariff Liability. GTE's general liability, as
described in the GTE Retail Tariff, does not extend to DTI's
customers or any other Third Party. Liability of GTE to DTI
resulting from any and all causes arising out of services,
facilities, network elements or any other items relating to this
Agreement shall be governed by the liability provisions contained
in this Agreement and no other liability whatsoever shall attach
to GTE. GTE shall be liable for the individual services,
facilities or elements that it separately provides to DTI and
shall not be liable for the integration of components combined by
DTI.
2.2 DTI Tariffs or Contracts. DTI shall, in its tariffs or other
contracts for services provided to its end users using services,
facilities or network elements obtained from GTE, provide that in
no case shall GTE be liable to DTI's end users or any third
parties for any indirect, special or consequential damages,
including, but not limited to, economic loss or lost business or
profits, whether foreseeable or not, and regardless of
notification by DTI of the possibility of such damages and DTI
shall indemnify and hold GTE harmless from any and all claims,
demands, causes of action and liabilities based on any reason
whatsoever from its customers as provided in this Agreement.
Nothing in this Agreement shall be deemed to create a third party
beneficiary relationship with DTI's end users.
2.3 No Liability for Errors. GTE is not liable for mistakes that
appear in GTE's listings, 911 and other information databases, or
for incorrect referrals of end users to DTI for any ongoing DTI
service, sales or repair inquiries, and with respect to such
mistakes or incorrect referrals, DTI shall indemnify and hold GTE
harmless from any and all claims, demands, causes of action and
liabilities whatsoever, including costs, expenses and reasonable
attorney's fees incurred on account thereof, by third parties,
including DTI's end users or employees. For purposes of this
Section 2.3, mistakes and incorrect referrals shall not include
matters arising out of the willful misconduct of GTE or its
employees or agents.
3. Unauthorized Changes.
3.1 Procedures. If DTI submits an order for resold services or
unbundled elements under this Agreement in order to provide
service to an end user that at the time the order is submitted is
obtaining its local services from GTE or another LEC using GTE
resold services or unbundled elements, and the end user notifies
GTE that the end user did not authorize DTI to provide local
exchange services to the end user, DTI must provide GTE with
written documentation of authorization from that end user within
thirty (30) Business Days of notification by GTE. If DTI cannot
provide written documentation of authorization within such time
frame, DTI must within three (3) Business Days thereafter:
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(a) notify GTE to change the end user back to the LEC providing
service to the end user before the change to DTI was made; and
(b) provide any end user information and billing records DTI has
obtained relating to the end user to the LEC previously serving
the end user; and
(c) notify the end user and GTE that the change back to the
previous LEC has been made.
Furthermore, GTE will bill DTI fifty dollars ($50.00) per
affected line to compensate GTE for switching the end user back to the
original LEC.
3.2 Option to Restrict Chances Without Evidence of Authorization.
DTI's or GTE's end users may request GTE to permit changes of
their provider of local exchange services only upon end user
written notification to GTE that the end user wishes to change the
end user's provider of local exchange services. In such a
situation, GTE will not change an end user's provider of local
exchange services without such written notification.
4. Impact of Payment of Charges on Service. DTI is solely responsible for
the payment of all charges for all services, facilities and elements
furnished under this Agreement, including, but not limited to, calls
originated or accepted at its or its end users' service locations. If
DTI fails to pay when due any and all charges billed to DTI under this
Agreement, including any late payment charges (collectively, "Unpaid
Charges"), and any or all such charges remain unpaid more than
forty-five (45) Business Days after the due date of such Unpaid Charges
excepting previously disputed charges for which DTI may withhold
payment, GTE shall notify DTI in writing that it must pay all Unpaid
Charges to GTE within seven (7) Business Days. If DTI disputes the
billed charges, it shall, within said seven (7) day period, inform GTE
in writing of which portion of the Unpaid Charges it disputes,
including the specific details and reasons for the dispute, unless such
reasons have been previously provided, and shall immediately pay to GTE
all undisputed charges. If DTI and GTE are unable, within thirty (30)
Business Days thereafter, to resolve issues related to the disputed
charges, then either DTI or GTE may file a request for arbitration
under Article III of this Agreement to resolve those issues. Upon
resolution of any dispute hereunder, if DTI owes payment it shall make
such payment to GTE with any late payment charge under Article III,
Section 7.2, from the original payment due date. If DTI owes no
payment, but has previously paid GTE such disputed payment, then GTE
shall credit such payment including any late payment charges. If DTI
fails to pay any undisputed Unpaid Charges, DTI shall, at its sole
expense, within five (5) Business Days notify its end users that their
service may be disconnected for DTI's failure to pay Unpaid Charges,
and that its end users must select a new provider of local exchange
services. If DTI fails to provide such notification or any of DTI's end
users fail to select a new provider of services within the applicable
time period, GTE will provide local exchange services to DTI's end
users under GTE's applicable end user tariff at the then current
charges for the services being provided. In this circumstance,
otherwise applicable service establishment charges will not apply to
DTI's end user, but will be assessed to DTI. GTE may discontinue
service to DTI upon failure to pay undisputed charges as provided in
this Section 4, and shall have no liability to DTI or DTI's end users
in the event of such disconnection.
5. Unlawful Use of Service. Services, facilities or unbundled elements
provided by GTE pursuant to this Agreement shall not be used by DTI or
its end users for any purpose in violation of law. DTI, and not GTE,
shall be responsible to ensure that DTI and its end users use of
services, facilities or unbundled elements provided hereunder comply at
all times with all applicable laws. GTE may refuse to furnish service
to DTI or disconnect particular services, facilities or unbundled
elements provided under this Agreement to DTI or, as appropriate, DTI's
end user when (i) an order is issued by a court of competent
jurisdiction finding that probable cause exists to believe that the use
made or to be made of the service, facilities or unbundled elements is
prohibited by
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<PAGE> 38
law or (ii) GTE is notified in writing by a law enforcement agency
acting within its jurisdiction that any facility furnished by GTE is
being used or will be used for the purpose of transmitting or receiving
gambling information in interstate or foreign commerce in violation of
law. Termination of service shall take place after reasonable notice is
provided to DTI, or as ordered by the court. If facilities have been
physically disconnected by law enforcement officials at the premises
where located, and if there is not presented to GTE the written finding
of a court, then upon request of DTI and agreement to pay restoral of
service charges and other applicable service charges, GTE shall
promptly restore such service.
6. Timing of Messages. With respect to GTE resold measured rate local
service(s), chargeable time begins when a connection is established
between the calling station and the called station. Chargeable time
ends when the calling station "hangs up," thereby releasing the network
connection. If the called station "hangs up" but the calling station
does not, chargeable time ends when the network connection is released
by automatic timing equipment in the network. Timing of messages
applicable to GTE's Port and Local Switching element (usage sensitive
services) will be recorded based on originating and terminating access.
7. Procedures For Preordering, Ordering, Provisioning, Etc. Certain
procedures for preordering, ordering, provisioning, maintenance and
billing and electronic interfaces for many of these functions are
described in Appendix I. All costs and expenses for any new or modified
electronic interfaces DTI requires that GTE determines are technically
feasible and GTE agrees to develop will be paid by DTI pursuant to
Appendix I. The schedule for implementation of any new or modified
electronic interfaces will be developed by GTE according to industry
standards and will be based upon the amount of work needed to design,
test and implement the new or modified interface.
8. Customer Contacts. Except as otherwise provided in this Agreement or as
agreed to in a separate writing by DTI, DTI shall provide the exclusive
interface with DTI's end user customers in connection with the
marketing or offering of DTI services. Except as otherwise provided in
this Agreement, in those instances in which GTE personnel are required
pursuant to this Agreement to interface directly with DTI's end users,
such personnel shall not identify themselves as representing GTE. All
forms, business cards or other business materials furnished by GTE to
DTI end users shall bear no corporate name, logo, trademark or trade
name other than DTI's. In no event shall GTE personnel acting on behalf
of DTI pursuant to this Agreement provide information to DTI end users
about GTE products or services.
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ARTICLE V
INTERCONNECTION AND TRANSPORT AND TERMINATION OF TRAFFIC
1. Services Covered by This Article.
1.1 Types of Services. This Article governs the provision of
internetwork facilities (i.e., physical interconnection services
and facilities), meet point billing by GTE to DTI or by DTI to GTE
and the transport and termination and billing of Local, IntraLATA
Toll, optional EAS traffic and jointly provided Interexchange
Carrier Access between GTE and DTI. The services and facilities
described in this Article shall be referred to in this Article V
as the "Services."
1.2 Service Locations for Interconnection Services and Facilities.
Appendix B, Service Matrix, attached to this Agreement and made a
part hereof, sets forth the Services and each location in the
State where a Service shall be provided (the "Service Locations")
and the Interconnection Point ("IP") for such Services.
1.3 Additional Services or Service Locations. If, during the term of
this Agreement, the parties determine that additional services are
needed in the State, or existing Services will be offered in new
locations in the State, the Parties shall execute an amendment to
this Agreement substantially in the form of Appendix C attached to
this Agreement and made a part hereof, incorporating the
additional locations and/or any additional terms necessary for the
additional services. Upon the effective date of the amendment, and
continuing through the remaining term of this Agreement, the new
services shall be deemed part of the Services provided pursuant to
this Article and/or the new locations shall be deemed part of the
Service Locations.
2. Billing and Rates.
2.1 Rates and Charges. Customer agrees to pay to Provider the rates
and charges for the Services set forth in the applicable
appendices to this Agreement. GTE's rates and charges are set
forth in Appendix D attached to this Agreement and made a part
hereof. DTI's separate rates and charges are also set forth in
Appendix D attached hereto and made a part hereof.
2.2 Billing. Provider shall render to Customer a bill for
interconnection services on a current basis. Charges for physical
facilities and other nonusage sensitive charges shall be billed in
advance, except for charges and credits associated with the
initial or final bills. Usage sensitive charges, such as charges
for termination of Local Traffic, shall be billed in arrears. DTI
is required to order trunks pursuant to Section 4.3.3 of this
Article. Charges for traffic that has been routed over a
jurisdictionally inappropriate trunk group (e.g., local traffic
carried over trunks used for Switched Access Traffic) may be
adjusted to reflect the appropriate compensation arrangement and
may be handled as a post-billing adjustment to bills rendered.
Additional matters relating to billing are included in Appendix I
attached to this Agreement and made a part hereof.
3. Transport and Termination of Traffic.
3.1 Traffic to be Exchanged. The Parties shall reciprocally terminate
Local, IntraLATA Toll, optional EAS and jointly provided
Interexchange Carrier Traffic originating on each other's networks
utilizing either Direct or Indirect Network Interconnections as
provided in Section 4 or Section 5 herein. To this end, the
Parties agree that there will be interoperability between their
networks. The Parties agree to exchange traffic associated with
Third-Party
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LECs, CLECs and Wireless Service Providers pursuant to the
compensation arrangement specified in Section 3.3 herein. Only
traffic originated by or terminating to the Parties' end user
customers is to be exchanged. In addition, the Parties will notify
each other of any anticipated change in traffic to be exchanged
(e.g., traffic type, volume).
3.2 Compensation For Exchange Of Traffic.
3.2.1 Mutual Compensation. The Parties shall compensate each
other for the exchange of Local Traffic in accordance
with Section 3.2.2 of this Article. The Parties will
develop an initial factor representative of the
share of traffic exempt from local compensation. This
factor will be updated quarterly in like manner or as
the Parties otherwise agree. Once the traffic that is
exempt from local compensation can be measured, the
actual exempt traffic will be used rather than the
above factor. Charges for the transport and termination
of intraLATA toll and interexchange traffic shall be in
accordance with the Parties' respective intrastate or
interstate access tariffs, as appropriate
3.2.2 Bill-and-Keep. The Parties shall assume that Local
Traffic is roughly balanced between the parties unless
traffic studies indicate otherwise. Accordingly, the
Parties agree to use a Bill-and-Keep Arrangement with
respect to termination of Local Traffic only. Either
Party may request that a traffic study be performed no
more frequently than once a quarter. Should such
traffic study indicate, in the aggregate, that either
Party is terminating more than 60 percent of the
Parties' total terminated minutes for Local Traffic,
either Party may notify the other that mutual
compensation will commence pursuant to the rates set
forth in Appendix D of this Agreement and following
such notice it shall begin and continue for the
duration of the Term of this Agreement unless otherwise
agreed. To account for ISP traffic, the Parties will
negotiate an initial factor(s) representative of the
proportionate share of traffic exempt from local
compensation. This factor will be updated quarterly in
a like manner or as the Parties otherwise agree. Once
the traffic that is exempt from local compensation can
be measured, the actual exempt traffic will be used
rather than the above factor. Nothing in this Section
3.2.2 shall be interpreted to (i) change compensation
set forth in this Agreement for traffic or services
other than Local Traffic, including but not limited to
internetwork facilities, access traffic or wireless
traffic, or (ii) allow either Party to aggregate
traffic other than Local Traffic for the purpose of
compensation under the Bill-and-Keep Arrangement
described in this Section 3.2.2, except as set forth in
Section 3.1 above.
3.2.3 Sharing of Access Charges on Calls to Ported Numbers.
Until permanent number portability is implemented, the
Parties agree that switched access termination to a
ported number will be billed by the party providing
interim number portability and that the party billing
the switched access will share the switched access
revenue with the other party. After permanent number
portability is implemented, the Parties agree to
renegotiate sharing of access charges to ported numbers
in accordance with permanent number portability
requirements. In lieu of actual measurements of minutes
and/exchange of billing records for this traffic the
Parties agree that the Party providing the ported
number will pay the other Party the rate per line/per
month as specified in Appendix E.
(a) The number of lines/talk paths per ported number
that are subject to compensation will be
determined at the time the end user customer's
local service is changed from one party to the
other. The number of lines per number eligible for
the shared revenue arrangement described
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in this section will be limited to the number of
lines in service on the date of conversion plus a
10% growth margin. After conversion the number of
lines per number available for compensation can
only be increased by mutual consent of the
parties.
(b) The Parties agree that the compensation rate in
paragraph 3.3.3 may change as a result of changes
in access rates, traffic volume or for other
reasons and agree to renegotiate the rate if a
significant event occurs. At a minimum, the
parties agree to reevaluate the rate on an annual
basis.
(c) The Parties agree that terminating switched access
calls ported via interim number portability may
appear to the receiving party to be a local call
and that the implementation of reciprocal
compensation for terminating local calls may
result in overcompensation for ported switched
access calls. Therefore, the Parties agree to
renegotiate the terminating shared access
compensation rate if reciprocal compensation for
local calls is implemented.
3.3 Tandem Switching Traffic. The Parties will provide tandem
switching for traffic between the Parties' end offices subtending
each other's access tandem, as well as for traffic between either
Party's end users and any Third Party which is interconnected to
the other Party's access tandems as follows:
3.3.1 The originating Party will compensate the tandem Party
for each minute of originated tandem switched
traffic which terminates to Third Party (e.g., other
CLEC, ILEC, or wireless service provider). The
applicable rate for this charge is identified in
Appendix D.
3.3.2 The originating Party also assumes responsibility for
compensation to the company which terminates the call.
3.4 Inter-Tandem Switching. The Parties will only use inter-tandem
switching for the transport and termination of local/EAS or
intraLATA toll traffic originating on each other's network at and
after such time as either (i) DTI has agreed to and fully
implemented an existing intraLATA toll compensation mechanism such
as IntraLATA Terminating Access Compensation (ITAC) or a
functional equivalent thereof or (ii) generally accepted industry
signaling standards and AMA record standards support the
recognition of multiple tandem switching events.
4. Direct Network Interconnection.
4.1 Network Interconnection Architecture. DTI may interconnect with
GTE at any of the minimum technically feasible points required by
the FCC. Interconnection at additional points will be reviewed on
an individual case basis. Where the Parties mutually agree
following a Bona Fide Request to directly interconnect their
respective networks, interconnection will be as specified in the
following subsections. The "IPs" shall be set forth in Appendix B
attached to this Agreement and made a part hereof. Based on the
configuration, the installation timeline will vary considerably,
however, GTE will work with DTI in all circumstances to install
"IPs" within 120 calendar days absent extenuating circumstances.
Internetwork connection and protocol must be based on industry
standards developed consistent with Section 256 of the
Telecommunications Act of 1996.
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4.1.1 Subject to mutual agreement, the Parties may use the
following types of network facility interconnection,
using such interface media as are (i) appropriate to
support the type of interconnection requested and
(ii) available at the facility at which interconnection
is requested. For each "IP" set forth in Appendix B,
the Parties shall specify the type of interconnection
used at that "IP."
(a) A Mid-Span Fiber Meet within an existing GTE
exchange area whereby the Parties mutually agree
to jointly plan and engineer their facility "IP"
at a designated manhole or junction location. The
"IP" is the demarcation between ownership of the
fiber transmission facility. Each party is
individually responsible for its incurred costs in
establishing this arrangement.
(b) A Virtual or Physical EIS arrangement at a GTE wire
center subject to the rates, terms, and conditions
contained in GTE's applicable tariffs.
(c) A Special Access arrangement and/or Switched
Transport terminating at a GTE wire center subject
to the rates, terms, and conditions contained
in GTE's applicable tariffs. These facilities will
meet the standards set forth in such tariffs.
4.1.2 Virtual and Physical EIS arrangements are governed by
appropriate GTE tariffs, except as provided in
Article IX, Section 1.3.
4.1.3 The Parties will mutually designate at least one POI on
GTE's network within each GTE local calling area for the
routing of Local Traffic. Recording and billing of
traffic routed over these facilities shall be as
provided in Section 3.4 of this Article.
4.2 Compensation. The Parties agree to the following compensation for
internetwork facilities, depending on facility type.
4.2.1 Mid-Span Fiber Meet: GTE will charge special access
(flat rated) transport from the applicable intrastate
access tariff and will rate charges between the "IP"
and GTE's interconnection switch. Charges will be
reduced to reflect the proportionate share of the
facility that is used for transport of traffic
originated by GTE. DTI will charge flat rated transport
to GTE for DTI facilities used by GTE at their tariffed
rates or as mutually agreed, not to exceed GTE rates.
DTI will apply charges based on the lesser of; (i) the
airline mileage from the "IP" to the DTI switch; or
(ii) the airline mileage from the GTE switch to the
serving area boundary.
4.2.2 Collocation: GTE will charge Virtual or Physical EIS
rates from the applicable GTE tariff. DTI will charge
GTE flat rated transport at their tariffed rates
or as mutually agreed, not to exceed GTE rates, to
reflect the proportionate share of the facility that is
used for transport of traffic originated by GTE. DTI
will apply charges based on the lesser of; (i) the
airline mileage from the "IP" to the DTI switch; or
(ii) two (2) times the airline mileage from the GTE
switch to the serving area boundary.
4.2.3 Special Access and/or Switched Access: GTE will charge
special access and/or switched access rates from the
applicable GTE intrastate access tariff. Charges will
be reduced to reflect the proportionate share of
the facility that is used for transport of traffic
originated by GTE. The Parties will negotiate an
initial factor representative of the proportionate
share of the facilities. This factor will be updated
quarterly in like manner or as the Parties otherwise
agree.
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4.3 Trunking Requirements.
4.3.1 The Parties agree to establish trunk groups of
sufficient capacity from the interconnecting facilities
such that trunking is available to any switching
center designated by either Party, including end
offices, tandems, 911 routing switches, and directory
assistance/operator service switches. The Parties will
mutually agree where one-way or two-way trunking will
be available. The Parties may use two-way trunks for
delivery of local traffic or either Party may elect to
provision its own one-way trunks for delivery of local
traffic to the other Party. If a Party elects to
provision its own one-way trunks, that Party will be
responsible for its own expenses associated with the
trunks.
4.3.2 DTI shall make available to GTE trunks over which GTE
shall terminate to end users of DTI-provided Exchange
Services, Local Traffic and intraLATA toll or
optional EAS traffic originated from end users of
GTE-provided Exchange Service.
4.3.3 DTI and GTE shall, where applicable, make reciprocally
available, by mutual agreement, the required trunk
groups to handle different traffic types. DTI and GTE
will support the provisioning of trunk groups that
carry combined or separate Local Traffic and intraLATA
toll and optional EAS traffic. GTE requires separate
trunk groups from DTI to originate and terminate
interLATA calls and to provide Switched Access Service
to IXCs. To the extent DTI desires to have any
Interexchange Carriers (IC) originate or terminate
traffic to DTI, DTI will arrange for such IC to issue
an ASR to GTE instructing GTE to route such traffic
over the appropriate IC trunk group. Until GTE receives
and processes such ASR, the traffic will not be routed.
4.3.3.1 Each Party agrees to route traffic only over
the proper jurisdictional trunk group.
4.3.3.2 Each Party shall only deliver traffic over the
local interconnection trunk groups to the
other Party's access tandem for those
publicly-dialable NXX Codes served by end
offices that directly subtend the access
tandem or to those wireless service providers
that directly subtend the access tandem.
4.3.3.3 Neither party shall route Switched Access
Service traffic over local interconnection
trunks, or local traffic over Switched Access
Service trunks.
4.3.4 DTI and GTE will reciprocally provide Percent Local
Usage (PLU) factors to each other on a quarterly basis
to identify the proper jurisdiction of each call
type that is carried over the required trunks.
4.3.5 Reciprocal traffic exchange arrangement trunk
connections shall be made at a DS-1 or multiple
DS-1 level, DS-3, (SONET where technically available)
and shall be jointly-engineered to an objective P.01
grade of service.
4.3.6 DTI and GTE agree to use diligent efforts to develop
and agree on a Joint Interconnection Grooming Plan
prescribing standards to ensure that the reciprocal
traffic exchange arrangement trunk groups are
maintained at consistent P.01 or better grades of
service. Such plan shall also include mutually-agreed
upon default standards for the configuration of all
segregated trunk groups.
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4.3.7 Signaling System 7 (SS7) Common Channel Signaling will
be used to the extent that such technology is
available.
4.3.8 The Parties agree to offer and provide to each other
B8ZS Extended Superframe Format ("ESF") facilities,
where available, capable of voice and data traffic
transmission.
4.3.9 The Parties will support intercompany 64kbps clear
channel where available.
4.4 Network Redesigns Initiated by GTE. GTE will not charge DTI when
GTE initiates its own network redesigns/reconfigurations.
4.5 Interconnection Calling and Called Scopes for the Access Tandem
Interconnection and the End Office Interconnection.
4.5.1 GTE Access Tandem Interconnection calling scope
(originating and terminating) is to those GTE end
offices which subtend the GTE access tandem to which
the connection is made except as provided for in
Section 3.3 of this Article V.
4.5.2 GTE End Office Interconnection calling scope
(originating and terminating) is only to the end
office to which the connection is made.
5. Indirect Network Interconnection. Nether Party shall deliver traffic
destined to terminate at the other Party's end office via another LEC's
end office. In addition, neither Party shall deliver traffic destined
to terminate at an end office subtending the other Party's access
tandem via another LEC's access tandem until such time as compensation
arrangements have been established in accordance with this Article V,
Sections 3.1 and 3.4.
6. Number Resources.
6.1 Number Assignment. Nothing in this Agreement shall be construed
to, in any manner, limit or otherwise adversely impact DTI's right
to employ or to request and be assigned any NANP number resources
including, but not limited to, Central Office (NXX) Codes pursuant
to the Central Office Code Assignment Guidelines. Any request for
numbering resources by DTI shall be made directly to the NANP
Number Plan Administrator. Except with respect to those areas in
which GTE is the NANP Number Plan Administrator, GTE shall not be
responsible for the requesting or assignment of number resources
to DTI. The Parties agree that disputes arising from numbering
assignment shall be arbitrated by the NANP Number Plan
Administrator. DTI shall not request number resources to be
assigned to any GTE switching entity.
6.1.1 Each Party shall be responsible for notifying its
customers of any changes in numbering or dialing
arrangements to include changes such as the
introduction of new NPAs or new NXX codes. Each Party
is responsible for administering NXX codes assigned to
it.
6.2 Rate Centers. For purposes of compensation between the Parties and
the ability of GTE to appropriately apply its toll tariff to its
end user customers, DTI shall adopt the Rate Center areas and Rate
Center points that the Commission has approved for the incumbent
LEC and shall assign whole NPA-NXX codes to each Rate Center.
6.3 Routing Points. DTI will also designate a Routing Point for each
assigned NXX code. DTI may designate one location within each Rate
Center as a Routing Point for the NPA-NXX associated with that
Rate Center; alternatively DTI may designate a single location
within
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one Rate Center to serve as the Routing Point for all the NPA-NXXs
associated with that Rate Center and with one or more other Rate
Centers served by DTI within an existing GTE exchange area and
LATA.
6.4 Code and Numbers Administration. The Parties will comply with code
administration requirements as prescribed by the FCC, the
Commission, and accepted industry guidelines. Where GTE is the
NANP Number Plan Administrator, GTE will administer number
resources, and charge for such administration in accord with
applicable rules and regulations. GTE will administer numbering
resources in a competitively neutral manner, and process requests
for NXX codes in a timely manner and in accord with industry
standards. The Parties shall protect DTI proprietary information
that may be submitted to GTE in connection with GTE's
responsibilities as NANP Number Plan Administrator in accordance
with Article III, Section 11 of this Agreement.
6.5 Programming Switches. It shall be the responsibility of each Party to
program and update its own switches and network systems pursuant to the
Local Exchange Routing Guide ("LERG") guidelines to recognize and route
traffic to the other Party's assigned NXX codes at all times. Neither
Party shall impose any fees or charges whatsoever on the other Party
for such activities.
7. Interim Number Portability (INP). Each Party shall provide the other
Party with INP for the purpose of allowing end user customers to change
service-providing Parties without changing their telephone number. GTE
shall provide its INP to DTI using remote call forwarding ("RCF"). The
GTE rates for INP service using RCF are set out in Appendix E attached
to this Agreement and made a part hereof. If DTI wishes to use Direct
Inward Dialing ("DID") to provide INP to its end users, DTI may
purchase DID service from GTE at the rate specified in the appropriate
GTE tariff. DTI shall provide INP to GTE at the rates specified for DTI
in Appendix E.
8. Meet-Point Billing.
8.1 Meet-Point Arrangements.
8.1.1 The Parties may mutually establish Meet-Point Billing ("MPB")
arrangements in order to provide Switched Access Services to
Access Service customers via a GTE access tandem in accordance
with the MPB guidelines adopted by and contained in the Ordering
and Billing Forum's MECAB and MECOD documents, except as
modified herein and as described in Section 3.2.3 for Interim
Portability.
8.1.2 Except in instances of capacity limitations, GTE shall permit
and enable DTI to sub-tend the GTE access tandem(s) nearest to
the DTI Rating Point(s) associated with the NPA-NXX(s) to/from
which the Switched Access Services are homed. In instances of
capacity limitation at a given access tandem, DTI shall be
allowed to subtend the next-nearest GTE access tandem in which
sufficient capacity is available.
8.1.3 Interconnection for the MPB arrangement shall occur at the "IP".
8.1.4 Common Channel Signaling shall be utilized in conjunction with
MPB arrangements to the extent such signaling is resident in the
GTE access tandem switch.
8.1.5 DTI and GTE will use diligent efforts, individually and
collectively, to maintain provisions in their respective federal
and state access tariffs, and/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.
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8.1.6 As detailed in the MECAB document, DTI and GTE will, in a timely
fashion, exchange all information necessary to accurately,
reliably and promptly bill Access Service customers for Switched
Access Services traffic jointly handled by DTI and GTE via the
meet-point arrangement. Information shall be exchanged in
Electronic Message Record ("EMR") format, on magnetic tape or
via a mutually acceptable electronic file transfer protocol.
8.1.7 DTI and GTE shall work cooperatively to coordinate rendering of
Meet-Point bills to customers, and shall reciprocally provide
each other usage data and related information at the appropriate
charge.
8.2 Compensation.
8.2.1 Initially, billing to Access Service customers for the Switched
Access Services jointly provided by DTI and GTE via the MPB
arrangement shall be according to the multiple-bill method as
described in the MECAB guidelines. This means each Party will
bill the portion of service they provided at their appropriate
tariff, or price list.
8.2.2 Subsequently, DTI and GTE may mutually agree to implement one of
the following options for billing to third parties for the
Switched Access Services jointly provided by DTI and GTE via the
MPB arrangement: single-bill/single tariff method,
single-bill/multiple tariff method, or to continue the
multiple-bill method. Should either Party prefer to change among
these billing methods, that Party shall notify the other Party
of such a request in writing, ninety (90) Business Days in
advance of the date on which such change is desired to be
implemented, such changes then may be made in accordance with
MECAB guidelines and if the Parties mutually agree, the change
will be made.
9. Common Channel Signaling.
9.1 Service Description. The Parties will provide Common Channel Signaling
("CCS") to one another via Signaling System 7 ("SS7") network
interconnection, where and as available, in the manner specified in FCC
Order 95-187, in conjunction with all traffic exchange trunk groups.
SS7 signaling and transport services shall be provided by GTE in
accordance with the terms and conditions of this Section 9 of this
Article and Appendix J attached to this Agreement and made a part
hereof. The Parties will cooperate on the exchange of all appropriate
SS7 messages for local and intraLATA call set-up signaling, including
ISUP and Transaction Capabilities Application Part ("TCAP") messages to
facilitate full interoperability of all CLASS Features and functions
between their respective networks. Any other SS7 message services to be
provided using TCAP messages (such as data base queries) will be
jointly negotiated and agreed upon.
9.2 Signaling Parameters. All SS7 signaling parameters will be provided in
conjunction with traffic exchange trunk groups, where and as available.
These parameters include Automatic Number Identification ("ANI"),
Calling Party Number ("CPN"), Privacy Indicator, calling party category
information, originating line information, charge number, etc. Also
included are all parameters relating to network signaling information,
such as Carrier Information Parameter ("CIP"), wherever such
information is needed for call routing or billing. GTE will provide SS7
via GR-394-SS7 and/or GR-317-SS7 format(s).
9.3 Privacy Indicators. Each Party will honor all privacy indicators as
required under applicable law.
9.4 Connection Through STP. DTI must interconnect with the GTE STP(s)
serving the LATA in which the traffic exchange trunk groups are
interconnected. Additionally, all interconnection to GTE's 800/888
database and GTE's LIDB shall, consistent with this section and
Appendix J attached hereto, take place only through appropriate STP
pairs.
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9.5 Third Party Signaling Providers. DTI may choose a third-party SS7
signaling provider to transport messages to and from the GTE SS7
network. In that event, that third-party provider must present a letter
of agency to GTE, prior to the testing of the interconnection,
authorizing the Third Party to act on behalf of DTI in transporting SS7
messages to and from GTE. The third-party provider must interconnect
with the GTE STP(s) serving the LATA in which the traffic exchange
trunk groups are interconnected.
9.6 Multi-Frequency Signaling. In the case where CCS is not available, in
band Multi-Frequency ("MF"), wink start, E & M channel associated
signaling with ANI will be provided by the Parties. Network signaling
information, such as CIC/OZZ, will be provided wherever such
information is needed for call routing or billing.
10. Service Quality and Performance. Each Party shall provide Services
under this Article to the other Party that are equal in quality to that
the Party provides to itself, its Affiliates or any other entity.
"Equal in quality" shall mean that the Service will meet the same
technical criteria and performance standards that the providing Party
uses within its own network for the same Service at the same location
under the same terms and conditions.
11. Network Outages. GTE shall work with DTI to establish reciprocal
responsibilities for managing network outages and reporting. Each party
shall be responsible for network outage as a result of termination of
its equipment in GTE wire center or access tandem. DTI shall be
responsible for notifying GTE of significant outages which could impact
or degrade GTE switches and services.
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ARTICLE VI
RESALE OF SERVICES
1. General. The purpose of this Article VI is to define the Exchange
Services and related Vertical Features and other Services (collectively
referred to for purposes of this Article VI as the "Services") that may
be purchased from GTE and resold by DTI and the terms and conditions
applicable to such resold Services. Except as specifically provided
otherwise in this Agreement, provisioning of Exchange Services for
resale will be governed by the GTE Guide. GTE will make available to
DTI for resale any Telecommunications Service that GTE currently
offers, or may offer hereafter, on a retail basis to subscribers that
are not telecommunications carriers, except as qualified by Section 2.2
below.
2. Terms and Conditions.
2.1 Quality and Performance. GTE shall provide Services to DTI that are
equal in quality and performance standards to the same Services
provided by GTE to its own end user customers.
2.2 Restrictions on Resale. The following restrictions shall apply to the
resale of retail services by DTI.
2.2.1 DTI shall not resell Basic Exchange Residential Service.
2.2.2 DTI shall not resell to one class of customers a service
that is offered by GTE only to another class of
customers in accordance with State requirements (e.g., R-1
to B-1, disabled services or Lifeline services to
non-qualifying customers).
2.2.3 DTI shall not resell public pay telephone lines.
2.2.4 DTI shall not resell semi-public pay telephone lines.
2.3 Restrictions on Discount of Retail Services. The discount specified in
Section 5.3 herein shall apply to all retail services except for the
following:
2.3.1 DTI shall resell services that are provided at a volume
discount in accordance with terms and conditions of
applicable tariff. DTI shall not aggregate end user traffic
in order to qualify for volume discount.
2.3.2 DTI shall resell ICB/Contract services without a discount and
only to end user customers that already have such services.
2.3.3 DTI shall resell COCOT coin or coinless line but no discount
applies.
2.3.4 DTI shall resell Lifeline services and services for the
disabled but no discount shall apply and they shall only
be resold to end user customers who qualify under GTE's
tariffs and state/Commission rules, orders and regulations.
2.3.5 DTI shall resell special access but no discount applies.
2.3.6 DTI shall resell Operator Services and Directory Assistance
as specified in Section 5.6 herein however no discount
applies.
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<PAGE> 49
2.3.7 DTI shall resell promotional offerings that are ninety (90)
days or less in duration without a discount.
2.4 Resale to Other Carriers. Services available for resale may not be used
by DTI to provide access to the local network as an alternative to
tariffed switched and special access by other carriers, including, but
not limited to; interexchange carriers, wireless carriers, competitive
access providers, or other retail telecommunications providers.
3. Ordering and Billing.
3.1 Local Service Request. Orders for resale of Services will be placed
utilizing a standard Local Service Request ("LSR") form. GTE will
continue to participate in industry forums for developing service
order/disconnect order formats and will incorporate appropriate
industry standards. A complete and accurate LSR (containing the
requisite end user information as described in the Guide) must be
provided by DTI before a request can be processed.
3.2 Certificate of Operating Authority. When ordering, DTI must represent
and warrant to GTE that it is a certified provider of local dial-tone
service. DTI will provide a copy of its Certificate of Operating
Authority or other evidence of its status to GTE upon request.
3.3 Letter of Authorization. A Letter of Authorization ("LOA") will be
required before resold Services will be provided in cases in which the
subscriber currently receives Exchange Service from GTE or from a local
service provider other than DTI. Such LOA may be a blanket LOA or such
other form as agreed upon between GTE and DTI. GTE will not release
information to DTI on GTE end user customer accounts unless DTI first
provides to GTE a written LOA, signed by the end user customer,
authorizing the release of such information to DTI or if state or
federal law provides otherwise, in accordance with such law.
3.4 Directory Assistance Listings. GTE shall include a DTI customer listing
in its Directory Assistance database as part of the Local Service
Request ("LSR") process. GTE will honor DTI Customer's preferences for
listing status, including non-published and unlisted, as noted on the
LSR and will enter the listing in the GTE database which is used to
perform Directory Assistance functions as it appears on the LSR.
3.5 Nonrecurring Charges. DTI shall be responsible for the payment of all
nonrecurring charges ("NRCs") applicable to resold Services (e.g.,
installation, changes, ordering charges) in accordance with the
appropriate tariff. No discount applies to nonrecurring charges.
3.6 Transfers Between DTI and Another Reseller of GTE Services. When DTI
has obtained an end user customer from another reseller of GTE
services, DTI will inform GTE of the transfer by submitting a standard
LSR to GTE.
3.7 Local Calling Detail. Except for those Services and in those areas
where measured rate local service is available to end users, monthly
billing to DTI does not include local calling detail. However, DTI may
request and GTE shall consider developing the capabilities to provide
local calling detail in those areas where measured local service is not
available for a mutually agreeable charge.
3.8 Procedures. An overview of the procedures for preordering, ordering,
provisioning and billing for resold services are outlined in Appendix
I, attached hereto and made a part hereof.
3.9 LIDB. For resale services, GTE's service order will generate updates to
the LIDB for validation of calling card, collect, and third number
billed calls.
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<PAGE> 50
3.10 "OLN". Upon request, GTE will update the database to provide
Originating Line Number ("OLN") Screening which indicates to an
operator the acceptable billing methods for calls originating from the
calling number (e.g., penal institutions, COCOTS).
4. Maintenance.
4.1 Maintenance, Testing and Repair. GTE will provide repair and
maintenance services to DTI and its end user customers for resold
Services in accordance with the same standards and charges used
for such services provided to GTE end user customers. GTE
will not initiate a maintenance call or take action in response
to a trouble report from a DTI end user until such time as
trouble is reported to GTE by DTI. DTI must provide to GTE all
end user information necessary for the installation, repair and
servicing of any facilities used for resold Services according to
the procedures described in the Guide.
4.2 Specifics and Procedures for Maintenance. An overview of the procedures
for maintenance of resold services and additional matters agreed to by
the Parties concerning maintenance are set forth in Appendix I.
5. Services Available for Resale.
5.1 Description of Local Exchange Services Available for Resale. Resold
basic Exchange Service includes, but is not limited to, the following
elements:
(a) Voice Grade Local Exchange Access Line - includes a telephone
number and dial tone.
(b) Local Calling - at local usage measured rates if applicable to the
end user customer.
(c) Access to long distance carriers
(d) E-911 Emergency Dialing
(e) Access to Service Access Codes - e.g., 800, 888, 900
(f) Use of AIN Services (those currently available to end users)
(g) End User Private Line Services
(h) Listing of telephone number in appropriate "white pages"
directory; and
(i) Copy of "White Pages" and "Yellow Pages" directories for the
appropriate GTE service area
5.2 List of Services Available for Resale. The type of Services listed on
Appendix F, attached hereto and made a part of this Agreement, are
available for resale by DTI. Subject to the limitations on resale
enumerated in this Article, any new services that GTE offers in the
future at retail to customers who are not telecommunications carriers
shall also be available to DTI for resale under the same terms and
conditions contained in this Agreement. Additional regulations, terms
and conditions relating to the type of Services listed on Appendix F
can be found in the appropriate intrastate local, toll and access
tariffs. Terms, conditions and other matters concerning rate
applications, technical parameters, provisioning capability,
definitions and feature interactions contained in such tariffs are
applicable to the type of Services offered under this Agreement and are
incorporated herein by reference. Modifications to Services listed on
Appendix F shall be provided to DTI in accordance with GTE's practices
and procedures.
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<PAGE> 51
5.3 Rates. The prices charged to DTI for Local Services shall be calculated
as follows:
(1) Avoided Cost Discount of 13.63% shall apply to all retail
services except those services listed in Section 2.2 and Section
2.3 herein.
(2) The discount dollar amount calculated under Step 1 above will be
deducted from the retail rate.
(3) The resulting rate is the Wholesale Rate.
(4) This discount dollar amount in Step 2 above shall not change
during the Term of this Agreement, even though GTE may change its
retail rates.
5.4 Grandfathered Services. Services identified in GTE Tariffs as
grandfathered in any manner are available for resale only to end user
customers that already have such grandfathered service. An existing end
user customer may not move a grandfathered service to a new service
location.
5.5 Access. GTE retains all revenue due from other carriers for access to
GTE facilities, including both switched and special access charges.
5.6 Operator Services (OS) and Directory Assistance (DA). Where GTE
provides access to GTE Operator Services for local and toll assistance
(for example, call completion, busy line verification and emergency
interruption) and Directory Assistance (e.g., 411 calls routed to GTE's
DA operator centers) as an element of Exchange Services offered for
resale, DTI will be billed in accordance with Appendix F. GTE will
provide its existing OS and DA to a DTI at the same quality and in a
nondiscriminatory manner as the service GTE's end users receive.
5.6.1 Where Customized Routing is available (pursuant to Article
VII, Section 12.1), GTE will offer unbranded OS and DA or
rebranded OS and DA with the DTI brand. GTE will provide
such unbranding or rebranding on a switch-by-switch basis,
subject to capability and capacity limitations. Upon receipt
of an order for unbranding or rebranding, GTE will implement
within 90 Business Days when technically capable.
5.6.2 DTI will be billed for unbranding or rebranding and
Customized Routing. Upon written request from DTI, GTE
will provide DTI with terms and conditions for providing
Customized Routing and branding, plus the applicable
charges. In addition, a port and dedicated trunk facilities
are required as specified in Article VII, Section 12.1.4.
5.6.3 For those offices that DTI has requested GTE to rebrand
and/or unbrand OS and DA, GTE will provide it using
live operators where GTE performs its own OS and DA service
and where handled by automated systems. If GTE uses a Third
Party contractor to provide OS or DA, GTE will not provide
branding nor will GTE negotiate it with a Third Party on
behalf of DTI. DTI must negotiate with the Third Party. In
these instances, DTI will need to purchase customized
routing to differentiate OS/DA traffic between GTE's and a
Third Party.
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ARTICLE VII
UNBUNDLED NETWORK ELEMENTS
1. General. The purpose of this Article VII is to define the unbundled
network elements that may be leased by DTI from GTE. Unless otherwise
specified in this Agreement, provisioning of unbundled network
arrangements will be governed with the GTE Customer Guide for DTI
Establishment of Services - Resale and Unbundling (the "Guide").
Additional procedures for preordering, ordering, provisioning and
billing of unbundled network elements are outlined in Appendix I.
2. Unbundled Network Elements.
2.1 Categories. There are several separate categories of Network
Components that shall be provided as unbundled network elements by GTE:
(a) Network Interface Device or NID
(b) Loop Elements
(c) Port and Local Switching Elements
(d) Transport Elements
(e) Signaling Elements
(f) Data Switching
(g) Digital Cross Connect System (DCS)
2.2 Prices. Individual unbundled network elements and prices are identified
on Appendix G attached to this Agreement and made a part hereof, or
under the appropriate GTE tariff as referenced in this Article.
Nonrecurring charges relating to unbundled elements are also listed on
Appendix G.
2.2.1 Reciprocal Compensation Arrangements for Call Termination.
Reciprocal compensation arrangements for call termination
shall be as provided in Appendix M attached hereto.
2.3 Interconnection to Unbundled Elements. DTI may lease and interconnect
to whichever of these unbundled network elements DTI chooses, and
subject to technical feasibility, may combine these unbundled elements
with any facilities or services that DTI may itself provide subject to
the following:
2.3.1 Interconnection shall be achieved via expanded
interconnection/collocation arrangements DTI shall maintain
at the wire center at which the unbundled services are
resident.
2.3.2 DTI may order transport pursuant to Section 6 below as
follows:
(a) From the wire center at which the unbundled elements
(e.g., loop, port) are located to the GTE wire center
where DTI has established an interconnection/collocation
arrangement.
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<PAGE> 53
(b) Directly from the DTI switch to a GTE wire center and
connect to unbundled loops. Applicable charges would be
transport, transport termination, multiplexing,
loop/port connector and loop.
2.3.3 Each loop or port element shall be delivered to DTI
collocation arrangement over a loop/port connector
applicable to the unbundled services as listed on
Appendix G.
2.3.4 DTI shall combine unbundled network elements with its own
facilities. GTE has no obligation to combine any network
elements for DTI. DTI may not combine such network elements
to provide solely interexchange service or solely access
service to an interexchange carrier.
2.4 Service Quality. To the degree reasonably possible, all service
attributes, grades-of-service and installation, maintenance and repair
intervals which apply to the bundled service will apply to unbundled
network elements. Notwithstanding the foregoing, GTE shall not be
responsible for impacts on service attributes, grades of service, etc.,
resulting from DTI's specific use of or modification to any unbundled
network element.
3. Network Interface Device.
3.1 Direct Connection. DTI shall be permitted to connect its own Loop
directly to GTE's Network Interface Device or NID in cases in which DTI
uses its own facilities to provide local service to an end user
formerly served by GTE, as long as such direct connection does not
adversely affect GTE's network. In order to minimize any such adverse
effects, DTI shall follow the procedures in Sections 3.1.1 and 3.1.2
below.
3.1.1 When connecting its own loop facility directly to GTE's NID
for a residence or business customer, DTI must make a clean
cut on the GTE drop wire at the NID so that no bare
wire is exposed. DTI shall not remove or disconnect GTE's
drop wire from the NID or take any other action that might
cause GTE's drop wire to be left lying on the ground.
3.1.2 At multi-tenant customer locations, DTI must remove the
jumper wire from the distribution block (i.e. the NID) to
the GTE cable termination block. If DTI cannot gain
access to the cable termination block, DTI must make a clean
cut at the closest point to the cable termination block. At
DTI's request and discretion, GTE will determine the cable
pair to be removed at the NID in multi-tenant locations. DTI
will compensate GTE for the trip charge necessary to
identify the cable pair to be removed.
3.1.3 GTE agrees to offer NIDs for lease to DTI but not for sale.
DTI may remove GTE identification from any NID which it
connects to a DTI loop, but DTI may not place its own
identification on such NID.
3.1.4 GTE Loop elements leased by DTI will be required to
terminate only on a GTE NID. If DTI leasing a GTE loop
wants a DTI NID, they will also be required to lease a GTE
NID for the direct loop termination and effect a NID to NID
connection.
3.2 NID to NID Connection. Rather than connecting its loop directly to
GTE's NID, DTI may also elect to install its own NID and effect a NID
to NID connection to gain access to the end user's inside wiring.
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<PAGE> 54
3.2.1 DTI that provides its own loop facilities may elect to move
all inside wire terminated on a GTE NID to one provided by
DTI. In this instance, a NID to NID connection will not be
required. DTI, or the end user premise owner, can elect to
leave the GTE disconnected NID in place, or to remove the
GTE NID from the premise and dispose of it entirely.
3.3 Removal of Cable Pairs. Removal of existing cable pairs required for
DTI to terminate service is the responsibility of DTI.
3.4 Maintenance. When DTI provides its own loop and connects directly to
GTE's NID, GTE does not have the capability to perform remote
maintenance. DTI can perform routine maintenance via its loop and
inform GTE once the trouble has been isolated to the NID and GTE will
repair (or replace) the NID, or, at DTI's option, it can make a NID to
NID connection, using the GTE NID only to gain access to the inside
wire at the customer location.
4. Loop Elements.
4.1 Service Description. a "Loop" is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel
or group of channels on such facility) which extends from a Main
Distribution Frame ("MDF") or functionally comparable piece of
equipment in a GTE end office or wire center to a demarcation or
connector block in/at a subscriber's premises. Traditionally, Loops
were provisioned as 2-wire or 4-wire copper pairs running from the end
office MDF to the customer premises. However, a loop may be provided
via other media, including radio frequencies, as a channel on a high
capacity feeder/distribution facility which may, in turn, be
distributed from a node location to the subscriber premises via a
copper or coaxial drop facility, etc.
4.2 Categories of Loops. There are six general categories of loops:
4.2.1 "2-wire analog voice grade" loops will support analog
transmission of 300-3000 Hz, repeat loop start or ground
start seizure and disconnect in one direction (toward
the end office switch), and repeat ringing in the other
direction (toward the end user). This loop is commonly used
for local dial tone service;
4.2.2 "4-wire analog voice grade" loops conform to the
characteristics of a 2-wire voice grade loop and, in
addition, can support the simultaneous independent
transmission of information in both directions;
4.2.3 "2-wire digital" loops will support industry standard
specifications for digital transmission. Special
provisioning (removal of bridge taps and/or load coils) will
be required to conform to these industry standards. The
price for 2-wire digital loops shall be the price for the
basic 2-wire loop plus the loop facility NRC to recover the
cost of the special provisioning.
4.2.4 "4-wire digital" loops will support industry standard
specifications for digital transmission. Special
provisioning (removal of bridge taps and/or load coils) will
be required to conform to these industry standards. The
price for 4-wire digital loops shall be the price for the
basic 4-wire loop plus the loop facility NRC to recover the
cost of the special provisioning.
4.2.5 "DS-1" loops will support a digital transmission rate of
1.544 Mbps. The DS-1 loop will have no bridge taps or load
coils and will employ special line treatment. DS-1 loops
will include span line repeaters where required, office
terminating repeaters, and DSX cross connects. Prices for
DS-1 grade loops are the prices set forth in the appropriate
GTE intrastate special access tariff.
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<PAGE> 55
4.2.6 "DS-3" loops will support the transmission of isochronous
bipolar serial data at a rate of 44.736 Mbps. This DS-3 type
of loop provides the equivalent of 28 DS-1 channels and
shall include the electronics at either end.
4.3 Conditioned Loops. DTI may also require that the loops ordered above be
conditioned in order for them to provide the end-user service. Examples
of this type of conditioning are: Type C, Type DA, Improved C, Clear
Channel, etc. The price for such a conditioned loops shall be the
applicable charge as provided in the appropriate GTE intrastate special
access tariff.
4.4 Features, Functions, Attributes. To the degree reasonably possible, all
transport-based features, functions, service attributes,
grades-of-service, installation, maintenance and repair intervals that
apply to the bundled services will apply to unbundled loops.
4.4.1 GTE will not perform routine testing of the unbundled loop
for maintenance purposes. DTI will be required to provision
a loop testing device either in its central office
(switch location), Network Control Center or in its
collocation arrangement to test the unbundled loop. GTE will
perform repair and maintenance once trouble is identified by
DTI.
4.4.2 All Loop facilities furnished by GTE on the premises of
DTI's end users and up to the network interface or
functional equivalent are the property of GTE. GTE must have
access to all such facilities for network management
purposes. GTE employees and agents may enter said premises
at any reasonable hour to test and inspect such facilities
in connection with such purposes or, upon termination or
cancellation of the Loop facility, to remove such facility.
4.4.3 GTE will provide loop transmission characteristics to DTI
end users which are equal to those provided to GTE end
users.
4.4.4 If DTI leases loops which are conditioned to transmit
digital signals, as a part of that conditioning, GTE will
test the loop and provide recorded test results to
DTI. In maintenance and repair cases, if loop tests are
taken, GTE will provide any recorded readings to DTI at time
the trouble ticket is closed in the same manner as GTE
provides to itself and its end users.
4.5 Digital Loop Carrier. Where GTE utilizes integrated digital loop
carrier ("IDLC")1 technology to provision the Loop element, GTE will
take the necessary affirmative steps to provide unbundled Loops. The
basic Loop provided will support voice grade services. Loop
capabilities beyond voice grade (i.e., ISDN, ADSL, etc.) will be
provided under the terms and conditions, and at the prices indicated in
Section 4.3.
4.5.1 GTE will permit DTI to collocate digital loop carriers and
associated equipment in conjunction with collocation
arrangements DTI maintains at a GTE wire center for the
purpose of interconnecting to unbundled Loop elements.
4.6 Unbundled Loop Facility Certification.
4.6.1 Before deploying any service enhancing copper cable
technology (e.g., HDSL, ISDN, etc.) over unbundled 2-wire
analog voice grade loops leased from GTE, DTI shall notify
GTE of
- --------
(1) See Bellcore TR-TSY-000008, Digital Interface Between the SLC-96 Digital
Loop Carrier System and Local Digital Switch and TR-TSY-000303, Integrated
Digital Loop Carrier (IDLC) Requirements, Objectives and Interface.
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<PAGE> 56
such intentions to enable GTE to assess the loop transport
facilities to determine whether there are any existing
copper cable loop transport technologies (e.g., analog
carrier, etc.) deployed within the same cable sheath that
would be interfered with if DTI deployed the proposed
service enhancing copper cable technology. If there are
existing copper cable loop transport technologies already
deployed within the same cable sheath, or if GTE already has
existing near term (within 18 months of the date of facility
certification) plans to deploy copper cable loop transport
technologies that would be interfered with as described
above, GTE will so inform DTI and DTI shall not be permitted
to deploy such service enhancing copper cable technologies.
GTE will charge DTI the applicable engineering time and
labor costs to perform the certification.
4.6.2 If DTI fails to notify GTE of its plans to deploy service
enhancing copper cable technology and obtain prior
certification from GTE of the facilities, if DTI's
deployment of such technology is determined to have caused
interference with existing or planned copper cable loop
transport technologies deployed by GTE in the same cable
sheath, DTI will immediately remove such service enhancing
copper cable technology and shall reimburse GTE for all
incurred expense related to this interference.
4.7 Unbundled Loop Facility Notification.
4.7.1 GTE reserves the right to deploy within its network at its
sole discretion any and all copper cable loop transport
technologies. If GTE plans to deploy copper cable loop
transport technology within a cable sheath in which such
technology was not previously deployed, GTE will provide
notice to DTI of such planned deployment, indicating all
service enhancing copper cable technologies that would cause
interference with the technology to be deployed, or that
would be interfered with by the deployment of such
technology. Such notice will be provided at least ninety
(90) Business Days in advance of the planned deployment. If
DTI has deployed any technologies within the same cable
sheath that would interfere with, or be interfered with, by
the technology GTE plans to deploy, the parties will work
together to resolve the situation.
4.8 Subloops.
4.8.1 GTE will provide as separate items the loop distribution,
loop concentrator and loop feeder on a case-by-case basis
pursuant to a Bona Fide Request ("BFR").
4.8.2 GTE will design and construct loop access facilities
(including loop feeders and loop concentration/multiplexing
systems) in accordance with standard industry practices as
reflected in applicable tariffs and/or as agreed to by GTE
and DTI.
4.8.3 Transport for loop concentrators/multiplexers services not
supported by embedded technologies will be provided
pursuant to applicable tariffs or as individually agreed
upon by GTE and DTI. The Parties understand that embedded
loop concentrators/multiplexers are not necessarily capable
of providing advanced and/or digital services.
4.8.4 GTE will provide loop transmission characteristics as
specified in Section 4.4.3 herein.
5. Port and Local Switching Elements.
5.1 Port. Port is an unbundled component of Exchange Service that provides
for the interconnection of individual loops or trunks to the switching
components of GTE's network. In general, it is a line card or trunk
card and associated peripheral equipment on GTE end office switch that
serves as the hardware termination for the end user's Exchange Service
on that switch and generates dial
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tone and provides the end user access to the public switched
telecommunications network. The port does not include such features and
functions which are provided as part of Local Switching. Each line-side
port is typically associated with one (or more) telephone number(s),
which serve as the end user's network address.
5.2 Ports Available as Unbundled Network Elements. There are four types of
Ports available as unbundled network elements;
5.2.1 "2-wire analog line" Port is a line side switch connection
employed to provide basic residential and business type
Exchange Service.
5.2.2 "2-wire ISDN digital line" Port is a Basic Rate Interface
(BRI) line side switch connection employed to provide ISDN
Exchange Services.
5.2.3 "DS-1 digital trunk" Port is a direct inward dialing (DID)
trunk side switch connection employed to provide the
equivalent of 24 analog incoming trunk type Exchange
Services.
5.2.4 "4-wire ISDN digital DS-1 trunk" Port is a Primary Rate
Interface (PRI) trunk side switch connection employed to
provide the ISDN Exchange Services
5.3 Port Prices. Prices for 2-wire analog and DS-1 Ports are listed in
Appendix G. 2-wire ISDN line side Ports and 4-wire ISDN trunk side
Ports shall be provided at a price agreed to by the Parties.
5.4 Local Switching. Local switching provides the basic switching functions
to originate, route and terminate traffic and any signaling deployed in
the switch. Vertical features are optional services provided
through software programming in the switch which can be added on a
per-feature basis with applicable rate. GTE will offer only those
features and functions currently available to the particular platform
used (e.g., DMS, 5ESS, GTD5). Any feature or function which is not
available, but the switch is capable of providing, may be requested via
the BFR process. DTI will be responsible for bearing any costs incurred
by GTE in making such feature/function available, including
Right-to-Use (RTU) fees. The rates for Local Switching and Vertical
Features are listed in Appendix G.
5.4.1 DTI must purchase Local Switching with the line-side Port
or trunk-side Port, if applicable.
5.5 Compliance with Section 2.3. DTI shall only order unbundled elements in
accordance with Section 2.3 herein and it will be the responsibility of
DTI to make arrangements for the delivery of interexchange traffic and
routing of traffic over interoffice transmission facilities, if
applicable.
6. Transport Facility.
6.1 Service Description. Transport is an unbundled component of Exchange
Service. In general, it is the transmission facility (or channel or
group of channels on such facility) which extends from a Main
Distribution Frame (MDF) or functionally comparable piece of equipment
in a GTE end office or access tandem to either (I) another MDF or
functionally comparable piece of equipment in a GTE end office or
access tandem, or (ii) a meet point with transport facilities of DTI or
another carrier. Transport may be provided over a variety of media,
including, but not limped to, copper cables, radio frequencies or
channels on a high capacity facility.
6.1.1 Tandem Switching Capability. GTE will provide tandem
switching capability at GTE access tandems for traffic
between DTI and GTE end offices subtending the GTE access
tandem and for traffic between DTI and non-GTE end offices
subtending GTE access tandems. GTE will provide the
features and functions that are
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centralized in tandem switches including but not limited to
call recording, the routing of calls to operator
services when technically feasible, and signaling
conversion features.
6.2 Categories/Types. Unbundled transport is provided under rates, terms
and conditions of the applicable GTE access tariff or local private
line tariff.
7. SS7 Transport and Signaling. SS7 signaling and transport services in
support of DTI's local exchange services shall be provided in
accordance with the terms and conditions of Appendix I attached to this
Agreement and made a part hereof.
7.1 GTE will provide interconnection with its SS7 at the STPs but not at
other points.
8. LIDB Services. Access to GTE's LIDB shall be provided in accordance
with the rates, terms and conditions of GTE's switched access tariff,
GTOC Tariff FCC No. 1, Section 8.
9. Database 800-Type Services. Access to GTE's 800-Type database (i.e.,
888, 877) shall be provided in accordance with the rates, terms and
conditions of GTE's switched access tariff, GTOC Tariff FCC No. 1,
Section 8.
10. Data Switching.
10.1 Access. GTE will provide unbundled access to GTE data switches to DTI
at the user network interface ("UNI") and network to network interface
("NNI") level subject to mutual agreement on technical standards.
10.2 Nondiscrimination. Data switching features and functionalities provided
to DTI will be without discrimination with respect to the way GTE
provides them to GTE end users. In the event of overflow or congestion
conditions on the data switching network, DTI's data traffic carried on
GTE facilities will be equal priority to GTE data traffic.
10.3 Testing, Monitoring, Administration and Maintenance. Testing,
monitoring, administration and maintenance will be performed by GTE in
a nondiscriminatory manner.
11. Digital Cross Connect System (DCS).
11.1 Access. GTE will provide unbundled access to the DCS element, which
shall provide automated cross-connection (with CNC), facility grooming,
bridging (MJU-digital), point to multipoint connections (DMB-analog),
broadcast and automated facility test capabilities. These
functionalities will be provided consistent with that which is provided
to GTE end users. DTI shall submit a Bona Fide Request to GTE
specifying these functionalities.
11.2 Optional Characteristics. The DCS element may include multiplexing,
format conversion, signaling conversion and manual cross connection
wiring.
11.3 Alternate Provisioning. Where no automated DCS capability exists, the
cross connection function will be provided manually by GTE through the
combination of DSX patch panels and D4 banks or DS0 (or higher
capacity) equipment.
11.4 Elements. DTI will have access to the following DCS elements:
(a) DS0 with DS1 interface (CNC)
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(b) DS1/VT1.5 with DS1, DS3 and SONET interfaces (CNC and Titan 5500)
11.5 Capabilities. The DCS elements will provide the following capabilities:
(a) Real-time configuration (with CNC)
(b) Real-time access to integrated test equipment (with React and
Customer Service)
(c) SONET asynchronous gateway functionality (with Titan 5500 only)
(d) Compliance with Bellcore and industry standards.
11.6 Protection and Performance. The unbundled DCS elements provided to DTI
will have equipment/interface protection, redundant power supply and/or
battery backup and performance/availability consistent with that
provided to GTE end users.
11.7 Provisioning, Administration and Maintenance. GTE will provide
provisioning, administration and maintenance of the DCS elements the
same level as GTE provides to itself as well as real time access to
performance monitoring and alarm data affecting DTI traffic (with CNC).
GTE is not required to keep software updated to the "current available
release" in every instance.
12. Operator Services (OS) and Directory Assistance (DA). GTE will provide
OS and DA to DTI in accordance with the terms set forth as follows:
12.0.1 Where Customized Routing is available, GTE will offer
unbranded OS and DA or rebranded OS and DA with the DTI
brand. GTE will provide such unbranding or rebranding on
a switch-by-switch basis, subject to capability and
capacity limitations. Upon receipt of an order for
unbranding or rebranding, GTE will implement within 90
Business Days when technically capable.
12.0.2 DTI will be billed an element charge for OS and DA and a
charge for unbranding or rebranding and Customized
Routing as set forth in Section 12.1.2. In addition,
charges specified in Section 12.1.4 will apply.
12.0.3 For those offices that DTI has requested GTE to rebrand
and/or unbrand OS and DA, GTE will provide it using live
operators where GTE performs its own OS and DA service and
where handled by automated systems. If GTE uses a
Third Party contractor to provide OS or DA, GTE will not
provide branding nor will GTE negotiate it with a Third
Party on behalf of DTI. DTI must negotiate with the Third
Party. In these instances, DTI will need to purchase
customized routing to differentiate OS/DA traffic between
GTE's and a Third Party.
12.1 Customized Routing. Where technically feasible and upon receipt of
written request from DTI, GTE agrees to provide customized routing for
the following types of calls:
0-
0+Local
0+411
1+411
0+HNPA-555-1212 (intraLATA, only when intraLATA
presubscription is not available)
1+HNPA-555-1212 (intraLATA, only when intraLATA
presubscription is not available)
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12.1.1 GTE will provide DTI a list of switches that can provide
customized routing using line class codes or similar method
(regardless of current capacity limitations). DTI will
return a list of these switches ranked in priority order.
GTE will return to DTI a schedule for customized routing in
the switches with existing capabilities and capacity.
12.1.2 Upon written request from DTI, GTE will provide DTI with
applicable charges, and terms and conditions, for providing
OS and DA, branding, and Customized Routing.
12.1.3 Subject to the above provisions, GTE will choose the
method of implementing customized routing of OS and DA
calls.
12.1.4 The use of customized routing will require the purchase of
a trunk side port and dedicated facilities between the GTE
end office and the designated OS/DA platform. The rates for
these elements will be billed in accordance with Appendix
G.
13. Advanced Intelligent Network Access (AIN). GTE will provide DTI access
to GTE AIN functionality from GTE's AIN SCP via GTE's local switch or
DTI's local switch.
14. Nondiscrimination Provision and Support. GTE agrees to provide
unbundled network elements in a timely manner considering the need and
volume of requests. GTE will provide unbundled network elements in a
non-discriminatory manner and shall provide power to such elements on
the same basis as GTE provides to itself.
15. Provisioning Intervals. GTE agrees to provide unbundled network
elements in a timely manner considering the need and volume of
requests, pursuant to agreed upon service provisioning intervals.
16. Directory Assistance Listing. When DTI orders an unbundled port, a
Directory Service Request (DSR) must be submitted to have the listing
included in GTE's Directory Assistance database. The applicable
ordering charge will be applied for processing the DSR.
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ARTICLE VIII
ADDITIONAL SERVICES AND COORDINATED SERVICE ARRANGEMENTS
1. Bona Fide Request Process.
1.1 Intent. The Bona Fide Request process is intended to be used when DTI
requests customized Service Orders for certain services, features,
capabilities or functionality defined and agreed upon by the Parties as
services to be ordered as Bona Fide Requests.
1.2 Process.
1.2.1 A Bona Fide Request shall be submitted in writing by DTI and shall
specifically identify the need to include technical requirements, space
requirements and/or other such specifications that clearly define the
request such that GTE has sufficient information to analyze and prepare
a response.
1.2.2 Although not expected to do so, DTI may cancel a Bona Fide Request in
writing at any time prior to DTI and GTE agreeing to price and
availability. GTE will then cease analysis of the request.
1.2.3 Within two (2) Business Days of its receipt, GTE shall acknowledge in
writing the receipt of the Bona Fide Request and identify a single
point of contact and any additional information needed to process the
request.
1.2.4 Except under extraordinary circumstances, within ten (10) Business Days
of its receipt of a Bona Fide Request, GTE shall provide a proposed
price and availability date, or it will provide an explanation as to
why GTE elects not to meet DTI's request. If extraordinary
circumstances prevail, GTE will inform DTI as soon as it realizes that
it cannot meet the ten (10) Business Day response due date. DTI and GTE
will then determine a mutually agreeable date for receipt of the
request.
1.2.5 Unless DTI agrees otherwise, all proposed prices shall be consistent
with the pricing principles of the Act, FCC and/or the Commission.
Payments for services purchased under a Bona Fide Request will be made
upon delivery, unless otherwise agreed to by DTI, in accordance with
the applicable provisions of the Agreement.
1.2.6 Upon affirmative response from GTE, DTI will submit in writing its
acceptance or rejection of GTE's proposal. If at any time an agreement
cannot be reached as to the terms and conditions or price of the
request GTE agrees to meet, the Dispute resolution procedures described
in Article III herein may be used by a Party to reach a resolution.
2. Transfer of Service Announcements. For services other than GTE resold
and ported number services, when an end user customer transfers service
from one Party to the other Party, and does not retain its original
telephone number, the Party formerly providing service to the end user
will provide, upon request and if such service is provided to its own
customers, a referral announcement on the original telephone number.
This announcement will provide the new number of the customer and will
remain in effect for the same time period this service is provided to
GTE's own end users. For GTE resold and ported number services, GTE
shall provide an intercept referral on behalf of DTI.
3. Misdirected Calls. The Parties will employ the following procedures for
handling any misdirected calls (e.g., Business office, repair bureau,
etc.).
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3.1 To the extent the correct provider can be determined, each Party will
refer misdirected calls to the proper provider of local exchange
service. When referring such calls, both Parties agree to do so in a
courteous manner, at no charge.
3.2 For misdirected repair calls, the Parties will provide their respective
repair bureau contact number to each other on a reciprocal basis and
provide the end user the correct contact number.
3.3 In responding to misdirected calls, nether Party shall make disparaging
remarks about each other, nor shall they use these calls as a basis for
internal referrals or to solicit end users or to market services.
4. 911/E911 Arrangements.
4.1 Description of Service. DTI will install a minimum of two (2) dedicated
trunks to GTE's 911/E911 selective routers (i.e., 911 tandem offices)
that serve the areas in which DTI provides Exchange Services, for the
provision of 911/E911 services and for access to all subtending PSAPs.
The dedicated trunks shall be, at a minimum, DS-0 level trunks
configured as a 2-wire analog interface or as part of a digital (1.544
Mbps) interface in which all circuits are dedicated to 9-1-1 traffic.
Either configuration shall use CAMA type signaling with multifrequency
("MF") tones that will deliver ANI with the voice portion of the call.
GTE will provide DTI with the appropriate CLLI codes and specifications
of the tandem office serving area or the location of the primary PSAP
when there is no 911 routing in that 911 district. If a DTI central
office serves end users in an area served by more than one (1) GTE
911/E911 selective router, DTI will install a minimum of two (2)
dedicated trunks in accordance with this Section to each of such
911/E911 selective routers or primary PSAP.
4.2 Transport. If DTI desires to obtain transport from GTE to the GTE 911
selective routers, DTI may purchase such transport from GTE at the
rates set forth in Appendix H.
4.3 Cooperation and Level of Performance. The Parties agree to provide
access to 911/E911 in a manner that is transparent to the end user. The
Parties will work together to facilitate the prompt, reliable and
efficient interconnection of DTI's systems to the 911/E911 platforms,
with a level of performance that will provide the same grade of service
as that which GTE provides to its own end users. To this end, GTE will
provide documentation to DTI showing the correlation of its rate
centers to its E911 tandems at rates set forth in Appendix H.
4.4 Basic 911 and E911 General Requirements:
4.4.1 Basic 911 and E911 provides a caller access to the
appropriate emergency service bureau by dialing a 3-digit
universal telephone number (911).
4.4.2 Where GTE has a 911 selective router installed in the
network serving the 911 district, GTE shall use subscriber
data derived from the Automatic Location
Identification/Database Management System (ALI/DMS) to
selectively route the 911 call to the Public Safety
Answering Point (PSAP) responsible for the caller's
location.
4.4.3 All requirements for E911 also apply to the use of SS7 as a
type of signaling used on the interconnection trunks from
the local switch to an end office or a selective router.
4.4.4 Basic 911 and E911 functions provided to DTI shall be at
least at parity with the support and services that GTE
provides to its subscribers for such similar functionality.
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4.4.5 Basic 911 and E911 access from Local Switching shall be
provided to DTI in accordance with the following:
4.4.5.1 GTE and DTI shall conform to all state regulations
concerning emergency services.
4.4.5.2 For E911, both DTI and GTE shall use their
respective service order processes to update access
line subscriber data for transmission to the
database management systems. Validation will be
done via MSAG comparison listed in Section
4.4.5.5.
4.4.5.3 If legally required by the appropriate
jurisdiction, GTE shall provide or overflow 911
traffic to be routed to GTE Operator Services or,
at DTI's discretion, directly to DTI Operator
Services.
4.4.5.4 Basic 911 and E911 access from the DTI local switch
shall be provided from GTE to DTI in accordance
with the following:
4.4.5.4.1 If required by DTI and technically
feasible, GTE shall interconnect
direct trunks from the DTI network
to the E911 PSAP, or to the E911
selective routers as designated by
DTI. Such trunks may alternatively
be provided by DTI.
4.4.5.4.2 In government jurisdictions where
GTE has obligations under existing
Agreements as the primary provider
of the 911 System to the county
(i.e., "lead telco"), DTI shall
participate in the provision of the
911 System as follows:
4.4.5.4.2.1 Each Party shall be responsible
for those portions of the 911
System for which it has
control, including any
necessary maintenance to each
Party's portion of the 911
System.
4.4.5.4.2.2 DTI and GTE recognize that the
lead telco in a 911 district
has the responsibility of
maintaining the ALI database
for that district. Each company
will provide its access line
subscriber records to the
database organization of that
lead telco. DTI and GTE will be
responsible for correcting
errors when notified by either
the 911 district or its
customer, and then submitting
the corrections to the lead
telco. Lead telco database
responsibilities are covered in
Section 4.4.5.5 of this
Article.
4.4.5.4.2.3 DTI shall have the right to
verify the accuracy of
information regarding DTI
customers in the ALI database
using methods and procedures
mutually agreed to by the
Parties. The fee for this
service shall be determined
based upon the agreed upon
solution.
4.4.5.4.3 If a Third Party is the primary
service provider to a 911 district,
DTI shall negotiate separately
with such Third Party with regard
to the provision of 911 service to
the agency. All relations between
such
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Third Party and DTI are totally
separate from this Agreement and
GTE makes no representations on
behalf of the Third Party.
4.4.5.4.4 If DTI or Affiliate is the primary
service provider to a 911 district,
DTI and GTE shall negotiate the
specific provisions necessary for
providing 911 service to the agency
and shall include such provisions
in an amendment to this Agreement.
4.4.5.4.5 Interconnection and database access
shall be at rates as set forth in
Appendix H.
4.4.5.4.6 GTE shall comply with established,
competitively neutral intervals for
installation of facilities,
including any collocation
facilities, diversity requirements,
etc.
4.4.5.4.7 In a resale situation, where it may
be appropriate for GTE to update
the ALI database, GTE shall
update such database with DTI data
in an interval no less than is
experienced by GTE subscribers, or
than for other carriers, whichever
is faster, at no additional cost.
4.4.5.5 The following are Basic 911 and E911 Database
Requirements:
4.4.5.5.1 The ALI database shall be managed
by GTE, but is the property of GTE
and any participating LEC or DTI
which provides their records to
GTE.
4.4.5.5.2 Copies of the MSAG shall be
provided within five (5) business
days after the date the
request is received and provided on
diskette or paper copy at the rates
set forth in Appendix H.
4.4.5.5.3 DTI shall be solely responsible for
providing DTI database records to
GTE for inclusion in GTE's ALI
database on a timely basis.
4.4.5.5.4 GTE and DTI shall arrange for the
automated input and periodic
updating of the E911 database
information related to DTI end
users. GTE shall work cooperatively
with DTI to ensure the accuracy of
the data transfer by verifying it
against the Master Street Address
Guide ("MSAG"). GTE shall accept
electronically transmitted files or
magnetic tape that conform to
National Emergency Number
Association ("NENA") Version #2
format.
4.4.5.5.5 DTI shall assign an E911 database
coordinator charged with the
responsibility of forwarding DTI
end user ALI record information to
GTE or via a third-party entity,
charged with the responsibility of
ALI record transfer. DTI assumes
all responsibility for the accuracy
of the data that DTI provides to
GTE.
4.4.5.5.6 GTE shall update the database
within one (1) business day of
receiving the data from DTI.
If GTE detects an error in the DTI
provided data, the data shall be
returned to DTI within one day from
when it was provided to GTE. DTI
shall respond to requests from GTE
to make corrections to database
record errors by
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uploading corrected records within
one day. Manual entry shall be
allowed only in the event that the
system is not functioning properly.
4.4.5.5.7 GTE agrees to treat all data on DTI
subscribers provided under this
Agreement as strictly confidential
and to use data on DTI subscribers
only for the purpose of providing
E911 services.
4.4.5.5.8 GTE shall adopt use of a Carrier
Code (NENA standard five-character
field) on all ALI records
received from DTI. The Carrier Code
will be used to identify the
carrier of record in NP
configurations. The NENA Carrier
Code for DTI is "DTI"; the NENA
Carrier Code for GTE is "GTE."
4.4.5.6 GTE and DTI will comply with the following
requirements for network performance, maintenance
and trouble notification.
4.4.5.6.1 Equipment and circuits used for 911
shall be monitored at all times.
Monitoring of circuits shall be
done to the individual trunk level.
Monitoring shall be conducted by
GTE for trunks between the
selective router and all associated
PSAPs.
4.4.5.6.2 Repair service shall begin
immediately upon report of a
malfunction. Repair service
includes testing and diagnostic
service from a remote location,
dispatch of or in-person visit(s)
of personnel. Where an on-site
technician is determined to be
required, a technician will be
dispatched without delay.
4.4.5.6.3 GTE shall notify DTI forty-eight
(48) hours in advance of any
scheduled testing or maintenance
affecting DTI 911 service. GTE
shall provide notification as soon
as possible of any unscheduled
outage affecting DTI 911 service.
4.4.5.6.4 All 911 trunks must be capable of
transporting Baudot Code necessary
to support the use of
Telecommunications Devices for the
Deaf ("TTY/TDDs").
4.4.5.7 Basic 911 and E911 Additional Requirements
4.4.5.7.1 All DTI lines that have been ported
via INP shall reach the correct
PSAP when 911 is dialed. Where
GTE is the lead telco and provides
the ALI, the ALI record will
contain both the DTI number and GTE
ported number. The PSAP attendant
shall see both numbers where the
PSAP is using a standard ALI
display screen and the PSAP
extracts both numbers from the data
that is sent. GTE shall cooperate
with DTI to ensure that 911 service
is fully available to all DTI end
users whose telephone numbers have
been ported from GTE, consistent
with State provisions.
4.4.5.7.2 DTI and GTE shall be responsible
for reporting all errors, defects
and malfunctions to one another.
GTE and DTI shall provide each
other with a point of contact for
reporting errors, defects, and
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malfunctions in the service and
shall also provide escalation
contacts.
4.4.5.7.3 DTI may enter into subcontracts with
third parties, including DTI
Affiliates, for the performance of
any of DTI's duties and obligations
stated herein.
4.4.5.7.4 Where GTE is the lead telco, GTE
shall provide DTI with notification
of any pending selective router
moves within at least ninety (90)
days in advance.
4.4.5.7.5 Where GTE is the lead telco, GTE
shall establish a process for
the management of NPA splits by
populating the ALI database with the
appropriate new NPA codes.
4.4.5.7.6 Where GTE is the lead telco, GTE
shall provide the ability for DTI to
update 911 database with end
user information for lines that have
been ported via INP or LNP.
4.4.6 Basic 911 and E911 Information Exchanges and interfaces.
Where GTE is the lead telco:
4.4.6.1 GTE shall provide DTI access to the ALI Gateway
which interfaces to the ALI/DMS database. GTE shall
provide error reports from the ALI/DMS database to
DTI within one (1) day after DTI inputs information
into the ALI/DMS database. Alternately, DTI may
utilize GTE or a Third Party entity to enter
subscriber information into the database on a
demand basis, and validate subscriber information
on a demand basis. The rates are set forth in
Appendix H.
4.4.6.2 GTE and DTI shall arrange for the automated input
and periodic updating of the E911 database
information related to DTI end users. GTE shall
work cooperatively with DTI to ensure the accuracy
of the data transfer by verifying it against the
Master Street Address Guide ("MSAG"). GTE shall
accept electronically transmitted files or magnetic
tape that conform to National Emergency Number
Association ("NENA") Version #2 format.
4.4.6.3 Updates to MSAG. Upon receipt of an error recording
an DTI subscriber's address from GTE, and where GTE
is the lead telco, it shall be the responsibility
of DTI to ensure that the address of each of its
end users is included in the Master Street Address
Guide ("MSAG") via information provided on DTI's
Local Service Request ("LSR") or via a separate
feed established by DTI pursuant to Section 4.4.5.7
of this Article.
4.4.6.4 The ALI database shall be managed by GTE, but is
the property of GTE and all participating telephone
companies. The interface between the E911 Switch or
Tandem and the ALI/DMS database for DTI subscriber
shall meet industry standards.
4.5 Compensation. In situations in which GTE is responsible for maintenance
of the 911/E911 database and can be compensated for maintaining DTI's
information by the municipality, GTE will seek such compensation from
the municipality. GTE will seek compensation from DTI only if, and to
the extent, that GTE is unable to obtain such compensation from the
municipality. GTE
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shall charge DTI a portion of the cost of the shared 911/E911 selective
router as set forth in Appendix H.
5. Information Services Traffic.
5.1 Routing. Each Party shall route traffic for Information Services (i.e.
900-976, Internet, weather lines, sports providers, etc.) which
originates on its network to the appropriate Information Service
Platform.
5.2 Billing and Collection and Information Service Provider (ISP)
Remuneration.
5.2.1 In the event GTE performs switching of ISP traffic
associated with resale or unbundled network elements for
DTI, GTE shall provide to DTI GTE's standard call
detail records so as to allow DTI to bill its end users.
GTE shall not be responsible or liable to DTI or ISP for
Billing and Collection and/or any receivables of Information
Service Providers.
5.2.2 Notwithstanding and in addition to Article III, Section 24,
GTE shall be indemnified and held harmless by CLEC from and
against any and all suits, actions, losses, damages,
claims, or liability of any character, type, or description,
including all expenses of litigation and court cost which may
arise as a result of the provisions contained in this Article
VIII, Section 5.2.1 supra. The indemnity contained in this
section shall survive the termination of this Agreement, for
whatever reason.
5.2.3 GTE agrees to notify DTI in writing within __ working days,
by registered or certified mail at __ of any claim made
against GTE on the obligations indemnified against pursuant
to this Article VIII, Section 5.
5.2.4 It is understood and agreed that the indemnity provided for
in this Article VIII, Section 5 is to be interpreted and
enforced so as to provide indemnification of liability to GTE
to the fullest extent now or hereafter permitted by law.
5.3 900-976 Call Blocking. GTE shall not unilaterally block 900-976 traffic
in which GTE performs switching associated with resale or unbundled
network elements. GTE will block 900-976 traffic when requested to do
so, in writing, by DTI. DTI shall be responsible for all cost
associated with the 900-976 call blocking request. GTE reserves the
right to block any and all calls which may harm or damage its network.
5.4 Miscellaneous. GTE reserves the right to provide to any Information
Service Provider a list of any and all Telecommunications Providers
doing business with GTE.
6. Telephone Relay Service. Local and intraLATA Telephone Relay Service
("TRS") enables deaf, hearing-impaired, or speech-impaired TRS users to
reach other telephone users. With respect to resold services, DTI's end
users will have access to the state authorized TRS provider to the
extent required by the Commission, including any applicable
compensation surcharges.
7. Directory Assistance (DA) and Operator Services (OS). Where DTI is
providing local service with its own switch, upon DTI's request GTE
will provide to DTI rebranded or unbranded directory assistance
services and/or operator services pursuant to separate contracts to be
negotiated in good faith between the Parties. If DTI so requests
directory assistance services and/or operator services, such contracts
shall provide for the following:
7.1 Directory Assistance Calls. GTE directory assistance centers shall
provide number and addresses to DTI end users in the same manner that
number and addresses are provided to
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GTE end users. If information is provided by an automated response unit
("ARU"), such information shall be repeated twice in the same manner in
which it is provided to GTE end users. Where available, GTE will
provide call completion to DTI end users in the same manner that call
completion is provided to GTE end users. GTE will provide its existing
services to DTI end users consistent with the service provided to GTE
end users.
7.2 Operator Services Calls. GTE operator services provided to DTI end
users shall be provided in the same manner GTE operator services are
provided to GTE end users. In accordance with GTE practices and at GTE
rates, GTE will offer to DTI end users collect, person-to-person,
station-to-station calling, Third Party billing, emergency call
assistance, calling card services, credit for calls, time and charges,
notification of the length of call, and real time rating. GTE operators
shall also have the ability to quote DTI rates upon request but only if
there is appropriate cost recovery to GTE and to the extent it can be
provided within the technical limitations of GTE's switches. GTE will
provide its existing services to DTI end users consistent with the
service GTE provides to its own end users.
8. Directory Assistance Listings Information. GTE will include listings in
its directory assistance database for DTI end users in the same
geographic area as GTE provides directory assistance for GTE end users
as specified in Article VI, Section 3.4.
8.1 GTE shall provide to DTI, at DTI's request, for purposes of DTI
providing DTI-branded directory assistance services to its local
customers, within sixty (60) Business Days after an order for such tape
is received, all published DA listings for that specific state via
magnetic tape. Such listings will be Confidential Information under
this Agreement and DTI will use the listings only for its directory
assistance services to its end users. If DTI uses a Third Party
directory assistance service to its end users, DTI will ensure that
such Third Party likewise treats the listings as Confidential
Information under this Agreement, and uses them only for such directory
assistance. Changes to the DA Listing Information shall be updated on a
daily basis through the same means used to transmit the initial list.
DA Listing Information provided shall indicate whether the customer is
a residence or business customer. The rate to be paid by DTI to GTE
will be reasonable and mutually agreed upon.
8.2 The Parties will not release DA Listing Information that includes the
other Party's end user information to Third Parties without the other
Party's written approval. The other Party will inform the Releasing
Party if it desires to have the Releasing Party provide the other
Party's DA Listing Information to the Third Party, in which case, the
Releasing Party shall provide the other Party's DA Listing Information
at the same time as the Releasing Party provides the Releasing Party's
DA Listing Information to the Third Party. The rate to be paid by the
Releasing Party to the other Party shall be no more than the direct
costs of compiling such information. The other Party shall be
responsible for billing the Third Party.
8.3 The Parties will work together to identify and develop procedures for
database error corrections.
9. Directory Listings and Directory Distribution. DTI will be required to
negotiate a separate agreement for directory listings and directory
distribution, except as set forth below, with GTE's directory
publication company.
Listings. DTI agrees to supply GTE on a regularly scheduled basis, at
no charge, and in a mutually agreed upon format (e.g. Ordering and
Billing Forum developed), all listing information for DTI's subscribers
who wish to be listed in any GTE published directory for the relevant
operating area. Listing information will consist of names, addresses
(including city, state and zip code) and telephone numbers. Nothing in
this Agreement shall require GTE to publish a directory where it would
not otherwise do so.
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Listing inclusion in a given directory will be in accordance with GTE's
solely determined directory configuration, scope, and schedules, and
listings will be treated in the same manner as GTE's listings.
Distribution. Upon directory publication, GTE will arrange for the
initial distribution of the directory to service subscribers in the
directory coverage area at no charge.
DTI will supply GTE in a timely manner with all required subscriber
mailing information including non-listed and non-published subscriber
mailing information, to enable GTE to perform its distribution
responsibilities.
10. Busy Line Verification and Busy Line Verification Interrupt. Each Party
shall establish procedures whereby its operator assistance bureau will
coordinate with the operator assistance bureau of the other Party to
provide Busy Line Verification ("BLV") and Busy Line Verification and
Interrupt ("BLVI") services on calls between their respective end
users. Each Party shall route BLV and BLVI inquiries over separate
inward operator services trunks. Each Party's operator assistance
bureau will only verify and/or interrupt the call and will not complete
the call of the end user initiating the BLV or BLVI. Each Party shall
charge the other for the BLV and BLVI services at the rates contained
in Appendix F, or if there is no applicable rate listed in Appendix F,
at the rates in their respective tariffs.
11. SAG. GTE will provide to DTI upon request the Street Address Guide at a
reasonable charge. Two companion files will be provided with the SAG
which lists all services and features at all LSOs, and lists services
and features that are available in a specific LSO.
12. Dialing Format Changes. GTE will provide reasonable notification to DTI
of changes to local dialing format, i.e., 7 to 10 digit, by end office.
13. Operational Support Systems (OSS). GTE shall provide OSS functions to
DTI for ordering, provisioning and billing that are generally available
as described in Appendix I attached to this Agreement. DTI shall pay
GTE for access to GTE's OSS functions consistent with processes defined
in Appendix I.
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ARTICLE IX
COLLOCATION
1. Physical Collocation. GTE shall provide to DTI physical collocation of
equipment pursuant to 47 CFR Section 51.323 necessary for
interconnection or for access to unbundled network elements, provided
that GTE may provide virtual collocation in place of physical
collocation, or in some cases deny a particular collocation request
entirely, if GTE demonstrates that physical collocation, or perhaps
even virtual collocation, is not practical because of technical reasons
or space limitations, as provided in Section 251(c)(6) of the Act. GTE
will work with DTI to install collocation arrangements within 120
calendar days absent extenuating circumstances, GTE will provide such
collocation for purposes of interconnection or access to unbundled
network elements pursuant to the terms and conditions in the applicable
federal and state EIS tariffs.
1.1 Space Planning. In addition to such provisions for space planning and
reservation as may be set forth in the applicable GTE federal and state
EIS tariffs, the parties agree to the following terms and conditions.
1.1.1 GTE has the right to reserve space within its central offices
for its own use based on a 5-year planning horizon.
1.1.2 GTE will notify DTI if it plans to build an addition to a
central office where DTI has collocated facilities, if such
addition would result in a material increase of space
available for collocation.
1.1.3 Should DTI submit to GTE a two-year forecast for space
planning for collocated facilities in a central office, GTE
will, in good faith, consider and discuss such forecast with
DTI when considering space planning or utilization decisions
for such central office; provided, however that any final
space planning or utilization decision shall be made by GTE
in its sole discretion in light of GTE requirements.
1.1.4 Subject to technical feasibility and space limitations, GTE
will make available at applicable federal and state EIS
tariffs such intraoffice facilities as may be necessary to
accommodate projected volumes of DTI traffic.
1.2 Connection to Customer LOOPS and Ports. Facilities for cross-connection
to unbundled loops and ports shall be provided under the applicable GTE
federal tariff for Special Access Cross Connect, until such time as a
local tariff applicable to the facilities used for such
cross-connection is filed.
1.3 Connection to Other Collocated Carriers. Subject to technical
feasibility and space limitations, DTI may interconnect with other
carriers collocated at a GTE central office at which DTI has collocated
facilities; provided, however, that DTI and such other carriers must be
collocated at the GTE central office for the primary purpose of
interconnecting with GTE or accessing GTE's unbundled network elements.
If DTI wants to interconnect with other carriers collocated at a GTE
central office, DTI must provide GTE with thirty Business Days' prior
written notice, during which time GTE may elect to provide the
facilities necessary to accomplish such interconnection. DTI and the
other collocated carriers may provide the necessary interconnection
facilities only if GTE elects not to provide such facilities or fails
to so elect within the thirty day notice period. If GTE elects to
provide interconnection facilities under this section, GTE will provide
this cross connection under the GTE federal tariff for Special Access
Cross Connect, until such time as a local tariff applicable to the
facilities used for such interconnection facilities is filed.
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1.4 Choice of Vendor. DTI may use the vendor of its choice to install,
maintain and repair equipment within DTI's collocated space. Access by
the employees, agents or contractors of such vendor shall be subject to
the same restrictions on access by employees, agents or contractors of
DTI imposed under the applicable GTE federal and state EIS tariffs,
including but not limited to certification and approval by GTE.
1.5 Monitoring. Subject to technical feasibility and space limitations, DTI
may extend its own facilities for remote monitoring of its collocated
equipment to its collocated space. DTI may request that GTE provide the
facilities necessary for such remote monitoring, at which time GTE and
DTI will negotiate in good faith the price, terms and conditions of
remote monitoring by GTE.
1.6 Phone Service. Upon ordering collocated space, DTI may order that its
collocation cage be provided with plain old telephone service (POTS)
commencing at such time as GTE has completed construction of the
collocated space. DTI shall pay separately for any ordered POTS
service.
1.7 Intraoffice Diversity. At DTI's request, GTE will provide diversity for
ingress/egress fiber and power cables where such diversity is available
and subject to technical feasibility and space limitations.
1.8 DTI Proprietary Information. GTE will protect all DTI proprietary
information to the extent required under non-disclosure agreements
existing as of the date GTE completes construction of a physical
collocation space at DTI's request.
1.9 Notification of Modifications. GTE will notify DTI of modifications to
collocation space in accord with the terms of applicable GTE state and
federal EIS tariffs. Additionally, GTE shall notify DTI when major
upgrades are made to the power plants supporting DTI's collocation
space. The following shall constitute such major upgrades:
(a) replacement of a rectifier;
(b) addition or replacement of a new fusing module;
(c) addition or replacement of a power distribution unit frame; or
(d) addition or replacement of modular rectifiers.
1.10 Drawings. When DTI orders collocated space, GTE and DTI will hold a
GTE/Customer meeting in accord with applicable GTE state and federal
EIS tariffs. At such meeting, GTE will provide such drawings of GTE's
central office facility as may be necessary to adequately depict DTI's
proposed collocation space.
1.11 Construction of Space. GTE will construct DTI's collocation space in
accord with the terms and conditions set forth in the applicable GTE
state and federal EIS tariff. Additionally, GTE agrees to the following
terms and conditions regarding construction of collocated space:
1.11.1 Space will be constructed in 100 square foot increments, and
shall be designed so as to prevent unauthorized access.
1.11.2 a standard 100 square foot cage shall have the following
standard features:
(a) eight-foot high, nine gauge chain link panels;
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(b) three of the panels listed at (a) above shall measure
eight by ten feet, the fourth panel shall measure eight
by seven feet;
(c) the door to the cage shall measure eight by three feet
and shall also consist of nine gauge chain link;
(d) the cage shall be provided with one padlock set, with
GTE retaining one master key;
(e) one ac electrical outlet;
(f) one charger circuit system;
(g) one electrical sub-panel;
(h) such additional lighting as may be necessary;
(i) one fire detection requirement evaluation;
(j) grounding for the cage consistent with COEI.
1.11.3 Modifications to the standard configuration set forth in
Section 1.11.2 can be made on an individual case basis. If
modifications are agreed upon and made by the Parties, GTE
will work with DTI to implement such additional modifications
as may be necessary to ensure that DTI's collocated space is
protected from unauthorized access.
1.11.4 At such time as construction of DTI's collocation space is
approximately 50 percent completed, GTE will give DTI
notification, and such notification shall include scheduled
completion and turnover dates.
1.11.5 Upon completion of construction of collocated space, GTE will
conduct a walk through of the collocated space with DTI.
Should DTI note any deviations from the plan agreed upon by
GTE and DTI at the customer meeting, and if such deviations
were not requested by DTI or not required by law, GTE shall
correct such deviations at its own expense within 5 Business
Days.
1.12 Connection Equipment. DTI may provision equipment for the connection of
DTI termination equipment to GTE equipment using either of the
following methods:
1.12.1 DTI may extend an electrical or optical cable from the
terminal within DTI's collocation cage and terminate that
cable at GTE's network.
1.12.2 DTI may install a patch panel within its collocation cage and
then hand the cabling to GTE to extend to and have GTE
terminate that cable at GTE's network.
1.13 Access to DTI Collocation Space. The terms and conditions of access to
DTI's collocation space shall be as set forth in applicable GTE state
and federal EIS tariffs. Additionally, GTE agrees that the following
terms and conditions shall apply to access:
1.13.1 GTE shall implement adequate measures to control access to
collocation cages.
1.13.2 Collocation space shall comply with all applicable fire and
safety codes.
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1.13.3 Doors with removable hinges or inadequate strength shall be
monitored by an alarm connected to a manned site. All other
alarms monitoring DTI collocation space provided by GTE shall
also be connected to a manned site. DTI may, at its option,
provide its own intrusion alarms for its collocated space.
1.13.4 GTE shall control janitorial access to collocation cages, and
restrict such access to approved and certified employees,
agents or contractors.
1.13.5 GTE shall establish procedures for access to collocation
cages by GTE and non- GTE emergency personnel, and
shall not allow access by security guards unless such access
comports with this section and is otherwise allowed under
applicable GTE state and federal EIS tariffs.
1.13.6 GTE shall retain a master key to DTI's collocation space for
use only in event of emergency as detailed in applicable GTE
state and federal tariffs. At DTI's option, the Parties shall
review key control procedures no more frequently than once in
any twelve month period. At any time, DTI may elect to change
keys if it suspects key control has been lost, provided,
however, that GTE will be provided with a master key in
accord with this section.
1.13.7 Not more frequently than once a year, DTI may audit the
security and access procedures and equipment applicable to
its collocated space and the central office housing the
collocation space. Access by personnel necessary to conduct
such an audit shall be limited as set forth in applicable GTE
state and federal EIS tariffs. Should DTI identify
deficiencies in security and access procedures and equipment
as a result of such audit, the cost, terms and conditions of
the correction of such deficiencies shall be negotiated in
good faith between the parties.
2. Virtual Collocation. Subject to Section 1 of this Article IX, GTE will
provide virtual collocation for purposes of interconnection or access
to unbundled network elements pursuant to the terms and conditions in
the applicable GTE federal and state EIS tariffs. In addition, GTE
agrees that the terms and conditions set forth in this Section 2 of
this Article IX, shall apply to virtual collocation provided to DTI.
2.1 Existing Virtual Collocation. If, on the effective date of this
Agreement, DTI is virtually collocated in a GTE premise, DTI may (I)
elect to retain its virtual collocation arrangement in that premise or
(ii) unless it is not practical for technical reasons or because of
space limitations, convert its virtual collocation arrangement at that
premise to physical collocation. If DTI elects the latter option, DTI's
request shall be treated as a new physical collocation request and DTI
shall pay GTE at the applicable tariff rates for construction and
rearrangement of DTI's equipment as well as all applicable tariffed
physical collocation recurring charges.
2.2 Conversion from Physical to Virtual. Unless it is not practical for
technical reasons or because of space limitations, DTI may convert a
physical collocation arrangement to a virtual collocation arrangement.
DTI's request to do so shall be treated as a new virtual collocation
request and DTI shall pay GTE at the applicable tariff rates for
construction and rearrangement of DTI's equipment as well as all
applicable tariffed virtual collocation recurring charges. If DTI
elects to change to a virtual collocation arrangement pursuant to this
section, GTE will not refund previous payments for physical collocation
received from DTI.
2.3 Vendors. Choice of vendors for equipment used for virtual collocation
shall be under the terms and conditions set forth in the applicable GTE
federal and state EIS tariff. Upon request by DTI,
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GTE shall provide a list of locally qualified vendors approved for the
type of equipment to be collocated.
2.4 Inspection. Upon provision of virtual collocation by GTE, the Parties
shall agree on a mutually acceptable schedule whereby DTI may inspect
the equipment in its virtual collocation space.
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ARTICLE X
ACCESS TO POLES, DUCTS, CONDUITS AND RIGHTS-OF-WAY
To the extent required by the Act, GTE and DTI shall each afford to the other
access to the poles, ducts, conduits rights of way it owns or controls on terms,
conditions and prices comparable to those offered to any other entity pursuant
to each Parties tariffs and/or standard agreements. Accordingly, GTE and DTI
shall execute pole attachment and conduit occupancy agreements in the form set
forth in Appendices I and J.
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IN WITNESS WHEREOF, each Party has executed this Agreement to be effective as of
the date first above written.
GTE SOUTHWEST INCORPORATED DIGITAL TELEPORT, INC.
By /s/ Connie Nicholas By /s/ J.W. Sheehy
-------------------------------------- ----------------------------------
Name Connie E. Nicholas Name J.W. Sheehy
------------------------------------ --------------------------------
Assistant Vice President
Title Wholesale Markets-Interconnection Title Vice President IC Support
---------------------------------- ------------------------------
Date November 18, 1997 Date 10/20/97
---------------------------------- ------------------------------
APPROVED AS TO FORM BY
LEGAL DEPARTMENT
[SIG]
----------------------
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APPENDIX A
GTE PERFORMANCE MEASURES (PM)
Pursuant to Article III of this Agreement, the following terms and conditions
shall apply regarding the performance measures set forth in this Appendix A. The
Parties recognize that these performance measures are new and evolving, and as
further evolution is made by GTE, the parties will discuss the changed
procedures, including new standard processes and procedures, if any, for the
purpose of applying them to and incorporating them in this Agreement.
GTE'S PERFORMANCE MEASURES (PMS) as set forth in this Appendix implement
standards to measure the quality of services supplied by GTE with respect to
pre-ordering, order/provisioning, maintenance and billing that is equivalent in
equality to what GTE provides to itself. GTE's PMs contain measures for both GTE
and DTI with the measures for DTI being considered an essential element for GTE
meeting customer expectations.
GTE's PMs are conditioned upon a 150 order per month minimum requirement as
described below for Service Units, as a threshold for providing Financial
Incentives for certain PMs. The 150 order per month requirement for Service
Units was developed to provide a statistically valid sample size to measure
GTE's performance for DTI in relationship to the level of performance GTE
provides to its own customers. Service Units are defined to include unbundled
loops, unbundled ports, resold local service lines, INP ported numbers, and
interconnection trunks.
GTE will begin recording of performance data in the first full month in which it
receives the first official order from DTI. GTE's report of performance measures
to DTI, however, will begin after 6 months of data recording; i.e., for data
recorded in the seventh full month. Each month's report will then be reported as
a rolling 3-month result (i.e., July's report will actually include May, June,
July data). The calculation of DTI performance will be based on this 3 month
rolling average of actual performance unless otherwise specified.
Reporting will be available monthly, or at a longer interval, as requested by
DTI. The details of report delivery shall be agreed upon between DTI and the
appropriate GTE Account Management group.
FORECASTING PERFORMANCE MEASUREMENT - GTE's PMs are conditioned upon the
requirement, as described more fully below, that DTI submit timely and accurate
forecasts. The Forecasting PM includes provisions that measure the accuracy of
DTI's forecast by comparing forecasted Service Units to ordered Service Units
for the same period.
DTI shall furnish a quarterly forecast of service order volumes and quantities
of resold local services, unbundled network elements, and interconnection trunks
on a State-wide basis, identifying these volumes/quantities by month, for each
month included in the quarter. These forecasts shall be received by GTE at least
one month before the beginning of the quarter covered by the forecast. Should
the first month of the next quarterly forecast be greater than ten (10%) percent
of the last month of the current quarterly forecast, DTI shall notify GTE
promptly of the increased order volume. Notification shall be made to the
appropriate GTE Account Management group in order to allow sufficient "lead
time" to ensure staffing levels are available to support the increased order
volumes.
DTI must agree to comply with the requirements of the Forecasting PM as the
basis for the application of Financial Incentives described below. If DTI
chooses not to comply with the Forecasting PM, Financial Incentives will not
apply. For purposes of applying Financial Incentives the accuracy of forecasts
will be determined at the state level.
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The measurement and reporting of GTE's PMs will still be made available
as stated above regardless of DTI's election for the Forecasting PM.
FINANCIAL INCENTIVES - When DTI agrees to the Forecasting PM described above,
Financial Incentives will begin concurrently with reporting of individual DTI
performance data except as specified below for the
Pre-Ordering/Ordering/Provisioning and Interconnection PMs.
Financial Incentives will apply to Maintenance/Repair PMs without restriction
other than DTI's participation in the Forecasting PM.
Financial Incentives will apply to Pre-Ordering/Ordering/Provisioning and
Interconnection PMs subject to DTI's participation in the Forecasting PM and the
required per month ordering threshold. DTI must place a 150 orders per month
minimum for Service Units, by state, for three (3) consecutive months (hereafter
the "150-order requirement"). Once DTI's order volume reaches the "150-order
requirement", a ninety (90) day grace period will begin wherein data will be
accumulated and reviewed. At the end of that ninety (90) day grace period,
applicable Financial Incentives shall apply. The three (3) consecutive months
and the subsequent ninety (90) day grace period may be concurrent with all or
part of the beginning six (6) month period after recording of official data
begins, between initial order activity and the implementation of performance
reporting (i.e., month 7 data).
For purposes of applying Financial Incentives to the Forecasting PM, if DTI's
actual order activity for Service Units in a given month is below the forecast
for that month by more than 10%, Financial Incentives will apply only to the
incremental Service Units that were forecasted but not ordered; i.e., the
difference between the actual quantity ordered and the quantity which reflects
the forecast less 10%.
For purposes of applying Financial Incentives to the Pre-ordering/Ordering/
Provisioning and Interconnection PM, if DTI's actual order activity for Service
Units in a given month exceeds the forecast for that month by more than 10%,
Financial Incentives will not apply.
Average Non-Recurring Charges - The averages are calculated by dividing the sum
of all non-recurring charges applied to service orders issued by DTI to GTE by
the total number of orders or the total number of Service Units ordered. These
calculations will be made by service activity and service category: Business
(Single/Multi-line, Centranet, PBX, Trunks), Residence, etc.. The average
Non-Recurring Charges will be separately calculated for field work and non-field
work orders. These averages and a weighting factor for field and non-field work
will be calculated during a study period to be mutually agreed between the
Parties. The initial average Non-Recurring Charge calculation will occur within
three (3) months of DTI's initial issuance of official orders. The average
Non-Recurring Charge shall be recalculated annually as mutually agreed between
the Parties.
Average Recurring Charges - The averages are calculated by dividing
the sum of all recurring charges applied to service orders issued by DTI to GTE
by the total number of orders or Service Units ordered. These averages will be
calculated during a study period to be mutually agreed between the Parties.
These calculations will be made by service activity and service category,
Business, Residence, etc. The initial average Recurring Charge calculation will
occur within three (3) months of DTI's initial issuance of official orders. The
average Recurring Charges shall be recalculated annually as mutually agreed
between the Parties.
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GTE PERFORMANCE MEASURES WITH FINANCIAL INCENTIVES
PRE-ORDERING/ORDERING/PROVISIONING
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE National Prompt transmission 85% of CSR's sent to 5% of average NRC
of Customer Service DTI by the close of incurred by DTI
Record (CSR) business on business for the number of
Information day following CSR's for which
receipt of request the Quality
Standard is not
met in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
2 GTE National Prompt transmission 85% of LSC's sent to 20% of average NRC
of Local Service DTI by the close of incurred by DTI
Confirmation (LSC) business on business for the lines
day following ordered for which
receipt of request GTE failed to meet
the Quality
Standard in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
3 GTE State Due Date Percent of DTI Waiver of the
commitments met customer install, average NRC
transfer, and change installation
service orders for charges for the
which service is number of lines by
installed by close which GTE fails to
of business on the meet the Quality
committed due date Standard in the
is not more than reported month
2.5% below the
percent of GTE
customer install,
transfer, and change
service orders
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-3
<PAGE> 80
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4 GTE State % reporting trouble Percent of DTI One month's
within 30 days of customer install, average MRC per
the date installed transfer, and change trouble report
service orders which exceeding the
are followed by a Quality Standard
customer trouble in the reported
report within 30 month (not to
days of service exceed one month's
order completion credit per
date is not more customer line
than 2.5% worse than month)
the percent GTE
customer install,
transfer, and change
service orders which
are followed by a
customer trouble
report within 30
days of service
order completion
- ---------------------------------------------------------------------------------------------------------------------
5 GTE State Service Order 80% of LSR's Payment by DTI to
discrepancy: LSR's initiated by DTI's GTE equal to 20%
issued without do not contain an of the average NRC
material errors order discrepancy or installation
error: 90% in 12 charges for the
months. Final number of lines
target - 95% which DTI fails to
meet the Quality
Standard in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-4
<PAGE> 81
<TABLE>
<CAPTION>
INTERCONNECTION
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Trunk orders Percent of trunk Waiver of 100% of
completed on or orders by DTI average NRC for
before the completed by GTE on trunks ordered fro
Committed Due Date or before the which GTE failed to
commitment date is meet the Quality
not more than 10% Standard in the
below the percent reported month
of FG B/D Switched
access orders by
all ordering
companies completed
by GTE on or before
the commitment date
- ---------------------------------------------------------------------------------------------------------------------
2 GTE National Firm Order Percent of trunk Waiver of 20%
Confirmation (FOC) orders by DTI average of average
on time delivery completed by GTE on NRC installation for
or before the trunks for which GTE
commitment date is failed to meet the
not more than 5% Quality Standard in
below the percent the reported month
of FG B/D Switched
access by all
ordering companies
for which GTE sends
FOC (within 5 days,
or longer, as
requested by DTI)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-5
<PAGE> 82
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
3 DTI National Service Order 80% of ASR's Charge equal to 20%
discrepancy: ASR's initiated by DTI do of average NRC
issued without not contain installation of
material errors material error or trunks ordered for
result in which DTI failed to
discrepancy; 90% in meet the Quality
12 months. Final Standard in the
target 95% reported month
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-6
<PAGE> 83
<TABLE>
<CAPTION>
MAINTENANCE/REPAIR
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 GTE State Percent Commitments Percent of DTI One month's flat
Met customer Network rate average MRC per
trouble reports line out of service
where commitment for which Quality
was meet more than Standard is not met
2.5% worse than the in the reported month
percent of GTE's
customer Network
trouble reports
where commitment
was met (excluding
reports which are
cleared CPE, DTI
customer error)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-7
<PAGE> 84
<TABLE>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
2 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed hours/ line OOS for which
Designed minutes for OOS DTI Quality Standard is
customer Network not met in the
trouble reports reported month
divided by total
number OOS customer
Network trouble
reports) for DTI
customers is more
than 10% of the
average repair time
for GTE customers
(includes only
"Designed" services)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-8
<PAGE> 85
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
3 GTE State Average clearing Average repair time One month's flat
time - Out of (total number of rate average MRC per
Service (OOS) - elapsed line OOS for which
Non-Designed hours/minutes for Quality Standard is
OOS DTI customer not met in the
Network trouble reported month
reports divided by
total number OOS
customer Network
trouble reports)
for DTI customers
is more than 10% of
the average repair
time for GTE
customers (includes
only POTS and
circuits which do
not require a
design)
- ---------------------------------------------------------------------------------------------------------------------
4 GTE State Percent reports per Percent of DTI Within six (6)
100 (Failure customers making months of effective
Frequency) trouble reports date, GTE will have
(total number of established a
DTI customer minimum access line
Network trouble threshold.
reports divided by
the total access
lines multiplied by
100) is not worse
than .5 percent One month's flat
points of the rate average MRC per
percentage of GTE line OOS for which
customers making Quality Standard is
trouble reports not met in the
reported month
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-9
<PAGE> 86
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5 GTE State Percent repeat Percent of DTI One month's flat
reports in 30 days customer repeat rate average MRC per
trouble reports line OOS for which
(total number of Quality Standard is
DTI customer not met in the
Network trouble reported month
reports which had a
previous Network
trouble report
within the last 30
days divided by the
total of customer
Network trouble
reports multiplied
by 100) is not more
than 2.5% worse
than the percent of
GTE customer repeat
trouble reports
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
**NOTE: OUTAGE CREDITS: LOCAL SERVICE AND UNBUNDLED NETWORK ELEMENTS: OUTAGE
CREDITS APPLY TO INTERRUPTIONS OF LOCAL SERVICES AND UNBUNDLED NETWORK ELEMENTS
IN ACCORDANCE WITH APPLICABLE STATE PUBLIC SERVICE COMMISSION REQUIREMENTS. IF A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED, DTI WILL BE ENTITLED
TO OUTAGE CREDITS. AN INTERRUPTION PERIOD BEGINS WHEN DTI REPORTS TO GTE THAT A
LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS INTERRUPTED (OR GTE HAS KNOWLEDGE
THAT AN INTERRUPTION HAS OCCURRED THROUGH SERVICE MONITORING OR OTHER MEANS). AN
INTERRUPTION PERIOD ENDS WHEN THE LOCAL SERVICE IS REPAIRED AND RETURNED TO DTI.
A LOCAL SERVICE OR UNBUNDLED NETWORK ELEMENT IS CONSIDERED TO BE INTERRUPTED
WHEN THERE HAS BEEN A LOSS OF CONTINUITY, THE LOCAL SERVICE OR UNBUNDLED NETWORK
ELEMENT DOES NOT OPERATE IN ACCORDANCE WITH THE APPLICABLE SERVICE STANDARDS, OR
IT IS OTHERWISE UNAVAILABLE FOR USE BY DTI. THIS DEFINITION IS NOT INTENDED TO
CONFLICT WITH STATE PUBLIC UTILITY COMMISSION REQUIREMENTS.
A-10
<PAGE> 87
<TABLE>
<CAPTION>
FORECASTING
- ---------------------------------------------------------------------------------------------------------------------
PERFORMANCE QUALITY FINANCIAL
ISSUE NO. OBLIGATION DATA LEVEL MEASURE (PM) STANDARD INCENTIVE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 DTI State Service Units Volume of DTI's 20% of the average
requirements Service Units NRC for the number
accurately forecast requirements in a of service units
all volumes for each month is not below the forecast
month contained in greater than 10% when the actual
the quarterly report. below the amount volumes are greater
forecast by DTI in than 10% and less
it's most recent than or equal to 30%
quarterly forecast under forecast. 40%
(which shall have of the average NRC
been made not later for the number of
than 30 days prior service units below
to the quarter in the forecast when
question) the actual volumes
are greater than
30% and less than
or equal to 40%
under the forecast.
50% of the average
NRC for the number
of service units
below the forecast
when the actual
volumes are over
40% under the
forecast
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
A-11
<PAGE> 88
APPENDIX B
SERVICE MATRIX
Date
-----------------------
<TABLE>
<CAPTION>
Service Location
(identified by tandem serving IP Services
area) (identified by CLLI code) (identified by _________________ )
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
TO BE DETERMINED TO BE DETERMINED TO BE DETERMINED
</TABLE>
B-1
<PAGE> 89
APPENDIX C
INTERCONNECTION, TELECOMMUNICATIONS SERVICES
AND FACILITIES AGREEMENT
BETWEEN
GTE SOUTHWEST INCORPORATED
AND
DIGITAL TELEPORT, INC.
AMENDMENT NO.
------
THIS AMENDMENT (herein so called) is made effective as of_______________ ,
199_____ , by and between GTE Southwest Incorporated ("GTE") and Digital
Teleport, Inc. ("DTI"). GTE and DTI are sometimes referred to herein
collectively as the "Parties" and individually as a "Party." Either GTE or DTI
may be referred to as "Provider" or "Customer" as the context requires.
WHEREAS, Provider is providing to Customer and Customer is purchasing from
Provider those Services described in that certain Interconnection,
Telecommunications Services and Facilities Agreement for the State of _______ by
and between GTE and DTI dated effective as of _______________ , 199_____ (the
"Agreement"); and
WHEREAS, the Parties desire to amend the Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the terms and conditions contained in this
Amendment, the Parties agree as follows:
1.
2. ADDITIONAL SERVICES [IF APPLICABLE]
2.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following services under the terms and conditions set
forth in the Agreement and within the service attachment listed below
and attached to this Amendment:
Service Attachment _____-_________________
2.2 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, _______ is made a part of the Services
provided under the Agreement and Service Attachment _____ shall be
deemed to be a Service Attachment to the Agreement.
2.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect the additional
Services and related Service Locations.
3. SERVICE LOCATIONS [IF APPLICABLE]
3.1 Provider agrees to provide to Customer and Customer agrees to purchase
from Provider the following Services in the following locations:
C-1
<PAGE> 90
<TABLE>
<CAPTION>
Service Location Services
(identified by tandem serving area) IP (identified by Service
(identified by CLLI code) Attachment Number)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
3.2 As of the effective date of this Amendment, the locations set forth in
Section 3.1 above shall be deemed Service Locations under the
Agreement.
3.3 As of the effective date of this Amendment, and continuing through the
remaining term of the Agreement, Appendix B, Service Matrix, to the
Agreement is hereby deleted and Appendix B, Service Matrix, to this
Amendment is hereby inserted in lieu thereof to reflect additional
Service Locations.
4. INTERPRETATION
All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement.
5. EFFECT
Except as modified herein, the Agreement shall remain in full force
and effect.
6. AUTHORITY
Each person whose signature appears below represents and warrants that
he or she has the authority to bind the Party on whose behalf he or
she has executed this Amendment.
7. MULTIPLE COUNTERPARTS
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which shall constitute but one
and the same instrument.
8. NO OFFER
Submission of this Amendment for examination or signature does not
constitute an offer by Provider for the provision of the products or
services described herein. This Amendment will be effective only upon
execution by both Provider and Customer.
IN WITNESS WHEREOF, the Parties have executed this Amendment on the date or
dates written below effective as of the date first above written.
GTE SOUTHWEST INCORPORATED DIGITAL TELEPORT, INC.
By By
----------------------------- -----------------------------
Name Name
--------------------------- ---------------------------
Title Title
-------------------------- --------------------------
Date Date
--------------------------- ---------------------------
C-2
<PAGE> 91
APPENDIX D
RATES AND CHARGES FOR
TRANSPORT AND TERMINATION OF TRAFFIC
General. The rates contained in this Appendix D are the rates as defined in
Article V and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
Each Party will bill the other Party as appropriate:
A. The Local Interconnection rate element that applies to Local
Traffic on a minute of use basis that each Party switches for
termination purposes at its wire centers. The local
interconnection rate is $0.0056438.
B. The Tandem Switching rate element that applies to tandem routed
Local Traffic on a minute of use basis. This rate includes
tandem transport, but does not include the local
interconnection charge. The tandem switching rate is
$0.0012971.
C. The Common Transport Facility rate element that applies to
tandem routed Local Traffic on a per minute/per mile basis. The
Common Transport Facility rate is $0.0000028.
D. The Common Transport Terminal element that applies to tandem
routed Local Traffic on a per minute/per termination basis. The
Common Transport Termination rate is $0.0009636.
D-1
<PAGE> 92
APPENDIX E
RATES AND CHARGES FOR LOCAL NUMBER PORTABILITY USING RCF
General. The rates contained in this Appendix E are as defined in Article V,
Section 7, and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Universal Service Support Surcharge)), the establishment of a competitively
neutral universal service system, or any appeal or other litigation.
In addition, as defined in Article V, Section 3.2.3, the Party providing the
ported number will pay the other Party the rate per line per month for each
ported business line and the rate per line per month for each ported
residential line for the sharing of Access Charges on calls to ported numbers.
GTE
Business Rate Per Line Per Month: $ 5.98
Residential Rate Per Line Per Month: $ 3.66
Contel
Business Rate Per Line Per Month: $ 5.67
Residential Rate Per Line Per Month: $ 3.78
SERVICE NUMBER PORTABILITY
Remote Call Forwarding $ 4.50 line/month
Simultaneous Call Capability $ 2.60 path/month
Non-recurring for Portability $10.50
E-1
<PAGE> 93
APPENDIX F
SERVICES AVAILABLE FOR RESALE
General. The rates contained in this Appendix F are based upon an avoided cost
discount from GTE's retail rates as provided in Article VI, Section 5.3 of the
Agreement to which this Appendix F is attached and are subject to change
resulting from future Commission or other proceedings, including but not limited
to any generic proceeding to determine GTE's unrecovered costs (e.g., historic
costs, contribution, undepreciated reserve deficiency, or similar unrecovered
GTE costs (including GTE's interim Universal Service Support Surcharge)), the
establishment of a competitively neutral universal service system, or any appeal
or other litigation.
NON-RECURRING CHARGES FOR RESALE SERVICES
Initial Service Order, per order $41.50
Subsequent Service Order, per order $24.00
Installation, per line $27.00
Outside Facility Connection Charge, per order* $Tariffed
*This charge will apply when field work is required for establishment of new
resale service. The terms, conditions and rates that apply for this work are
described in GTE's retail local service tariffs.
F-1
<PAGE> 94
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1 BASIC LOCAL EXCHANGE SERVICES:
Flat Rate - 1 Party Service/Business
TX CON Rate Band 1 MRC Yes Yes $18.35 $2.50 $15.85
TX CON Rate Band 2 MRC Yes Yes $18.90 $2.58 $16.32
Flat Rate Bus One Party Key System Station Line
TX CON Rate Band 1 MRC Yes Yes $22.00 $3.00 $19.00
TX CON Rate Band 2 MRC Yes Yes $22.65 $3.09 $19.56
Flat Rate Bus PBX Trunk Two Way
TX CON Rate Band 1 MRC Yes Yes $29.40 $4.01 $25.39
TX CON Rate Band 2 MRC Yes Yes $30.25 $4.12 $26.13
FLAT RATE-1 PARTY SERVICE/RES
TX CON Rate Band 1 MRC No No $7.10 N/A N/A
TX CON Rate Band 2 MRC No No $7.30 N/A N/A
Flat Rate RES ONE PRTY KEY SYSTEMS STATION LINE
TX CON Rate Band 1 MRC No No $8.50 N/A N/A
TX CON Rate Band 2 MRC No No $8.75 N/A N/A
OPTIONAL EXTENDED AREA SERVICE
(Huntington only to Lufkin & Fuller Springs)
TX CON Business One-Party MRC Yes Yes $31.00 $4.23 $26.77
TX CON Key Line MRC Yes Yes $46.10 $6.28 $39.82
TX CON PBX MRC Yes Yes $59.35 $8.09 $51.26
TX CON Residence - One Party MRC No No $13.00 N/A N/A
NONOPTIONAL TWO-WAY EXTENDED AREA SERVICE
(Riesel to Waco Only)
TX CON Business MRC Yes Yes $24.00 $3.27 $20.73
TX CON Residence MRC No No $10.00 N/A N/A
OPTIONAL ONE-WAY EXTENDED AREA SERVICE
TX CON BUSINESS MRC Yes Yes $10.00 $1.36 $8.64
TX CON RESIDENCE MRC No No $5.00 N/A N/A
OPTIONAL TWO-WAY EXTENDED METROPOLITAN SERVICE
TX CON Business (Various Exchanges) MRC Yes Yes $53.05 $7.23 $45.82
TX CON Residence (Various Exchanges MRC No No $22.00 N/A N/A
LOCAL CALLING PLANS [See Footnote: (6)]
</TABLE>
<PAGE> 95
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Community Calling Plan
TX CON Business MRC Yes Yes $1.00 $0.14 $0.86
TX CON Residence MRC No No $1.00 N/A N/A
Rate Band A 0-7 Miles
TX CON 1st Minute Usage Yes Yes $0.03 $0.00 $0.03
TX CON Each Additional Usage Yes Yes $0.02 $0.00 $0.01
Rate Band B 8-14 Miles
TX CON 1st Minute Usage Yes Yes $0.04 $0.01 $0.04
TX CON Each Additional Usage Yes Yes $0.02 $0.00 $0.02
Rate Band C 15-21 Miles
TX CON 1st Minute Usage Yes Yes $0.06 $0.01 $0.05
TX CON Each Additional Usage Yes Yes $0.03 $0.00 $0.03
Rate Band D 22-28 Miles
TX CON 1st Minute Usage Yes Yes $0.08 $0.01 $0.07
TX CON Each Additional Usage Yes Yes $0.04 $0.01 $0.04
Rate Band E 29+ Miles
TX CON 1st Minute Usage Yes Yes $0.09 $0.01 $0.08
TX CON Each Additional Usage Yes Yes $0.05 $0.01 $0.05
Discount Rate Period
TX CON 5:00 p.m. - 11:00 p.m. (M-F & Sunday) 25%
TX CON 11:00 p.m. - 8:00 a.m. (Daily) 40%
TX CON All Day Saturday 40%
TX CON 8:00 a.m. - 5:00 p.m. (Sunday) 40%
TX CON All Day Jan. 1, July 4, Labor,
Thanksgiving & Christmas 40%
MESSAGE RECORDING
Detailed Billing Local Calling Plan
TX CON Per Month MRC Yes Yes $0.40 $0.05 $0.35
TX CON Per Page EVENT Yes Yes $0.10 $0.01 $0.09
1-Way PCP (Chilton, Crawford, Floresville,&
Sutherland Springs)
Business
TX CON One-Party MRC Yes Yes $33.35 $4.55 $28.80
TX CON Key MRC Yes Yes $39.00 $5.32 $33.68
TX CON PBX MRC Yes Yes $54.50 $7.43 $47.07
TX CON Residence MRC No No $15.20 N/A N/A
2-Way PPCP (Floresville & Sutherland
Springs)
Business
</TABLE>
<PAGE> 96
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON One-Party MRC Yes Yes $66.65 $9.08 $57.57
TX CON Key MRC Yes Yes $78.00 $10.63 $67.37
TX CON PBX MRC Yes Yes $108.95 $14.85 $94.10
TX CON Residence MRC No No $30.40 N/A N/A
1-Way PCP (Bertram, Coupland, &
Quinlan)
Business
TX CON One-Party MRC Yes Yes $36.70 $5.00 $31.70
TX CON Key MRC Yes Yes $42.90 $5.85 $37.05
TX CON PBX MRC Yes Yes 59.95 $8.17 $51.78
TX CON Residence MRC No No $16.75 N/A N/A
LOCAL & EAS SERVICE - NASSAU BAY
USAGE PRICING - BUSINESS
OPTION 1 ($2.00)
TX CON One-Party MRC Yes Yes 15.5 $2.11 $13.39
TX CON PBX Trunk MRC Yes Yes $15.50 $2.11 $13.39
TX CON Key Line Service MRC Yes Yes $15.50 $2.11 $13.39
OPTION 3 (UNLIMITED)
TX CON One-Party MRC Yes Yes $36.50 $4.97 $31.53
TX CON PBX Trunk MRC Yes Yes 36.5 $4.97 $31.53
TX CON Key Line Service MRC Yes Yes $36.50 $4.97 $31.53
USAGE PRICING - RESIDENCE
OPTION 1 ($2.00)
TX CON One-Party MRC No No $6.90 N/A N/A
TX CON Key Line MRC No No $6.90 N/A N/A
OPTION 3 (UNLIMITED)
TX CON One-Party MRC No No $16.00 N/A N/A
TX CON Key Line MRC No No $16.00 N/A N/A
Usage rates for originated, completed calls
[See Footnote: (6)]
Intraexchange
Band 1
TX CON First Minute Usage Yes Yes $0.02 $0.00 $0.02
TX CON Each Additional Minute Usage Yes Yes $0.01 $0.00 $0.01
Interexchange
Rate Band E1 2-7 Miles
</TABLE>
<PAGE> 97
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON 1st Minute Usage Yes Yes $0.04 $0.00 $0.04
TX CON Each Additional Usage Yes Yes $0.02 $0.00 $0.02
Rate Band E2 3-14 Miles
TX CON 1st Minute Usage Yes Yes $0.05 $0.00 $0.05
TX CON Each Additional Usage Yes Yes $0.03 $0.00 $0.03
Rate Band E3 4-21 Miles
TX CON 1st Minute Usage Yes Yes $0.06 $0.00 $0.06
TX CON Each Additional Usage Yes Yes $0.03 $0.00 $0.03
Rate Band E4 5-28 Miles
TX CON 1st Minute Usage Yes Yes $0.08 $0.00 $0.08
TX CON Each Additional Usage Yes Yes $0.04 $0.00 $0.04
Rate Band E5 6-28+ Miles
TX CON 1st Minute Usage Yes Yes $0.10 $0.00 $0.10
TX CON Each Additional Usage Yes Yes $0.05 $0.00 $0.05
Rate discount and application period
(7:00 a.m. to 11:00 p.m. Full Rate)
TX CON (11:00 p.m. to 7:00 a.m. Discounted Rate) 50%
Busy Line Verify/Intercept Service
TX CON Each verification or busy line condition NRC Yes No $1.35 N/A $1.35
TX CON Each interruption of a conversation in progress NRC Yes No $2.20 N/A $2.20
DIRECT INWARD DIALING
Each DID trunk Access
TX CON DID Service MRC Yes Yes $15.50 $2.11 $13.39
TX CON DID Service NRC Yes No $150.00 N/A $150.00
TX CON First block of 100 numbers MRC Yes Yes $140.00 $19.08 $120.92
TX CON Each additional block of 100 directory numbers MRC Yes Yes $50.00 $6.82 $43.19
DIRECT INWARD DIALING (Intercept)
TX CON 1 to 5 lines Up to 6 months NRC Yes No $250.00 N/A $250.00
TX CON 2 to 5 lines over 6 months to 12 months NRC Yes No $450.00 N/A $450.00
ROTARY HUNTING
TX CON Individual (D1) MRC Yes Yes $3.00 $0.41 $2.59
TX CON PBX, Key line, and multiline service MRC Yes Yes $1.50 $0.20 $1.30
DIRECTORY ASSISTANCE SERVICE
C CON First three local calls from DA USAGE Yes No $0.00 $0.00
TX CON Each additional number requested USAGE Yes No $0.25 N/A $0.25
</TABLE>
<PAGE> 98
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Each public or semipublic telephone message USAGE Yes No $0.25 N/A $0.25
TX CON Each local public access line message USAGE Yes No $0.03 N/A $0.03
TX CON Colmesneil and Gary exchanges pub/semipublic USAGE Yes No $0.10 N/A $0.10
Each operator assisted call billed to
collect, third number, calling card from a
coin, or coinless pay telephone - Not
applicable to customers requiring
Telecommunications
TX CON Relay Service. MRC Yes Yes $1.35 $0.00 $1.35
A-1 CUSTOMER OWNED PAY TELEPHONE SERVICE
TX CON Public Access Line (PAL) MRC Yes No $14.70 N/A $14.70
Answer Supervision MRC Yes No $0.00
Coin Line Service MRC Yes No $0.00
CUSTOM CALLING VERTICAL SERVICES
TX CON Call Waiting - Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Call Waiting - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Call Forwarding - Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Call Forwarding - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Call Forwarding Multipath - Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Call Forwarding Multipath - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Speed Call 8 - Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Speed Call 8 - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Simplified Message Desk - Business MRC Yes Yes $1.000 $0.1363 $0.86
TX CON Simplified Message Desk - Residence MRC Yes Yes $1.000 $0.1363 $0.86
TX CON Three Way Calling - One Feature - Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Three Way Calling - One Feature - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Call Forward - Don't Answer - Business MRC Yes Yes $1.00 $0.14 $0.86
TX CON Call Forward - Don't Answer - Residence MRC Yes Yes $1.00 $0.14 $0.86
TX CON Cancel Call Waiting - Business MRC Yes Yes $1.80 $0.25 $1.55
TX CON Cancel Call Waiting - Residence MRC Yes Yes $0.90 $0.12 $0.78
TWO FEATURE PACKAGES
Call Forwarding & Call Waiting
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
Call Forwarding & Three-Way Calling
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
Call Waiting and Three-Way Calling
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
</TABLE>
<PAGE> 99
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
Call Forwarding & Speed Calling 8
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
Call Waiting & Speed Calling 8
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
Three-Way Calling and Speed Calling 8
TX CON Business MRC Yes Yes $5.0000 $0.6815 $4.32
TX CON Residence MRC Yes Yes $4.0000 $0.5452 $3.45
THREE FEATURE PACKAGES
Call Forwarding, Call Waiting,
& Three-Way Calling
TX CON Business MRC Yes Yes $6.50000 $0.8860 $5.61
TX CON Residence MRC Yes Yes $5.50 $0.75 $4.75
Call Forwarding, Call Waiting,
& Customer Speed Calling
TX CON Business MRC Yes Yes $6.50 $0.89 $5.61
TX CON Residence MRC Yes Yes $5.50 $0.75 $4.75
Call Waiting, Three-Way Calling
& Customer Speed Calling 8
TX CON Business MRC Yes Yes $6.50 $0.89 $5.61
TX CON Residence MRC Yes Yes $5.50 $0.75 $4.75
Three-Way Calling, Call Forwarding
& Customer Speed Calling 8
TX CON Business MRC Yes Yes $6.50 $0.89 $5.61
TX CON Residence MRC Yes Yes $5.50 $0.75 $4.75
FOUR FEATURE PACKAGES
Call Forwarding, Call Waiting, Three-Way Calling
& Customer Speed Calling 8
TX CON Business MRC Yes Yes $8.00 $1.09 $6.91
TX CON Residence MRC Yes Yes $7.00 $0.95 $6.05
TX CON Smart Ring - One Feature - Business MRC Yes Yes $6.00 $0.82 $5.18
TX CON Smart Ring - One Feature - Residence MRC Yes Yes $6.00 $0.82 $5.18
TX CON Smart Ring - With Package - Business MRC Yes Yes $3.00 $0.41 $2.59
TX CON Smart Ring - With Package - Residence MRC Yes Yes $3.00 $0.41 $2.59
</TABLE>
<PAGE> 100
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
CLASS Vertical Services:
TX CON Automatic Busy Redial - Business MRC Yes Yes $4.00 $0.55 $3.45
TX CON Automatic Busy Redial - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX CON Automatic Busy Redial - Per Event NRC Yes Yes $0.75 $0.00 $0.75
TX CON Automatic Call Return - Business MRC Yes Yes $4.00 $0.55 $3.45
TX CON Automatic Call Return - Residence MRC Yes Yes $3.00 $0.41 $2.59
TX CON Automatic Call Return - Per Event NRC Yes Yes $0.75 $0.00 $0.75
TX CON Call Block - Business MRC Yes Yes $3.00 $0.41 $2.59
TX CON Call Block - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX CON Special Call Acceptance - Business MRC Yes Yes $3.00 $0.41 $2.59
TX CON Special Call Acceptance - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX CON Special Call Forwarding - Business MRC Yes Yes $2.65 $0.36 $2.29
TX CON Special Call Forwarding - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX CON Special Call Waiting - Business MRC Yes Yes $3.00 $0.41 $2.59
TX CON Special Call Waiting - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX CON VIP Alert - Business MRC Yes Yes $3.00 $0.41 $2.59
TX CON VIP Alert - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX CON Call Tracing Service - Business NRC Yes No $10.00 N/A $10.00
TX CON Call Tracing Service - Residence NRC Yes No $10.00 N/A $10.00
TX CON Calling Number ID - Business MRC Yes Yes $7.50 $1.02 $6.48
TX CON Calling Number ID - Residence MRC Yes Yes $4.95 $0.67 $4.28
TX CON Calling Number ID w/ACRJ - Business MRC Yes Yes $7.75 $1.06 $6.69
TX CON Calling Number ID w/ACRJ - Residence MRC Yes Yes $5.20 $0.71 $4.49
TX CON Calling Name and Number Delivery - Business MRC Yes Yes $9.00 $1.23 $7.77
TX CON Calling Name and Number Delivery - Residence MRC Yes Yes $6.50 $0.89 $5.61
TX CON Anonymous Call Rejection (ACRJ) - Business MRC Yes Yes $1.00 $0.14 $0.86
TX CON Anonymous Call Rejection (ACRJ) - Residence MRC Yes Yes $1.00 $0.14 $0.86
TX CON SmartCall PAK 4400 - Residence MRC Yes Yes $8.75 $1.19 $7.56
TX CON SmartCall PAK 4900 - Residence MRC Yes Yes $13.25 $1.81 $11.44
A-1 CENTRAL OFFICE SERVICES
Wake-up Service
TX CON Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Residence MRC Yes Yes $2.50 $0.34 $2.16
Single line intercom
TX CON Business MRC Yes Yes $3.50 $0.48 $3.02
</TABLE>
<PAGE> 101
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- -------- --------- --------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Residence MRC Yes Yes $2.50 $0.34 $2.16
REMOTE CALL FORWARDING
TX CON Residence (First network access) MRC Yes Yes $20.00 $2.73 $17.27
TX CON Residence (Additional network access) MRC Yes Yes $20.00 $2.73 $17.27
SEASONAL AND VACATION SERVICE
50% of regular rates for basic and
associated additional svs. for:
TX CON Colmesneil & Gary Exchanges.
[See Footnote: (6)] MRC Yes No Varies Varies Varies
RESIDENCE TEL-ASSISTANCE PROGRAM
Measured Service Exchanges (A credit of
TX CON 65% of the Meas. Access Line and usage apply.) MRC Yes No Varies Varies Varies
Nonmeasured Service Exchanges (A credit of 65%
TX CON of the local network access line rates apply.) MRC Yes No Varies Varies Varies
LIFELINE TELEPHONE SERVICE (A credit equal to the
FCC-mandated subscriber line charge not to
TX CON exceed $3.50 per month.) MRC Yes No ($3.50) N/A ($3.50)
CALL RESTRICTION SERVICES
Toll Blocking
Option 1
TX CON Blocks All 1+ calls, per line/trunk MRC Yes Yes 1.5 $0.20 $1.30
TX CON Blocks All 1+ calls, per line/trunk NRC Yes No $10.00 N/A $10.00
Option 2
TX CON Blocks All 1+, 0+ and 0- calls per line/trunk MRC Yes Yes $1.50 $0.20 $1.30
TX CON Blocks All 1+, 0+ and 0- calls per line/trunk NRC Yes No $10.00 N/A $10.00
BILLED NUMBER SCREENING SERVICE (BNS)
Option 1
TX CON Collect and Third Number Billing MRC Yes Yes $2.00 $0.27 $1.73
TX CON Collect and Third Number Billing NRC Yes No $10.00 N/A $10.00
Option 2
TX CON Third Number Billing MRC Yes Yes $2.00 $0.27 $1.73
TX CON Third Number Billing NRC Yes No $10.00 N/A $10.00
Option 3
TX CON Collect Billing MRC Yes Yes $2.00 $0.27 $1.73
</TABLE>
<PAGE> 102
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- -------- --------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Collect Billing NRC Yes No $10.00 N/A $10.00
SELECTIVE CLASS OF CALL SCREENING
Per Line
TX CON Selective Class of Call Screening MRC Yes Yes $3.00 $0.41 $2.59
TX CON Selective Class of Call Screening NRC Yes No $10.00 N/A $10.00
Per Trunk
TX CON Selective Class of Call Screening NRC Yes Yes $10.00 $1.36 $8.64
TX CON Selective Class of Call Screening NRC Yes No $10.00 N/A $10.00
EXPANDED LOCAL CALLING SERVICE
[See Footnote: (6)]
TX CON A-1A HIGH (Bus. $7.00; Res. $3.50) MRC Yes Yes $7.00 $0.95 $6.05
TX CON LOW (Bus. $1.01; Res. $.51 MRC Yes Yes $1.01 $0.14 $0.87
A-2 OUTSIDE PLANT EQUIPMENT - SPECIAL SERVICE
Terminals are in different building
on same property
Different Premises
TX CON Each one-quarter mile or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
Terminals are in different buildings
on noncontinuous
TX CON Each one-quarter mile or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
Within Avery, Hooks, Karnack, and
Uncertain exchanges
Detached extension lines
TX CON Extension line mileage first 1/4 mile MRC Yes Yes $3.00 $0.41 $2.59
TX CON Additional 1/4 mile, each MRC Yes Yes $1.00 $0.14 $0.86
Within the Colmesneil and Gary exchanges
Detached extension lines
TX CON On premises, each one-tenth mile
of extension line MRC Yes Yes $0.75 $0.10 $0.65
TX CON Off premises, first 1/4 mile
of extension line MRC Yes Yes $3.00 $0.41 $2.59
TX CON Each additional 1/4 mile or
fraction thereof MRC Yes Yes $1.50 $0.20 $1.30
Each tie line between private branch exchange systems
Same customer
Different premises
TX CON First 1/4 mile or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
</TABLE>
<PAGE> 103
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Each additional 1/4 mile
or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
Different Customer
TX CON First 1/4 mile or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
TX CON Each additional 1/4 mile
or fraction thereof MRC Yes Yes $2.00 $0.27 $1.73
A-5 SERVICE CHARGES
TX CON SERVICE ORDER CHARGE INITIAL - RESIDENCE NRC No No $20.00 N/A N/A
TX CON SERVICE ORDER CHARGE INITIAL -BUSINESS NRC No No $30.00 N/A N/A
TX CON SERVICE ORDER CHARGE SUBSEQUENT - RESIDENCE NRC No No $8.00 N/A N/A
TX CON SERVICE ORDER CHARGE SUBSEQUENT -BUSINESS NRC No No $13.50 N/A N/A
TX CON LOCAL PUBLIC ACCESS LINE NRC No No $20.00 N/A N/A
TX CON LINE CONNECTION CHARGE BUS NRC No No $20.00 N/A N/A
TX CON LINE CONNECTION CHARGE RES NRC No No $20.00 N/A N/A
TX CON TRIP CHARGE - RESIDENCE NRC No No $20.00 N/A N/A
TX CON TRIP CHARGE - BUSINESS NRC No No $20.00 N/A N/A
SPECIAL SERVICES
TX CON RESIDENCE NRC No No $6.85 N/A N/A
TX CON BUSINESS NRC No No $6.85 N/A N/A
DIRECTORY LISTING CHANGES OR ADDITIONS
TX CON RESIDENCE NRC No Yes $3.50 $0.00 N/A
TX CON BUSINESS NRC No Yes $3.50 $0.00 N/A
A-6 DIRECTORY LISTINGS
Primary Service Listings
TX CON Each network access line service MRC Yes Yes $0.00 $0.00 $0.00
Additional Listings
TX CON Each business listing MRC No No $1.05 $0.14 N/A
TX CON Each residence listing MRC No No $0.70 $0.10 N/A
TX CON Each residence dual listing MRC No No $0.70 $0.10 N/A
TX CON Each listing of guests at a hotel or motel MRC No No $1.05 $0.14 N/A
TX CON Each reference to another service
same customer MRC No No $1.05 $0.14 N/A
TX CON Each reference to another service
another customer MRC No No $1.05 $0.14 N/A
TX CON Each cross reference listing MRC No No $1.05 $0.14 N/A
TX CON Each line of information in addition
to a listing MRC No No $1.05 $0.14 N/A
TX CON Each listing in the local directory of
a foreign primary Service MRC No No $1.40 $0.19 N/A
Each NonPublished MRC No No $1.40 $0.19 N/A
</TABLE>
<PAGE> 104
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Primary Service Listings - Avery, Hooks,
Karnack, Uncertain Exchanges
TX CON Business MRC Yes Yes $0.00 $0.00 $0.00
TX CON Residence MRC Yes Yes $0.00 $0.00 $0.00
TX CON Additional Listings
TX CON Each business listing MRC No No $1.25 $0.17 N/A
TX CON Each residence listing MRC No No $1.25 $0.17 N/A
TX CON Each alternate call number listing MRC No No $1.25 $0.17 N/A
Each listing in the local directory
of a foreign primary svc
TX CON Business MRC No No $3.50 $0.48 N/A
TX CON Residence MRC No No $3.50 $0.48 N/A
Nonpublished Telephone Number
TX CON Each nonpublished telephone number MRC No No $2.50 $0.34 N/A
Unlisted telephone number
TX CON Each unlisted number MRC No No $2.50 $0.34 N/A
PERSONALIZED TELEPHONE NUMBER SERVICE
TX CON Business NRC Yes No $38.00 N/A $38.00
TX CON Business MRC Yes Yes $3.50 $0.48 $3.02
TX CON Residence NRC Yes No $10.00 N/A $10.00
TX CON Residence MRC Yes Yes $1.50 $0.20 $1.30
Within the Colmesneil and Gary Exchanges
Primary Service Listing
Additional Listings
TX CON Business MRC No No $0.50 $0.07 N/A
TX CON Residence MRC No No $0.25 $0.03 N/A
A-9 FIRE REPORTING SERVICE
Tellabs 292 common equipment includes 10 lines
equipped with the following: 0 lines, 1
common control shelf, 1 line card shelf,
1 ringing interrupter module, 2 fuse modules
(1/shelf), 1 tone supply module
TX CON 1 ringing timer module, 1 automatic access port MRC Yes Yes $79.55 $10.84 $68.71
TX CON Additional line card shelf MRC Yes Yes $43.50 $5.93 $37.57
Auxilary common equipment
TX CON Each station line card on shelf MRC Yes Yes $5.70 $0.78 $4.92
</TABLE>
<PAGE> 105
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Optional Equipment
Siren control timer module max. 1 per
TX CON system/either external or touchtone MRC Yes Yes $5.50 $0.75 $4.75
A-10 MISCELLANEOUS BILLING SERVICE
Additional Bill Copy Service
One to three copies per account, only
TX CON Each request charge per account MRC No No $2.50 N/A N/A
Number Reservation Service
TX CON Each telephone number reserved, per month MRC Yes Yes $3.50 $0.48 $3.02
PHONE NUMBER REFERRAL SERVICE (PNRS)
TX CON Business NRC Yes No $16.00 N/A $16.00
TX CON Residence NRC Yes No $9.00 N/A $9.00
CALL SCREENING
Restricts incoming toll calls to prohibits collect &
TX CON third number billed calls MRC Yes Yes $1.50 $0.20 $1.30
A-11 DIGITAL CENTREX SERVICE
Intragroup calling Service Monthly rate per line
(3 year term)
TX CON Centrex Local Line -
First 100 Lines (2-100) 0.5 miles MRC Yes Yes $10.16 $1.38 $8.78
TX CON Centrex Local Line -
First 100 Lines (2-100) 1.0 miles MRC Yes Yes $12.36 $1.68 $10.68
TX CON Centrex Local Line -
First 100 Lines (2-100) 1.5 miles MRC Yes Yes $14.44 $1.97 $12.47
TX CON Centrex Local Line -
First 100 Lines (2-100) 2.0 miles MRC Yes Yes $16.62 $2.27 $14.35
TX CON Centrex Local Line -
First 100 Lines (2-100) 2.5 miles MRC Yes Yes $18.71 $2.55 $16.16
Intragroup calling Service Monthly rate per line
(5 year term)
(A Termination Agreement is Required)
TX CON Centrex Local Line -
First 100 Lines (2-100) 0.5 miles MRC Yes Yes $9.56 $1.30 $8.26
TX CON Centrex Local Line -
First 100 Lines (2-100) 1.0 miles MRC Yes Yes $11.25 $1.53 $9.72
TX CON Centrex Local Line -
First 100 Lines (2-100) 1.5 miles MRC Yes Yes $12.85 $1.75 $11.10
TX CON Centrex Local Line -
First 100 Lines (2-100) 2.0 miles MRC Yes Yes $14.54 $1.98 $12.56
TX CON Centrex Local Line -
First 100 Lines (2-100) 2.5 miles MRC Yes Yes $16.15 $2.20 $13.95
TX CON Centrex Local Line -
First 100 Lines (2-100) 3.0 miles MRC Yes Yes $17.84 $2.43 $15.41
Intragroup calling Service Monthly rates per line
(7 year term)
</TABLE>
<PAGE> 106
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(A Termination Agreement is Required)
TX CON Centrex Local Line - First 100 Lines (2-100) 0.5 miles MRC Yes Yes $9.30 $1.27 $8.03
TX CON Centrex Local Line - First 100 Lines (2-100) 1.0 miles MRC Yes Yes $10.79 $1.47 $9.32
TX CON Centrex Local Line - First 100 Lines (2-100) 1.5 miles MRC Yes Yes $12.21 $1.66 $10.55
TX CON Centrex Local Line - First 100 Lines (2-100) 2.0 miles MRC Yes Yes $13.70 $1.87 $11.83
TX CON Centrex Local Line - First 100 Lines (2-100) 2.5 miles MRC Yes Yes $15.11 $2.06 $13.05
TX CON Centrex Local Line - First 100 Lines (2-100) 3.0 miles MRC Yes Yes $16.60 $2.26 $14.34
Intragroup calling Service Monthly rates per line
(9 year term)
TX CON (A Termination Agreement is Required)
TX CON Centrex Local Line - First 100 Lines (2-100) 0.5 miles MRC Yes Yes $9.18 $1.25 $7.93
TX CON Centrex Local Line - First 100 Lines (2-100) 1.0 miles MRC Yes Yes $10.56 $1.44 $9.12
TX CON Centrex Local Line - First 100 Lines (2-100) 1.5 miles MRC Yes Yes $11.88 $1.62 $10.26
TX CON Centrex Local Line - First 100 Lines (2-100) 2.0 miles MRC Yes Yes $13.26 $1.81 $11.45
TX CON Centrex Local Line - First 100 Lines (2-100) 2.5 miles MRC Yes Yes $14.57 $1.99 $12.58
TX CON Centrex Local Line - First 100 Lines (2-100) 3.0 miles MRC Yes Yes $15.96 $2.18 $13.78
Features and Services
TX CON Each Basic Package MRC Yes Yes $3.00 $0.41 $2.59
TX CON Additional Features or services, each MRC Yes Yes $0.25 $0.03 $0.22
TX CON Foreign Exchange (FX) Line Access-Analog MRC Yes Yes $0.50 $0.07 $0.43
TX CON Foreign Exchange (FX) Line Access-Digital 2-way MRC Yes Yes $0.50 $0.07 $0.43
Enhanced Features & Services
TX CON Enhanced Business Service MRC Yes Yes $2.35 $0.32 $2.03
TX CON Additional Features or services, each (see cond. a15) MRC Yes Yes $0.25 $0.03 $0.22
TX CON Virtual Facility Group MRC Yes Yes $1.25 $0.17 $1.08
BASIC FEATURES
Basic features and service package includes touchtone
and may include up to six features with additional
TX CON features at $.25 each. MRC Yes Yes $0.25 $0.03 $0.22
ENHANCED FEATURES
Basic features and service package will include any
six and any basic features with additional features
TX CON or services at $.25 each. MRC Yes Yes $0.25 $0.03 $0.22
TX CON A-12 9-1-1 NETWORK SERVICE
</TABLE>
<PAGE> 107
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
E9-1-1 Service Line MRC Yes Yes $17.14 $2.34 $14.80
E9-1-1 Service Line - NRC NRC Yes No $192.81 N/A $192.81
A-13 Private Switch Emergency Service
PS 911 Service Trunk - See Automatic
Trunk Rate Schedule A-1
911 Service Trunk - See Schedule A-12
for Special E911 Trunk Rate
Directory Number - See DID Rates in Schedule A-1
PS ALI Subscriber Record - See Schedule A-12
ALI Database and Selective Routing
PS ALI Entry Admin Site Packages
Option 1 NRC Yes No $449.44 N/A $449.44
Option 1 MRC Yes Yes $158.76 $21.64 $137.12
Option 2 NRC Yes No $282.49 N/A $282.49
Option 2 MRC Yes Yes $18.35 $2.50 $15.85
Option 3 NRC Yes No $206.20 N/A $206.20
Option 3 MRC Yes Yes $36.93 $5.03 $31.90
Option 4 NRC Yes No $189.00 N/A $189.00
Option 4 MRC Yes Yes $9.00 $1.23 $7.77
G-1 PRIVATE LINE SERVICE AND CHANNELS
Intraexchange Service
Metallic Service
Circuit Termination
First 1/4 mile or fraction
thereof, air line measurement
TX CON per point of termination MRC Yes No $5.60 $0.76 $4.84
TX CON Circuit Termination NRC Yes No $293.47 N/A $293.47
Each additional 1/4 mile
or fraction thereof, air line
TX CON measurement, per point of termination MRC Yes No $1.40 $0.19 $1.21
Optional Features and Functions
Bridging - per port
TX CON Three premises MRC Yes No $4.64 $0.63 $4.01
TX CON Series MRC Yes No $4.64 $0.63 $4.01
Voice Grade Service
Circuit Termination - 2 wire
First 1/4 mile or fraction
thereof, air line measurement
TX CON per point of termination MRC Yes No $5.60 $0.76 $4.84
TX CON Circuit Termination - 2 wire NRC Yes No $334.33 N/A $334.33
Each additional 1/4 mile or
fraction thereof, air line
</TABLE>
<PAGE> 108
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON measurement, per point of termination MRC Yes No $1.40 $0.19 $1.21
Circuit Termination - 4 wire
First 1/4 mile or fraction thereof,
air line measurement
TX CON per point of termination MRC Yes No $8.92 $1.22 $7.70
TX CON Circuit Termination - 4 wire NRC Yes No $334.33 N/A $334.33
Each additional 1/4 mile or
fraction thereof, air line
TX CON measurement, per point of termination MRC Yes No $2.23 $0.30 $1.93
Optional Features and Functions
Voice Bridging - per port
TX CON Two-wire MRC Yes No $4.64 $0.63 $4.01
TX CON Four-wire MRC Yes No $4.64 $0.63 $4.01
Data Bridging - per port
TX CON Two-wire MRC Yes No $4.64 $0.63 $4.01
TX CON Four-wire MRC Yes No $4.64 $0.63 $4.01
Conditioning - per point of termination
TX CON C-type MRC Yes No $11.12 $1.52 $9.60
TX CON Sealing Current MRC Yes No $0.00 $0.00
TX CON D Conditioning MRC Yes No $11.40 $1.55 $9.85
Circuit Termination
First 1/4 mile or fraction thereof,
air line measurement
TX CON per point of termination,
50.0 or 40.8 kbps MRC Yes No $121.80 $16.60 $105.20
TX CON Circuit Termination NRC Yes No $534.86 N/A $534.86
Each additional 1/4 mile
or fraction thereof,
air line measurement
TX CON per point of termination,
50.0 or 40.8 kbps MRC Yes No $30.45 $4.15 $26.30
TX CON B-1 TOLL SERVICES / LONG DISTANCE MESSAGE
TELECOMMUNICATIONS SERVICE
Contel Tariff concurs in the GTESW LDMTS Tariff
See Footnote (5)
TX CON B-2 WATS SERVICES / WIDE AREA TELECOMMUNICATIONS SERVICES
Contel Tariff concurs in the GTESW WATS Tariff
See Footnote (5).
TX CON G-1 INTRALATA INTEREXCHANGE PRIVATE LINE SERVICES
Contel Tariff concurs in the Southwestern Bell
Private Line Tariff
</TABLE>
<PAGE> 109
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
for Private Line Nondigital Services. See footnote (5).
TX CON G-1 DS1 - 1.544 Mbps Service - Intraexchange Service
Contel Tariff concurs in GTESW IntraLATA
Interexchange Tariff Section 4. See Footnote (5).
TX CON G-1 Digial Data Service (DDS) - INTRAexchange Service
Contel Tariff concurs in the GTESW IntraLATA
Interexchange Tariff Section 5. See Footnote (5).
TX CON H-1 Controlink Digital Channel Service - INTRAexchange
Service Contel Tariff concurs in the GTESW Genl Exchage
Tariff Section 49. See Footnote (5).
TX CON Fractional T1 Service - INTRA exchange Service
Contel Tariff Concurs in the GTESW IntraLATA
Interexchange Tariff Section XX. See Footnote (5).
TX CON I-1 New Centrex Services - CONTEL TARIFF CONCURS IN
THE GTESW Genl Exchange Tariff Section 34 for both
Analog and Digital CentraNet Service, i.e., rates
and services the same. See Footnote (5).
TX CON I-1 SINGLE LINE ISDN SERVICES - CONTEL TARIFF CONCURS IN
THE GTESW Genl Exchange Tariff Section 33. See
Footnote (5).
TX CON I-1 ISDN-PRI SERVICES - CONTEL TARIFF CONCURS IN THE
GTESW Genl Exchng Tariff Section 49. See Footnote (5).
TX CON L-1 MOBILE TELEPHONE SERVICE
Primary Services
TX CON Air-time service locations MRC Yes Yes $11.00 $1.50 $9.50
TX CON Air-time service locations NRC Yes No $36.00 N/A $36.00
TX CON Flat rate service locations MRC Yes Yes $11.40 $1.55 $9.85
TX CON Flat rate service locations NRC Yes No $36.0000 N/A $36.00
Air-time Usage
TX CON Flat rate in lieu of air-time usage charges MRC Yes Yes $20.0000 $2.73 $17.27
</TABLE>
<PAGE> 110
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX CON Measured air-time (min.) MRC Yes Yes $0.3000 $0.04 $0.26
Roamer units operating in this utility's
service areas will pay an additional charge
of $1.00 per each completed call.
Pocket receiver tone service
TX CON Paging Access MRC Yes Yes $5.80 $0.79 $5.01
Grandfathered Products and Services
Discontinued Equipment and Services
Fire Reporting Services
A-1 Common Equipment
TX CON X-1 B1 Up to 10 reporting telephones MRC Yes Yes $25.00 $3.41 $21.59
TX CON X-1 C1 each one over 10 MRC Yes Yes $1.25 $0.17 $1.08
TX CON X-1 B2 Up to 20 reporting telephones MRC Yes Yes $40.00 $5.45 $34.55
TX CON X-1 B3 Up to 30 reporting telephones MRC Yes Yes $45.00 $6.13 $38.87
TX CON X-1 A2 Fireman line circuits, 2 lines/circuit, each MRC Yes Yes $10.00 $1.36 $8.64
TX CON X-1 A3 Relay, per siren MRC Yes Yes $0.50 $0.07 $0.43
TX CON X-1 A4 Censor equipment MRC Yes Yes $27.00 $3.68 $23.32
X-1 A7 Within Avery, Hooks, Karnack, and Uncertain
exchanges
X-1 A8 Common Equipment
TX CON X-1 B1 Up to 10 reporting telephones MRC Yes Yes $30.00 $4.09 $25.91
TX CON X-1 C1 Each one over 10 MRC Yes Yes $5.00 $0.68 $4.32
TX CON X-1 B2 Up to 20 reporting telephones MRC Yes Yes $45.00 $6.13 $38.87
X-1 Customer Transfer Equipment
TX CON X-1 A1 Transfer unit equipment with key MRC Yes Yes $6.00 $0.82 $5.18
X-1 Network Access Line Service
X-1 B1 Business #
X-1 C1
TX CON X-1 Colmesneil - one party MRC Yes Yes $13.20 $1.80 $11.40
TX CON X-1 Colmesneil - key line service MRC Yes Yes $19.85 $2.71 $17.14
TX CON X-1 Gary - one party MRC Yes Yes $13.20 $1.80 $11.40
TX CON X-1 Avery - key line service MRC Yes Yes $19.60 $2.67 $16.93
TX CON X-1 Hooks - key line service MRC Yes Yes $19.30 $2.63 $16.67
TX CON X-1 Karnack - key line service MRC Yes Yes $20.80 $2.84 $17.96
</TABLE>
<PAGE> 111
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
CONTEL OF TEXAS, INC.
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Footnote: (1) The retail rates above do not include the End User Subscriber Line
Charge (ECSLC). The ALEC will be responsible for the business or
residential charge, $6.00 and $3.5 respectively.
Footnote: (2) This footnote intentionally left blank.
Footnote: (3) This matrix is subject to Legal and/or Regulatory constraints.
Footnote: (4) Prices contained in this price list have been calculated according
to the formula: (1) retail price, less (2) avoided retail costs.
Footnote: (5) See GTESW Resale Matrix for all concurring rates and charges.
Footnote: (6) Resale with discount to Business Customers only. No Resale and No
Discount to Residential Customers.
<PAGE> 112
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
GTESW GENERAL EXCHANGE TARIFF
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Basic Local Exchange Services:
TX GTE 6 Flat Rate Bus One-Party Service
TX GTE Rate Group 1 MRC Yes Yes $18.35 $2.50 $15.85
TX GTE Rate Group 2 MRC Yes Yes $18.90 $2.58 $16.32
TX GTE Rate Group 3 MRC Yes Yes $19.45 $2.65 $16.80
TX GTE Rate Group 4 MRC Yes Yes $19.95 $2.72 $17.23
Flat Rate Bus - B3 COR; B4 COR; B4
TX GTE Rate Group 1 MRC Yes Yes $12.10 $1.65 $10.45
TX GTE Rate Group 2 MRC Yes Yes $12.50 $1.70 $10.80
TX GTE Rate Group 3 MRC Yes Yes $12.85 $1.75 $11.10
TX GTE Rate Group 4 MRC Yes Yes $13.20 $1.80 $11.40
Flat Rate Bus - B8
TX GTE Rate Group 1 MRC Yes Yes $10.30 $1.40 $8.90
TX GTE Rate Group 2 MRC Yes Yes $10.60 $1.44 $9.16
TX GTE Rate Group 3 MRC Yes Yes $10.90 $1.49 $9.41
TX GTE Rate Group 4 MRC Yes Yes $11.20 $1.53 $9.67
Flat Rate Bus - Manual (Key) Trunk
TX GTE Rate Group 1 MRC Yes Yes $22.00 $3.00 $19.00
TX GTE Rate Group 2 MRC Yes Yes $22.65 $3.09 $19.56
TX GTE Rate Group 3 MRC Yes Yes $23.35 $3.18 $20.17
TX GTE Rate Group 4 MRC Yes Yes $23.90 $3.26 $20.64
Flat Rate Bus - Automatic (PBX) Trunk
TX GTE Rate Group 1 MRC Yes Yes $29.40 $4.01 $25.39
TX GTE Rate Group 2 MRC Yes Yes $30.25 $4.12 $26.13
TX GTE Rate Group 3 MRC Yes Yes $31.10 $4.24 $26.86
TX GTE Rate Group 4 MRC Yes Yes $31.90 $4.35 $27.55
Flat Rate Bus - ISAL
TX GTE Rate Group 1 MRC Yes Yes $18.35 $2.50 $15.85
TX GTE Rate Group 2 MRC Yes Yes $18.90 $2.58 $16.32
TX GTE Rate Group 3 MRC Yes Yes $19.45 $2.65 $16.80
TX GTE Rate Group 4 MRC Yes Yes $19.95 $2.72 $17.23
Flat Rate Bus - Fire Reporting Lines
TX GTE Rate Group 1 MRC Yes Yes $18.05 $2.46 $15.59
TX GTE Rate Group 2 MRC Yes Yes $18.60 $2.54 $16.06
</TABLE>
<PAGE> 113
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Rate Group 3 MRC Yes Yes $19.10 $2.60 $16.50
TX GTE Rate Group 4 MRC Yes Yes $19.55 $2.66 $16.89
6 Flat Rate Bus One Party - Non Optional EAS
TX GTE Rate Group 1 MRC Yes Yes $2.95 $0.40 $2.55
TX GTE Rate Group 2 MRC Yes Yes $3.65 $0.50 $3.15
TX GTE Rate Group 3 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Rate Group 4-8 MRC Yes Yes $19.00 $2.59 $16.41
Flat Rate Bus - B3/B4 COR; B4;B8 - Non Optional EAS
TX GTE Rate Group 1 MRC Yes Yes $2.95 $0.40 $2.55
TX GTE Rate Group 2 MRC Yes Yes $3.65 $0.50 $3.15
TX GTE Rate Group 3 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Rate Group 4-8 MRC Yes Yes $19.00 $2.59 $16.41
Flat Rate Bus - Manual (Key) Trunk - Non Optional EAS
TX GTE Rate Group 1 MRC Yes Yes $3.50 $0.48 $3.02
TX GTE Rate Group 2 MRC Yes Yes $4.40 $0.60 $3.80
TX GTE Rate Group 3 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Rate Group 4-8 1-24 trunks MRC Yes Yes $33.25 $4.53 $28.72
TX GTE 25-48 trunks MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 49-96 trunks MRC Yes Yes $20.00 $2.73 $17.27
TX GTE 97+ trunks MRC Yes Yes $15.00 $2.04 $12.96
Flat Rate Bus - Automatic (PBX) Trunk - Non Optional EAS
TX GTE Rate Group 1 MRC Yes Yes $5.15 $0.70 $4.45
TX GTE Rate Group 2 MRC Yes Yes $6.40 $0.87 $5.53
TX GTE Rate Group 3 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Rate Group 4-8 1-24 trunks MRC Yes Yes $33.25 $4.53 $28.72
TX GTE 25-48 trunks MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 49-96 trunks MRC Yes Yes $20.00 $2.73 $17.27
TX GTE 97+ trunks MRC Yes Yes $15.00 $2.04 $12.96
Flat Rate Bus - ISAL - Non Optional EAS
TX GTE Rate Group 1 MRC Yes Yes $2.95 $0.40 $2.55
TX GTE Rate Group 2 MRC Yes Yes $3.65 $0.50 $3.15
TX GTE Rate Group 3 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Rate Group 4-8 MRC Yes Yes $19.00 $2.59 $16.41
</TABLE>
<PAGE> 114
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Flat Rate Res - One-Party
TX GTE Rate Group 1 MRC No No $7.10 N/A N/A
TX GTE Rate Group 2 MRC No No $7.30 N/A N/A
TX GTE Rate Group 3 MRC No No $7.50 N/A N/A
TX GTE Rate Group 4 MRC No No $7.65 N/A N/A
Flat Rate Res - R2
TX GTE Rate Group 1 MRC No No $5.30 N/A N/A
TX GTE Rate Group 2 MRC No No $5.45 N/A N/A
TX GTE Rate Group 3 MRC No No $5.65 N/A N/A
TX GTE Rate Group 4 MRC No No $5.75 N/A N/A
Flat Rate Res - R3/R4 COR;R4;R4 Rural
TX GTE Rate Group 1 MRC No No $4.60 N/A N/A
TX GTE Rate Group 2 MRC No No $4.70 N/A N/A
TX GTE Rate Group 3 MRC No No $4.90 N/A N/A
TX GTE Rate Group 4 MRC No No $5.00 N/A N/A
Flat Rate Res - R8 Rural
TX GTE Rate Group 1 MRC No No $3.90 N/A N/A
TX GTE Rate Group 2 MRC No No $4.00 N/A N/A
TX GTE Rate Group 3 MRC No No $4.10 N/A N/A
TX GTE Rate Group 4 MRC No No $4.20 N/A N/A
Flat Rate Res - Manual (Key) Trunk
TX GTE Rate Group 1 MRC No No $8.50 N/A N/A
TX GTE Rate Group 2 MRC No No $8.75 N/A N/A
TX GTE Rate Group 3 MRC No No $9.00 N/A N/A
TX GTE Rate Group 4 MRC No No $9.20 N/A N/A
Flat Rate Res - R1;R2;R3/R4 COR;R4;R4 Rural;R8 Rural
Non Optional EAS
TX GTE Rate Group 1 MRC No No $1.10 N/A N/A
TX GTE Rate Group 2 MRC No No $1.40 N/A N/A
TX GTE Rate Group 3 MRC No No $3.50 N/A N/A
TX GTE Rate Group 4-8 MRC No No $7.25 N/A N/A
Flat Rate Res - Manual (Key) Trunk - Non Optional EAS
TX GTE Rate Group 1 MRC No No $1.35 N/A N/A
TX GTE Rate Group 2 MRC No No $1.70 N/A N/A
</TABLE>
<PAGE> 115
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- --------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Rate Group 3 MRC No No $3.50 N/A N/A
TX GTE Rate Group 4-8 MRC No No $8.75 N/A N/A
TX GTE 6 TEL - ASSISTANCE
Flat Rate Res - One Party
TX GTE Rate Group 1 MRC Yes No $2.49 N/A $2.49
TX GTE Rate Group 2 MRC Yes No $2.56 N/A $2.56
TX GTE Rate Group 3 MRC Yes No $2.63 N/A $2.63
TX GTE Rate Group 4 MRC Yes No $2.68 N/A $2.68
Flat Rate Res - Two Party
TX GTE Rate Group 1 MRC Yes No $1.86 N/A $1.86
TX GTE Rate Group 2 MRC Yes No $1.91 N/A $1.91
TX GTE Rate Group 3 MRC Yes No $1.98 N/A $1.98
TX GTE Rate Group 4 MRC Yes No $2.01 N/A $2.01
Flat Rate Res - Four Party, Customer Owner
Rural 3 & 4 Party Lines
TX GTE Rate Group 1 MRC Yes No $1.61 N/A $1.61
TX GTE Rate Group 2 MRC Yes No $1.65 N/A $1.65
TX GTE Rate Group 3 MRC Yes No $1.72 N/A $1.72
TX GTE Rate Group 4 MRC Yes No $1.75 N/A $1.75
Flat Rate Res - Eight Party Rural
TX GTE Rate Group 1 MRC Yes No $1.37 N/A $1.37
TX GTE Rate Group 2 MRC Yes No $1.40 N/A $1.40
TX GTE Rate Group 3 MRC Yes No $1.44 N/A $1.44
TX GTE Rate Group 4 MRC Yes No $1.47 N/A $1.47
TEL-ASSISTANCE Mandatory EAS
All Grades of Res Flat Rate Service
TX GTE Rate Group 1 MRC Yes No $0.39 N/A $0.39
TX GTE Rate Group 2 MRC Yes No $0.49 N/A $0.49
TX GTE Rate Group 3 MRC Yes No $1.23 N/A $1.23
TX GTE Rate Group 4 MRC Yes No $2.54 N/A $2.54
TEL-ASSISTANCE - Optional Measured Service
TX GTE Residence Service Exchange Access Arrangement MRC Yes No $2.98 N/A $2.98
TX GTE Completed Calls - Surrpgate Usage MRC Yes No $2.30 N/A $2.30
TX GTE 6 LIFELINE LOCAL EXCHANGE SERVICE
</TABLE>
<PAGE> 116
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FCC END USER CALC IS WAIVED FOR
LIFELINE CUSTOMER
TX GTE Residence One Party - Flat Rate
TX GTE Rate Group 1 MRC Yes No $3.60 N/A $3.60
TX GTE Rate Group 2 MRC Yes No $3.80 N/A $3.80
TX GTE Rate Group 3 MRC Yes No $4.00 N/A $4.00
TX GTE Rate Group 4 MRC Yes No $4.15 N/A $4.15
Residence Two Party - Flat Rate
TX GTE Rate Group 1 MRC Yes No $1.80 N/A $1.80
TX GTE Rate Group 2 MRC Yes No $1.95 N/A $1.95
TX GTE Rate Group 3 MRC Yes No $2.15 N/A $2.15
TX GTE Rate Group 4 MRC Yes No $2.25 N/A N/A
Residence Four Party - Flat Rate
TX GTE Rate Group 1 MRC Yes No $1.10 N/A $1.10
TX GTE Rate Group 2 MRC Yes No $1.20 N/A $1.20
TX GTE Rate Group 3 MRC Yes No $1.40 N/A $1.40
TX GTE Rate Group 4 MRC Yes No $1.50 N/A $1.50
TX GTE Lifeline OMS - Exchange Access MRC Yes No $5.00 N/A $5.00
NOTE: Lifeline OMS Usage, no discount
same as below
TX GTE 6 Central Office Operator Access Trunk MRC Yes Yes $35.00 $4.77 $30.23
6 Outside Base Rate Area Additives
[See Footnote: (5)]
TX GTE One Party MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Multiparty MRC Yes Yes $0.95 $0.13 $0.82
6 Optional Measured Service
(Restricted to certain exchanges)
TX GTE Bus Local Exchange Access USAGE Yes Yes $26.4500 $3.6051 $22.84
TX GTE Res Local Exchange Access USAGE No No $8.5000 N/A N/A
Set - Up [See Footnote: (5)]
TX GTE Usage Rates - 0 - 7 Miles USAGE Yes Yes $0.0250 $0.0034 $0.02
TX GTE 7 - 14 Miles USAGE Yes Yes $0.0350 $0.0048 $0.03
TX GTE 14 - 21 USAGE Yes Yes $0.0500 $0.0068 $0.04
TX GTE 21 - 28 Miles USAGE Yes Yes $0.0700 $0.0095 $0.06
TX GTE 28 + Miles USAGE Yes Yes $0.0900 $0.0123 $0.08
</TABLE>
<PAGE> 117
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Each Minute [See Footnote: (5)]
TX GTE Usage Rates - 0 - 7 Miles USAGE Yes Yes $0.0150 $0.0020 $0.01
TX GTE 7 - 14 Miles USAGE Yes Yes $0.0210 $0.0029 $0.02
TX GTE 14 - 21 USAGE Yes Yes $0.0300 $0.0041 $0.03
TX GTE 21 - 28 Miles USAGE Yes Yes $0.0420 $0.0057 $0.04
TX GTE 28 + Miles USAGE Yes Yes $0.0540 $0.0074 $0.05
Set - Up - Discount Period
[See Footnote: (5)]
TX GTE Usage Rates - 0 - 7 Miles USAGE Yes Yes $0.0150 $0.0020 $0.01
TX GTE 7 - 14 Miles USAGE Yes Yes $0.0210 $0.0029 $0.02
TX GTE 14 - 21 USAGE Yes Yes $0.0300 $0.0041 $0.03
TX GTE 21 - 28 Miles USAGE Yes Yes $0.0420 $0.0057 $0.04
TX GTE 28 + Miles USAGE Yes Yes $0.0540 $0.0074 $0.05
Each Minute - Discount Period
[See Footnote: (5)]
TX GTE Usage Rates - 0 - 7 Miles USAGE Yes Yes $0.0090 $0.0012 $0.01
TX GTE 7 - 14 Miles USAGE Yes Yes $0.0126 $0.0017 $0.01
TX GTE 14 - 21 USAGE Yes Yes $0.0180 $0.0025 $0.02
TX GTE 21 - 28 Miles USAGE Yes Yes $0.0252 $0.0034 $0.02
TX GTE 28 + Miles USAGE Yes Yes $0.0324 $0.0044 $0.03
TX GTE 6 Measured Service Detailed Billing MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Per Bill Page NRC Yes No $0.20 N/A $0.20
TX GTE 6 Associate Number Non Aggregation MRC Yes Yes $1.00 $0.14 $0.86
6 Optional Extended Metro Service
(Restricted to certain exchanges)
TX GTE Business One Party MRC Yes Yes $79.10 $10.78 $68.32
TX GTE Manual (Key) Trunk MRC Yes Yes $95.70 $13.04 $82.66
TX GTE
TX GTE Automatic (PBX) Trunk MRC Yes Yes $138.35 $18.86 $119.49
TX GTE ISAL MRC Yes Yes $79.10 $10.78 $68.32
TX GTE Residence One Party MRC No No $29.00 N/A N/A
TX GTE R2 MRC No No $21.55 N/A N/A
</TABLE>
<PAGE> 118
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- --- ------ ------------------- ------- -------- -------- ------- -------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Res Manual (Key) Trunk MRC No No $50.55 N/A N/A
6 Special Rate Area Service [Applies to Specific
Exchanges / Also See Footnote: (5)]
TX GTE Zone 1&2 MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Zone 3 MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Zone 4 MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Zone 5 MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Zone 6&7 MRC Yes Yes $5.00 $0.68 $4.32
6 Local Calling Plans - Optional EAS [Restricted to
certain exchanges / Also See Footnote: (5)]
Community Calling Plan
TX GTE Monthly Rate MRC Yes Yes $1.00 $0.14 $0.86
CCP Usage Rates
First Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0300 $0.0041 $0.03
TX GTE 8-14 Miles Usage Yes Yes $0.0420 $0.0057 $0.04
TX GTE 15-21 Miles Usage Yes Yes $0.0600 $0.0082 $0.05
TX GTE 22-28 Miles Usage Yes Yes $0.0840 $0.0114 $0.07
TX GTE 29+ Miles Usage Yes Yes $0.0930 $0.0127 $0.08
Ea Add'l Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0150 $0.0020 $0.01
TX GTE 8-14 Miles Usage Yes Yes $0.0210 $0.0029 $0.02
TX GTE 15-21 Miles Usage Yes Yes $0.0300 $0.0041 $0.03
TX GTE 22-28 Miles Usage Yes Yes $0.0420 $0.0057 $0.04
TX GTE 29+ Miles Usage Yes Yes $0.0540 $0.0074 $0.05
CCP Usage Rates - 25% Discount
First Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0225 $0.0031 $0.02
TX GTE 8-14 Miles Usage Yes Yes $0.0315 $0.0043 $0.03
TX GTE 15-21 Miles Usage Yes Yes $0.0450 $0.0061 $0.04
TX GTE 22-28 Miles Usage Yes Yes $0.0630 $0.0086 $0.05
TX GTE 29+ Miles Usage Yes Yes $0.0698 $0.0095 $0.06
Ea Add'l Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0113 $0.0015 $0.01
TX GTE 8-14 Miles Usage Yes Yes $0.0158 $0.0021 $0.01
TX GTE 15-21 Miles Usage Yes Yes $0.0225 $0.0031 $0.02
TX GTE 22-28 Miles Usage Yes Yes $0.0315 $0.0043 $0.03
TX GTE 29+ Miles Usage Yes Yes $0.0405 $0.0055 $0.03
CCP Usage Rates - 40% Discount
First Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0180 $0.0025 $0.02
</TABLE>
<PAGE> 119
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- --------- --------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 8-14 Miles Usage Yes Yes $0.0252 $0.0034 $0.02
TX GTE 15-21 Miles Usage Yes Yes $0.0360 $0.0049 $0.03
TX GTE 22-28 Miles Usage Yes Yes $0.0504 $0.0069 $0.04
TX GTE 29+ Miles Usage Yes Yes $0.0558 $0.0076 $0.05
Ea Add'l Minute
TX GTE 0-7 Miles Usage Yes Yes $0.0090 $0.0012 $0.01
TX GTE 8-14 Miles Usage Yes Yes $0.0126 $0.0017 $0.01
TX GTE 15-21 Miles Usage Yes Yes $0.0180 $0.0025 $0.02
TX GTE 22-28 Miles Usage Yes Yes $0.0252 $0.0034 $0.02
TX GTE 29+ Miles Usage Yes Yes $0.0324 $0.0044 $0.03
Local Calling Plans / Optional EAS - Detail Billing
TX GTE Monthly Detail MRC Yes Yes $0.40 $0.05 $0.35
TX GTE Per Page NRC Yes No $0.10 N/A $0.10
6 Premium Calling Plan
Buda, Dripping Springs, Mt Calm,
Georgetown, Somerset, and Lavernia.
TX GTE B1 MRC Yes Yes $33.35 $4.55 $28.80
TX GTE Key MRC Yes Yes $39.00 $5.32 $33.68
TX GTE PBX MRC Yes Yes $54.50 $7.43 $47.07
TX GTE R1 MRC No No $15.20 N/A N/A
Kilgore, Hallsville, Christoval, and Mertzon.
TX GTE B1 MRC Yes Yes $22.00 $3.00 $19.00
TX GTE Key MRC Yes Yes $25.10 $3.42 $21.68
TX GTE PBX MRC Yes Yes $35.90 $4.89 $31.01
TX GTE R1 MRC No No $10.00 N/A N/A
</TABLE>
<PAGE> 120
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Boerne, Kyle, Wimberly, Charlotte, and Jourdanton.
TX GTE B1 MRC Yes Yes $36.70 $5.00 $31.70
TX GTE Key MRC Yes Yes $42.90 $5.85 $37.05
TX GTE PBX MRC Yes Yes $59.95 $8.17 $51.78
TX GTE R1 MRC No No $16.75 N/A N/A
Laferia, Lyford, Raymondville, Santa Rosa & Weslaco
TX GTE B1 MRC Yes Yes $50.00 $6.82 $43.19
TX GTE Key MRC Yes Yes $50.00 $6.82 $43.19
TX GTE PBX/CentraNet MRC Yes Yes $50.00 $6.82 $43.19
TX GTE R1 MRC No No $25.00 N/A N/A
6 Premium Plus Calling Plan
Buda, Dripping Springs, Mt Calm, Georgetown,
Somerset, and Lavernia.
TX GTE B1 MRC Yes Yes $66.65 $9.08 $57.57
TX GTE Key MRC Yes Yes $78.00 $10.63 $67.37
TX GTE PBX MRC Yes Yes $108.95 $14.85 $94.10
TX GTE R1 MRC No No $30.40 N/A N/A
Kilgore, Hallsville, Christoval, and Mertzon
TX GTE B1 MRC Yes Yes $44.00 $6.00 $38.00
TX GTE Key MRC Yes Yes $51.35 $7.00 $44.35
TX GTE PBX MRC Yes Yes $71.70 $9.77 $61.93
TX GTE R1 MRC No No $20.00 N/A N/A
Argyle, Denton & Justin
TX GTE B1 MRC Yes Yes $52.50 $7.16 $45.34
TX GTE Key MRC Yes Yes $52.50 $7.16 $45.34
TX GTE PBX MRC Yes Yes $52.50 $7.16 $45.34
TX GTE CentraNet MRC Yes Yes $52.50 $7.16 $45.34
TX GTE R1 MRC No No $22.50 N/A N/A
Boerne, Kyle, Wimberly, Charlotte, and Jourdanton.
TX GTE B1 MRC Yes Yes $73.35 $10.00 $63.35
</TABLE>
<PAGE> 121
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Key MRC Yes Yes $85.80 $11.69 $74.11
TX GTE PBX MRC Yes Yes $119.85 $16.34 $103.51
TX GTE R1 MRC No No $33.45 N/A N/A
6 Expanded Local Calling-Non Optional EAS
TX GTE Various Exchanges
TX GTE Business MRC Yes Yes $7.00 $0.95 $6.05
TX GTE Residence MRC No No $3.50 N/A N/A
Gunter
TX GTE Business MRC Yes Yes $5.68 $0.77 $4.91
TX GTE Residence MRC No No $2.87 N/A N/A
Grand Saline
TX GTE Business MRC Yes Yes $3.26 $0.44 $2.82
TX GTE Residence MRC No No $1.63 N/A N/A
Waelder
TX GTE Business MRC Yes Yes $3.65 $0.50 $3.15
TX GTE Residence MRC No No $1.82 N/A N/A
Dickinson
TX GTE Business MRC Yes Yes $3.96 $0.54 $3.42
TX GTE Residence MRC No No $1.98 N/A N/A
Ben Wheeler
TX GTE Business MRC Yes Yes $6.25 $0.85 $5.40
TX GTE Residence MRC No No $3.12 N/A N/A
Blessing
TX GTE Business MRC Yes Yes $6.32 $0.86 $5.46
TX GTE Residence MRC No No $3.16 N/A N/A
Hubbard
TX GTE Business MRC Yes Yes $6.10 $0.83 $5.27
</TABLE>
<PAGE> 122
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Residence MRC No No $3.05 N/A N/A
10 Vacation Service [See Footnote: (5)]
TX GTE 50% reduction in customers rates
- Incl access lines and miscellaneous services
TX GTE 12 Directory Listings (Non-publish) MRC No No $1.65 $0.22 N/A
TX GTE Directory Listings (Non-listed) MRC No No $1.65 $0.22 N/A
Extra listing, Foreign listings
TX GTE Residence MRC No No $0.55 $0.07 N/A
TX GTE Business MRC No No $1.10 $0.15 N/A
TX GTE Residence Family Plan Directory listing MRC No No $0.85 $0.12 N/A
13 Service Charges:
TX GTE Service Order Charge Primary - Bus NRC No No $31.50 N/A N/A
TX GTE Service Order Charge Primary - Res NRC No No $21.00 N/A N/A
TX GTE Service Order Charge Secondary - Bus NRC No No $13.50 N/A N/A
TX GTE Service Order Charge Secondary - Res NRC No No $8.00 N/A N/A
TX GTE Line Connection - Bus/Res NRC No No $20.00 N/A N/A
TX GTE Premise Visit Charge - Bus/Res NRC No No $9.00 N/A N/A
TX GTE Returned Check Charge NRC No No $10.00 N/A N/A
TX GTE Expedited Due Date Charge NRC No No $20.00 N/A N/A
Traffic Study
TX GTE Set Up NRC No No $300.00 $40.89 N/A
TX GTE Line Charge, per line studied NRC No No $3.00 $0.41 N/A
TX GTE 9 Denial of Svc - temp denial/non pay NRC No No $20.00 N/A N/A
- Line Connect $20 Chg applies
Reserved Rural Facilities
- Primary Service Order
TX GTE 10 Business NRC Yes No $31.50 N/A $31.50
TX GTE 10 Residence NRC No No $21.00 N/A N/A
14 Automatic Ringdown - Signalling
TX GTE Monthly MRC Yes Yes $10.50 $1.43 $9.07
TX GTE NRC NRC Yes No $20.00 N/A $20.00
14 DID
TX GTE Block of 100 #'s MRC Yes Yes $105.00 $14.31 $90.69
</TABLE>
<PAGE> 123
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ------- -------- -------- ------ ------- ------
<S><C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Block of 10 #'s MRC Yes Yes $10.50 $1.43 $9.07
TX GTE 14 Busy Line Interrupt NRC Yes No $2.20 N/A $2.20
TX GTE Busy Line Verify NRC Yes No $1.35 N/A $1.35
14 Dial DataLink
TX GTE NRC NRC Yes No $25.00 N/A $25.00
TX GTE MRC MRC Yes Yes $5.00 $0.68 $4.32
TX GTE 14 Confer Fire Reporting - Add'l Station MRC Yes Yes $3.50 $0.48 $3.02
14 Fire Reporting - Tellabs:
Common Equipment
TX GTE Level A/ Single Payment NRC Yes No $6,565.00 N/A $6,565.00
TX GTE Level A/ 5 Yr Contract MRC Yes Yes $137.00 $18.67 $118.33
TX GTE Level B MRC Yes Yes $58.25 $7.94 $50.31
TX GTE Central Office Bridging NRC Yes No $3.00 N/A $3.00
Each Add'l line
TX GTE Level A/ Single Payment NRC Yes No $400.00 N/A $400.00
TX GTE Level A/5 Yr Contract MRC Yes Yes $8.35 $1.14 $7.21
TX GTE Level B MRC Yes Yes $2.45 $0.33 $2.12
TX GTE 14 Personalized Telephone Number RES - Individualine NRC Yes No $25.00 N/A $25.00
TX GTE Personalized Telephone Number BUS - Individualine NRC Yes No $50.00 N/A $50.00
TX GTE Personalized Telephone Number RES - Individualine MRC Yes Yes $1.50 $0.20 $1.30
TX GTE Personalized Telephone Number BUS - Individualine MRC Yes Yes $3.50 $0.48 $3.02
TX GTE 14 Announcement Sys Service: Service Access MRC Yes Yes $30.00 $4.09 $25.91
TX GTE 14 Detail Billing Svc - MRC MRC Yes Yes $44.00 $6.00 $38.00
TX GTE Detail Billing Svc - NRC NRC Yes No $50.00 N/A $50.00
TX GTE 14 Special Billing #'s (Increments of 25) MRC Yes Yes $2.75 $0.37 $2.38
</TABLE>
<PAGE> 124
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 14 Reserved Tel # MRC Yes Yes $4.40 $0.60 $3.80
TX GTE Multiple Copies of Cust Bill MRC No No $1.00 N/A N/A
14 Call Restriction Service:
TX GTE Toll Block Option 1,2 MRC MRC Yes Yes $1.50 $0.20 $1.30
TX GTE Option 1,2 NRC NRC Yes No $10.00 N/A $10.00
TX GTE Billed # Screen Option 1,2,3 MRC MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Option 1,2,3 NRC NRC Yes No $10.00 N/A $10.00
TX GTE Selective Class of Call Screen - Per line MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Per trunk MRC Yes Yes $10.00 $1.36 $8.64
TX GTE 900 Call Restriction NRC NRC Yes No $2.25 N/A $2.25
TX GTE 14 Rotary Busy Out MRC MRC Yes Yes $14.50 $1.98 $12.52
TX GTE NRC NRC Yes No $25.00 N/A $25.00
TX GTE Rotary Hunting MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Circular Hunt MRC Yes Yes $3.25 $0.44 $2.81
TX GTE 14 Tie Line Mileage Same - Bldg/Same Premises NRC Yes No $12.00 N/A $12.00
TX GTE Tie Line Mileage Same - Bldg/Same Premises MRC Yes Yes $1.85 $0.25 $1.60
TX GTE - Diff Premises per 1/4 MI NRC Yes No $12.00 N/A $12.00
TX GTE - Diff Premises per 1/4 MI MRC Yes Yes $1.85 $0.25 $1.60
TX GTE 14 Dedicated Instant Call Accounting NRC Yes No $2,000.00 N/A $2,000.00
TX GTE Dedicated Instant Call Accounting MRC Yes Yes $1,000.00 $136.30 $863.70
TX GTE Dial Up Instant Call Accounting NRC Yes No $1,000.00 N/A $1,000.00
TX GTE Dial Up Instant Call Accounting MRC Yes Yes $550.00 $74.97 $475.04
TX GTE 14 TSP - Establishment per line circuit NRC Yes No $14.50 N/A $14.50
</TABLE>
<PAGE> 125
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Restoration Priority MRC Yes Yes $4.90 $0.67 $4.23
15 Bells - Ringers/OPX
TX GTE Loop Extender NRC Yes No $25.00 N/A $25.00
TX GTE Loop Extender MRC Yes Yes $5.35 $0.73 $4.62
TX GTE Bridge Lifter NRC Yes No $3.00 N/A $3.00
TX GTE Bridge Lifter MRC Yes Yes $0.40 $0.05 $0.35
TX GTE VF Repeater NRC Yes No $25.00 N/A $25.00
TX GTE VF Repeater MRC Yes Yes $10.25 $1.40 $8.85
TX GTE Long Line Adapter NRC Yes No $25.00 N/A $25.00
TX GTE Long Line Adapter MRC Yes Yes $8.75 $1.19 $7.56
Bells/Ringers
Conference Bridge
TX GTE Common Equipment MRC Yes Yes $110.00 $14.99 $95.01
TX GTE Line Equipment NRC Yes No $25.00 N/A $25.00
TX GTE Line Equipment MRC Yes Yes $10.65 $1.45 $9.20
TX GTE Min Termination Liability NRC Yes No $3,500.00 N/A $3,500.00
TX GTE 15 Mileage Rates - Add'l each access - Per 1/4 Mile MRC Yes Yes $1.85 $0.25 $1.60
16 Custom Calling Vertical Services:
TX GTE Touch Call Line Charge - BUS MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Touch Call Line Charge - RES MRC Yes Yes $1.50 $0.20 $1.30
TX GTE Call Waiting - Business MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Call Waiting - Residence MRC Yes Yes $1.80 $0.25 $1.55
TX GTE Call Forwarding - Business MRC Yes Yes $2.25 $0.31 $1.94
TX GTE Call Forwarding - Residence MRC Yes Yes $1.80 $0.25 $1.55
TX GTE Call Forwarding Multipath - Business MRC Yes Yes $2.25 $0.31 $1.94
TX GTE Call Forwarding Multipath - Residence MRC Yes Yes $1.80 $0.25 $1.55
TX GTE Speed Call 8 - Business MRC Yes Yes $2.25 $0.31 $1.94
TX GTE Speed Call 8 - Residence MRC Yes Yes $1.80 $0.25 $1.55
TX GTE Speed Call 30 - Business MRC Yes Yes $3.60 $0.49 $3.11
TX GTE Speed Call 30 - Residence MRC Yes Yes $2.70 $0.37 $2.33
</TABLE>
<PAGE> 126
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Three Way Calling - One Feature - Business MRC Yes Yes $3.15 $0.43 $2.72
TX GTE Three Way Calling - One Feature - Residence MRC Yes Yes $2.70 $0.37 $2.33
TX GTE Three Way Calling - More than One Feature - Business MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Three Way Calling - More than One Feature - Residence MRC Yes Yes $2.05 $0.28 $1.77
TX GTE
TX GTE NRC for CW,CF,CF Multipath,SC8,SC30,3WC - Bus NRC Yes No $5.00 N/A $5.00
TX GTE NRC for CW,CF,CF Multipath,SC8,SC30,3WC - Res NRC Yes No $2.50 N/A $2.50
TX GTE Cancel Call Waiting - Business MRC Yes Yes $1.80 $0.25 $1.55
TX GTE Cancel Call Waiting - Residence MRC Yes Yes $.90 $0.12 $0.78
TX GTE Last Number Redial and Saved-Number Redial - Business MRC Yes Yes $3.15 $0.43 $2.72
TX GTE Last Number Redial and Saved-Number Redial - Residence MRC Yes Yes $2.70 $0.37 $2.33
TX GTE Call Forward/Busy/No Answer - Business (Variable) MRC Yes Yes $3.15 $0.43 $2.72
TX GTE Call Forward/Busy/No Answer - Residence (Variable) MRC Yes Yes $2.25 $0.31 $1.94
TX GTE Smart Ring - One Feature -Business MRC Yes Yes $6.00 $0.82 $5.18
TX GTE Smart Ring - One Feature - Residence MRC Yes Yes $6.00 $0.82 $5.18
TX GTE Smart Ring - With Package - Business MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Smart Ring - With Package - Residence MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Fixed Call Forwarding/Busy - Business MRC Yes Yes $1.25 $0.17 $1.08
TX GTE Fixed Call Forwarding/Busy - Residence MRC Yes Yes $1.25 $0.17 $1.08
TX GTE Fixed Call Forwarding/No Answer - Business MRC Yes Yes $1.25 $0.17 $1.08
TX GTE Fixed Call Forwarding/No Answer - Residence MRC Yes Yes $1.25 $0.17 $1.08
TX GTE Fixed Call Forwarding/Busy/No Answer - Business MRC Yes Yes $1.50 $0.20 $1.30
TX GTE Fixed Call Forwarding/Busy/No Answer - Residence MRC Yes Yes $1.50 $0.20 $1.30
TX GTE SMART Package - Business MRC Yes Yes $5.00 $0.68 $4.32
TX GTE SMART Package - Residence MRC Yes Yes $4.00 $0.55 $3.45
TX GTE SMARTER Package - Business MRC Yes Yes $6.00 $0.82 $5.18
TX GTE SMARTER Package - Residence MRC Yes Yes $5.00 $0.68 $4.32
TX GTE SMARTEST Package - Business MRC Yes Yes $7.00 $0.95 $6.05
TX GTE SMARTEST Package - Residence MRC Yes Yes $6.00 $0.82 $5.18
TX GTE Remote Call Forwarding - BUS/RES MRC Yes Yes $14.50 $1.98 $12.52
TEL-TEEN SERVICE CUSTOM FEATURE PACKAGES
TX GTE Touch Call, Three-Way Calling, Speed Call 8, Toll Control MRC Yes Yes $3.50 $0.48 $3.02
TX GTE Touch Call, Call Waiting, Speed Call 8, Toll Control MRC Yes Yes $3.00 $0.41 $2.59
</TABLE>
<PAGE> 127
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Touch Call, Three-Way Calling, Toll Control MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Touch Call, Call Waiting, Speed Call 8 MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Touch Call, Call Wait, Cancel Call Wait, 3-Way Call,
Addtl List MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Touch Call, Call Wait, Cancel Call Wait,3-Way Call,
Toll Contr, Addtl List MRC Yes Yes $4.00 $0.55 $3.45
16 CLASS Vertical Services:
TX GTE Automatic Busy Redial - Business MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Automatic Busy Redial - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Automatic Call Return - Business MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Automatic Call Return - Residence MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Call Block - Business MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Call Block - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Special Call Acceptance - Business MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Special Call Acceptance - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Special Call Forwarding - Business MRC Yes Yes $2.65 $0.36 $2.29
TX GTE Special Call Forwarding - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Special Call Waiting - Business MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Special Call Waiting - Residence MRC Yes Yes $2.00 $0.27 $1.73
TX GTE VIP Alert - Business MRC Yes Yes $3.00 $0.41 $2.59
TX GTE VIP Alert - Residence MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Call Tracing Service - Business NRC Yes No $10.00 N/A $10.00
TX GTE Call Tracing Service - Residence NRC Yes No $10.00 N/A $10.00
TX GTE Cancel Calling Number ID - Business MRC Yes Yes $0.00 $0.00
TX GTE Cancel Calling Number ID - Residence MRC Yes Yes $0.00 $0.00
TX GTE Calling Number ID - Business MRC Yes Yes $7.50 $1.02 $6.48
TX GTE Calling Number ID - Residence MRC Yes Yes $4.95 $0.67 $4.28
TX GTE Calling Number ID w/ACRJ - Business MRC Yes Yes $7.75 $1.06 $6.69
TX GTE Calling Number ID w/ACRJ - Residence MRC Yes Yes $5.20 $0.71 $4.49
TX GTE Anonymous Call Rejection (ACRJ) - Business MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Anonymous Call Rejection (ACRJ) - Residence MRC Yes Yes $1.00 $0.14 $0.86
TX GTE SmartCall PAK 4400 - Residence MRC Yes Yes $8.75 $1.19 $7.56
TX GTE SmartCall PAK 4400 - Business MRC Yes Yes $13.25 $1.81 $11.44
TX GTE Calling Name & Number Delivery - Bus MRC Yes Yes $9.00 $1.23 $7.77
TX GTE Calling Name & Number Delivery - Res MRC Yes Yes $6.50 $0.89 $5.61
</TABLE>
<PAGE> 128
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 16 In Contact, per number - Bus MRC Yes Yes $12.00 $1.64 $10.36
TX GTE In Contact, per number - Res MRC Yes Yes $12.00 $1.64 $10.36
TX GTE 18 Secretarial Ans Svc - Bridging NRC Yes No $3.00 N/A $3.00
TX GTE Secretarial Ans Svc - Bridging MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 19 Foreign Switching Office - 1st 1/4 Mile MRC Yes Yes $2.50 $0.34 $2.16
TX GTE - Each add'l 1/4 MI MRC Yes Yes $1.25 $0.17 $1.08
19 Foreign Exchange
Per SWB Tariff
TX GTE 2 Interexchange Mileage - Per 1/4 MI MRC Yes Yes $1.75 $0.24 $1.51
TX GTE 2 Interexchange Channel Terminal 0 - 7 MI MRC Yes Yes $8.70 $1.19 $7.51
TX GTE Interexchange Channel Terminal 0 - 7+ MI MRC Yes Yes $33.15 $4.52 $28.63
TX GTE 2 Point of Termination NRC Yes No $174.60 N/A $174.60
TX GTE 2 Local Exchange Access Usage, Per Minute Usage Yes Yes $0.0210 $0.0029 $0.02
TX GTE Surrogate - PBX Usage Yes Yes $68.2080 $9.2968 $58.91
TX GTE Surrogate - PBX - Business Usage Yes Yes $21.8400 $2.9768 $18.86
TX GTE Surrogate - PBX - Residence Usage Yes Yes $14.8260 $2.0208 $12.81
TX GTE 19 Four Wire Channel Terminal Equipment NRC Yes No $10.00 N/A $10.00
TX GTE Four Wire Channel Terminal Equipment MRC Yes Yes $37.50 $5.11 $32.39
20 Intraexchange Private Line
Grade I
Simplex
TX GTE 1st Mile NRC Yes No $7.50 N/A $7.50
TX GTE 1st Mile MRC Yes No $9.00 $1.23 $7.77
TX GTE EA add'l 1/4 MI MRC Yes No $2.60 $0.35 $2.25
Duplex
TX GTE 0 - 1/2 MI NRC Yes No $7.50 N/A $7.50
TX GTE 0 - 1/2 MI MRC Yes No $7.80 $1.06 $6.74
TX GTE EA add'l 1/4 MI MRC Yes No $3.90 $0.53 $3.37
Grade II
Simplex
</TABLE>
<PAGE> 129
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 1st Mile NRC Yes No $7.50 N/A $7.50
TX GTE 1st Mile MRC Yes No $11.00 $1.50 $9.50
TX GTE EA add'l 1/4 MI MRC Yes No $2.60 $0.35 $2.25
Duplex
TX GTE 0 - 1/2 MI NRC Yes No $7.50 N/A $7.50
TX GTE 0 - 1/2 MI MRC Yes No $8.30 $1.13 $7.17
TX GTE EA add'l 1/4 MI MRC Yes No $3.90 $0.53 $3.37
Grade III
Simplex
TX GTE 1st Mile NRC Yes No $7.50 N/A $7.50
TX GTE 1st Mile MRC Yes No $11.00 $1.50 $9.50
TX GTE EA add'l 1/4 MI MRC Yes No $2.60 $0.35 $2.25
Recorded Music and Speech Channels
TX GTE 0 - 4/4 MI NRC Yes No $7.50 N/A $7.50
TX GTE 0 - 4/4 MI MRC Yes No $12.00 $1.64 $10.36
TX GTE EA add'l 1/4 MI MRC Yes No $3.00 $0.41 $2.59
TX GTE Channel from Bridge Amplifier to Music cust's NRC Yes No $7.50 N/A $7.50
TX GTE Channel from Bridge Amplifier to Music cust's MRC Yes No $3.00 $0.41 $2.59
Bridging Amplifier installed in CO
TX GTE 50 terminals MRC Yes No $73.50 $10.02 $63.48
TX GTE 100 terminals MRC Yes No $78.25 $10.67 $67.58
TX GTE 150 terminals MRC Yes No $83.25 $11.35 $71.90
TX GTE NRC NRC Yes No $7.50 N/A $7.50
Channel, remote operation of mobile - Garland/Irving
TX GTE Local Remote, off premise, per 1/4 MI MRC Yes No $2.50 $0.34 $2.16
TX GTE Local Remote, same premise, per 1/4 MI MRC Yes No $2.40 $0.33 $2.07
TX GTE Local Remote, same bldg., ea. MRC Yes No $2.50 $0.34 $2.16
TX GTE NRC NRC Yes No $7.50 N/A $7.50
21 Mobile Tel Service
TX GTE Base station svc, per unit MRC Yes Yes $13.50 $1.84 $11.66
TX GTE plus local exch access for B1
</TABLE>
<PAGE> 130
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Local Message Charge, per minute Usage Yes Yes $0.3500 $0.0477 $0.30
Measured Mobile Svc
Local Exch access is B1 rate
TX GTE Usage, per minute Usage Yes Yes $0.4500 $0.0613 $0.39
TX GTE Roamer channel usage, per minute Usage Yes Yes $0.8500 $0.1159 $0.73
TX GTE
25 Custom Routing Service
Basic Svc Type I
TX GTE Svc Establishment NRC Yes No $150.00 N/A $150.00
TX GTE Per Line or DID # 5-50 MRC Yes Yes $3.00 $0.41 $2.59
TX GTE 51-100 MRC Yes Yes $2.70 $0.37 $2.33
TX GTE 101-500 MRC Yes Yes $2.40 $0.33 $2.07
TX GTE 501-1000 MRC Yes Yes $2.10 $0.29 $1.81
TX GTE 1001 + MRC Yes Yes $1.75 $0.24 $1.51
TX GTE NRC NRC Yes No $2.00 N/A $2.00
TX GTE Rearrangements, per rearrangement NRC Yes No $72.00 N/A $72.00
TX GTE per # changed, moved or added NRC Yes No $2.00 N/A $2.00
Basic Svc Type II
TX GTE Svc Establishment NRC Yes No $185.00 N/A $185.00
TX GTE Per Line or DID # 1-10 MRC Yes Yes $8.25 $1.12 $7.13
TX GTE 11-50 MRC Yes Yes $8.00 $1.09 $6.91
TX GTE 51-100 MRC Yes Yes $7.75 $1.06 $6.69
TX GTE 101-250 MRC Yes Yes $7.50 $1.02 $6.48
TX GTE 251-500 MRC Yes Yes $7.25 $0.99 $6.26
TX GTE 501 + MRC Yes Yes $7.00 $0.95 $6.05
TX GTE NRC NRC Yes No $4.50 N/A $4.50
TX GTE Rearrangements, per rearrangement NRC Yes No $80.00 N/A $80.00
TX GTE per # changed, moved or added NRC Yes No $4.50 N/A $4.50
TX GTE Group Charges, per ea add'l group NRC Yes No $17.00 N/A $17.00
TX GTE Time of day/Day of week redirection NRC Yes No $16.00 N/A $16.00
</TABLE>
<PAGE> 131
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Time of day/Day of week redirection, per # MRC Yes Yes $0.40 $0.05 $0.35
TX GTE % redirecting NRC Yes No $16.00 N/A $16.00
TX GTE % redirecting, per number MRC Yes Yes $0.30 $0.04 $0.26
TX GTE Incoming # Identification, each 100 #'s NRC Yes No $75.00 N/A $75.00
TX GTE Incoming # Identification, each # MRC Yes Yes $0.30 $0.04 $0.26
Flexible Call Forwarding Svc
TX GTE Svc Establishment NRC Yes No $168.00 N/A $168.00
TX GTE Per Line or DID # 5-50 MRC Yes Yes $2.00 $0.27 $1.73
TX GTE 51-100 MRC Yes Yes $3.00 $0.41 $2.59
TX GTE 101-500 MRC Yes Yes $2.70 $0.37 $2.33
TX GTE 501-1000 MRC Yes Yes $2.40 $0.33 $2.07
TX GTE 1001 + MRC Yes Yes $1.75 $0.24 $1.51
TX GTE NRC NRC Yes No $2.00 N/A $2.00
TX GTE Rearrangements, per rearrangement NRC Yes No $72.00 N/A $72.00
TX GTE per # changed,moved or added NRC Yes No $2.00 N/A $2.00
TX GTE Time of day/Day of week redirection - NRC NRC Yes No $16.00 N/A $16.00
TX GTE Time of day/Day of week redirection, per # MRC Yes Yes $0.35 $0.05 $0.30
TX GTE PIN # Change NRC Yes No $24.00 N/A $24.00
28 Private Page
Tone Only
TX GTE Dispatch, per access 1-5 Month to month MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 6-20 MRC Yes Yes $6.80 $0.93 $5.87
TX GTE 21-50 MRC Yes Yes $6.50 $0.89 $5.61
TX GTE 51+ MRC Yes Yes $6.00 $0.82 $5.18
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE Dispatch, per access 1-5 12 month contract MRC Yes Yes $6.25 $0.85 $5.40
TX GTE 6-20 MRC Yes Yes $5.90 $0.80 $5.10
TX GTE 21-50 MRC Yes Yes $5.35 $0.73 $4.62
TX GTE 51+ MRC Yes Yes $4.40 $0.60 $3.80
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE Dispatch, per access 1-5 24 Month contract MRC Yes Yes $5.50 $0.75 $4.75
TX GTE 6-20 MRC Yes Yes $4.95 $0.67 $4.28
TX GTE 21-50 MRC Yes Yes $4.15 $0.57 $3.58
</TABLE>
<PAGE> 132
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------ -------- --------- ------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 51+ MRC Yes Yes $3.85 $0.52 $3.33
TX GTE NRC NRC Yes No $7.50 N/A $7.50
Digital Display
TX GTE Dispatch, per access 1-5 Month to month MRC Yes Yes $10.00 $1.36 $8.64
TX GTE 6-20 MRC Yes Yes $9.65 $1.32 $8.33
TX GTE 21-50 MRC Yes Yes $9.15 $1.25 $7.90
TX GTE 51+ MRC Yes Yes $8.25 $1.12 $7.13
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE Dispatch, per access 1-5 12 month contract MRC Yes Yes $8.75 $1.19 $7.56
TX GTE 6-20 MRC Yes Yes $8.25 $1.12 $7.13
TX GTE 21-50 MRC Yes Yes $7.45 $1.02 $6.43
TX GTE 51+ MRC Yes Yes $6.15 $0.84 $5.31
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE Dispatch, per access 1-5 24 Month contract MRC Yes Yes $7.50 $1.02 $6.48
TX GTE 6-20 MRC Yes Yes $6.80 $0.93 $5.87
TX GTE 21-50 MRC Yes Yes $5.75 $0.78 $4.97
TX GTE 51+ MRC Yes Yes $4.50 $0.61 $3.89
TX GTE NRC NRC Yes No $7.50 N/A $7.50
Tone and voice
TX GTE Dispatch, per access 1-5 Month to month MRC Yes Yes $11.00 $1.50 $9.50
TX GTE 6+ MRC Yes Yes $10.50 $1.43 $9.07
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE Dispatch, per access 1-5 12 month contract MRC Yes Yes $10.00 $1.36 $8.64
TX GTE 6+ MRC Yes Yes $9.50 $1.29 $8.21
TX GTE NRC NRC Yes No $7.50 N/A $7.50
TX GTE 38 Directory Assistance, per call after 3 call allownace Usage Yes No $0.30 N/A $0.30
TX GTE 38 Operator Referral NRC Yes No $11.20 N/A $11.20
38 DID Intercept
TX GTE Option 1 - 5 lines, up to 6 months NRC Yes No $250.00 N/A $250.00
TX GTE Option 2 - 5 lines, over 6 to 12 months NRC Yes No $450.00 N/A $450.00
</TABLE>
<PAGE> 133
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- ------- -------- ------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
33 SINGLE LINE ISDN SERVICES
TX GTE Home Digital (ISDN) Single Line Service Access Line MRC Yes Yes $39.16 $5.34 $33.82
TX GTE B-Voice/CSD-per line MRC Yes Yes $2.30 $0.31 $1.99
TX GTE B-Packet, per channel MRC Yes Yes $100.00 $13.63 $86.37
TX GTE D-Packet, per channel MRC Yes Yes $3.50 $0.48 $3.02
Business Digital (ISDN) Singl Line Service Access Line MRC Yes Yes $39.16 $5.34 $33.82
TX GTE B-Voice/CSD, per line MRC Yes Yes $2.30 $0.31 $1.99
TX GTE B-Packet, per channel MRC Yes Yes $100.00 $13.63 $86.37
TX GTE D-Packet, per channel MRC Yes Yes $3.50 $0.48 $3.02
METRO SERVICE ADDER - BUSINESS
TX GTE (in addition to Sevice Access Line rates)
TX GTE Applicable to exchanges of Azle, Baytown, Carrollton,
Crosby, Garland,
TX GTE Grapevine, Highlands, Irving, Keller, Lewisville,
Plano, Rowlette,
TX GTE Stafford and Wylie - PER LINE MRC Yes Yes $19.00 $2.59 $16.41
TX GTE Applicable to exchange of Dickinson, Kemah and League
City MRC Yes Yes $7.00 $0.95 $6.05
METRO SERVICE ADDER - RESIDENCE
TX GTE (in addition to Service Access Line rates)
TX GTE Applicable to exchanges of Azle, Baytown, Carrollton,
Crosby, Garland,
TX GTE Grapevine, Highlands, Irving, Keller, Lewisville,
Plano, Rowlette,
TX GTE Stafford and Wylie - PER LINE MRC Yes Yes $7.25 $0.00 $7.25
TX GTE Applicable to exchange of Dickinson, Kemah and League
City MRC Yes Yes $3.50 $0.00 $3.50
EXTENDED METRO SERVICE (only in exchanges where EMS is
offered) IN ADDITION TO SINGLE ACCESS AND METRO RATES
TX GTE Business MRC Yes Yes $20.00 $2.73 $17.27
TX GTE Residence MRC No No $20.00 N/A N/A
34 CentraNet
TX GTE Analog - Month to Month Contract - METRO EXCHANGES
TX GTE 2-25 lines - per line MRC Yes Yes $33.00 $4.50 $28.50
</TABLE>
<PAGE> 134
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- -------- -------- ------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 26 - 50 lines - per line MRC Yes Yes $23.50 $3.20 $20.30
Analog - 12 Month Contract - METRO EXCHANGES $ 0.00 N/A
TX GTE 2 - 25 lines - per line MRC Yes Yes $32.25 $4.40 $27.85
TX GTE 26 - 50 lines - per line MRC Yes Yes $22.75 $3.10 $19.65
TX GTE 51 - 100 lines - per line MRC Yes Yes $20.50 $2.79 $17.71
TX GTE 101 - 200 lines - per line MRC Yes Yes $18.75 $2.56 $16.19
TX GTE 201 - 400 lines - per line MRC Yes Yes $18.50 $2.52 $15.98
Analog - 36 Month Contract - METRO EXCHANGES $0.00 N/A
TX GTE 2 - 25 lines - per line MRC Yes Yes $32.00 $4.36 $27.64
TX GTE 26 - 50 lines - per line MRC Yes Yes $22.25 $3.03 $19.22
TX GTE 51 - 100 lines - per line MRC Yes Yes $20.25 $2.76 $17.49
TX GTE 101 - 200 lines - per line MRC Yes Yes $18.50 $2.52 $15.98
TX GTE 201 - 400 lines - per line MRC Yes Yes $18.00 $2.45 $15.55
Analog - 60 Month Contract - METRO EXCHANGES
TX GTE 2 - 25 lines - per line MRC Yes Yes $31.75 $4.33 $27.42
TX GTE 26 - 50 lines - per line MRC Yes Yes $22.00 $3.00 $19.00
TX GTE 51 - 100 lines - per line MRC Yes Yes $19.75 $2.69 $17.06
TX GTE 101 - 200 lines - per line MRC Yes Yes $18.25 $2.49 $15.76
TX GTE 201 - 400 lines - per line MRC Yes Yes $17.50 $2.39 $15.11
Analog - Month to Month Contract - NONMETRO
EXCHANGES
TX GTE 2 - 25 lines - per line MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 26 - 50 lines - per line MRC Yes Yes $17.50 $2.39 $15.11
Analog - 12 Month Contract - NONMETRO EXCHANGES
TX GTE 2 - 25 lines - per line MRC Yes Yes $24.50 $3.34 $21.16
TX GTE 26 - 50 lines - per line MRC Yes Yes $17.00 $2.32 $14.68
TX GTE 51 - 100 lines - per line MRC Yes Yes $16.50 $2.25 $14.25
TX GTE 101 - 200 lines - per line MRC Yes Yes $16.25 $2.21 $14.04
TX GTE 201 - 400 lines - per line MRC Yes Yes $16.00 $2.18 $13.82
Analog - 36 Month Contract - NONMETRO EXCHANGES
TX GTE 2 - 25 lines - per line MRC Yes Yes $24.25 $3.31 $20.94
TX GTE 26 - 50 lines - per line MRC Yes Yes $16.75 $2.28 $14.47
TX GTE 51 - 100 lines - per line MRC Yes Yes $16.25 $2.21 $14.04
TX GTE 101 - 200 lines - per line MRC Yes Yes $16.00 $2.18 $13.82
TX GTE 201 - 400 lines - per line MRC Yes Yes $15.75 $2.15 $13.60
Analog - 60 Month Contract - NONMETRO EXHCANGE
</TABLE>
<PAGE> 135
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- --------- ------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 2-25 lines - per line MRC Yes Yes $24.00 $3.27 $20.73
TX GTE 26-50 lines - per line MRC Yes Yes $16.50 $2.25 $14.25
TX GTE 51-100 lines - per line MRC Yes Yes $16.00 $2.18 $13.82
TX GTE 100-200 lines - per line MRC Yes Yes $15.75 $2.15 $13.60
TX GTE 201-400 lines - per line MRC Yes Yes $15.50 $2.11 $13.39
Extended Metro Service (only in exchanges where EMS is
offered)
TX GTE 2-400 Lines MRC Yes Yes $20.00 $2.73 $17.27
FEATURE PACKAGES
TX GTE 1000 Feature Package - per line MRC Yes Yes $2.75 $0.37 $2.38
TX GTE 2000 Feature Package - per line MRC Yes Yes $3.00 $0.41 $2.59
TX GTE 3000 Feature Package - per line MRC Yes Yes $3.50 $0.48 $3.02
TX GTE Maximum total charge per customer MRC Yes Yes $400.00 $54.52 $345.48
DIGITAL CENTRANET (ISDN)
Month to Month Contract - NON METRO RATES
TX GTE 2 - 25 lines - per line MRC Yes Yes $43.44 $5.92 $37.52
TX GTE 26 - 50 lines - per line MRC Yes Yes $31.75 $4.33 $27.42
12, 24 & 36 Month Contracts - NON METRO RATES
TX GTE 2 - 25 lines - per month MRC Yes Yes $43.44 $5.92 $37.52
TX GTE 26 - 50 lines - per month MRC Yes Yes $31.75 $4.33 $27.42
TX GTE 51 - 100 lines - per month MRC Yes Yes $31.34 $4.27 $27.07
TX GTE 101 - 200 lines - per month MRC Yes Yes $31.43 $4.28 $27.15
TX GTE 201 - 300 lines - per month MRC Yes Yes $31.06 $4.23 $26.83
EAS METRO RATES (adder to nonmetro rates in certain
exchanges)
Month to Month Contract
TX GTE 2 - 25 lines - per line MRC Yes Yes $9.31 $1.27 $8.04
TX GTE 26 - 50 lines - per line MRC Yes Yes $6.65 $0.91 $5.74
12, 24 & 36 Month Contract - EAS ADDER
TX GTE 2 - 25 lines - per line MRC Yes Yes $9.31 $1.27 $8.04
TX GTE 26 - 50 lines - per line MRC Yes Yes $6.65 $0.91 $5.74
TX GTE 51 - 100 lines - per line MRC Yes Yes $4.66 $0.64 $4.02
TX GTE 101 - 200 lines - per line MRC Yes Yes $3.33 $0.45 $2.88
TX GTE 201 - 400 lines - per line MRC Yes Yes $3.33 $0.45 $2.88
Extended Metro Rates (In addition to nonmetro and EAS
Metro line rates)
</TABLE>
<PAGE> 136
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Limited to exchanges where EMS is available
TX GTE 2 - 400 lines - per line MRC Yes Yes $20.00 $2.73 $17.27
Data Base Additions, Changes or Deletions
TX GTE Major Software Change NRC Yes No $100.00 N/A $100.00
TX GTE Routine Sfotware Change NRC Yes No $50.00 N/A $50.00
TX GTE Minor Software Change NRC Yes No $25.00 N/A $25.00
TX GTE CCLASS Feature Pkg 2-25 lines MRC Yes Yes $5.00 $0.68 $4.32
TX GTE 26-50 MRC Yes Yes $4.50 $0.61 $3.89
TX GTE 51+ MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Call Tracing, per occurance NRC Yes No $10.00 N/A $10.00
TX GTE VIP Alert MRC Yes Yes $4.00 $0.55 $3.45
TX GTE Calling Number ID (analog only) 2 - 25 lines MRC Yes Yes $6.00 $0.82 $5.18
TX GTE 26-50 lines MRC Yes Yes $4.50 $0.61 $3.89
TX GTE 51+ lines MRC Yes Yes $2.00 $0.27 $1.73
Maximum total charge per customer CNID MRC Yes Yes $200.00 $27.26 $172.74
CENTRANET Line Connect Charges for Month to Month
Contract
TX GTE Line Connection 2 Per line NRC Yes No $18.00 N/A $18.00
TX GTE 3-5 NRC Yes No $12.00 N/A $12.00
TX GTE 6-10 NRC Yes No $10.00 N/A $10.00
TX GTE 11-25 NRC Yes No $6.40 N/A $6.40
TX GTE 26-50 NRC Yes No $4.00 N/A $4.00
TX GTE 51-75 NRC Yes No $3.20 N/A $3.20
TX GTE 76-100 NRC Yes No $3.00 N/A $3.00
TX GTE 101-200 NRC Yes No $2.80 N/A $2.80
TX GTE 201-300 NRC Yes No $2.50 N/A $2.50
TX GTE 301-400 NRC Yes No $2.20 N/A $2.20
Optional System Features
TX GTE Automatic Route Selection, per hour NRC Yes No $50.00 N/A $50.00
TX GTE WATS Access NRC Yes No $25.00 N/A $25.00
TX GTE 800 Svc Access NRC Yes No $25.00 N/A $25.00
TX GTE Tie Facility Access NRC Yes No $25.00 N/A $25.00
TX GTE FX Access NRC Yes No $25.00 N/A $25.00
</TABLE>
<PAGE> 137
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- --------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Limited Auto Call Distribution NRC Yes No $25.00 N/A $25.00
TX GTE Preferential Hunting NRC Yes No $25.00 N/A $25.00
TX GTE Stop Hunt NRC Yes No $25.00 N/A $25.00
TX GTE Priority Queing NRC Yes No $25.00 N/A $25.00
TX GTE Authorization Codes, per group of 10 NRC Yes No $25.00 N/A $25.00
TX GTE Terminal Make Busy NRC Yes No $25.00 N/A $25.00
TX GTE EMS - Simulated Facility Group MRC Yes Yes $5.00 $0.68 $4.32
TX GTE EMS - Simulated Facility Group NRC Yes No $25.00 N/A $25.00
TX GTE Paging/Public Access MRC Yes Yes $30.00 $4.09 $25.91
TX GTE Paging/Public Access NRC Yes No $140.00 N/A $140.00
TX GTE Dictation Access MRC Yes Yes $30.00 $4.09 $25.91
TX GTE Dictation Access NRC Yes No $140.00 N/A $140.00
TX GTE Code Calling Access MRC Yes Yes $30.00 $4.09 $25.91
TX GTE Code Calling Access NRC Yes No $140.00 N/A $140.00
TX GTE Music On Hold MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Music On Hold NRC Yes No $50.00 N/A $50.00
TX GTE Recorded Announcement Custom MRC Yes Yes $45.00 $6.13 $38.87
TX GTE Recorded Announcement Custom NRC Yes No $260.00 N/A $260.00
TX GTE Conference Call 8 Port MRC Yes Yes $110.00 $14.99 $95.01
TX GTE Conference Call 8 Port NRC Yes No $160.00 N/A $160.00
TX GTE SMDR VIA Rev Acctg Office, per line MRC Yes Yes $0.30 $0.04 $0.26
TX GTE Addl Number - Analog MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Addl Number - Digital MRC Yes Yes $2.00 $0.27 $1.73
TX GTE Feature Phone Interface MRC Yes Yes $5.00 $0.68 $4.32
Optional Attendant Features
TX GTE Data Link Console Interface MRC Yes Yes $90.00 $12.27 $77.73
TX GTE Data Link Console Interface NRC Yes No $210.00 N/A $210.00
TX GTE Multiple Listed Directory Number NRC Yes No $25.00 N/A $25.00
TX GTE Pre Determined Night Number NRC Yes No $25.00 N/A $25.00
TX GTE Universal Night Answer MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Universal Night Answer NRC Yes No $65.00 N/A $65.00
TX GTE Mixed Night Answer MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Mixed Night Answer NRC Yes No $65.00 N/A $65.00
TX GTE Additional Console Member MRC Yes Yes $90.00 $12.27 $77.73
</TABLE>
<PAGE> 138
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- --------- -------- ------ ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Additional Console Member NRC Yes No $185.00 N/A $185.00
TX GTE Flexible Night Answer MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Flexible Night Answer NRC Yes No $65.00 N/A $65.00
TX GTE DIGITAL (ISDN) CENTRANET
TX GTE B Channels - per line
TX GTE Voice Only MRC Yes Yes $2.12 $0.29 $1.83
TX GTE Voice/Circuit MRC Yes Yes $12.09 $1.65 $10.44
TX GTE Switched Data NRC Yes No $100.00 N/A $100.00
TX GTE
TX GTE D Channel - Per Channel N/A
TX GTE D Packet MRC Yes Yes $3.50 $0.48 $3.02
TX GTE Additional Directory Listings MRC Yes Yes $1.10 $0.15 $0.95
TX GTE ISDN Multibutton Key System (MBKS)
TX GTE Basic MRC Yes Yes $6.50 $0.89 $5.61
TX GTE Deluxe MRC Yes Yes $8.50 $1.16 $7.34
TX GTE ISDN Attendant Features MRC Yes Yes $35.00 $4.77 $30.23
TX GTE Data Feature Packages
TX GTE X.25 Enhanced Package MRC Yes Yes $5.00 $0.68 $4.32
TX GTE Circuit Switched Data - 1000 Pkg MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Circuit Switched Data-2000 Pkg MRC Yes Yes $5.00 $0.68 $4.32
TX GTE Data Closed User Group MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Data Direct connect MRC Yes Yes $1.00 $0.14 $0.86
TX GTE ISDN Foreign Exchange Facility MRC Yes Yes $72.19 $9.84 $62.35
TX GTE plus Interexchange Mileage- per mile MRC Yes Yes $1.75 $0.24 $1.51
TX GTE 34B Customer Moves & Changes 2-100, Per system MRC Yes Yes $125.00 $17.04 $107.96
TX GTE Customer Moves & Changes 2-100, Per system NRC Yes No $150.00 N/A $150.00
TX GTE 101-200 MRC Yes Yes $165.00 $22.49 $142.51
TX GTE 101-200 NRC Yes No $350.00 N/A $350.00
TX GTE 201-500 MRC Yes Yes $200.00 $27.26 $172.74
TX GTE 201-500 NRC Yes No $700.00 N/A $700.00
TX GTE 501-1500 MRC Yes Yes $300.00 $40.89 $259.11
</TABLE>
<PAGE> 139
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------- ------------------- ------- -------- -------- ------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 501-1500 NRC Yes No $1,850.00 N/A $1,850.00
TX GTE 1500 + MRC Yes Yes $425.00 $57.93 $367.07
TX GTE 1500 + NRC Yes No $3,500.00 N/A $3,500.00
34C Analog CentraNet Automatic Call Distribution/Mgt Info
System
TX GTE Basic Agent Feature Package, per ACD group NRC Yes No $50.00 N/A $50.00
TX GTE Basic Agent Feature Package, per ACD line MRC Yes Yes $28.00 $3.82 $24.18
TX GTE Advanced Agent Feature Package, per ACD group NRC Yes No $25.00 N/A $25.00
TX GTE Advanced Agent Feature Package, per ACD line MRC Yes Yes $5.00 $0.68 $4.32
TX GTE ACD on single line sets, per ACD line NRC Yes No $10.00 N/A $10.00
TX GTE ACD on single line sets, per ACD line MRC Yes Yes $22.50 $3.07 $19.43
TX GTE Supervisor Feature Package, per ACD line NRC Yes No $10.00 $1.36 $8.64
TX GTE Supervisor Feature Package, per ACD line MRC Yes Yes $30.00 $4.09 $25.91
TX GTE Secondary Directory number MRC Yes Yes $6.00 $0.82 $5.18
TX GTE MIS Data Stream Interface, per interface NRC Yes No $100.00 N/A $100.00
TX GTE MIS Data Stream Interface, per interface MRC Yes Yes $100.00 $13.63 $86.37
TX GTE Additional Queue Slots, per system NRC Yes No $25.00 N/A $25.00
TX GTE Additional Queue Slots, per slot MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Supergroups NRC Yes No $50.00 N/A $50.00
TX GTE Supergroups MRC Yes Yes $25.00 $3.41 $21.59
TX GTE Mileage Charge, per loop for each ACD line, per
1/4 MI MRC Yes Yes $1.16 $0.16 $1.00
DIGITAL ACD / MIS
Basic ACD and Feature Package
TX GTE Per ACD Group-NonMetro NRC Yes No $55.00 N/A $55.00
TX GTE Per ACD Group-Metro NRC Yes No $55.00 N/A $55.00
TX GTE Per Non-Metro ACD Line MRC Yes Yes $24.50 $3.34 $21.16
TX GTE Per Metro ACD Line MRC Yes Yes $28.00 $3.82 $24.18
TX GTE MI per local loop (line), per 1/4 MI MRC Yes Yes $1.16 $0.16 $1.00
Multipoint ACD
TX GTE Per ACD Group-NonMetro NRC Yes No $55.00 N/A $55.00
TX GTE Per ACD Group-Metro NRC Yes No $55.00 N/A $55.00
TX GTE Per Non-Metro ACD Line MRC Yes Yes $36.75 $5.01 $31.74
</TABLE>
<PAGE> 140
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Per Metro ACD Line MRC Yes Yes $42.00 $5.72 $36.28
Additional Queue Slots
TX GTE Per System NRC Yes No $25.00 N/A $25.00
TX GTE Per Slot MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Call Prompts, per step NRC Yes No $100.00 N/A $100.00
TX GTE Call Prompts, per step MRC Yes Yes $150.00 $20.45 $129.56
Call Vectoring
TX GTE Per ACD Group NRC Yes No $40.00 N/A $40.00
TX GTE Per ACD Line MRC Yes Yes $6.00 $0.82 $5.18
TX GTE Direct Agent Access, per access number MRC Yes Yes $2.00 $0.27 $1.73
TX GTE MIS Data Link, per link NRC Yes No $25.00 N/A $25.00
TX GTE MIS Data Link, per link MRC Yes Yes $80.00 $10.90 $69.10
39 Coin Telephones / Customer Owned Pay Telephone Service
TX GTE COPT MRC Yes No $22.10 N/A $22.10
TX GTE COPT usage rate per call USAGE Yes No $0.0270 N/A $0.03
TX GTE Surogate MRC Yes No $11.50 N/A $11.50
TX GTE Selective Class of Call Screening MRC Yes No $3.00 N/A $3.00
TX GTE Direct Dialed International Call Blocking NRC Yes No $10.00 N/A $10.00
TX GTE Answer Supervision MRC Yes No $7.60 N/A $7.60
TX GTE Coin Line MRC Yes No $29.70 N/A $29.70
TX GTE 9-1-1 / E9-1-1 Services
TX GTE 9-1-1 Special Trunk NRC Yes No $89.29 N/A $89.29
TX GTE 9-1-1 Special Trunk MRC Yes Yes $15.51 $2.11 $13.40
34A MultiLocation CentraNet Service
Location Code Dialing Plan/Portable Extension Dial
Plan
TX GTE Service Establishment 2-25 lines NRC Yes No $125.00 N/A $125.00
TX GTE 26-50 lines NRC Yes No $160.00 N/A $160.00
</TABLE>
<PAGE> 141
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 51-100 lines NRC Yes No $190.00 N/A $190.00
TX GTE 101-200 lines NRC Yes No $220.00 N/A $220.00
TX GTE 201-400 lines NRC Yes No $275.00 N/A $275.00
TX GTE Month to Month contract 2-25 lines MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 26-50 lines MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 12 month contract 2-25 lines MRC Yes Yes $20.00 $2.73 $17.27
TX GTE 26-50 lines MRC Yes Yes $30.00 $4.09 $25.91
TX GTE 51-100 lines MRC Yes Yes $50.00 $6.82 $43.19
TX GTE 101-200 lines MRC Yes Yes $75.00 $10.22 $64.78
TX GTE 201-400 lines MRC Yes Yes $130.00 $17.72 $112.28
TX GTE 36 month contract 2-25 lines MRC Yes Yes $15.00 $2.04 $12.96
TX GTE 26-50 lines MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 51-100 lines MRC Yes Yes $45.00 $6.13 $38.87
TX GTE 101-200 lines MRC Yes Yes $70.00 $9.54 $60.46
TX GTE 201-400 lines MRC Yes Yes $125.00 $17.04 $107.96
TX GTE 60 month contract 51-100 lines MRC Yes Yes $40.00 $5.45 $34.55
TX GTE 101-200 lines MRC Yes Yes $65.00 $8.86 $56.14
TX GTE 201-400 lines MRC Yes Yes $120.00 $16.36 $103.64
TX GTE Additions or changes, per location NRC Yes No $60.00 N/A $60.00
TX GTE Addition or change to dialing plan, 1st 25 numbers NRC Yes No $50.00 N/A $50.00
TX GTE Ea Add'l number NRC Yes No $1.00 N/A $1.00
Intercom Calling
TX GTE Month to Month contract 2-25 lines, per line MRC Yes Yes $3.00 $0.41 $2.59
TX GTE 26-50 lines, per line MRC Yes Yes $2.75 $0.37 $2.38
TX GTE 12 month contract 2-25 lines, per line MRC Yes Yes $2.75 $0.37 $2.38
TX GTE 26-50 lines, per line MRC Yes Yes $2.50 $0.34 $2.16
TX GTE 51-100 lines, per line MRC Yes Yes $2.25 $0.31 $1.94
</TABLE>
<PAGE> 142
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 101-200 lines, per line MRC Yes Yes $2.00 $0.27 $1.73
TX GTE 201-400 lines, per line MRC Yes Yes $1.75 $0.24 $1.51
TX GTE 36 month contract 2-25 lines, per line MRC Yes Yes $2.50 $0.34 $2.16
TX GTE 26-50 lines, per line MRC Yes Yes $2.25 $0.31 $1.94
TX GTE 51-100 lines, per line MRC Yes Yes $2.00 $0.27 $1.73
TX GTE 101-200 lines, per line MRC Yes Yes $1.75 $0.24 $1.51
TX GTE 201-400 lines, per line MRC Yes Yes $1.50 $0.20 $1.30
TX GTE 60 month contract 51-100 lines, per line MRC Yes Yes $1.75 $0.24 $1.51
TX GTE 101-200 lines, per line MRC Yes Yes $1.50 $0.20 $1.30
TX GTE 201-400 lines, per line MRC Yes Yes $1.25 $0.17 $1.08
34A Portable Extension Dialing Plan
Service Establishment (Per Business Group)
TX GTE 2-25 lines, per line NRC Yes No $125.00 N/A $125.00
TX GTE 26-50 lines, per line NRC Yes No $160.00 N/A $160.00
TX GTE 51-100 lines, per line NRC Yes No $190.00 N/A $190.00
TX GTE 101-200 lines, per line NRC Yes No $220.00 N/A $220.00
TX GTE 201-400 lines, per line NRC Yes No $275.00 N/A $275.00
TX GTE Month to Month contract 2-25 lines, per line MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 26-50 lines, per line MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 12 month contract 2-25 lines, per line MRC Yes Yes $20.00 $2.73 $17.27
TX GTE 26-50 lines, per line MRC Yes Yes $30.00 $4.09 $25.91
TX GTE 51-100 lines, per line MRC Yes Yes $50.00 $6.82 $43.19
TX GTE 101-200 lines, per line MRC Yes Yes $75.00 $10.22 $64.78
TX GTE 201-400 lines, per line MRC Yes Yes $130.00 $17.72 $112.28
TX GTE 36 month contract 2-25 lines, per line MRC Yes Yes $15.00 $2.04 $12.96
TX GTE 26-50 lines, per line MRC Yes Yes $25.00 $3.41 $21.59
TX GTE 51-100 lines, per line MRC Yes Yes $45.00 $6.13 $38.87
TX GTE 101-200 lines, per line MRC Yes Yes $70.00 $9.54 $60.46
TX GTE 201-400 lines, per line MRC Yes Yes $125.00 $17.04 $107.96
</TABLE>
<PAGE> 143
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 60 month contract 51-100 lines MRC Yes Yes $40.00 $5.45 $34.55
TX GTE 101-200 lines MRC Yes Yes $65.00 $8.86 $56.14
TX GTE 201-400 lines MRC Yes Yes $120.00 $16.36 $103.64
TX GTE Additions or changes, per location NRC Yes No $60.00 N/A $60.00
TX GTE Additions or change to dialing plan, 1st 25 numbers NRC Yes No $50.00 N/A $50.00
TX GTE Ea add'l number NRC Yes No $1.00 N/A $1.00
Basic ACD and Feature Package
TX GTE Per ACD Group-NonMetro NRC Yes No $55.00 N/A $55.00
TX GTE Per ACD Group-Metro NRC Yes No $55.00 $7.50 $47.50
TX GTE Per Non-Metro ACD Line MRC Yes Yes $24.50 $3.34 $21.16
TX GTE Per Metro ACD Line MRC Yes Yes $28.00 $3.82 $24.18
TX GTE MI per local loop (line), per 1/4 MI MRC Yes Yes $1.16 $0.16 $1.00
Multipoint ACD
TX GTE Per ACD Group-NonMetro NRC Yes No $55.00 N/A $55.00
TX GTE Per ACD Group-Metro NRC Yes No $55.00 N/A $55.00
TX GTE Per Non-Metro ACD Line MRC Yes Yes $36.75 $5.01 $31.74
TX GTE Per Metro ACD Line MRC Yes Yes $42.00 $5.72 $36.28
Additional Queue Slots
TX GTE Per System NRC Yes No $25.00 N/A $25.00
TX GTE Per Slot MRC Yes Yes $2.50 $0.34 $2.16
TX GTE Call Prompts, per step NRC Yes No $100.00 N/A $100.00
TX GTE Call Prompts, per step MRC Yes Yes $150.00 $20.45 $129.56
Call Vectoring
TX GTE Per ACD Group NRC Yes No $40.00 N/A $40.00
TX GTE Per ACD Line MRC Yes Yes $6.00 $0.82 $5.18
TX GTE Direct Agent Access, per access number MRC Yes Yes $2.00 $0.27 $1.73
</TABLE>
<PAGE> 144
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE MIS Data Link, per link NRC Yes No $25.00 N/A $25.00
TX GTE MIS Data Link, per link MRC Yes Yes $80.00 $10.90 $69.10
49 ISDN Primary Rate Interface
TX GTE PRI Access, per PRI Access A MRC Yes Yes $350.00 $47.71 $302.30
TX GTE PRI Access, per PRI Access B MRC Yes Yes $290.00 $39.53 $250.47
TX GTE PRI Facility NRC Yes No $300.00 N/A $300.00
TX GTE PRI Facility MRC Yes Yes $200.00 $27.26 $172.74
B Channel Trunks
TX GTE DID/DOD MRC Yes Yes $13.50 $1.84 $11.66
TX GTE Usage Rates, per minute Usage Yes Yes $0.03 $0.00 $0.03
TX GTE OutWATS/800 MRC Yes Yes $22.00 $3.00 $19.00
TX GTE ISDN Interoffice TIE MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Intermediary Customer Svcs MRC Yes Yes $21.50 $2.93 $18.57
Optional Features
TX GTE Universal Call by Call Trunk MRC Yes Yes $22.50 $3.07 $19.43
TX GTE D Channell Back up MRC Yes Yes $200.00 $27.26 $172.74
B Channel Database Configuration
TX GTE PRI Access, per A and/or B NRC Yes No $65.00 N/A $65.00
TX GTE B Channel, per type NRC Yes No $125.00 N/A $125.00
TX GTE D Channel back up NRC Yes No $65.00 N/A $65.00
49 Controlink Digital Channel Service (CDCS)
Service Ordering Charges
TX GTE Service Establishment Charge, per CDCS NRC Yes No $300.00 N/A $300.00
TX GTE Service Change Charge, Per CDCS NRC Yes No $115.00 N/A $115.00
Digital Channel Capacity - 36 Month Term
TX GTE 24 Channels MRC Yes Yes $340.00 $46.34 $293.66
</TABLE>
<PAGE> 145
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 24 Channels NRC Yes No $250.00 N/A $250.00
TX GTE 48 Channels MRC Yes Yes $540.00 $73.60 $466.40
TX GTE 48 Channels NRC Yes No $500.00 N/A $500.00
TX GTE 72 Channels MRC Yes Yes $740.00 $100.86 $639.14
TX GTE 72 Channels NRC Yes No $750.00 N/A $750.00
TX GTE 96 Channels MRC Yes Yes $940.00 $128.12 $811.88
TX GTE 96 Channels NRC Yes No $1,000.00 N/A $1,000.00
TX GTE 120 Channels MRC Yes Yes $1,140.00 $155.38 $984.62
TX GTE 120 Channels NRC Yes No $1,250.00 N/A $1,250.00
TX GTE 144 Channels MRC Yes Yes $1,340.00 $182.64 $1,157.36
TX GTE 144 Channels NRC Yes No $1,500.00 N/A $1,500.00
TX GTE 192 Channels MRC Yes Yes $1,740.00 $237.16 $1,502.84
TX GTE 192 Channels NRC Yes No $2,000.00 N/A $2,000.00
TX GTE 240 Channels MRC Yes Yes $2,140.00 $291.68 $1,848.32
TX GTE 240 Channels NRC Yes No $2,500.00 N/A $2,500.00
TX GTE 672 Channels MRC Yes Yes $4,950.00 $674.69 $4,275.32
TX GTE 672 Channels NRC Yes No $7,000.00 N/A $7,000.00
TX GTE For increments not identified above,
24 channels MRC Yes Yes $200.00 $27.26 $172.74
TX GTE For increments not identified above,
24 channels NRC Yes No $250.00 N/A $250.00
Digital Channel Capacity-60 Month Term
TX GTE 24 Channels MRC Yes Yes $320.00 $43.62 $276.38
TX GTE 24 Channels NRC Yes No $250.00 N/A $250.00
TX GTE 48 Channels MRC Yes Yes $510.00 $69.51 $440.49
TX GTE 48 Channels NRC Yes No $500.00 N/A $500.00
TX GTE 72 Channels MRC Yes Yes $700.00 $95.41 $604.59
TX GTE 72 Channels NRC Yes No $750.00 N/A $750.00
TX GTE 96 Channels MRC Yes Yes $890.00 $121.31 $768.69
TX GTE 96 Channels NRC Yes No $1,000.00 N/A $1,000.00
TX GTE 120 Channels MRC Yes Yes $1,080.00 $147.20 $932.80
TX GTE 120 Channels NRC Yes No $1,250.00 N/A $1,250.00
TX GTE 144 Channels MRC Yes Yes $1,270.00 $173.10 $1,096.90
TX GTE 144 Channels NRC Yes No $1,500.00 N/A $1,500.00
TX GTE 192 Channels MRC Yes Yes $1,650.00 $224.90 $1,425.11
TX GTE 192 Channels NRC Yes No $2,000.00 N/A $2,000.00
</TABLE>
<PAGE> 146
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 240 Channels MRC Yes Yes $2,030.00 $276.69 $1,753.31
TX GTE 240 Channels NRC Yes No $2,500.00 N/A $2,500.00
TX GTE 672 Channels MRC Yes Yes $4,660.00 $635.16 $4,024.84
TX GTE 672 Channels NRC Yes No $7,000.00 N/A $7,000.00
TX GTE For increments not identified
above, 24 channels MRC Yes Yes $190.00 $25.90 $164.10
TX GTE For increments not identified
above, 24 channels NRC Yes No $250.00 N/A $250.00
Digital Channel Capacity-84 Month
Term
TX GTE 24 Channels MRC Yes Yes $300.00 $40.89 $259.11
TX GTE 24 Channels NRC Yes No $250.00 $34.08 $215.93
TX GTE 48 Channels MRC Yes Yes $480.00 $65.42 $414.58
TX GTE 48 Channels NRC Yes No $500.00 $68.15 $431.85
TX GTE 72 Channels MRC Yes Yes $660.00 $89.96 $570.04
TX GTE 72 Channels NRC Yes No $750.00 $102.23 $647.78
TX GTE 96 Channels MRC Yes Yes $840.00 $114.49 $725.51
TX GTE 96 Channels NRC Yes No $1,000.00 $136.30 $863.70
TX GTE 120 Channels MRC Yes Yes $1,020.00 $139.03 $880.97
TX GTE 120 Channels NRC Yes No $1,250.00 $170.38 $1,079.63
TX GTE 144 Channels MRC Yes Yes $1,200.00 $163.56 $1,036.44
TX GTE 144 Channels NRC Yes No $1,500.00 $204.45 $1,295.55
TX GTE 192 Channels MRC Yes Yes $1,560.00 $212.63 $1,347.37
TX GTE 192 Channels NRC Yes No $2,000.00 $272.60 $1,727.40
TX GTE 240 Channels MRC Yes Yes $1,920.00 $261.70 $1,658.30
TX GTE 240 Channels NRC Yes No $2,500.00 $340.75 $2,159.25
TX GTE 672 Channels MRC Yes Yes $4,370.00 $595.63 $3,774.37
TX GTE 672 Channels NRC Yes No $7,000.00 $954.10 $6,045.90
TX GTE For increments not identified
above, 24 channels-MRC MRC Yes Yes $180.00 $24.53 $155.47
TX GTE NRC NRC Yes No $250.00 $34.08 $215.93
Digital Channel Cap-Month to Month
at end of contract
TX GTE 24 Channels MRC Yes Yes $300.00 $40.89 $259.11
TX GTE 48 Channels MRC Yes Yes $480.00 $65.42 $414.58
TX GTE 72 Channels MRC Yes Yes $660.00 $89.96 $570.04
</TABLE>
<PAGE> 147
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 96 Channels MRC Yes Yes $840.00 $114.49 $725.51
TX GTE 120 Channels MRC Yes Yes $1,020.00 $139.03 $880.97
TX GTE 144 Channels MRC Yes Yes $1,200.00 $163.56 $1,036.44
TX GTE 192 Channels MRC Yes Yes $1,560.00 $212.63 $1,347.37
TX GTE 240 Channels MRC Yes Yes $1,920.00 $261.70 $1,658.30
TX GTE 672 Channels MRC Yes Yes $4,370.00 $595.63 $3,774.37
TX GTE For increments not identified
above, 24 channels MRC Yes Yes $180.00 $24.53 $155.47
TX GTE Digital Channel Activation, per channel MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Per Network Service - Exch line/trunk
or CentraNet MRC Yes Yes $15.00 $2.04 $12.96
TX GTE FX,OPX,Tie LN
or PL MRC Yes Yes $15.00 $2.04 $12.96
TX GTE DDS MRC Yes Yes $25.00 $3.41 $21.59
TX GTE DS1 MRC Yes Yes $75.00 $10.22 $64.78
TX GTE Switched Data,
per line MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Exch Line/Trunk, Local Calling
Scope MRC Yes Yes $10.00 $1.36 $8.64
TX GTE Exch Line/Trunk Extended Metro
Svc MRC Yes Yes $117.00 $15.95 $101.05
TX GTE Switched Data Svc - Usage, per
minute Usage Yes Yes $0.0300 $0.0041 $0.03
Customer Premises Channelization
TX GTE 24 channel increments, 36 Month MRC Yes Yes $130.00 $17.72 $112.28
TX GTE 24 channel increments, 60 month MRC Yes Yes $120.00 $16.36 $103.64
TX GTE 24 channel increments, 84 month MRC Yes Yes $110.00 $14.99 $95.01
TX GTE 24 channel increments, month to
month MRC Yes Yes $110.00 $14.99 $95.01
Customer Premises Service Activation
TX GTE Exch line/Trunk or CentraNet MRC Yes Yes $5.00 $0.68 $4.32
TX GTE FX,OPX, Tie Line or PL MRC Yes Yes $6.00 $0.82 $5.18
TX GTE DDS MRC Yes Yes $15.00 $2.04 $12.96
TX GTE Switched Data MRC Yes Yes $25.00 $3.41 $21.59
50 Switched Data
Switched Data High Speed and Low Speed
Switched Data Access - Single Line,
Multiline
TX GTE Low Speed, per line - NRC NRC Yes No $50.00 N/A $50.00
TX GTE Single Line MRC Yes Yes $30.00 $4.09 $25.91
</TABLE>
<PAGE> 148
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Multiline 2-49 lines MRC Yes Yes $32.00 $4.36 $27.64
TX GTE 50-100 lines MRC Yes Yes $30.00 $4.09 $25.91
TX GTE 101 + lines MRC Yes Yes $28.00 $3.82 $24.18
TX GTE High Speed, per line NRC NRC Yes No $50.00 N/A $50.00
TX GTE Single Line MRC Yes Yes $40.00 $5.45 $34.55
TX GTE Multiline 2-49 lines MRC Yes Yes $42.00 $5.72 $36.28
TX GTE 50-100 lines MRC Yes Yes $40.00 $5.45 $34.55
TX GTE 101 + lines MRC Yes Yes $38.00 $5.18 $32.82
TX GTE Add'l 1/4 MI charge per local
loop MRC Yes Yes $1.16 $0.16 $1.00
Switched Data Individual Line Loop
Extension
Extension Access
TX GTE Single Line NRC Yes No $50.00 N/A $50.00
TX GTE Single Line MRC Yes Yes $50.00 $6.82 $43.19
TX GTE Multiline NRC Yes No $50.00 N/A $50.00
TX GTE Multiline MRC Yes Yes $50.00 $6.82 $43.19
Extension Channel
TX GTE Single Line NRC Yes No $50.00 N/A $50.00
TX GTE Single Line MRC Yes Yes $12.00 $1.64 $10.36
TX GTE Multiline NRC Yes No $50.00 N/A $50.00
TX GTE Multiline MRC Yes Yes $15.00 $2.04 $12.96
Switched Data Channel Access
TX GTE Channel Access (DS1) NRC Yes No $300.00 N/A $300.00
TX GTE Channel Access (DS1) MRC Yes Yes $200.00 $27.26 $172.74
TX GTE CO Termination, per access
arrangement NRC Yes No $120.00 N/A $120.00
TX GTE CO Termination, per access
arrangement MRC Yes Yes $155.00 $21.13 $133.87
TX GTE CO Channelization, single
line, per channel activated MRC Yes Yes $5.00 $0.68 $4.32
TX GTE CO Channelization, multiline,
per channel activated MRC Yes Yes $5.00 $0.68 $4.32
TX GTE CO Channelization, multiline
with DID/DOD MRC Yes Yes $5.00 $0.68 $4.32
TX GTE Customer Premises Termination NRC Yes No $75.00 $10.22 $64.78
TX GTE Customer Premises Termination MRC Yes Yes $90.00 $12.27 $77.73
TX GTE Customer Premises Channelization NRC Yes No $21.00 N/A $21.00
</TABLE>
<PAGE> 149
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ----- ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Customer Premises Channelization MRC Yes Yes $32.00 $4.36 $27.64
Optional Features, per line
TX GTE Data Direct Connect MRC Yes Yes $1.00 $0.14 $0.86
TX GTE Data Closed User Group MRC Yes Yes $1.00 $0.14 $0.86
Voice Option
TX GTE Single Line Flat Extended Metro MRC Yes Yes $20.00 $2.73 $17.27
TX GTE Single Line Flat Metro MRC Yes Yes $9.00 $1.23 $7.77
TX GTE Single Line Flat non-metro MRC Yes Yes $5.50 $0.75 $4.75
TX GTE Single Line measured rate MRC Yes Yes $5.00 $0.68 $4.32
TX GTE Multiline MRC Yes Yes $1.25 $0.17 $1.08
TX GTE Additional number MRC Yes Yes $0.00 $0.00
Optional Feature Packages
TX GTE Data 1000, per line MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Data 2000, per line MRC Yes Yes $5.00 $0.68 $4.32
TX GTE Software Reconfiguration Charge, per
occurance NRC Yes No $12.75 N/A $12.75
TX GTE Network Usage, per minute Usage Yes Yes $0.0300 $0.0041 $0.03
SWB PRIVATE LINE TARIFF
IntraLATA Interexchange Private Lines
2 Series 100
Local channel, ea per termination
Type 102
TX GTE Initial1/4mi MRC Yes No $3.70 $0.50 $3.20
TX GTE Initial1/4mi NRC Yes No $87.30 N/A $87.30
TX GTE Ea additional 1/4 mi MRC Yes No $1.85 $0.25 $1.60
TX GTE Interoffice channel, ea 1/4 mi MRC Yes No $3.35 $0.46 $2.89
IX Channel
TX GTE 0 to 200/4 mi ea1/4mi MRC Yes No $3.70 $0.50 3.20
TX GTE 201/4 to 600/4 mi plus $2.00 for
ea 1/4 mi over 50 mi MRC Yes No $740.00 $100.86 $639.14
TX GTE IXC terminal ea required per
interexchange MRC Yes No $7.00 $0.95 $6.05
Series 200
</TABLE>
<PAGE> 150
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Local channel, ea per termination
on premises
Type 250
TX GTE Half-duplex NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $9.75 $1.33 $8.42
TX GTE Additional 1/4 mi MRC Yes No $4.55 $0.62 $3.93
TX GTE Duplex NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $15.35 $2.09 $13.26
TX GTE Additional 1/4 mi MRC Yes No $7.10 $0.97 $6.13
Type 251
TX GTE Half-duplex NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $17.50 $2.39 $15.11
TX GTE Additional 1/4 mi MRC Yes No $5.50 $0.75 $4.75
TX GTE Duplex NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $24.75 $3.37 $21.38
TX GTE Additional 1/4 mi MRC Yes No $7.80 $1.06 $6.74
Interoffice channel, ea 1/4 mi,
per channel
Type 250
TX GTE Half-duplex MRC Yes No $1.85 $0.25 $1.60
TX GTE Duplex MRC Yes No $1.85 $0.25 $1.60
Type 251
TX GTE Half-duplex MRC Yes No $2.15 $0.29 $1.86
TX GTE Duplex MRC Yes No $2.15 $0.29 $1.86
IX Channel
Type 250
TX GTE 0 to 200/4 mi, for ea 1/4 mi MRC Yes No $0.90 $0.12 $0.78
TX GTE 201/4 to 600/4 mi, plus
$0.55 for ea
1/4 mi over 50 mi MRC Yes No $180.00 $24.53 $155.47
Type 251
TX GTE 0 to 200/4 mi, for ea 1/4 mi MRC Yes No $1.20 $0.16 $1.04
TX GTE 201/4 to 600/4 mi, plus $0.55
ea 1/4 mi over 50 mi MRC Yes No $240.00 $32.71 $207.29
IXC terminal
Type 250
TX GTE Half-duplex MRC Yes No $9.40 $1.28 $8.12
TX GTE Duplex MRC Yes No $9.00 $1.23 $7.77
Type 251
TX GTE Half-duplex MRC Yes No $22.20 $3.03 $19.17
</TABLE>
<PAGE> 151
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Duplex MRC Yes No $21.65 $2.95 $18.70
Series 300 and 400
TX GTE Local Channel, ea, per termination
on a premises
TX GTE Type 314B NRC Yes No $174.60 N/A $174.60
TX GTE First 1/4 mi MRC Yes No $29.85 $4.07 $25.78
TX GTE Additional 1/4 mi MRC Yes No $9.25 $1.26 $7.99
TX GTE Type 314C NRC Yes No $174.60 N/A $174.60
TX GTE Type 317A NRC Yes No $174.60 N/A $174.60
TX GTE First 1/4 mi MRC Yes No $10.20 $1.39 $8.81
TX GTE Additional 1/4 mi MRC Yes No $5.10 $0.70 $4.40
TX GTE Type 317B NRC Yes No $174.60 N/A $174.60
TX GTE First 1/4 mi MRC Yes No $10.20 $1.39 $8.81
TX GTE Additional 1/4mi MRC Yes No $5.10 $0.70 $4.40
TX GTE Type 322 NRC Yes No $174.60 N/A $174.60
TX GTE First 1/4 mi MRC Yes No $34.25 $4.67 $29.58
TX GTE Additional 1/4 mi MRC Yes No $14.40 $1.96 $12.44
TX GTE Type 342 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $8.95 $1.22 $7.73
TX GTE Additional 1/4 mi MRC Yes No $3.90 $0.53 $3.37
TX GTE Type 343 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $25.25 $3.44 $21.81
TX GTE Additional 1/4 mi MRC Yes No $7.80 $1.06 $6.74
TX GTE Type 420 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $17.10 $2.33 $14.77
TX GTE Additional 1/4 mi MRC Yes No $7.35 $1.00 $6.35
TX GTE Type 422 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $17.10 $2.33 $14.77
TX GTE Additional 1/4 mi MRC Yes No $7.35 $1.00 $6.35
TX GTE Type 423 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $7.00 $0.95 $6.05
TX GTE Additional 1/4 mi MRC Yes No $3.60 $0.49 $3.11
TX GTE Type 424 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $13.75 $1.87 $11.88
TX GTE Additional 1/4 mi MRC Yes No $7.90 $1.08 $6.82
</TABLE>
<PAGE> 152
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Type 425 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $12.40 $1.69 $10.71
TX GTE Additional 1/4 mi MRC Yes No $7.80 $1.06 $6.74
TX GTE Type 428 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $8.90 $1.21 $7.69
TX GTE Additional 1/4 mi MRC Yes No $3.90 $0.53 $3.37
TX GTE Type 435 NRC Yes No $87.30 N/A $87.30
TX GTE First 1/4 mi MRC Yes No $18.35 $2.50 $15.85
TX GTE Additional 1/4 mi MRC Yes No $7.80 $1.06 $6.74
TX GTE Interoffice channel, ea 1/4 mi per
channel MRC Yes No $2.85 $0.39 $2.46
Bridging charge (multipoint service)
TX GTE Interoffice channel bridged MRC Yes No $10.85 $1.48 $9.37
TX GTE IX channel bridged MRC Yes No $11.70 $1.59 $10.11
IX channel
Schedule 2
TX GTE 0 to 200/4 mi for ea 1/4 mi MRC Yes No $1.45 $0.20 $1.25
TX GTE 201/4 to 600/4 plus $0.95 ea
1/4 mi over 200/4 mi MRC Yes No $290.00 $39.53 $250.47
Schedule 3
TX GTE 0 to 200/4 mi for ea 1/4 mi MRC Yes No $1.75 $0.24 $1.51
TX GTE 201/4 to 600/4 plus $1.20 ea
1/4 mi over 200/4 mi MRC Yes No $350.00 $47.71 $302.30
IXC terminal
TX GTE Type 314B MRC Yes No $7.80 $1.06 $6.74
TX GTE Type 314C MRC Yes No $50.15 $6.84 $43.31
TX GTE Type 317A MRC Yes No $18.20 $2.48 $15.72
TX GTE Type 317B MRC Yes No $18.20 $2.48 $15.72
TX GTE Type 322 MRC Yes No $57.70 $7.86 $49.84
TX GTE Type 342 MRC Yes No $2.25 $0.31 $1.94
TX GTE Type 343 MRC Yes No $5.60 $0.76 $4.84
TX GTE Type 420 MRC Yes No $3.70 $0.50 $3.20
TX GTE Type 422 MRC Yes No $3.70 $0.50 $3.20
TX GTE Type 423 MRC Yes No $4.65 $0.63 $4.02
TX GTE Type 424 MRC Yes No $6.60 $0.90 $5.70
TX GTE Type 425 MRC Yes No $4.20 $0.57 $3.63
TX GTE Type 428 MRC Yes No $6.50 $0.89 $5.61
TX GTE Type 435 MRC Yes No $2.65 $0.36 $2.29
</TABLE>
<PAGE> 153
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE FX Local Channel (ea) NRC Yes No $186.00 N/A $186.00
TX GTE FX Local Channel (ea) MRC Yes No $12.00 $1.64 $10.36
TX GTE FX Point of Termination NRC Yes No $174.00 N/A $174.00
TX GTE FX Point of Termination MRC Yes No $0.00 $0.00
TX GTE FX Local Exchange Usage
TX GTE Per Minute USAGE Yes No $0.0210 $0.0029 $0.02
Conditioning options
Type C1
TX GTE Two-point not arranged for
switching, per sta MRC Yes No $10.15 $1.38 $8.77
TX GTE Two-point not arranged for
switching, per sta NRC Yes No $72.75 N/A $72.75
TX GTE Two-point arranged for
switching chnnel, per sta MRC Yes No $18.35 $2.50 $15.85
TX GTE Two-point arranged for
switching chnnel, per sta NRC Yes No $72.75 N/A $72.75
TX GTE Multipoint channel, per sta MRC Yes No $20.30 $2.77 $17.53
TX GTE Multipoint channel, per sta NRC Yes No $72.75 N/A $72.75
Type C2
TX GTE Two-point not arranged for
switching, per sta MRC Yes No $40.50 $5.52 $34.98
TX GTE Two-point not arranged for
switching, per sta NRC Yes No $90.95 N/A $90.95
TX GTE Two-point arranged for
switching, per sta MRC Yes No $60.85 $8.29 $52.56
TX GTE Two-point arranged for
switching, per sta NRC Yes No $90.95 N/A $90.95
TX GTE Multipoint channel, per sta MRC Yes No $60.85 $8.29 $52.56
TX GTE Multipoint channel, per sta NRC Yes No $90.95 N/A $90.95
Type C4
TX GTE Two-point channel, per sta MRC Yes No $70.95 $9.67 $61.28
TX GTE Two-point channel, per sta NRC Yes No $123.65 N/A $123.65
TX GTE Three-point channel, per sta MRC Yes No $91.20 $12.43 $78.77
TX GTE Three-point channel, per sta NRC Yes No $123.65 N/A $123.65
Type C5
TX GTE On two-point channel not
arranged for switching MRC Yes No $101.35 $13.81 $87.54
TX GTE On two-point channel not
arranged for switching NRC Yes No $123.65 N/A $123.65
Type D1 {2}
TX GTE Two-point channel not arranged
for switching MRC Yes No $12.15 $1.66 $10.49
TX GTE Two-point channel not arranged
for switching NRC Yes No $90.95 N/A $90.95
Signaling
IX
TX GTE Manual MRC Yes No $35.85 $4.89 $30.96
</TABLE>
<PAGE> 154
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Manual NRC Yes No $58.20 N/A $58.20
TX GTE Automatic MRC Yes No $37.85 $5.16 $32.69
TX GTE Automatic NRC Yes No $58.20 N/A $58.20
E & M Type
TX GTE Type 420 {2} MRC Yes No $28.10 $3.83 $24.27
TX GTE Type 420 {2} NRC Yes No $58.20 N/A $58.20
TX GTE Type 422 {2} MRC Yes No $39.35 $5.36 $33.99
TX GTE Type 422 {2} NRC Yes No $58.20 N/A $58.20
TX GTE Type 423 {2} MRC Yes No $29.25 $3.99 $25.26
TX GTE Type 423 {2} NRC Yes No $58.20 N/A $58.20
TX GTE Type 424 MRC Yes No $13.55 $1.85 $11.70
TX GTE Type 424 NRC Yes No $58.20 N/A $58.20
TX GTE Type 425 {2} MRC Yes No $38.55 $5.25 $33.30
TX GTE Type 425 {2} NRC Yes No $58.20 N/A $58.20
TX GTE Type 428 {2} MRC Yes No $28.80 $3.93 $24.87
TX GTE Type 428 {2} NRC Yes No $58.20 N/A $58.20
TX GTE Type 435 {2} MRC Yes No $31.55 $4.30 $27.25
TX GTE Type 435 {2} NRC Yes No $58.20 N/A $58.20
Loop signaling capable of 900
ohms or more
TX GTE Type 420 MRC Yes No $46.00 $6.27 $39.73
TX GTE Type 420 NRC Yes No $58.20 N/A $58.20
TX GTE Type 422 MRC Yes No $46.00 $6.27 $39.73
TX GTE Type 422 NRC Yes No $58.20 N/A $58.20
TX GTE Type 423 MRC Yes No $48.30 $6.58 $41.72
TX GTE Type 423 NRC Yes No $58.20 N/A $58.20
TX GTE Type 435 MRC Yes No $46.00 $6.27 $39.73
TX GTE Type 435 NRC Yes No $58.20 N/A $58.20
TX GTE Loop signaling capable of less
than 900 ohms
TX GTE Type 420 MRC Yes No $47.95 $6.54 $41.41
TX GTE Type 420 NRC Yes No $58.20 N/A $58.20
TX GTE Type 422 MRC Yes No $47.95 $6.54 $41.41
TX GTE Type 422 NRC Yes No $58.20 N/A $58.20
TX GTE Type 423 MRC Yes No $49.90 $6.80 $43.10
TX GTE Type 423 NRC Yes No $58.20 N/A $58.20
TX GTE Type 435 MRC Yes No $47.95 $6.54 $41.41
</TABLE>
<PAGE> 155
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Type 435 NRC Yes No $58.20 N/A $58.20
TX GTE Loop signaling Type 428
TX GTE Type A, 0-199 ohms MRC Yes No $10.60 $1.44 $9.16
TX GTE Type A, 0-199 ohms NRC Yes No $58.20 N/A $58.20
TX GTE Type B, 200-899 ohms MRC Yes No $10.60 $1.44 $9.16
TX GTE Type B, 200-899 ohms NRC Yes No $58.20 N/A $58.20
TX GTE Type C, 900 ohms or more MRC Yes No $10.60 $1.44 $9.16
TX GTE Type C, 900 ohms or more NRC Yes No $58.20 N/A $58.20
INTRALATA/INTEREXCHANGE TARIFF
4A
DS1 LOCAL LOOP (DS1 LL)
TX GTE First DS1 Month/Month MRC Yes Yes $298.00 $40.62 $257.38
TX GTE First DS1 NRC Yes No $800.00 N/A $800.00
TX GTE Public Service MRC Yes Yes $253.30 $34.52 $218.78
TX GTE 12 Month Contract MRC Yes Yes $283.00 $38.57 $244.43
TX GTE 36 Month Contract MRC Yes Yes $255.00 $34.76 $220.24
TX GTE 60 Month Contract MRC Yes Yes $226.00 $30.80 $195.20
Additional DS1 (Ea.) (Available
with all First DS1
TX GTE offerings) MRC Yes Yes $145.00 $19.76 $125.24
TX GTE Add'l DS1 NRC Yes No $150.00 N/A $150.00
TX GTE Public Service MRC Yes Yes $253.30 $34.52 $218.78
DS1 Transport
TX GTE Per Airline Mile MRC Yes Yes $16.00 $2.18 $13.82
TX GTE Public Service MRC Yes Yes $0.00 $0.00
DS1 Transport Termination
TX GTE Per Termination MRC Yes Yes $40.00 $5.45 $34.55
Public Service N/A
TX GTE Per Termination MRC Yes Yes $29.60 $4.03 $25.57
N/A
FRACTIONAL T1
4A Month-to-Month
TX GTE 2 x 56/64 kbps MRC Yes Yes $103.78 $14.15 $89.63
</TABLE>
<PAGE> 156
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 2 x 56/64 kbps NRC Yes No $400.00 N/A $400.00
TX GTE 4 x 56/64 kbps MRC Yes Yes $111.59 $15.21 $96.38
TX GTE 4 x 56/64 kbps NRC Yes No $400.00 N/A $400.00
TX GTE 6 x 56/64 kbps MRC Yes Yes $119.39 $16.27 $103.12
TX GTE 6 x 56/64 kbps NRC Yes No $400.00 N/A $400.00
12-Month Contract
TX GTE 2 x 56/64 kbps MRC Yes Yes $100.00 $13.63 $86.37
TX GTE 4 x 56/64 kbps MRC Yes Yes $110.00 $14.99 $95.01
TX GTE 6 x 56/64 kbps MRC Yes Yes $119.00 $16.22 $102.78
36-Month Contract
TX GTE 2 x 56/64 kbps MRC Yes Yes $90.00 $12.27 $77.73
TX GTE 4 x 56/64 kbps MRC Yes Yes $99.00 $13.49 $85.51
TX GTE 6 x 56/64 kbps MRC Yes Yes $107.10 $14.60 $92.50
60-Month Contract
TX GTE 2 x 56/64 kbps MRC Yes Yes $80.00 $10.90 $69.10
TX GTE 4 x 56/64 kbps MRC Yes Yes $88.00 $11.99 $76.01
TX GTE 6 x 56/64 kbps MRC Yes Yes $95.20 $12.98 $82.22
Fractional T1 Transport (per
airline mile)
TX GTE 2 x 56/64 kbps MRC Yes Yes $5.50 $0.75 $4.75
TX GTE 4 x 56/64 kbps MRC Yes Yes $6.50 $0.89 $5.61
TX GTE 6 x 56/64 kbps MRC Yes Yes $7.50 $1.02 $6.48
Fractional T1 Transport Term (per
airline mile)
TX GTE 2 x 56/64 kbps MRC Yes Yes $12.00 $1.64 $10.36
TX GTE 4 x 56/64 kbps MRC Yes Yes $18.00 $2.45 $15.55
TX GTE 6 x 56/64 kbps MRC Yes Yes $24.00 $3.27 $20.73
4B FIBERCONNECT
Local Loop (Electrical Interface)
TX GTE Month-to-Month MRC Yes Yes $1,200.00 $163.56 $1,036.44
TX GTE Month-to-Month NRC Yes No $3,500.00 N/A $3,500.00
TX GTE 12 Month MRC Yes Yes $1,125.00 $153.34 $971.66
TX GTE 12 Month NRC Yes No $1,000.00 N/A $1,000.00
TX GTE 36 Month MRC Yes Yes $800.00 $109.04 $690.96
TX GTE 36 Month NRC Yes No $1,000.00 N/A $1,000.00
</TABLE>
<PAGE> 157
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 60 Month MRC Yes Yes $700.00 $95.41 $604.59
TX GTE 60 Month NRC Yes No $1,000.00 N/A $1,000.00
FiberConnect Local Loop (Optical
Interface)
TX GTE Month-to-Month MRC Yes Yes $1,050.00 $143.12 $906.89
TX GTE Month-to-Month NRC Yes No $3,500.00 N/A $3,500.00
TX GTE 12 Month MRC Yes Yes $900.00 $122.67 $777.33
TX GTE 12 Month NRC Yes No $1,000.00 N/A $1,000.00
TX GTE 36 Month MRC Yes Yes $600.00 $81.78 $518.22
TX GTE 36 Month NRC Yes No $1,000.00 N/A $1,000.00
TX GTE 60 Month MRC Yes Yes $525.00 $71.56 $453.44
TX GTE 60 Month NRC Yes No $1,000.00 N/A $1,000.00
5 DIGITAL DATA SERVICE
DDS Local Loop (DDS LL)
TX GTE 2.4 KBPS MRC Yes Yes $85.00 $11.59 $73.41
TX GTE 2.4 KBPS NRC Yes No $250.00 N/A $250.00
TX GTE 4.8 KBPS MRC Yes Yes $85.00 $11.59 $73.41
TX GTE 4.8 KBPS NRC Yes No $250.00 N/A $250.00
TX GTE 9.6 KBPS MRC Yes Yes $85.00 $11.59 $73.41
TX GTE 9.6 KBPS NRC Yes No $250.00 N/A $250.00
TX GTE 19.2 KBPS MRC Yes Yes $85.00 $11.59 $73.41
TX GTE 19.2 KBPS NRC Yes No $250.00 N/A $250.00
TX GTE 56 KBPS MRC Yes Yes $95.00 $12.95 $82.05
TX GTE 56 KBPS NRC Yes No $250.00 N/A $250.00
DDS Transport (Per Airline Mile)
TX GTE 2.4 KBPS MRC Yes Yes $1.60 $0.22 $1.38
2.4 KBPS NRC Yes No $0.00 $0.00
TX GTE 4.8 KBPS MRC Yes Yes $1.60 $0.22 $1.38
4.8 KBPS NRC Yes No $0.00 $0.00
</TABLE>
<PAGE> 158
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 9.6 KBPS MRC Yes Yes $1.60 $0.22 $1.38
9.6 KBPS NRC Yes No $0.00 $0.00
TX GTE 19.2 KBPS MRC Yes Yes $1.60 $0.22 $1.38
19.2 KBPS NRC Yes No $0.00 $0.00
TX GTE 56 KBPS MRC Yes Yes $3.20 $0.44 $2.76
56 KBPS NRC Yes No $0.00 $0.00
TX GTE DDS Transport Termination (per
Termination) MRC Yes Yes $20.00 $2.73 $17.27
6 PACKET SWITCHING NETWORK SERVICE
Usage - Transactional Plan
TX GTE Each 15-second or shorter
transaction USAGE Yes Yes $0.0100 $0.0014 $0.0086
TX GTE Each 15-second or shorter
overtime transaction USAGE Yes Yes $0.0100 $0.0014 $0.0086
Usage - Basic Plan
Day Rates
TX GTE (1) Per minute or portion
thereof USAGE Yes Yes $0.0150 $0.0020 $0.0130
TX GTE (2) Per kilosegment USAGE Yes Yes $0.3000 $0.0409 $0.2591
Night/Holiday Rates
TX GTE (1) Per minute or portion
thereof USAGE Yes Yes $0.0050 $0.0007 $0.0043
TX GTE (2) Per kilosegment USAGE Yes Yes $0.2000 $0.0273 $0.1727
Usage - High Volume Plan
Day Rates
TX GTE Per minute or portion thereof USAGE Yes Yes $0.0150 $0.0020 $0.0130
Per kilosegment
TX GTE (a) 0001 to 2000 kilosegments USAGE Yes Yes $0.3000 $0.0409 $0.2591
TX GTE (b) 2001 to 4000 kilosegments USAGE Yes Yes $0.2700 $0.0368 $0.2332
TX GTE (c) 4001 to 6000 kilosegments USAGE Yes Yes $0.2300 $0.0313 $0.1987
TX GTE (d) More than 6000
kilosegments USAGE Yes Yes $0.1800 $0.0245 $0.1555
Night/Holiday Rates
TX GTE Per minute or portion thereof USAGE Yes Yes $0.0050 $0.0007 $0.0043
Per kilosegment
TX GTE (a) 0001 to 2000 kilosegments USAGE Yes Yes $0.3000 $0.0409 $0.2591
</TABLE>
<PAGE> 159
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE (b) 2001 to 4000 kilosegments USAGE Yes Yes $0.2700 $0.0368 $0.2332
TX GTE (c) 4001 to 6000 kilosegments USAGE Yes Yes $0.2300 $0.0313 $0.1987
TX GTE (d) More than 6000 kilosegments USAGE Yes Yes $0.1800 $0.0245 $0.1555
Usage Basic Permanent Virtual Circuit
Plan Per Kilosegment
TX GTE Day Rates USAGE Yes Yes $0.6000 $0.0818 $0.5182
TX GTE Night/Holiday Rates USAGE Yes Yes $0.4000 $0.0545 $0.3455
Usage - High Volume Premanent Virtual
Circuit Plan
Per kilosegment
TX GTE (a) 0001 to 2000 kilosegments USAGE Yes Yes $0.6000 $0.0818 $0.5182
TX GTE (b) 2001 to 4000 kilosegments USAGE Yes Yes $0.5000 $0.0682 $0.4319
TX GTE (c) 4001 to 6000 kilosegments USAGE Yes Yes $0.4000 $0.0545 $0.3455
TX GTE (d) More than 6000 kilosegments USAGE Yes Yes $0.3000 $0.0409 $0.2591
Call Detail
Per Month
TX GTE 1 to 49 lines MRC Yes Yes $25.00 $3.41 $21.59
TX GTE More than 49 lines MRC Yes Yes $50.00 $6.82 $43.19
Fast Select
TX GTE Per Virtual Connection USAGE Yes Yes $0.0010 $0.0001 $0.0009
Priority
TX GTE Per kilosegment USAGE Yes Yes $0.3500 $0.0477 $0.3023
Dedicated Access
TX GTE 1.2 kbps MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 1.2 kbps NRC Yes No $120.00 N/A $120.00
TX GTE 2.4 kbps MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 2.4 kbps NRC Yes No $120.00 N/A $120.00
TX GTE 4.8 kbps MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 4.8 kbps NRC Yes No $120.00 N/A $120.00
TX GTE 9.6 kbps MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 9.6 kbps NRC Yes No $120.00 N/A $120.00
</TABLE>
<PAGE> 160
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 56/64 kbps MRC Yes Yes $35.00 $4.77 $30.23
TX GTE 56/64 kbps NRC Yes No $120.00 N/A $120.00
7 MEGACONNECT SERVICE
SMDS Connection
TX GTE SMDS Access (DSO-56 kbps), per port MRC Yes Yes $105.00 $14.31 $90.69
TX GTE SMDS Access (DSO-56 kbps), per port NRC Yes No $95.00 N/A $95.00
TX GTE SMDS Access (DS1 - 1.17 kbps), per
port MRC Yes Yes $400.00 $54.52 $345.48
TX GTE SMDS Access (DS1 - 1.17 kbps),
per port NRC Yes No $25.00 N/A $25.00
TX GTE SMDS Access Class 1 (DS3 -4 kbps),
per port MRC Yes Yes $2,000.00 $272.60 $1,727.40
TX GTE SMDS Access Class 1 (DS3 -4 kbps),
per port NRC Yes No $1,000.00 N/A $1,000.00
TX GTE SMDS Access Class 2 (DS3 -10 kbps),
per port MRC Yes Yes $2,200.00 $299.86 $1,900.14
TX GTE SMDS Access Class 2 (DS3 -10 kbps),
per port NRC Yes No $1,000.00 N/A $1,000.00
TX GTE SMDS Access Class 3 (DS3 -16 kbps),
per port MRC Yes Yes $2,400.00 $327.12 $2,072.88
TX GTE SMDS Access Class 3 (DS3 -16 kbps),
per port NRC Yes No $1,000.00 N/A $1,000.00
TX GTE SMDS Access Class 4 (DS3 -25 kbps),
per port MRC Yes Yes $2,600.00 $354.38 $2,245.62
TX GTE SMDS Access Class 4 (DS3 -25 kbps),
per port NRC Yes No $1,000.00 N/A $1,000.00
TX GTE SMDS Access Class 5 (DS3 -34 kbps),
per port MRC Yes Yes $2,800.00 $381.64 $2,418.36
TX GTE SMDS Access Class 5 (DS3 -34 kbps),
per port NRC Yes No $1,000.00 N/A $1,000.00
Subsequent Activity Charge
TX GTE per SNI affected on existing service NRC Yes No $25.00 N/A $25.00
Optional Feature
TX GTE Group Address Creation, per list MRC Yes Yes $25.00 $3.41 $21.59
TX GTE Group Address Creation, per list NRC Yes No $25.00 N/A $25.00
TX GTE Customer Network Management MRC Yes Yes $19.00 $2.59 $16.41
TX GTE Customer Network Management NRC Yes No $40.00 N/A $40.00
8 MULTIMEDIA DATA SERVICE (MMDS)
MMDS First Data Link
TX GTE 12 Month Contract MRC Yes Yes $750.00 $102.23 $647.78
</TABLE>
<PAGE> 161
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 12 Month Contract NRC Yes No $3,300.00 N/A $3,300.00
TX GTE 36 Month Contract MRC Yes Yes $700.00 $95.41 $604.59
TX GTE 36 Month Contract NRC Yes No $3,300.00 N/A $3,300.00
TX GTE 60 Month Contract MRC Yes Yes $650.00 $88.60 $561.41
TX GTE 60 Month Contract NRC Yes No $3,300.00 N/A $3,300.00
MMDS Additional Data Link
TX GTE 12 Month Contract MRC Yes Yes $115.00 $15.67 $99.33
TX GTE 12 Month Contract NRC Yes No $200.00 N/A $200.00
TX GTE 36 Month Contract MRC Yes Yes $100.00 $13.63 $86.37
TX GTE 36 Month Contract NRC Yes No $200.00 N/A $200.00
TX GTE 60 Month Contract MRC Yes Yes $90.00 $12.27 $77.73
TX GTE 60 Month Contract NRC Yes No $200.00 N/A $200.00
MMDS Video Link
TX GTE 12 Month Contract MRC Yes Yes $415.00 $56.56 $358.44
TX GTE 12 Month Contract NRC Yes No $3,000.00 N/A $3,000.00
TX GTE 36 Month Contract MRC Yes Yes $400.00 $54.52 $345.48
TX GTE 36 Month Contract NRC Yes No $3,000.00 N/A $3,000.00
TX GTE 60 Month Contract MRC Yes Yes $380.00 $51.79 $328.21
TX GTE 60 Month Contract NRC Yes No $3,000.00 N/A $3,000.00
TX GTE Interoffice Transport (Per
Airline Mile) MRC Yes Yes $10.00 $1.36 $8.64
N/A
TX GTE Termination Charge (Per Termination) MRC Yes Yes $100.00 $13.63 $86.37
TX GTE 8 Termination Charge (Per Termination) NRC Yes No $300.00 N/A $300.00
9 FRAME RELAY SERVICE
MONTH TO MONTH RATES
Frame Relay Service
TX GTE w/56 kbps Access Line MRC Yes Yes $95.00 $12.95 $82.05
TX GTE w/56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/o 56 kbps Access Line MRC Yes Yes $20.00 $2.73 $17.27
TX GTE w/o 56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/128 kbps Access Line MRC Yes Yes $150.00 $20.45 $129.56
</TABLE>
<PAGE> 162
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE w/128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 128 kbps Access Line MRC Yes Yes $40.00 $5.45 $34.55
TX GTE w/o 128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/256 kbps Access Line MRC Yes Yes $250.00 $34.08 $215.93
TX GTE w/256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 256 kbps Access Line MRC Yes Yes $60.00 $8.18 $51.82
TX GTE w/o 256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/384 kbps Access Line MRC Yes Yes $350.00 $47.71 $302.30
TX GTE w/384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 384 kbps Access Line MRC Yes Yes $80.00 $10.90 $69.10
TX GTE w/o 384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/1.544 kbps Access Line MRC Yes Yes $500.00 $68.15 $431.85
TX GTE w/1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 1.544 kbps Access Line MRC Yes Yes $400.00 $54.52 $345.48
TX GTE w/o 1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
PERMANENT VIRTUAL CONNECTIONS
TX GTE 2-10 MRC Yes Yes $8.00 $1.09 $6.91
TX GTE 2-10 NRC Yes No $10.00 N/A $10.00
TX GTE 11-20 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 11-20 NRC Yes No $10.00 N/A $10.00
TX GTE 21+ MRC Yes Yes $6.00 $0.82 $5.18
TX GTE 21+ NRC Yes No $10.00 N/A $10.00
TWELVE MONTH CONTRACT
Frame Relay Service
TX GTE w/56 kbps Access Line MRC Yes Yes $90.00 $12.27 $77.73
TX GTE w/56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
</TABLE>
<PAGE> 163
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE w/o 56 kbps Access Line MRC Yes Yes $15.00 $2.04 $12.96
TX GTE w/o 56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/128 kbps Access Line MRC Yes Yes $145.00 $19.76 $125.24
TX GTE w/128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 128 kbps Access Line MRC Yes Yes $35.00 $4.77 $30.23
TX GTE w/o 128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/256 kbps Access Line MRC Yes Yes $245.00 $33.39 $211.61
TX GTE w/256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 256 kbps Access Line MRC Yes Yes $55.00 $7.50 $47.50
TX GTE w/o 256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/384 kbps Access Line MRC Yes Yes $345.00 $47.02 $297.98
TX GTE w/384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 384 kbps Access Line MRC Yes Yes $75.00 $10.22 $64.78
TX GTE w/o 384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/1.544 kbps Access Line MRC Yes Yes $465.00 $63.38 $401.62
TX GTE w/1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 1.544 kbps Access Line MRC Yes Yes $375.00 $51.11 $323.89
TX GTE w/o 1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
PERMANENT VIRTUAL CONNECTIONS
TX GTE 2-10 MRC Yes Yes $8.00 $1.09 $6.91
TX GTE 2-10 NRC Yes No $10.00 N/A $10.00
TX GTE 11-20 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 11-20 NRC Yes No $10.00 N/A $10.00
TX GTE 21+ MRC Yes Yes $6.00 $0.82 $5.18
TX GTE 21+ NRC Yes No $10.00 N/A $10.00
THIRTY-SIX MONTH CONTRACT
</TABLE>
<PAGE> 164
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Frame Relay Service
TX GTE w/56 kbps Access Line MRC Yes Yes $85.00 $11.59 $73.41
TX GTE w/56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/o 56 kbps Access Line MRC Yes Yes $12.00 $1.64 $10.36
TX GTE w/o 56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/128 kbps Access Line MRC Yes Yes $135.00 $18.40 $116.60
TX GTE w/128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 128 kbps Access Line MRC Yes Yes $30.00 $4.09 $25.91
TX GTE w/o 128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/256 kbps Access Line MRC Yes Yes $235.00 $32.03 $202.97
TX GTE w/256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 256 kbps Access Line MRC Yes Yes $50.00 $6.82 $43.19
TX GTE w/o 256 kbps Access Line NRC Yes No $250.00 N/A $250.00
GTE Frame Relay Service
TX GTE w/384 kbps Access Line MRC Yes Yes $335.00 $45.66 $289.34
TX GTE w/384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service N/A
TX GTE w/o 384 kbps Access Line MRC Yes Yes $70.00 $9.54 $60.46
TX GTE w/o 384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service N/A
TX GTE w/1.544 kbps Access Line MRC Yes Yes $435.00 $59.29 $375.71
TX GTE w/1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service N/A
TX GTE w/o 1.544 kbps Access Line MRC Yes Yes $375.00 $51.11 $323.89
TX GTE w/o 1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
PERMANENT VIRTUAL CONNECTIONS N/A
TX GTE 2-10 MRC Yes Yes $8.00 $1.09 $6.91
TX GTE 2-10 NRC Yes No $10.00 N/A $10.00
TX GTE 11-20 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 11-20 NRC Yes No $10.00 N/A $10.00
</TABLE>
<PAGE> 165
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 21+ MRC Yes Yes $6.00 $0.82 $5.18
TX GTE 9 21+ NRC Yes No $10.00 N/A $10.00
SIXTY MONTH CONTRACT
Frame Relay Service
TX GTE w/56 kbps Access Line MRC Yes Yes $75.00 $10.22 $64.78
TX GTE w/56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/o 56 kbps Access Line MRC Yes Yes $10.00 $1.36 $8.64
TX GTE w/o 56 kbps Access Line NRC Yes No $95.00 N/A $95.00
Frame Relay Service
TX GTE w/128 kbps Access Line MRC Yes Yes $120.00 $16.36 $103.64
TX GTE w/128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 128 kbps Access Line MRC Yes Yes $20.00 $2.73 $17.27
TX GTE w/o 128 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/256 kbps Access Line MRC Yes Yes $220.00 $29.99 $190.01
TX GTE w/256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 256 kbps Access Line MRC Yes Yes $40.00 $5.45 $34.55
TX GTE w/o 256 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/384 kbps Access Line MRC Yes Yes $320.00 $43.62 $276.38
TX GTE w/384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 384 kbps Access Line MRC Yes Yes $60.00 $8.18 $51.82
TX GTE w/o 384 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/1.544 kbps Access Line MRC Yes Yes $400.00 $54.52 $345.48
TX GTE w/1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
Frame Relay Service
TX GTE w/o 1.544 kbps Access Line MRC Yes Yes $350.00 $47.71 $302.30
TX GTE w/o 1.544 kbps Access Line NRC Yes No $250.00 N/A $250.00
PERMANENT VIRTUAL CONNECTIONS
</TABLE>
<PAGE> 166
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 2-10 MRC Yes Yes $8.00 $1.09 $6.91
TX GTE 2-10 NRC Yes No $10.00 N/A $10.00
TX GTE 11-20 MRC Yes Yes $7.00 $0.95 $6.05
TX GTE 11-20 NRC Yes No $10.00 N/A $10.00
TX GTE 21+ MRC Yes Yes $6.00 $0.82 $5.18
TX GTE 9 21+ NRC Yes No $10.00 N/A $10.00
GTESW TOLL TARIFFS
1 GTE Long Distance Telecommunications Services:
IntraLata Two Point Service:
Day Rate:
Initial Minute:
TX GTE 1 to 17 Miles USAGE Yes Yes $0.10 $0.0136 $0.09
TX GTE 18 to 22 Miles USAGE Yes Yes $0.15 $0.0204 $0.13
TX GTE 23 to 28 Miles USAGE Yes Yes $0.21 $0.0286 $0.18
TX GTE 29 to 34 Miles USAGE Yes Yes $0.25 $0.0341 $0.22
TX GTE 35 to 41 Miles USAGE Yes Yes $0.31 $0.0423 $0.27
TX GTE 42 to 51 Miles USAGE Yes Yes $0.37 $0.0504 $0.32
TX GTE 52 to 66 Miles USAGE Yes Yes $0.41 $0.0559 $0.35
TX GTE 67 to 81 Miles USAGE Yes Yes $0.44 $0.0600 $0.38
TX GTE 82 to 105 Miles USAGE Yes Yes $0.46 $0.0627 $0.40
TX GTE Over 105 Miles USAGE Yes Yes $0.49 $0.0668 $0.42
Each Additioanl Minute:
TX GTE 1 to 17 Miles USAGE Yes Yes $0.08 $0.0109 $0.07
TX GTE 18 to 22 Miles USAGE Yes Yes $0.12 $0.0164 $0.10
TX GTE 23 to 28 Miles USAGE Yes Yes $0.18 $0.0245 $0.16
TX GTE 29 to 34 Miles USAGE Yes Yes $0.24 $0.0327 $0.21
TX GTE 35 to 41 Miles USAGE Yes Yes $0.31 $0.0423 $0.27
TX GTE 42 to 51 Miles USAGE Yes Yes $0.36 $0.0491 $0.31
TX GTE 52 to 66 Miles USAGE Yes Yes $0.40 $0.0545 $0.35
TX GTE 67 to 81 Miles USAGE Yes Yes $0.43 $0.0586 $0.37
TX GTE 82 to 105 Miles USAGE Yes Yes $0.45 $0.0613 $0.39
TX GTE Over 105 Miles USAGE Yes Yes $0.47 $0.0641 $0.41
Evening Rate:
Initial Minute:
</TABLE>
<PAGE> 167
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
-- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 1 to 17 Miles USAGE Yes Yes $0.08 $0.0109 $0.07
TX GTE 18 to 22 Miles USAGE Yes Yes $0.11 $0.0150 $0.10
TX GTE 23 to 28 Miles USAGE Yes Yes $0.16 $0.0218 $0.14
TX GTE 29 to 34 Miles USAGE Yes Yes $0.19 $0.0259 $0.16
TX GTE 35 to 41 Miles USAGE Yes Yes $0.23 $0.0313 $0.20
TX GTE 42 to 51 Miles USAGE Yes Yes $0.28 $0.0382 $0.24
TX GTE 52 to 66 Miles USAGE Yes Yes $0.31 $0.0423 $0.27
TX GTE 67 to 81 Miles USAGE Yes Yes $0.33 $0.0450 $0.29
TX GTE 82 to 105 Miles USAGE Yes Yes $0.35 $0.0477 $0.30
TX GTE Over 105 Miles USAGE Yes Yes $0.37 $0.0504 $0.32
TX GTE Each Additional Minute:
TX GTE 1 to 17 Miles USAGE Yes Yes $0.06 $0.0082 $0.05
TX GTE 18 to 22 Miles USAGE Yes Yes $0.09 $0.0123 $0.08
TX GTE 23 to 28 Miles USAGE Yes Yes $0.14 $0.0191 $0.12
TX GTE 29 to 34 Miles USAGE Yes Yes $0.18 $0.0245 $0.16
TX GTE 35 to 41 Miles USAGE Yes Yes $0.23 $0.0313 $0.20
TX GTE 42 to 51 Miles USAGE Yes Yes $0.27 $0.0368 $0.23
TX GTE 52 to 66 Miles USAGE Yes Yes $0.30 $0.0409 $0.26
TX GTE 67 to 81 Miles USAGE Yes Yes $0.32 $0.0436 $0.28
TX GTE 82 to 105 Miles USAGE Yes Yes $0.34 $0.0463 $0.29
TX GTE Over 105 Miles USAGE Yes Yes $0.35 $0.0477 $0.30
Night/Weekend Rate:
Initial Minute:
TX GTE 1 to 17 Miles USAGE Yes Yes $0.06 $0.0082 $0.05
TX GTE 18 to 22 Miles USAGE Yes Yes $0.09 $0.0123 $0.08
TX GTE 23 to 28 Miles USAGE Yes Yes $0.13 $0.0177 $0.11
TX GTE 29 to 34 Miles USAGE Yes Yes $0.15 $0.0204 $0.13
TX GTE 35 to 41 Miles USAGE Yes Yes $0.19 $0.0259 $0.16
TX GTE 42 to 51 Miles USAGE Yes Yes $0.22 $0.0300 $0.19
TX GTE 52 to 66 Miles USAGE Yes Yes $0.25 $0.0341 $0.22
TX GTE 67 to 81 Miles USAGE Yes Yes $0.26 $0.0354 $0.22
TX GTE 82 to 105 Miles USAGE Yes Yes $0.28 $0.0382 $0.24
TX GTE Over 105 Miles USAGE Yes Yes $0.29 $0.0395 $0.25
Each Additional Minute:
TX GTE 1 to 17 Miles USAGE Yes Yes $0.05 $0.0068 $0.04
</TABLE>
<PAGE> 168
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 18 to 22 Miles USAGE Yes Yes $0.07 $0.0095 $0.06
TX GTE 23 to 28 Miles USAGE Yes Yes $0.11 $0.0150 $0.10
TX GTE 29 to 34 Miles USAGE Yes Yes $0.14 $0.0191 $0.12
TX GTE 35 to 41 Miles USAGE Yes Yes $0.19 $0.0259 $0.16
TX GTE 42 to 51 Miles USAGE Yes Yes $0.22 $0.0300 $0.19
TX GTE 52 to 66 Miles USAGE Yes Yes $0.24 $0.0327 $0.21
TX GTE 67 to 81 Miles USAGE Yes Yes $0.26 $0.0354 $0.22
TX GTE 82 to 105 Miles USAGE Yes Yes $0.27 $0.0368 $0.23
TX GTE Over 105 Miles USAGE Yes Yes $0.28 $0.0382 $0.24
TX GTE Service Charge - Dial Calling Card -
Station to Station USAGE Yes No $0.40 N/A $0.40
TX GTE Service Charge - Operator - Station to Station USAGE Yes No $1.15 N/A $1.15
TX GTE Service Charge - Person to Person USAGE Yes No $2.80 N/A $2.80
TX GTE Service Charge - Line Status Verification USAGE Yes No $1.35 N/A $1.35
TX GTE Service Charge - Busy Interrupt USAGE Yes No $2.20 N/A $2.20
TX GTE Service Charge - Directory Assistance USAGE Yes No $0.30 N/A $0.30
TX GTE Service Charge - Operator Completed
Directory Assistance USAGE Yes No $0.60 N/A $0.60
TX GTE Enterprise Service MRC Yes Yes $3.20 $0.44 $2.76
Conference Connection Services (CCS):
Unassisted CCS:
Standard Rate Period:
TX GTE First 15 Minutes (per port, per minute) USAGE Yes Yes $0.50 $0.0682 $0.43
TX GTE Each Additional Minute (per port) USAGE Yes Yes $0.08 $0.0109 $0.07
Economy Rate Period:
TX GTE First 15 Minutes (per port, per minute) USAGE Yes Yes $0.36 $0.0491 $0.31
TX GTE Each Additional Minute (per port) USAGE Yes Yes $0.06 $0.0082 $0.05
Operator Assisted CCS:
Standard Rate Period:
TX GTE First 15 Minutes (per port, per minute) USAGE Yes Yes $0.66 $0.0900 $0.57
TX GTE Each Additional Minute (per port) USAGE Yes Yes $0.08 $0.0109 $0.07
Economy Rate Period:
</TABLE>
<PAGE> 169
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE First 15 Minutes (per port, per minute) USAGE Yes Yes $0.46 $0.0627 $0.40
TX GTE Each Additional Minute (per port) USAGE Yes Yes $0.06 $0.0082 $0.05
TX GTE Broadcast Conference (per port, per minute) USAGE Yes Yes $0.08 $0.0109 $0.07
Supplemental CCS Services:
Notification (per participant notified):
TX GTE U.S., Canada, Caribbean, Mexico USAGE Yes Yes $1.70 $0.2317 $1.47
TX GTE Other International USAGE Yes Yes $11.00 $1.4993 $9.50
Monitoring (per call):
TX GTE Each 15 Minute Period USAGE Yes Yes $15.00 $2.0445 $12.96
TX GTE Dial Out Operator Assistance (per port) USAGE Yes Yes $3.00 $0.4089 $2.59
Tape Recording:
TX GTE Regular Mail (per 90 minute tape) USAGE Yes Yes $5.00 $06815 $4.32
TX GTE Express Mail (domestic) USAGE Yes Yes $10.00 $1.3630 $8.64
TX GTE Express Mail (international) USAGE Yes Yes $5.00 $06815 $4.32
Time and Charges (per call):
TX GTE U.S., Canada, Caribbean, Mexico USAGE Yes Yes $5.00 $06815 $4.32
TX GTE Other International USAGE Yes Yes $15.00 $2.0445 $12.96
TX GTE Polling USAGE Yes Yes $40.00 $5.4520 $34.55
TX GTE Question and Answer USAGE Yes Yes $50.00 $6.8150 $43.19
2 IntraLATA Optional Toll Calling Plans: LATAwide
Calling:
Residence:
Discount Plan:
TX GTE 15% Discount MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Service Charge NRC Yes No $5.00 N/A $5.00
Block of Time Plan:
TX GTE Monthly Rate for First Hour USAGE Yes Yes $10.80 $1.4720 $9.33
TX GTE Additinal Hour USAGE Yes Yes $10.00 $1.3630 $8.64
TX GTE Service Charge NRC Yes No $5.00 N/A $5.00
Business:
Discount Plan:
</TABLE>
<PAGE> 170
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE 10% Discount MRC Yes Yes $3.00 $0.41 $2.59
TX GTE Service Charge NRC Yes No $5.00 N/A $5.00
Discount Plan:
TX GTE 15% Discount MRC Yes Yes $8.00 $1.09 $6.91
TX GTE Service Charge NRC Yes No $5.00 N/A $5.00
Discount Plan:
TX GTE 20% Discount MRC Yes Yes $20.00 $2.73 $17.27
TX GTE Service Charge NRC Yes No $5.00 N/A $5.00
5 Wide Area Telecommunications Services:
800 Service:
TX GTE Access Line MRC Yes Yes $40.50 $5.52 $34.98
TX GTE Service Charge - Installation or Move NRC Yes No $119.00 N/A $119.00
TX GTE Service Charge - Number Change NRC Yes No $60.00 N/A $60.00
Usage Rates (per Hour):
TX GTE Day - First 15 Hours USAGE Yes Yes $18.00 $2.4534 $15.55
TX GTE Day - Next 25 Hours USAGE Yes Yes $16.20 $2.2081 $13.99
TX GTE Day - Next 40 Hours USAGE Yes Yes $14.58 $1.9873 $12.59
TX GTE Day - Over 80 Hours USAGE Yes Yes $13.12 $1.7883 $11.33
TX GTE Evening- First 15 Hours USAGE Yes Yes $13.50 $1.8401 $11.66
TX GTE Evening - Next 25 Hours USAGE Yes Yes $12.15 $1.6560 $10.49
TX GTE Evening - Next 40 Hours USAGE Yes Yes $10.94 $1.4911 $9.45
TX GTE Evening - Over 80 Hours USAGE Yes Yes $9.84 $1.3412 $8.50
TX GTE Night/Weekend - First 15 Hours USAGE Yes Yes $10.80 $1.4720 $9.33
TX GTE Night/Weekend - Next 25 Hours USAGE Yes Yes $9.72 $1.3248 $8.40
TX GTE Night/Weekend - Next 40 Hours USAGE Yes Yes $8.75 $1.1926 $7.56
TX GTE Night/Weekend - Over 80 Hours USAGE Yes Yes $7.87 $1.0727 $6.80
Outward WATS:
TX GTE Access Line MRC Yes Yes $40.50 $5.52 $34.98
TX GTE Service Charge - Installation or Move NRC Yes No $119.00 N/A $119.00
</TABLE>
<PAGE> 171
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ---- -------- -------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
TX GTE Service Charge - Number Change NRC Yes No $60.00 N/A $60.00
Usage Rates (per Hour):
TX GTE Day - First 15 Hours USAGE Yes Yes $13.50 $1.8401 $11.66
TX GTE Day - Next 25 Hours USAGE Yes Yes $12.15 $1.6560 $10.49
TX GTE Day - Next 40 Hours USAGE Yes Yes $10.94 $1.4911 $9.45
TX GTE Day - Over 80 Hours USAGE Yes Yes $9.85 $1.3426 $8.51
TX GTE Evening- First 15 Hours USAGE Yes Yes $10.13 $1.3807 $8.75
TX GTE Evening - Next 25 Hours USAGE Yes Yes $9.12 $1.2431 $7.88
TX GTE Evening - Next 40 Hours USAGE Yes Yes $8.21 $1.1190 $7.09
TX GTE Evening - Over 80 Hours USAGE Yes Yes $7.39 $1.0073 $6.38
TX GTE Night/Weekend - First 15 Hours USAGE Yes Yes $8.10 $1.1040 $7.00
TX GTE Night/Weekend - Next 25 Hours USAGE Yes Yes $7.29 $0.9936 $6.30
TX GTE Night/Weekend - Next 40 Hours USAGE Yes Yes $6.56 $0.8941 $5.67
TX GTE Night/Weekend - Over 80 Hours USAGE Yes Yes $5.90 $0.8042 $5.10
Business Line 800/Residence Line 800:
TX GTE Access Line Initial MRC Yes Yes $5.00 $ 0.68 $4.32
TX GTE Access Line Initial NRC Yes No $8.00 N/A $8.00
TX GTE Access Line Subsequent MRC Yes Yes $5.00 $ 0.68 $4.32
TX GTE Access Line Subsequent NRC Yes No $8.00 N/A $8.00
TX GTE Variable Call Destination (per location) MRC Yes Yes $2.00 $ 0.27 $1.73
TX GTE Variable Call Destination (per location) NRC Yes No $8.00 N/A $8.00
Usage Rates (per hour):
Month-to-Month (No Contract):
TX GTE First 10 Hours USAGE Yes Yes $11.00 $1.4993 $9.50
TX GTE Over 10 Hours USAGE Yes Yes $9.90 $1.3494 $8.55
One Year Contract:
TX GTE First 10 Hours USAGE Yes Yes $10.13 $1.3807 $8.75
TX GTE Over 10 Hours USAGE Yes Yes $9.00 $1.2267 $7.77
</TABLE>
<PAGE> 172
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Two Year Contract:
TX GTE First 10 Hours USAGE Yes Yes $9.35 $1.2744 $8.08
TX GTE Over 10 Hours USAGE Yes Yes $8.42 $1.1476 $7.27
Three Year Contract:
TX GTE First 10 Hours USAGE Yes Yes $8.80 $1.1994 $7.60
TX GTE Over 10 Hours USAGE Yes Yes $7.43 $1.0127 $6.42
GRANDFATHERED PRODUCTS AND SERVICES
Obsolete Services and Equipment
40 Conference Fire Reporting Systems
TX GTE 40 Fire Reporting System MRC Yes Yes $18.75 $2.56 $16.19
TX GTE 40 Stations, each MRC Yes Yes $3.75 $0.51 $3.24
TX GTE 40 Common equipment (inclduing
1 to 5 stations) MRC Yes Yes $69.75 $9.51 $60.24
TX GTE 40 Initial Common Equipment MRC Yes Yes $24.25 $3.31 $20.94
TX GTE 40 Additional Common Equipment MRC Yes Yes $18.75 $2.56 $16.19
TX GTE 40 4-Wire Local Channel MRC Yes Yes $19.75 $2.69 $17.06
TX GTE 40 Direct Inward Dialing Trunk MRC Yes Yes $19.75 $2.69 $17.06
TX GTE 40 Conference Bridge 24-Port MRC Yes Yes $68.50 $9.34 $59.16
TX GTE 40 IXC Mileage - Special Bill MRC Yes Yes $6.25 $0.85 $5.40
</TABLE>
Footnote: (1) The retail rates above do not include the End User Subscriber
Line Charge (ECSLC). The ALEC will be responsible for the
business or residential charge, $6.00 and $3.50, respectively.
Footnote: (2) This foot note intentionally left blank.
Footnote: (3) This matrix is subject to Legal and/or Regulatory constraints.
Footnote: (4) Prices contained in this price list have been calculated
according to the formula: (1) retail price, less (2) avoided
retail costs.
Footnote: (5) Resale with discount to Business Customers only. No Resale and
No Discount to Residential Customers
<PAGE> 173
GTE TELEPHONE OPERATIONS HEADQUARTERS
RESALE PRODUCTS & SERVICES - STATE OF TEXAS
GTE SOUTHWEST INCORPORATED
<TABLE>
<CAPTION>
LOCAL BILLING RESALE DISCOUNT RETAIL AVOIDED RESALE
ST CO TARIFF SERVICE DESCRIPTION TYPE POSITION POSITION RATE COST RATE
- -- -- ------ ------------------- ------- -------- -------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 174
APPENDIX G
PRICES FOR UNBUNDLED ELEMENTS
General. The rates contained in this Appendix G are the rates as defined in
Article VII and are subject to change resulting from future Commission or other
proceedings, including but not limited to any generic proceeding to determine
GTE's unrecovered costs (e.g., historic costs, contribution, undepreciated
reserve deficiency, or similar unrecovered GTE costs (including GTE's interim
Service Support Surcharge)), the establishment of a competitively neutral
universal service system, or any appeal or other litigation.
<TABLE>
<S> <C> <C>
(1) Local Loops
Local Loop
2 Wire Loop $ 30.00
4 Wire Loop $ 48.00
Network Interface Device
Basic NID $ 1.40
12x NID $ 1.90
(2) Local Switching (Must purchase Port)
Ports
2 Wire Basic Port $ 6.10
DS-1 Port $104.70
Local Switching
Originating MOU $ 0.0056438
Terminating MOU $ 0.0056438
Intrastate End Office Switching
Originating MOU $ 0.0056438
Terminating MOU $ 0.0056438
Interconnection Charge $ 0.0000000
CCL
-Originating $ 0.0278000
-Terminating $ 0.0669000
Interstate End Office Switching
Originating MOU $ 0.0056438
Terminating MOU $ 0.0056438
Interconnection Charge $ 0.0047013
CCL
-Originating $ 0.0100000
-Terminating $ 0.0251900
(3) Features SEE ATTACHED
(4) Dedicated Transmission Links
Entrance Facility
2 Wire Voice $ 30.00
4 Wire Voice $ 48.00
DS1 Standard 1st System $ 253.00
DS1 Standard Add'l System $ 130.00
DS3 Protected, Electrical $1,089.00
DS1 to Voice Multiplexing $ 190.00
</TABLE>
G-1
<PAGE> 175
<TABLE>
<S> <C> <C>
DS3 to Voice Multiplexing $ 400.00
Direct Trunked Transport
Voice Facility Per ALM $ 5.00
DS1 Facility Per ALM $ 5.00
DS1 Per Termination $ 30.00
DS3 Facility Per ALM $ 50.00
DS3 Per Termination $ 300.00
(5) Common/Shared Transmission Links
Transport Termination MOU/Term $ 0.0009636
Transport Facility MOU/Mile $ 0.0000028
(6) Tandem Switching MOU $ 0.0012971
(7) Databases and Signaling Systems
Signaling Links and STP
56 Kbps Links - $ 76.02
DS-1 Link $ 297.71
Signal Transfer Point (STP) Port Term $ 537.00
Call Related Databases
Line Information Database (ABS-Queries) $ 0.035
Line Information Database Transport (ABS-Queries) $ 0.0046
Toll Free Calling Database (DB800 Queries) $ 0.0087530
Non-Recurring Charges for Unbundled Services
Service Ordering (loop or port)
Initial Service Order, per order $ 47.25
Transfer of Service Charges, per order $ 16.00
Subsequent Service Order, per order $ 24.00
Customer Service Record Research, per request $ 5.25
Installation
Unbundled Loop, per loop $ 11.00
Unbundled Port, per port $ 11.00
Loop Facility Charge, per order $ 64.00
This charge will apply when field work is required for establishment
of new unbundled loop service.
Monthly Recurring Charge for EIS
DS0 Level Connection $ 2.31
DS1 Level Connection $ 5.31
</TABLE>
G-2
<PAGE> 176
TEXAS FEATURES
--------------
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
- ------------ -----------------
<S> <C> <C>
1. Speed Call 8 (Changeable) $ 0.25
2. Speed Call 30 (Changeable) $ 0.25
3. Cancel Call Waiting $ 0.25
4. Call Forward Variable $ 0.25
5. Call Waiting $ 0.25
6. Dual Tone Multifrequency (DTMF) $ 0.25
7. Teen Service/Distinctive Ringing $ 0.25
8. Three-Way Calling $ 0.75
9. Account Codes For AFR $ 0.25
10. Add On - Consultation Hold - Incoming Only $ 0.25
11 Attendant BL Verification $ 1.00
12. Attendant camp-on (NonDL Console) $ 0.25
13. Attendant Conference $ 4.75
14. Attendant Position Busy $ 2.75
15. Attendant Recall from Satellite $ 2.00
16. Authorization Codes for AFR $ 0.50
17. Basic Business Group $ 1.50
18. Dual Tone Multifrequency (DTMF) $ 0.25
19. Station-to-Station Dialing (Intercom) $ 3.25
20. Business Group Automatic Callback (BGAC) $ 0.25
21. Call Forwarding Variable $ 0.25
22. Business Group - Speed Call - 8 $ 0.25
23. Business Group - Speed Call - 30 $ 0.25
24. Business Group-Three Way Calling (TWC) $ 0.75
25. Business Set Access To Paging $ 2.25
26. Business Set Call Grp Intercom $203.25
27. Code Calling $ 0.25
28. Call Forward Busy Line $ 0.25
29. Call Forward Don't Answer $ 0.25
30. Call Forward Fixed $ 0.25
31. Call Forwarding - Incoming Only $ 0.25
32. Call Flip/Flop $ 0.25
33. Call Forwarding-Withing Group $ 0.25
34. Call Hold $ 0.25
35. Circular Hunting $ 0.25
36. Control of Facilities $ 0.25
37. Conference Calling 6 Way $ 4.00
38. Call Park $ 0.25
39. Call Pick-Up $ 0.25
40. Code Restrictions and Diversion $ 1.75
41. Call Transfer Individual - All Calls $ 0.25
42. Call Waiting Originating $ 0.25
43. Call Waiting Terminating $ 0.25
44. Direct Connect $ 0.25
45. Directed Call Pickup W/BI $ 0.25
46. Directed Call Pickup WO/BI $ 0.25
47. Dial Call Waiting $ 0.25
</TABLE>
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TEXAS FEATURES
--------------
<TABLE>
<CAPTION>
FEATURE NAME: GTE PROPOSED RATE:
- ------------ -----------------
<S> <S> <C>
48. Remote Access to (Business Group) Features $ 0.25
49. Distinctive Ringing $ 0.25
50. Executive Busy Override $ 0.25
51. Fixed Night Service - Call Fwd $ 0.25
52. Fixed Night Service- Key $ 0.75
53. Fully Restricted (Orig/Term) $ 0.50
54. Facility Restriction Level $ 1.75
55 Foreign Exchange Facilities $ 0.50
56. Last Number Redial $ 0.25
57. Loud Speaker Paging $ 0.50
58. Make Busy Key $ 1.25
59. Music on Hold $ 0.25
60. Off-Hook Queuing $ 0.25
61. On-Hook Queuing $ 0.25
62. Preferential Multiline Hunting $ 0.25
63. Queuing $ 4.75
64. Recorded Telephone Dictation $ 0.50
65. Speed Calling Individual 1 Digit $ 0.25
66. Speed Calling Individual 2 Digit $ 0.25
67. Stop Hunt Key $ 1.25
68. Special Intercept Announcements $ 6.00
69. SMDR To Customer Premise $ 22.75
70. Station Message Detail Recording - RAO $ 1.25
71. Station Restricted (Orig/Term) $ 0.50
72. Time of Day Routing Control $ 0.50
73. Toll Restricted Service $ 1.50
74. Two-way Splitting $ 0.25
75. Uniform Call Distribution (UCD) Hunting $ 0.25
76. Auto Alt Rt $ 1.00
77. Auto Rt Sel $ 0.75
78. Meet Me Conf $ 51.25
79. Auto Call Back $ 0.25
80. Anon Call Rej $ 0.25
81. Auto Recall $ 0.25
82. Call Num Deliver $ 0.25
83. Call Num DeliverBlk $ 0.25
84. Cust Ord Trace $ 0.25
85. Dist Ring/VIP $ 0.25
86. Select Call Accept $ 0.25
87. Select Call Frwd $ 0.25
88. Select Call Reject $ 0.25
89. Select Call Wait $ 0.25
---------------- ------
TOTAL $340.25
</TABLE>
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APPENDIX H
RATES AND CHARGES FOR 911/E911 ARRANGEMENTS
The following services are offered by GTE for purchase by DTI, where an
individual item is not superseded by a tariffed offering.
<TABLE>
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NRC MRC
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<S> <C> <C>
1. 9-1-1 Selective Router Map $125.00 n/a
Provided is a color map showing a selective router's
location and the GTE central offices that send their 9-1-1
call to it. The selective router and central office information
will include CLLI codes and NPA/NXXs served. The map
will include boundaries of each central office and show major
streets and the county boundary. Permission to reproduce
within DTI for its internal use is granted without further fee.
Non-tariffed price.
2. 9-1-1 Selective Router Pro-Rata Fee/trunk $0 $100.77
This fee covers the cost of selective routing switch capacity
per trunk to cover investment to handle the additional capacity
without going to the 9-1-1 districts for additional funding.
3. PS ALI Software $790.80
a personal computer software program running on Windows
3.1(TM)for formatting subscriber records into NENA Verison #2
format to create files for uploading to GTE's ALI Gateway.
Fee includes software, warranty and 1 800 872-3356 support
at no additional cost.
4. ALI Gateway Service $135.00 $36.12
Interface for delivery of ALI records to GTE's Data Base
Management System. This provides a computer access port for
DTI to transmit daily subscriber record updates to GTE for
loading into ALI databases. It includes support at
1 800 872-3356 at no additional cost.
5. 9-1-1 Interoffice Trunk Tariff Tariff
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
6. ALI Database Tariff Tariff
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
7. Selective Router Database per Record Charge Tariff Tariff
Fee for each ALI record used in a GTE selective router.
This is a tariffed offering, to be found in each state's
Emergency Number Service Tariff.
</TABLE>
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<TABLE>
<CAPTION>
NRC MRC
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<S> <C> <C> <C>
8. MSAG Copy
Production of one copy of a 9-1-1 Customer's Master Street Address Guide,
postage paid.
a. Copy provided in paper format $238.50 $54.00
b. Copy provided in flat ASCII file on a 3 1/2" diskette $276.00 $36.00
</TABLE>
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APPENDIX I
SERVICE ORDERING, PROVISIONING, BILLING AND MAINTENANCE
1. Service Ordering, Provisioning, and Billing Systems
Generally. The following describes generally the operations support
systems that GTE will use and the related functions that are available
for ordering, provisioning and billing for resold services,
interconnection facilities and services and unbundled network
elements. Except as specifically provided otherwise in this Agreement,
service ordering, provisioning, billing and maintenance shall be
governed by the GTE Guide. Before orders can be taken, DTI will
provide GTE with its Operating Company Number ("OCN") and Company Code
("CC") as follows:
(a) The ALEC must provide their OCN (four-digit alpha-numeric
assigned by Bellcore or number administrator) on the ALEC
Profile. The GTE Guide provides the necessary information for the
ALEC to contact Bellcore to obtain the OCN. There are no optional
fields on the Profile.
(b) Before the Local Service Request ("LSR") and Directory Service
Request ("DSR") order forms can be processed DTI must provide the
OCN and Customer Carrier Name Abbreviation ("CCNA").
1.1 Operations Support Systems for Trunk-Side Interconnection
1.1.1 DTI will be able to order trunk-side interconnector
services and facilities from GTE through a direct electronic
interface over the GTE Network Data Mover ("NDM") in a
nondiscriminatory manner. Orders for trunk-side
interconnection will be initiated by an Access Service
Request ("ASR") sent electronically by DTI over the NDM.
ASRs for trunk-side interconnection will be entered
electronically into GTE's Carrier Access Management System
("CAMS") to validate the request, identify any errors, and
resolve any errors back to DTI. CAMS is a family of GTE
systems comprised primarily of EXACT/TUF, SOG/SOP, and CABS.
1.1.2 The use of CAMS to support DTI's requests for trunk-side
interconnection will operate in the following manner: GTE
will route the ASR through its data center to one of two
National Access Ordering Centers ("NACC"). The ASR will be
entered electronically into the EXACT/TUF system for
validation and correction of errors. Errors will be referred
back to DTI. DTI then will correct any errors that GTE has
identified and resubmit the request to GTE electronically
through a supplemental ASR, without penalty or charge (e.g.,
order modification charge) to DTI. Similarly, errors
committed by GTE subsequent to the receipt of a valid ASR
from DTI will be expeditiously identified and corrected by
GTE without the need for DTI's submission of a supplemental
ASR. GTE then will translate the ASR into a service order
for provisioning and billing. In order to convert the ASR
into a service order, GTE personnel must apply the necessary
elements to provision the service and include the billable
elements necessary for GTE to bill DTI for the services
provided. This application also requires a determination of
the access tandem to end office relationships with the
service requested.
1.1.3 At the next system level, translated service orders will be
distributed electronically through the SOG/SOP systems to
several destinations. The SOG/SOP system will begin the
actual provisioning of the service for DTI. Other GTE
provisioning systems are CNAS and ACES. The GTE Database
Administrative Group ("DBA")
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and the Special Services Control Center ("SSCC") will
be the two most important destinations at this level. The
DBA location will identify codes for the appropriate GTE
switch in order to provide the functions required by the
ASR. The SSCC will provide the engineering for the
facilities over which the services will be handled.
Information from these two groups (and others) then will be
transmitted electronically to GTE's field service personnel
(Customer Zone Technicians or "CZTs") who will establish the
trunks and facilities, thus connecting the GTE facilities to
a connecting company, if one is required, and to DTI. GTE's
CZTs also will contact DTI directly to perform testing, and
upon acceptance by DTI, will make the necessary entries into
the GTE system to complete the order. The completed orders
then will pass to GTE's Carrier Access Billing System
("CABS") which will generate the bill to DTI. The billing
process under CABS requires coordination with several other
systems.
1.1.4 Billing for transport and termination services cannot be
accomplished without call records from GTE's central office
switches. Records of usage will be generated at GTE's end
office switches or the access tandems. Call usage records
will be transmitted electronically from GTE's switches
through GTE's Billing Intermediate Processor ("BIP"). This
system will collect the call records, perform limited
manipulations to the record and transfer them to a
centralized data center where they will be processed through
the Universal Measurement System ("UMS") to determine the
validity and accuracy of the records. UMS also will sort the
records and send them to the CABS billing system, from which
GTE will produce a bill and send it to DTI.
1.2 Operations Support Systems for Resold Services and Unbundled Elements
1.2.1 DTI will also be able to order services for resale and
unbundled network elements, as well as interim number
portability, directly from GTE through an electronic
interface. To initiate an order for these services or
elements, DTI will submit a Local Service Request ("LSR")
from its data center to GTE's Data Center using the same
electronic NDM interface used for trunk-side
interconnection. If no NDM interface exists or if DTI
chooses to establish a separate NDM interface, DTI must
request an NDM facility. For new entrants that elect not to
interface electronically, GTE will accommodate submission of
LSR orders by facsimile, E-mail, Internet or a dial NDM
arrangement. An LSR is very similar to an ASR, except that
it will be used exclusively for line-side interconnection
requests. GTE will transfer LSRs to GTE's NOMC centralized
service order processing center electronically.
1.2.2 Most LSRs will be used either to transfer an existing
GTE customer to DTI or to request service for a new
customer who is not an existing GTE customer. Depending on
the situation, different information will be required on the
LSR. LSRs for a conversion of a GTE local customer to DTI
must include information relating to all existing, new and
disconnected services for that customer, including the
customer's name, type of service desired, location of
service and features or options the customer desires. DTI
will be able to obtain this customer information after GTE
has received the customer's written consent as specified in
Article VI.3.3. For service to a new customer who is not an
existing GTE customer, the LSR must contain the customer's
name, service address, service type, services, options,
features and ALEC data. If known, the LSR should include the
telephone number and due date/desired due date.
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1.2.3 While DTI would have its own customer information and
may have the SAG/GTE products on tape from GTE, DTI would
not have the due date or new telephone number for new
customers since that information is contained in GTE's
systems. Therefore, a process is required to provide this
information to DTI. GTE itself does not have uniform access
to this information electronically. Until GTE and DTI have
agreed and established electronic interfaces, DTI agrees
that an 800 number is the method that will be used. The 800
telephone number will connect DTI directly to GTE's NOMC
service representatives. When DTI receives a request for
basic services from a new local service customer, DTI will
call GTE's NOMC through the 800 number, and, while the new
customer is on hold, GTE will provide the due date for
service and the new telephone number for that customer. At
the same time, DTI will give GTE the new customer's name,
service address and type of requested service (i.e., R1,
B1). GTE will enter that information into its SORCES or
SOLAR service ordering systems to be held in suspense until
DTI sends the confirming LSR. DTI will then return to its
customer holding on the line and provide the due date and
new telephone number.
1.2.4 After concluding the telephone call with the new
customer, DTI will complete a confirming LSR for the new
service and send it electronically to GTE's data center for
processing. Upon receipt, GTE will match the LSR with the
service order suspended in GTE's system, and if there is a
match, GTE will process the LSR. After the LSR is processed,
GTE will transmit confirmation electronically to DTI through
the NDM that the LSR has been processed, providing a record
of the telephone number and due date. DTI will be required
to submit the confirming LSR by 12:00 p.m. each day local
time, as defined by the location of the service address. If
DTI fails to submit the LSR in a timely manner, the
suspended LSR will be considered in jeopardy, at which time
GTE will assign a new due date upon receipt of the delayed
LSR for such customer requests and notify DTI of the change.
1.2.5 Number assignments and due date schedules for services
other than single line service and hunt groups up to 12
lines will be assigned within approximately twenty-four (24)
hours after GTE's receipt of the LSR using the standard
Local Confirmation ("LSC") report sent electronically to DTI
over the NDM, thereby providing a record of the newly
established due date. An exception would be a multi-line
hunt group for 12 lines or fewer. The other numbers then
will be provided through the normal electronic confirmation
process.
1.2.6 The processing of specifically requested telephone
numbers (called "vanity numbers") is as follows. GTE will
work with DTI on a real time interface to process vanity
numbers while DTI's customer is still on the line. If a
number solution can be established expeditiously, it will be
done while the customer is still on the line. If extensive
time will be required to find a solution, GTE service
representatives will work with DTI representatives off line
as GTE would for its own customers. For all of this, the
basic tariff guidelines for providing telephone numbers will
be followed.
1.2.7 Once the order for line-side interconnection service is
established, it is moved for provisioning to the next system
level. Here, GTE will validate and process the LSR to
establish an account for DTI and, if GTE continues to
provide some residual services to the customer, GTE will
maintain a GTE account. In GTE's system, GTE's account is
called the Residual Account and DTI's account is referred to
as DTI Account. If any engineering for the service is
necessary, the account would be distributed to the SSCC.
Otherwise, it will be distributed for facility assignment.
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1.2.8 With the account established and any engineering and
facility assignment complete, GTE then will transmit
electronically a record to GTE's CZT field personnel if
physical interconnection or similar activity is required.
The CZTs will provision the service and then electronically
confirm such provision in the SOLAR/SORCES system when
completed. The accounts then will be transmitted to GTE's
Customer Billing Services System ("CBSS"). GTE shall provide
to DTI a service completion report. Call records for actual
service provided to DTI's customers on GTE facilities will
be transmitted from GTE's switches through some usage rating
systems (BIP, UMS), screened and eventually delivered to
CBSS for the generation of bills.
1.2.9 CBSS is a different system than CABS, and it is the one
that GTE will utilize to produce the required bills for
resold services, unbundled elements and local number
portability. CBSS will create a bill to DTI for resold
services and unbundled elements along with a summary bill
master. Daily unrated records for intraLATA toll usage and
local usage (in collect usage data will be provided on rated
basis) on DTI's accounts will be generated and transmitted
electronically to DTI.
1.2.10 On resold accounts, GTE will provide usage in EMR
format per existing file exchange schedules. The usage
billing will be in agreed upon level of detail for DTI to
issue a bill to its end users.
1.2.11 GTE will provide DTI with detailed monthly billing
information in a paper format until an agreed upon
Electronic Data Interchange 811 electronic bill format is
operational.
1.2.12 State or sub-state level billing will include up to ten
(10) summary bill accounts.
1.2.13 GTE accepts DTI's control reports and agrees to utilize
industry standard return codes for unbillable messages.
Transmission will occur via the NDM. Tape data will conform
to Attachment "A" of the LRDTR. Data will be delivered
Monday through Friday except for Holidays as agreed. Data
packages will be tracked by invoice sequencing criteria. GTE
contacts will be provided for sending/receiving usage files.
1.2.14 GTE will retain data backup for 45 Business Days. To
the extent this retention is exclusively for DTI, DTI shall
reimburse GTE for all expenses related to this retention.
1.2.15 In addition to the LSR delivery process, DTI will
distribute directory assistance and directory listing
information (together sometimes referred to hereafter as
"DA/DL information") to GTE via the LSR ordering process
over the NDM. GTE will provide listings service via its
"listing continuity" offering.
1.2.16 Charges and credits for PIC changes ordered via an LSR
will appear on the wholesale bill. As DTI places a request
for a PIC change via LSR, the billing will be made on DTI
account associated with each individual end user. GTE will
process all PIC changes from IXCs that are received for DTI
end users by rejecting back to the IXC with DTI OCN. Detail
is provided so that DTI can identify the specific charges
for rebilling to their end user.
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1.2.17 CMDS. The parties provide for the distribution of
intraLATA CMDS incollect messages and/or selected local
measured service messages as follows:
1.2.17.1 Messages to be Screened. GTE receives CMDS I
transmissions containing intraLATA incollect
messages from the state RBOC CMDS host each
business day. Per DTI's request, GTE will screen
the incollects by NPA and line number and
accumulate the Collect, Third Number Billed and
Credit Card (collectively called incollects)
messages in a data file. The screening will be for
end users who have chosen DTI as their local
service provider through a Resale or Unbundled
Network arrangement. The screened incollect
messages and any Local Measured Service (LMS)
usage will be accumulated and forwarded to DTI.
The Parties will mutually agree on the frequency
of the data exchange and the method of
transmission (i.e., magnetic tape or direct
electronic transmission). GTE will forward the
screened messages in the industry standard EMR
format. GTE intraLATA toll messages that are
recorded by GTE and dialed on a one plus or zero
plus basis are not part of this section and will
not be screened.
1.2.17.2 Compensation. GTE will bill DTI monthly for
all services related to the screening,
accumulating, processing and transmitting of
incollect messages and LMS usage, if applicable,
at a reasonable and mutually agreeable charge. In
addition, any message processing fee associated
with DTI's incollect messages that are charged to
GTE by the CMDS Host will be passed on to DTI on
the monthly statement. All revenue, surcharges,
taxes and any other amounts due to the CMDS Host
for DTI's incollect messages will be billed on the
monthly statement. It is DTI's responsibility to
bill and collect all incollect and LMS amounts due
from its end users. The incollect and LMS revenue
amounts that are listed on the monthly invoice are
payable to GTE in total. The Parties agree that
the arrangement for invoicing the incollect and
LMS revenue amounts due GTE is not a settlement
process with DTI.
1.2.17.3 Administration. The Parties agree to develop a
process whereby DTI's end user information is
available in a timely manner to allow GTE to build
tables to screen the CMDS incollect files and LMS
files on behalf of DTI.
1.2.18 Backbilling. GTE shall bill DTI on a timely
basis. In no case shall GTE bill DTI for previously
unbilled charges that are for more than one year prior to
the current bill date.
1.3 Order Processing.
1.3.1 Order Expectations. DTI agrees to warrant to GTE that
it is a certified provider of telecommunications service.
DTI will document its Certificate of Operating Authority on
DTI Profile and agrees to update this DTI Profile as
required to reflect its current certification. The Parties
agree to exchange and to update end user contact and
referral numbers for order inquiry, trouble reporting,
billing inquiries,
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and information required to comply with law enforcement
and other security agencies of the government. The Parties
also agree to exchange and to update internal order, repair
and billing point of contacts. Prior to submitting an order
under this Agreement, DTI shall obtain such documentation as
may be required by state and federal laws and regulations.
1.3.2 GTE shall provide DTI with a specified customer contact
center for purposes of placing service orders and
coordinating the installation of services. These activities
shall be accomplished by telephone call or facsimile until
electronic interface capability has been established. The
Parties adopt the OBF LSR and DSR forms for the ordering,
confirmation and billing of resale and unbundled services.
The Parties adopt the OBF ASR forms for the ordering,
confirmation and billing of trunk-side interconnection.
1.3.3 GTE will process such service orders during normal
operating hours, at a minimum on each Business Day between
the hours of 8 a.m. to 8 p.m. Eastern Time and shall
implement service orders within the same time intervals used
to implement service orders for similar services for its own
users.
1.3.4 GTE will provide current GTE customer proprietary
network information (name, address, telephone number and
description of services provided by GTE including PIC and
white page directory listing information) as provided in
Article VI, Section 3. The return of customer information
will be via facsimile or via electronic transmission.
1.3.5 Transfer Between Local Service Providers - GTE will
provide a displacement/out service report to a Local Service
Provider (LSP) whenever an end user leaves that LSP and
procures service from another LSP. When DTI end user changes
to another LSP, GTE will notfiy DTI when such activity
occurs the day after completion or within 48 hours of such
disconnect.
2. Maintenance Systems.
2.1 General Overview
2.1.1 If DTI requires maintenance for its local service
customers, DTI will initiate a request for repair (sometimes
referred to as a "trouble report") by calling GTE's Customer
Care Repair Center. During this call, GTE service
representatives will verify that the end-user is DTI
customer and will then obtain the necessary information from
DTI to process the trouble report. While DTI representatives
are still on the line, GTE personnel will perform an initial
analysis of the problem and remote line testing for resale
services. If engineered services are involved, the call will
be made to the GTE SSCC for handling. If no engineering is
required and the line testing reveals that the trouble can
be repaired remotely, GTE personnel will correct the problem
and close the trouble report while DTI representatives are
still on the line. If on-line resolution is not possible,
GTE personnel will provide DTI representatives a commitment
time for repair, and the GTE personnel then will enter the
trouble ticket into the GTE service dispatch queue. DTI's
repair service commitment times will be within the same
intervals as GTE provides to its own end users. Maintenance
and repair of GTE facilities is the responsibility of GTE
and will be performed at no incremental charge to DTI. If,
as a result of DTI-initiated trouble report, trouble is
found to be the responsibility of DTI (e.g., non-network
cause) GTE will charge DTI for trouble isolation. DTI will
have the ability to report
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trouble for its end users to appropriate trouble reporting
centers 24 hours a day, 7 days a week. DTI will be assigned
a customer contact center when initial service agreements
are made.
2.1.2 Repair calls to the SSCC for engineered services will
be processed in essentially the same manner as those by the
GTE Customer Care Center. GTE personnel will analyze the
problem, provide DTI representative with a commitment time
while they are still on the line, and then place the trouble
ticket in the dispatch queue.
2.1.3 GTE then will process all DTI trouble reports in the
dispatch queue along with GTE trouble reports in the order
they were filed (first in, first out), with priority given
to out-of-service conditions. If, at any time, GTE would
determine that a commitment time given to DTI becomes in
jeopardy, GTE service representatives will contact DTI by
telephone to advise of the jeopardy condition and provide a
new commitment time.
2.1.4 Trouble reports in the dispatch queue will be
transmitted electronically to GTE CZT service technicians
who will repair the service problems and clear the trouble
reports. For cleared DTI trouble reports, GTE service
technicians will make a telephone call to DTI directly to
clear the trouble ticket. GTE service technicians will make
the confirmation call to the telephone number provided by
DTI. If DTI is unable to process the call or places the GTE
technician on hold, the call will be terminated. To avoid
disconnect, DTI may develop an answering system, such as
voice mail, to handle the confirmation calls expeditiously.
2.1.5 GTE will provide electronic interface access to
operation support systems functions which provide the
capability to initiate, status and close a repair trouble
ticket. GTE will not provide to DTI real time testing
capability on DTI end user services. GTE will not provide to
DTI an interface for network surveillance (performance
monitoring).
2.1.6 GTE will resolve repair requests by or for DTI local
service customers using GTE's existing repair system in
parity with repair requests by GTE end users. GTE will
respond to service requests for DTI using the same time
parameters and procedures that GTE uses. DTI then would call
GTE's Customer Care Center or SSCC while the customers were
on hold.
2.2 Network Management Controls.
2.2.1 Network Maintenance and Management. The Parties will work
cooperatively to install and maintain a reliable network.
2.2.2 Neither Party shall be responsible to the other if necessary
changes in network configurations render any facilities of
the other obsolete or necessitate equipment changes.
2.2.3 Network Management Controls. Each Party shall provide a
24-hour contact number for Network Traffic Management issues
to the other's network surveillance management center. A fax
number must also be provided to facilitate event
notifications for planned mass calling events. Additionally,
both Parties agree that they shall work cooperatively that
all such events shall attempt to be conducted in such a
manner as to avoid degradation or loss of service to other
end users. Each
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Party shall maintain the capability of respectively
implementing basic protective controls such as "Cancel To"
and "Call Gap."
3. Electronic Interface. The Parties shall work cooperatively in
the implementation of electronic gateway access to GTE operational
support systems functions in the long-term in accordance with
established industry standards. DTI shall compensate GTE for the full
costs including but not limited to design, development, testing,
implementation and deployment, for access to GTE's Operational Support
System functions. Where subsequent parties request use of GTE's
operation support systems, cost recovery for such electronic interface
systems shall be allocated among all requesting users.
3.1 DTI shall have immediate access to the following OSS electronic
interfaces that will provide functionality to enable DTI to service
customers in an equal and non-discriminatory manner:
3.1.1 Pre-Order functions, e.g., TN Assignment, DD Reservation,
Address Validation, Product Availability, that are available
on a dial-up or dedicated basis using the Secure Integrated
Gateway System (SIGS).
3.1.2 Order functions that are available on a dial-up or dedicated
basis using CONNECT: Mail file transfer.
3.1.3 Repair functions, e.g., trouble report repair functions, to
allow DTI to determine status and close trouble reports.
3.1.4 Electronic transfer of DTI bill in electronic data 811
format.
3.2 DTI may migrate to fully interactive system to system
interconnectivity. GTE, with input from DTI and other carriers, shall
provide general interface specifications for electronic access to this
functionality. These specifications will be provided to enable DTI to
design system interface capabilities. Development will be in
accordance with applicable national standards committee guidelines.
Such interfaces will be available as expeditiously as possible.
3.3 All costs and expenses for any new or modified electronic
interfaces exclusively to meet DTI requirements that GTE determines
are technically feasible and GTE agrees to develop will be paid by
DTI. Costs for development of systems intended for common use by
competing carriers will be assessed based on a mutually agreed method
of cost recovery.
3.4 DTI shall be responsible for modifying and connecting any of
its pre-ordering and ordering systems with GTE provided interfaces as
described in this Appendix.
4. GTE Initiated Electronic System Redesigns. GTE will not charge
DTI when GTE initiates its own electronic system
redesigns/reconfigurations.
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APPENDIX J
SS7 SERVICES
ARTICLE 1.
DEFINITIONS
In addition to the definitions contained elsewhere in the Agreement to which
this Appendix J is attached and made a part, for purposes of this Appendix J the
following terms shall have the following meanings.
1.1 "A" Link: An access signaling link that connects SPs and/or SSPs to
STPs.
1.2 "B" Link: A bridge signaling link that connects two (2) sets or
pairs of STPs, not the STPs within a mated pair, but on the same
hierarchical level.
1.3 Compatibility Testing: Certification testing performed by
representatives of GTE and DTI to ensure proper interconnection of
CCS network facilities for accurate transmission of system signals and
messages. This certification testing shall be performed in accordance
with the following ANSI documents:
T1.234 Telecommunications - Signaling System Number 7 (SS7) -
MTP Levels 2 and 3 Compatibility Testing (ATIS)
T1.235 Telecommunications - Signaling System Number 7 (SS7) -
SCCP Class 0 Compatibility Testing (ATIS)
T1.236 Telecommunications - Signaling System Number 7 (SS7) -
ISDN User Part Compatibility
Testing (ATIS)
1.4 Service: The service described in Article 2 of this Appendix.
1.5 Signaling Link: An end-to-end high-capacity data link (56 kbps)
that transmits supervision and control signals from one network SS7
node to another in a CCS network. The link type identifies the
functionality of the signaling link sets. The two link types
associated with the Service are "a" Links and "B" Links.
1.6 Signaling Point Code (SPC): A code that identifies the
Signaling Point address in the CCS network. Signaling Point Codes
consist of three (3) segments of three (3) digits each, identifying
the network ID, network cluster, and cluster member, respectively.
1.7 Signaling Point of Interface (SPOI): The point at which GTE hands off
signaling information to DTI.
ARTICLE 2.
SERVICE DESCRIPTION
2.1 Provision. Subject to the terms and conditions of this Appendix, GTE
agrees to provide the Service to DTI.
2.2 Interconnection. This Agreement is for DTI's interconnection
with GTE at GTE's _____________ STPs to support local exchange
services. DTI shall not submit signaling messages in support of
interexchange services.
2.3 Service. The "Service" consists of the following:
(a) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7 network
is via an "a" Link connection between DTI's SP or SSP and GTE's
STP. The "a" Link connection is made by a
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dedicated 56 kbps channel between the SP or SSP and the STP.
Any connection from an SSP or an SP to an STP pair will have a
link to each individual STP (i.e., two (2) links). DTI and GTE
shall mutually agree upon the location of the SPOI.
(b) Interconnection of GTE's CCS/SS7 network to DTI's CCS/SS7
network via a "B" Link connection between DTI's STPs and GTE's
STPs. The "B" Link connection is a dedicated 56 kbps channel.
Connections between two (2) pairs of STPs will have four (4)
connections; i.e., one (1) link from each individual STP to each
individual STP. DTI and GTE shall mutually agree upon the
location of the SPOI.
(c) Local and IntraLATA call set-up signaling, allowing DTI to use
the out-of-band trunk signaling provided by GTE's CCS/SS7
network to carry its calls on the intraLATA toll network.
(d) The Service shall include access to: (1) all switching systems
served by a given STP which have been converted to SS7 signaling,
including switching systems owned by other local service
providers; (2) databases directly connected to a given STP, with
the exception of 800/888 databases which can be accessed through
any STP; (3) other local service provider STPs on an intraLATA
basis; and (4) other Third Party local service provider STPs on
an intraLATA basis.
(e) It is the responsibility of DTI to populate the "privacy
indicator" portion of all SS7 signaling messages forwarded to
GTE's network. GTE agrees to deliver the information forwarded by
DTI in the SS7 signaling message. DTI, by entering into this
Agreement, agrees to deliver "privacy indicator" information
forwarded by GTE in its signaling message.
(f) DTI acknowledges that call set-up times may be greater when DTI
employs intermediate access tandems (IATs) in its network.
(g) If selected on the order form attached to this Appendix, the
Service shall also include IXC call set-up signaling service
(ISUP) as described in Article 2.4 of this Appendix. Additional
charges as set forth in Exhibit A shall apply.
2.4 ISUP Service Charge. This is an optional service that allows
DTI to utilize SS7 signaling to an SS7 capable interexchange carrier
(IXC) for Feature Group D access service and other intraLATA
interexchange services. The ISUP service is a monthly charge.
(a) The rate for ISUP signaling is per connection in situations
when GTE does not provide any underlying call messages for DTI on
GTE's network trunks. The rate for ISUP signaling is shown in
Exhibit a.
(b) Where GTE has a mated pair of STPs and has CCS/SS7 interconnection
facilities to an IXC within the same LATA, for interexchange
telecommunications services, GTE shall provide call set-up
signaling between DTI and the IXC.
(c) DTI agrees to provide to GTE such information as deemed
necessary by GTE for network planning in connector with this
offering and as may be requested by GTE from time to time.
(d) DTI must provide the Signaling Point Codes of the IXCs for
which it is providing call setup via GTE's SS7 signaling network,
so that GTE screening and translation tables can be updated.
2.5 Technical Specifications. The technical specifications for the
Services described above are defined in Bellcore TR-TSV-000905. GTE
will provide SS7 via OR-394-SS7 and/or OR-317-SS7 format(s).
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2.6 Other Services. If DTI desires to order SS7-related services other than
the Service, such services will be governed by separate agreements.
2.7
Applicable Traffic. The Service applies to the traffic of DTI
and its subtending LECs only. DTI must provide GTE with thirty (30)
calendar days' written notice and a letter of agency before the
traffic of any party other than DTI or its subtending LECs may be
transmitted through DTI's facilities on to GTE's SS7 network.
ARTICLE 3.
MANNER OF PROVISIONING
3.1 Link Facilities. The link facilities to GTE STPs in the same LATA can
be either:
(a) "a" Link sets from DTI's SP or SSP. A minimum of two (2) links
is required, one (1) from the SP or SSP to each STP; or,
(b) "B" Link sets from DTI's STPs that are connected to GTE's mated
pairs of STPs. A minimum of four (4) links is required between
the two (2) pairs of STPs.
3.2 Port Termination. An STP port termination is required for each
56 kbps access link utilized for the Service. STP locations are set
forth in the National Exchange Carrier Association, Inc. (NECA)
Tariff, F.C.C. No. 4.
3.3 Signaling Point Codes. GTE shall install all applicable Signaling Point
codes for each signaling link at each of GTE's interconnecting STPs.
3.4 Protocol. GTE shall provision the Service in accordance with
ANSI T1.226 Telecommunications Operations, Administration,
Maintenance, and Provisioning (OAM&P) -Management of functions for
Signaling System No. 7 (SS7) Network Interconnections (ATIS) with the
exception of references to OMAP protocol elements. The Service cannot
be established until Compatibility Testing has been successfully
completed between DTI and GTE.
3.5 56 kbps Channel. Unless DTI elects to provide such links, GTE
shall provide two (2) or four (4) 56 kbps circuits as link facilities
at rates set forth in Article 4 herein. If approved by GTE, DTI may
utilize a 56 kbps channel of an intraLATA DS1 (1.544 mbps) facility,
which is in place at the time of ordering, as an "A" Link or a "B"
Link, for the STP access connection between the SPOI and GTE's STP.
WHEN THIS OPTION IS CHOSEN, DTI UNDERSTANDS AND ACCEPTS THAT THE
SERVICE PERFORMANCE STANDARDS AS OUTLINED IN BELLCORE DOCUMENT
TR-TSV-000905 MAY NOT BE MET IN THE PROVISION OF THE TOTAL SERVICE. If
such a channel is not utilized, DTI must order DS1 (1.544 Mbps)
service.
3.6 Multiplexing. Where technically required, GTE shall provide
multiplexing arrangements to DTI at no charge.
3.7 Diversity. Where technically feasible and not unreasonably economically
burdensome, GTE agrees to allow interoffice and intraoffice diversity.
ARTICLE 4.
RATES AND CHARGES
4.1 Payment. DTI agrees to pay to GTE for the Service at the rates and
charges set forth in Exhibit A attached to this Appendix and made a
part hereof.
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4.2 Period. Subject to Article 4.3 below, the rates and charges
shall remain in effect and are firm for a period of twelve (12) months
from the effective date of this Appendix. Thereafter, GTE shall give
DTI sixty (60) calendar days' notice of any price change. If the new
prices are not acceptable to DTI, DTI may terminate this Appendix upon
thirty (30) calendar days' advance written notice without penalties
for either Party.
4.3 Rate Basis. The rates are based upon rates and charges
reflected in GTE's approved CCS/SS7 interconnection tariffs. To the
extent that tariff rates are adjusted, rates and charges for similar
rate elements in this Appendix will be adjusted accordingly on the
date the new tariff rates become effective. If a state or federal
regulatory agency requires, or GTE elects, to offer the Service by
tariff, the tariff shall supersede this Appendix. If the Service
becomes tariffed, DTI has the right to terminate this Appendix upon
sixty (60) calendar days' advance written notice effective on the
effective date of such tariff, without penalty to either Party.
4.4 Mileage. Mileage is calculated on the airline distance between
the locations involved, using the V&H coordinates method, as set forth
in the National Exchange Carrier Association, Inc. Tariff, F.C.C. No.
4.
4.5 Rates and Charges. Rates and charges for each component of the Service
are described as follows:
(a) "A" Link connection - Charges for the "a" Link connection to
GTE's CCS/SS7 network consist of the STP port termination
charges.
(1) The STP port termination charges are for the termination of
a 56 kbps channel at each STP from DTI's SSP or SP.
(2) DTI will lease facilities between its SSPs/SPs and GTE's
STPs.
(b) "B" Link connection - Charges for the "B" Link connection to
GTE's CCS/SS7 network consist of the STP port termination
charges.
(1) The STP port termination charges are for the termination of
a 56 kbps channel at each STP from DTI's STPs.
(2) DTI and GTE shall mutually agree upon the rates for "B"
Link interconnections within thirty (30) calendar days of
the execution of this Agreement.
(c) STP Interconnection nonrecurring charge - STP interconnection
nonrecurring charge shall apply for each "A" Link and "B" Link
interconnection to GTE's SS7 network.
4.6 Rearrangement. Charges for rearrangement of the Service that
are not specifically addressed will be determined by GTE on an
individual case basis.
4.7 Applicable Traffic. The rates apply only to the traffic of DTI
and its subtending LECs. Any traffic from any other party will be
subject to additional charges.
ARTICLE 5.
ORDERING THE SERVICE
5.1 Order. To order the Service, DTI shall submit a completed
CCS/SS7 Order Form to GTE. DTI may change its Service order by
submitting a new Order Form which shall be effective when executed by
both Parties. Service shall be implemented for DTI thirty (30)
calendar days after the execution of this Agreement by both Parties.
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5.2 Port Terminations. GTE shall reserve STP port terminations only
upon receipt of a fully executed copy of this Agreement and the Order
Form referred to in this Appendix. GTE shall reserve ports on a first
come, first served basis. Should DTI fail to use a port within sixty
(60) Business Days of availability, GTE may reassign the port and, DTI
must resubmit an Order Form for interconnection.
ARTICLE 6.
RESPONSIBILITIES OF GTE
6.1 Managing the Network. GTE is responsible for managing the
network provided by GTE as part of the Service and applying protective
controls which it can invoke as a result of occurrences including, but
not limited to, failure or overload of GTE or DTI facilities due to
natural disasters, mass calling or national security demands.
6.2 Performance Standards. GTE is responsible for meeting service
performance standards as outlined in Bellcore TR-TSV-000905 except as
otherwise provided herein.
6.3 Invoice. GTE shall include with the monthly invoice such data
GTE and DTI mutually agree is necessary for DTI to verify the accuracy
of the billing it receives from GTE for the Service.
ARTICLE 7.
RESPONSIBILITIES OF DTI
7.1 Signaling Link. DTI shall provision the signaling links from its
premises to the SPOIs in a manner technically compatible to the GTE
network.
7.2 Privacy Indicator. DTI shall populate the "privacy indicator"
portion of the CCS/SS7 initial address message forwarded to GTE's
network for call processing.
7.3 Accuracy of Information. DTI shall verify the accuracy of information
provided by DTI concerning the Service ordered by DTI.
7.4 Forecast. DTI shall furnish to GTE, at the time the Service is
ordered and annually thereafter, an updated three year forecast of
usage for the 56 kbps channel and the STP port termination for each
STP pair. The forecast shall include total annual volume and busy hour
busy month volume. GTE shall utilize the forecast in its own efforts
to project further facility requirements.
7.5 Changes. DTI agrees to inform GTE in writing at least thirty
(30) Business Days in advance of any change in its use of the Service
that alters by ten percent (10%) or more for any thirty (30) day
period the volume of signaling transactions to be forwarded to GTE's
CCS/SS7 network. DTI will provide the reason for the change in volume
by individual SS7 service.
ARTICLE 8.
SIGNALING POINT CODES
8.1 Interconnection. DTI may utilize either the GTE CCS/SS7 network
SPC or its own SPC for interconnection purposes when interconnecting
its SPs or SSPs at the "A" Link level. DTI shall utilize its own SPC
when interconnecting its STP at the "B" Link level. DTI agrees to
obtain its own initial SPC if it has short or long range plans to
provide its own STPs.
8.2 SPC. When the SPC is utilized, GTE shall be responsible for DTI
code assignment. When DTI obtains its own SPC, DTI shall be
responsible for code assignments and shall be responsible for
notifying GTE and other CCS/SS7 network providers of such assignments.
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8.3 SPC Change. Due to the complexities and potential DTI signaling
network downtime required for changing working SPCs, DTI agrees to
give GTE a written notice of an SPC change as soon as possible but no
later than thirty (30) Business Days prior to the effective date of
the SPC change.
ARTICLE 9.
MONTHLY BILLING
Billing statements shall be rendered monthly by GTE to DTI. The monthly charge
shall be the total of all monthly rate element charges associated with the
Service. Payment to GTE for bills rendered to DTI shall be due thirty (30)
calendar days after receipt of the invoice and DTI agrees to pay all billed
amounts. Beginning the day after the due date of the bill, interest charges of
twelve per cent (12%) per annum or the maximum allowed by law, whichever is
less, shall be added to DTI's bill. Payments shall be applied to the oldest
outstanding amounts first.
ARTICLE 10.
LIABILITY AND INDEMNIFICATION
10.1 Release from Liability. Each Party releases the other from any
liability for loss or damage arising out of errors, interruptions,
defects, failures, delays, or malfunctions of the Service, including
any and all associated equipment and data processing systems, not
caused by gross negligence or willful misconduct. Any losses or
damages for which either Party is held liable under this Agreement
shall in no event exceed the amount of the charges for the Service
during the period beginning at the time notice of the error,
interruption, defect, failure, or malfunction is received, to the time
Service is restored.
10.2 Limitation of Liability. IN ADDITION TO THE LIMITATION OF
LIABILITY SET FORTH AT SECTION 24.4 OF ARTICLE III OF THE AGREEMENT,
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF REVENUE OR PROFIT OR FOR
ANY LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR OUT OF THE USE OF
THE CCS OR ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT THAT IS
SUFFERED BY THE OTHER PARTY, WHETHER ARISING IN CONTRACT, TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE AND WHETHER OR NOT INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
10.3 Third Parties. Each Party agrees to release, defend, indemnify,
and hold harmless the other Party from and against any and all losses,
damages, or other liability, including reasonable attorneys' fees,
that it may incur as a result of claims, demands, wrongful death
actions, or other suits brought by third parties, arising out of the
use of the Service and resulting from the gross negligence or willful
misconduct by the indemnifying Party, its employees, agents, or
contractors in the performance of this Agreement. In addition, to the
extent that the Parties' interests do not conflict, DTI shall defend
GTE against all end users' claims just as if DTI had provided such
service to its end users with its own employees. In any event, DTI
shall assert its tariff limitation of liability for the benefit of
both GTE and DTI.
10.4 Infringement. Each Party agrees to release, defend, indemnify,
and hold harmless the other Party from and against any claim, demands
or suit that asserts any infringement or invasion of privacy or
confidentiality of any person(s), caused or claimed to be caused,
directly or indirectly, by the indemnifying Party's employees or
equipment associated with provision of the Service. This includes, but
is not limited to, suits arising from disclosure of any
customer-specific information associated with either the originating
or terminating numbers used to provision the Service.
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10.5 No Warranties. IN ADDITION TO THE DISCLAIMER SET FORTH AT
SECTION 24.3 OF ARTICLE III OF THE AGREEMENT, NEITHER GTE NOR DTI
MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD
PARTY CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES PROVIDED UNDER
OR IN CONNECTION WITH THIS APPENDIX, THAT THE SERVICES PROVIDED UNDER
THIS APPENDIX WILL BE ERROR FREE OR THAT THE FACILITIES WILL OPERATE
WITHOUT INTERRUPTION. GTE AND DTI DISCLAIM, WITHOUT LIMITATION, ANY
WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE, ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR FROM
USAGES OF TRADE.
ARTICLE 11.
RESERVATION OF RIGHTS
11.1 Rights Reserved. By entering into this Appendix to the Agreement,
neither Party waives, releases or compromises any rights it may have
to argue, in any federal or state regulatory proceeding (or in any
judicial appeal following such a proceeding), in support of, or
in opposition to any position, including but not limited to: (a)
Accounting for deregulated (or detariffed) data base services; (b)
removal from regulated accounts of expenses and investment associated
with deregulated (or detariffed) data base services; and (c) any other
issue pertinent to regulation or deregulation of costs which were, are
now, or may in the future be, associated with the provisions of data
base services. Each Party expressly reserves all its rights in
connection with such matters.
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EXHIBIT A
RATES AND CHARGES
for Interconnection at
GTE's ________-_______,____ STP
<TABLE>
<CAPTION>
Rates & Charges
Rate Element Nonrecurring Monthly
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. STP Port Termination for an "A" Link Per Port $ 57.00 $537.00
2. STP Port Termination for a "B" Link Per Port $ 57.00 $537.00
3. 56 Kbps Digital Facility $2.25
Dedicated Switched Access Transport
Per Airline Mile
4. 56 Kbps Dedicated Switched Access Line $100.00 $76.02
5.1. 544 Mbps (DS1) High Capacity Digital $20.12
Facility
Dedicated Switched Access Transport
Per Airline Mile
6. 1.544 Mbps (DS1) Dedicated Switched Access $1500.00 $297.71
Line
7. Facility Charge for "B" Links Depends negotiated
interconnection agreement
8. ISUP Charge per Interconnection $500.00
8.1 For ISUP Service an additional SCP charge shall apply per interconnection.
</TABLE>
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APPENDIX K
POLE ATTACHMENT AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE SOUTHWEST INCORPORATED, a
State of ______ corporation having its principal office
at _______ ("GTE"), and DIGITAL TELEPORT, INC., a corporation of the
State of ________, having its principal office at______________
("Licensee").
2. Definitions.
2.1 "GTE's poles" or "GTE pole(s)" means a pole or poles solely
owned by GTE, jointly owned by GTE and another entity, and space on
poles obtained by GTE through arrangements with the owner(s) thereof.
2.2 "Telecommunications Services" means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to
be effectively available directly to the public, regardless of the
facilities used.
2.3 "Cable Television Services" means the transmission to
subscribers of off-the-air pickup of broadcast signals or the
transmission, without separate charge, of locally originated closed
circuit television to the subscribers of off-the-air service.
2.4 "Attachments" means the equipment reasonably required by Licensee
to provide its Telecommunications Services or Cable Television
Services that is placed on GTE's poles.
2.5 "Make-Ready Work" means all work, including, but not limited to,
rearrangement, removal, or transfer of existing attachments, placement,
repair, or replacement of poles, or any other changes required to
accommodate the Licensee's Attachments on a pole.
2.6 "Hazardous Materials" means (i) any substance, material or waste
now or hereafter defined or characterized as hazardous, extremely
hazardous, toxic or dangerous within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, or any similar law, ordinance, statute, rule or regulation of
any governmental body or authority, (ii) any substance, material or
waste now or hereafter classified as a contaminant or pollutant under
any law, ordinance, statute, rule or regulation of any governmental
body or authority or (iii) any other substance, material or waste, the
manufacture, processing, distribution, use, treatment, storage,
placement, disposal, removal or transportation of which is now or
hereafter subject to regulation under any law, ordinance, statute, rule
or regulation of any governmental body or authority.
2.7 "Attachment Fee" means the fee assessed per pole and paid by
Licensee to place Attachments on GTE's poles.
3. Purpose.
3.1 Licensee represents to GTE that Licensee has a need to occupy,
place and maintain Attachments on GTE's poles for the purpose of
providing Telecommunications Services.
3.2 GTE agrees to permit Licensee to occupy, place and maintain its
Attachments on such GTE poles as GTE may allow pursuant to the terms of
this Agreement.
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4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a
non-exclusive revocable license to occupy, place and maintain in a
designated space on specified GTE poles Licensee's Attachments on the
terms and conditions set forth herein. Licensee shall have no further
right, title, or other interest in connection with GTE's poles. GTE
shall have the right to grant, renew or extend privileges to others not
parties to this Agreement to occupy, place or maintain Attachments on
or otherwise use any or all GTE poles. Nothing herein is intended to,
nor should it be construed to require GTE to construct or modify any
facilities not needed for its own service requirements. GTE grants this
license in reliance on the representation of Licensee that Licensee
intends to provide Telecommunications Services with the Attachments
covered by this Agreement.
5. Term.
Subject to the termination provisions contained in this
Agreement, the term of this Agreement shall be two (2) years from the
effective date referenced in the first paragraph of this Agreement and
shall continue in effect for consecutive one (1) year terms until
either Party gives the other Party at least ninety (90) calendar days
written notice of termination, which termination shall be effective at
the end of the then-current term. In the event notice is given less
than ninety (90) calendar days prior to the end of the current term,
this Agreement shall remain in effect for ninety (90) calendar days
after such notice is received, provided, that in no case shall the term
be extended beyond ninety (90) calendar days after the end of the
current term.
6. Pole Attachment Requests (PARs).
6.1 Licensee shall submit a written Pole Attachment Request ("PAR")
to GTE identifying the GTE poles upon which it desires to place
Attachments. Each PAR shall be in a form specified by GTE and may be
revised from time to time by GTE. All PARs submitted to GTE shall be
processed on a first come, first served basis. GTE, in its sole
judgment, will determine the availability of space on the GTE pole(s)
specified in the PAR and will provide its response to the PAR within
thirty (30) Business Days of its submission. Upon approval of the PAR,
GTE shall return one copy thereof to Licensee bearing an endorsement
acknowledging GTE's authorization. All Attachments placed on GTE's
poles pursuant to an approved PAR shall become subject to all of the
terms and conditions of this Agreement. Licensee may submit subsequent
PARs for approval by GTE as needed. GTE is under no obligation to
provide general information respecting the location and availability of
GTE poles, except as may be necessary to process a PAR. No Attachment
shall be placed on any GTE pole identified in a PAR until that PAR has
been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a PAR to compensate
GTE for the general administrative costs as well as the actual
engineering costs reasonably incurred. The fee for engineering costs
shall be computed by multiplying the fully loaded hourly rate for an
engineer times the number of hours reasonably required by each engineer
to inspect the GTE poles included in the PAR. GTE will charge its then
current rates for administrative and engineering costs, as may be
changed from time to time by GTE to remain consistent with prevailing
costs.
6.3 Upon receiving an approved PAR, Licensee shall have the right,
subject to the terms of this License, to place and maintain the
facilities described in the PAR in the space designated on the GTE
poles identified therein.
6.4 In the event Make-Ready Work is necessary to accommodate
Licensee's Attachments, GTE shall notify Licensee of such fact and
provide Licensee with a good faith estimate of the total cost of such
Make-Ready Work needed to accommodate Licensee's Attachments. Within
fifteen (15)
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days after receiving such notice from GTE, Licensee shall notify
GTE either (1) that Licensee shall pay all of the costs actually
incurred to perform the Make-Ready Work and shall pay the total
estimated amount to GTE at least ten (10) days prior to the date the
Make-Ready Work is to begin or (2) that it desires to cancel its PAR.
6.5 GTE shall not be responsible to Licensee for any loss sustained
by Licensee by reason of the refusal or failure of any other party with
attachments on GTE's poles to rearrange or modify its attachments as
may be required to accommodate Licensee's Facilities.
6.6 Licensee is not authorized and shall have no right to place facilities
on any GTE pole unless that GTE pole is identified in an approved PAR.
7. Availability of Information Regarding Space on Poles. GTE will
provide information regarding the availability of pole space within
thirty (30) Business Days of a written request by Licensee. Because GTE
will endeavor to determine available space as quickly as possible, a
shorter interval may be experienced for requests of a limited scope
where physical field verification is not necessary. In the event the
thirty (30) Business Day time frame cannot be met, GTE shall so advise
Licensee and shall seek a mutually satisfactory alternative response
date. No representation regarding the availability of space shall be
made in the absence of a physical field verification.
8. Authority to Place Attachments.
8.1 Before Licensee places any Attachments on GTE's poles pursuant
to an approved PAR, Licensee shall submit evidence satisfactory to GTE
of its authority to erect and maintain the facilities to be placed on
GTE's poles within the public streets, highways and other thoroughfares
or on private property. Licensee shall be solely responsible for
obtaining all rights-of-way, easements, licenses, authorizations,
permits and consents from federal, state and municipal authorities or
private property owners that may be required to place Attachments on
GTE's poles. In the event Licensee must obtain any additional
easements, permits, approvals, licenses and/or authorizations from any
governmental authority or private individual or entity in order to
utilize GTE's poles under an approved PAR, GTE shall, upon Licensee's
request, provide written confirmation of its consent to Licensee's
utilization of poles in a particular location in accordance with this
Agreement, if needed by Licensee to obtain such additional approvals or
authorizations. GTE shall also provide maps or drawings of its
facilities' locations to the extent reasonably required by such
governmental authority or private individual or entity for purposes of
considering or granting Licensee's request to it for authority or
approval.
8.2 GTE shall not unreasonably intervene in or attempt to delay the
granting of any rights-of-way, easements, licenses, authorizations,
permits and consents from federal, state or municipal authorities or
private property owners that may be required for Licensee to place its
Attachments on GTE's poles.
8.3 If any right-of-way, easement, license, authorization, permit or
consent obtained by Licensee is subsequently revoked or denied for any
reason, Licensee's permission to attach to GTE's poles shall terminate
immediately and Licensee shall promptly remove its Attachments. Should
Licensee fail to remove its Attachments within one hundred twenty (120)
days of receiving notice to do so from GTE, GTE shall have the option
to remove all such Attachments and store them in a public warehouse or
elsewhere at the expense of and for the account of Licensee without GTE
being deemed guilty of trespass or conversion, and without GTE becoming
liable for any loss or damages to Licensee occasioned thereby. All
costs incurred by GTE to remove Licensee's Attachments shall be
reimbursed to GTE by Licensee upon demand.
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8.4 Upon notice from GTE to Licensee that the cessation of the use
of any one or more of GTE's poles is necessary for reasons of safety
or has been directed by any federal, state or municipal authority, or
private property owner, permission to attach to such pole or poles
shall terminate immediately and Licensee promptly shall remove its
Attachments. Should Licensee fail to remove its Attachments within the
time frame provided by the requesting or directing party or one
hundred twenty (120) days of receiving notice to do so from GTE,
whichever is less, GTE shall have the option to remove all such
Attachments and store them in a public warehouse or elsewhere at the
expense of and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming liable for
any loss or damages to Licensee occasioned thereby. All costs incurred
by GTE to remove Licensee's Attachments shall be reimbursed to GTE by
Licensee upon demand by GTE.
9. Placement of Attachments.
9.1 Licensee shall, at its own expense, place and maintain its Attachments
on GTE's poles in accordance with (I) such requirements and
specifications as GTE shall from time to time prescribe in
writing, (ii) all rules or orders now in effect or that hereafter may
be issued by any regulatory agency or other authority having
jurisdiction, and (iii) all currently applicable requirements and
specifications of the National Electrical Safety Code, and the
applicable rules and regulations of the Occupational Safety and Health
Act. Licensee agrees to comply, at its sole risk and expense, with all
specifications included in Exhibits __ through __ hereto, as may be
revised from time to time by GTE.
9.2 Licensee's Facilities shall be tagged at maximum intervals of 300 feet
so as to identify Licensee as the owner of the Facilities. The tags
shall be of sufficient size and lettering so as to be easily
read from ground level.
10. Failure of Licensee to Place Attachments.
Once Licensee has obtained an approved PAR, Licensee shall have sixty
(60) days from the date the PAR is approved to begin the placement of
its Attachments on the GTE poles covered by the PAR. If Licensee has
not begun placing its Attachments within that sixty (60) day period,
Licensee shall so advise GTE with a written explanation for the delay.
If Licensee fails to advise GTE of its delay, with a written
explanation therefor, or if Licensee fails to act in good faith by
not making a bona fide effort to begin placing its Attachments within
the sixty (60) days prescribed by this Section, the previously
approved PAR shall be deemed rescinded by GTE and Licensee shall have
no further right to place Attachments pursuant to that PAR.
11. Attachment Fees.
11.1 Licensee shall pay to GTE an Attachment Fee, as specified in
Exhibit ___ hereto, for each GTE pole upon which Licensee obtains
authorization to place an Attachment. The Attachment Fee may be
increased by GTE from time to time as permitted by law upon sixty (60)
days written notice to Licensee.
11.2 Attachments Fees shall become due and payable on the date a PAR is
approved by GTE for all GTE poles identified in that PAR on a pro rata
basis until the end of the then current year and thereafter on an
annual basis within thirty (30) days of the date of a statement from
GTE specifying the fees to be paid. Any payment after thirty (30) days
shall bear interest at the rate of eighteen percent (18%) per annum or
the maximum rate allowed by law, whichever is less.
11.3 GTE shall maintain an inventory of the total number of GTE poles
occupied by Licensee based upon the cumulative number of poles
specified in all PARs approved by GTE. GTE may, at its
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option, conduct a physical inventory of Licensee's Attachments under
this Section. It shall be Licensee's sole responsibility to notify GTE
of any and all removals of Attachments from GTE's poles. Except as
provided in Section 18 of this Agreement in connection with the
termination of this Agreement, such notice shall be provided to GTE at
least thirty (30) days prior to the removal of the Attachments. Each
Notice of Removal shall be in a form specified by GTE and may be
revised from time to time at GTE's sole discretion. Licensee shall
remain liable for Attachment Fees until Licensee's Attachments have
been physically removed from GTE's poles.
12. Modifications, Additions or Replacements to Existing Attachments.
12.1 Licensee shall not modify, add to or replace Facilities on any
pre-existing Attachment without first notifying GTE in writing of the
intended modification, addition or replacement at least thirty
(30) days prior to the date the activity is scheduled to begin. The
required notification shall include: (1) the date the activity is
scheduled to begin, (2) a description of the planned modification,
addition or replacement, (3) a representation that the modification,
addition or replacement will not require any space other than the
space previously designated for Licensee's Attachments, and (4) a
representation that the modification, addition or replacement will not
impair the structural integrity of the poles involved.
12.2 Should GTE determine that the modification, addition or replacement
specified by Licensee in its notice will require more space than that
allocated to Licensee or will require the reinforcement of,
replacement of or an addition of support equipment to the poles
involved in order to accommodate Licensee's modification, addition or
replacement, GTE will so notify Licensee, whereupon Licensee will be
required to submit a PAR in compliance with this Agreement in order to
obtain authorization for the modification, addition or replacement of
its Attachments.
12.3 Access to GTE's poles for repairs, modifications, additions, or
replacements required in emergency situations shall be governed by
Section 22 of this Agreement.
12.4 Should Licensee request GTE to expand capacity or purchase additional
plant, Licensee agrees to pay all costs.
13. Rearrangements to Accommodate Other Licensees.
Licensee acknowledges that at some point in the future it may become
necessary to rearrange Licensee's Facilities in order to create space
to accommodate the facilities of another licensee. Licensee agrees
that in such event Licensee will cooperate in good faith with such
other licensee to come to a mutually agreeable understanding regarding
the manner in which the rearrangement of Licensee's Facilities will be
achieved.
14. Unauthorized Attachments.
14.1 The parties agree that because it would be impracticable and extremely
difficult to determine the actual amount of damages resulting from
Licensee's unauthorized Attachment(s), a charge equal to five (5)
times the amount of the then current Attachment Fee shall be paid by
Licensee to GTE for each unauthorized Attachment to a GTE pole. Such
payment shall be deemed liquidated damages and not a penalty. Licensee
also shall pay GTE an Attachment Fee for each unauthorized Attachment
accruing from the date the unauthorized Attachment was first placed on
the GTE pole. In the event that the date the unauthorized Attachment
was first placed on a GTE pole cannot be determined, such date shall
be deemed the date of the last physical inventory made in accordance
with this Agreement or, if no physical inventory has been conducted,
the date the first PAR from Licensee was approved in accordance with
this Agreement. Licensee also shall pay to GTE all costs incurred by
GTE to rearrange any
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unauthorized Attachment(s) of Licensee if such rearrangement is
required to safeguard GTE's Attachment(s) or to accommodate the
Attachment(s) of another party whose Attachment(s) would not
have required a rearrangement but for the presence of Licensee's
unauthorized Attachment(s). Licensee shall also pay to GTE all costs
incurred by GTE to reinforce, replace or modify any GTE pole, which
reinforcement, replacement or modification was required as a result of
the unauthorized Attachment of Licensee. The Attachment Fee referenced
in this subsection 14.1 shall be determined in the same manner as such
fee would have been determined if the attachment had been authorized
by GTE.
14.2 For purposes of this section, an unauthorized Attachment shall
include, but not be limited to:
14.2.1 An Attachment to a GTE pole which pole is not identified in
any PAR approved in accordance with this Agreement;
14.2.2 An Attachment that occupies more space than that allocated to
Licensee by GTE;
14.2.3 An Attachment that is not placed in accordance with the
provisions of this Agreement or the appropriate PAR issued
pursuant to this Agreement;
14.2.4 An addition or modification by Licensee to its pre-existing
Attachment(s) that impairs the structural integrity of the
involved GTE pole(s).
14.2.5 An Attachment that consists of facilities owned or controlled
by, and for the use of a party other than Licensee.
15. Surveys and Inspections of Pole Attachments.
15.1 Upon written notice to Licensee, the total number and exact location
of Licensee's Attachments on GTE's poles may be determined, at GTE's
discretion, through a survey to be made not more than once per
calendar year by GTE. If so requested, Licensee and/or any other
entity owning or jointly owning the poles with GTE may participate in
the survey. The costs incurred by GTE to conduct the survey shall be
reimbursed to GTE by Licensee upon demand by GTE. If the Attachments
of more than one Licensee are surveyed, each such Licensee shall
contribute a proportionate share of the costs reimbursed to GTE.
15.2 Apart from surveys conducted in accordance with this section, GTE
shall have the right to inspect any Attachment of Licensee on GTE's
poles as conditions may warrant upon written notice to Licensee.
Licensee shall, upon demand by GTE, reimburse GTE all costs incurred
to conduct its inspection. No joint survey or inspector, or lack
thereof, by GTE shall operate to relieve Licensee of any
responsibility, obligation or liability assumed under this Agreement.
16. Notice of Modification or Alteration of Poles by GTE.
16.1 In the event GTE plans to modify or alter any GTE pole(s) upon which
Licensee has Attachments, GTE shall provide Licensee notice of the
proposed modification or alteration at least thirty (30) days
prior to the time the proposed modification or alteration is scheduled
to take place. Should Licensee decide to modify or alter its
Attachments on the GTE poles to be modified or altered by GTE,
Licensee shall so notify GTE in writing. In such event, Licensee shall
bear a proportionate share of the total costs incurred by GTE to make
such poles accessible to Licensee.
16.2 In the event GTE is required by a federal, state, or local authority
to move, replace or change the location of any GTE pole(s), Licensee
shall concurrently relocate Licensee's Attachments. GTE
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and each Licensee required to relocate its Attachments shall bear its
own costs for such relocation.
17. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
18. Default and Remedies.
18.1 The occurrence of any one of the following shall be deemed a Material
Default by Licensee under this Agreement:
18.1.1 Failure by Licensee to pay any fee or other sum required to
be paid under the terms of this Agreement and such default
continues for a period of ten (10) days after written
notice thereof to Licensee;
18.1.2 Failure by Licensee to perform or observe any other term,
condition, covenant, obligation or provision of this
Agreement and such default continues for a period of thirty
(30) days after written notice thereof from GTE
(provided that if such default is not curable within such
thirty (30) day period, the period will be extended if
Licensee commences to cure such default within such thirty
(30) day period and proceeds diligently thereafter to effect
such cure);
18.1.3 The filing of any tax or mechanic's lien against GTE's poles
which is not bonded or discharged within thirty (30) days of
the date Licensee receives notice that such lien has been
filed;
18.1.4 Licensee's voluntary or involuntary bankruptcy;
18.1.5 Licensee's knowing use or maintenance of its Attachments in
violation of any law or regulation, or in aid of any
unlawful act or undertaking;
18.1.6 If any authorization which may be required of the Licensee
by any governmental or private authority for the placement,
operation or maintenance of Licensee's Attachments is denied
or revoked.
18.2 In the event of a Material Default, GTE, without any further notice to
the Licensee (except where expressly provided for below or required by
applicable law) may do any one or more of the following:
18.2.1 Perform, on behalf and at the expense of Licensee, any
obligation of Licensee under this Agreement which Licensee
has failed to perform and of which GTE shall have
given Licensee notice, the cost of which performance shall
be paid by Licensee to GTE upon demand;
18.2.2 Terminate this Agreement by giving notice of such
termination to Licensee and remove Licensee's Attachments
and store them in a public warehouse or elsewhere at the
expense of and for the account of Licensee without GTE being
deemed guilty of trespass or conversion, and without GTE
becoming liable for any loss or damages to Licensee
occasioned thereby; or
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18.2.3 Exercise any other legal or equitable right or remedy which
GTE may have.
18.3 Any costs and expenses incurred by GTE (including, without limitation,
reasonable attorneys' fees) in enforcing this Agreement shall be
repaid to GTE by Licensee upon demand.
18.4 Upon termination of this Agreement by GTE because of a material
default by Licensee, Licensee shall remain liable to GTE for any
and all fees, other payments and damages which may be due or sustained
prior to such termination, all reasonable costs, fees and expenses,
including, without limitation, reasonable attorneys' fees incurred by
GTE in pursuit of its remedies hereunder, and additional liquidated
damages which shall be an amount equal to one full year of Pole
Attachment fees.
18.5 All rights and remedies of each party set forth in this Agreement
shall be cumulative and none shall exclude any other right or remedy,
now or hereafter allowed by or available under any statute, ordinance,
rule of court, or the common law, either at law or in equity, or both.
19. Indemnification.
19.1 Licensee shall compensate GTE for the full actual loss, damage or
destruction of GTE's property that in any way arises from or is
related to this Agreement or activities undertaken pursuant to this
Agreement (including, without limitation, the installation,
construction, operation or maintenance of Licensee's Attachments).
19.2 Licensee will further indemnify, defend and hold harmless GTE and
GTE's agents, officers, employees and assigns, from any and all
losses, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees), statutory fines or penalties, actions or
claims for personal injury (including death), damage to property, or
other damage or financial loss of whatever nature in any way arising
out of or connected with this Agreement or activities undertaken
pursuant to this Agreement (including, without limitation, the
installation, construction, operation or maintenance of Licensee's
Attachments), except to the extent caused by the gross negligence or
willful misconduct on the part of GTE or GTE's agents, officers,
employees and assigns. Licensee further indemnifies GTE from
subsequent taxes and fees that may be levied by municipalities ROWs in
association with these agreements. Such fees that are levied would be
in addition to the attachment/occupancy fees reflected in this
Agreement. Licensee expressly assumes all liability for actions
brought against GTE and GTE's agents, officers, employees and assigns,
by Licensee's agents, officers or employees and Licensee expressly
waives any immunity from the enforcement of this indemnification
provision that might otherwise be provided by workers' compensation
law or by other state or federal laws.
19.3 Without limiting any of the foregoing, Licensee assumes all risk of,
and agrees to relieve GTE of any and all liability for, loss or damage
(and the consequences of loss or damage) to any Attachments
placed on GTE's poles and any other financial loss sustained by
Licensee, whether caused by fire, extended coverage perils, or other
casualty, except to the extent caused by the gross negligence or
willful misconduct on the part of GTE or GTE's agents, officers,
employees and assigns.
19.4 Without limiting the foregoing, Licensee expressly agrees to
indemnify, defend and hold harmless GTE and GTE's agents, officers,
employees and assigns from any and all claims asserted by customers
of Licensee in any way arising out of or in connection with this
Agreement or Licensee's Attachments, except to the extent caused by
the gross negligence or willful misconduct on the part of GTE or GTE's
agents, officers, employees and assigns.
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19.5 Notwithstanding anything to the contrary in this Agreement, Licensee
further shall indemnify and hold harmless GTE, its agents, officers,
and assigns from and against any claims, liabilities, losses,
damages, fines, penalties and costs (including, without limitation,
reasonable attorneys' fees) whether foreseen or unforeseen, which the
indemnified parties suffer or incur because of: (I) any discharge of
Hazardous Waste resulting from acts or omissions of Licensee or the
Licensee's predecessor in interest; (ii) acts or omissions of the
Licensee, it agents, employees, contractors or representatives in
connection with any cleanup required by law, or (iii) failure of
Licensee to comply with Environmental, Safety and Health Laws.
19.6 In no event shall either party be liable to the other party for any
special, consequential or indirect damages (including, without
limitation, lost revenues and lost profits) arising out this
Agreement or any obligation arising hereunder, whether in an action
for or arising out of breach of contract, tort or otherwise.
19.7 Licensee shall indemnify, protect and hold harmless GTE from and
against any and all claims for libel and slander, copyright
and/or patent infringement arising directly or indirectly by reason of
installation of Licensee's equipment on GTE's poles pursuant to this
Agreement.
20. Insurance.
20.1 Licensee shall carry insurance, at its sole cost and expense,
sufficient to cover its indemnification obligations as set
forth in Section 19 of this Agreement. Such insurance shall
include, but not be limited to, coverage against
liability due to personal injury or death of persons in the
amount of $500,000 as to any one person and $1,000,000 as to
any one accident; coverage against liability due to property
damage in the amount of $500,000 as to each accident and
$500,000 aggregate; and coverage necessary to fully protect
both it and GTE from all claims under any worker's
compensation laws that may be applicable.
20.2 All insurance required of Licensee under this Agreement shall
remain in force for the entire life of this Agreement. The
company or companies issuing such insurance shall be
approved by GTE and GTE shall be named as an additional
insured in each such policy. Licensee shall submit to GTE
certificates by each insurer to the effect that the insurer
has insured Licensee for all potential liabilities of
Licensee under this Agreement, and that it will not cancel
or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of
non-payment of premiums due, GTE shall have the option of
paying any amount due and Licensee shall forthwith reimburse
GTE the full amount paid by GTE.
20.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising
out of or in any manner related, directly or indirectly, to
the presence or use of Licensee's Attachments.
20.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be
subject to GTE's approval, in the amount of ten thousand
dollars ($10,000) to guarantee the payment of any sums
which may become due to GTE for rentals, inspections or for
work performed by GTE for the benefit of Licensee under this
Agreement, including the removal of Licensee's equipment
pursuant to any of the provisions hereof. All bonds must
specify that GTE be notified thirty (30) days prior to the
expiration or cancellation of the policy.
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21. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation
as GTE requires that qualifies the obligated Party for a full or
partial exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated Party
may contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The collecting Party shall cooperate
in any such contest by the other Party. The other Party will indemnify
the collecting Party from any sales or use taxes that may be
subsequently levied on payments by the other Party by the collecting
Party.
22. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected
by the presence of Licensee's Attachments. While GTE shall not be
responsible for the repair of Licensee's Attachments that are damaged
(except by mutual written agreement), GTE shall nonetheless control
access to its poles if the restoration is to be achieved in an orderly
fashion.
22.1 Where GTE and Licensee are involved in emergency
restorations, access to GTE's poles will be controlled by
GTE's Maintenance District Manager or his/her on-site
representative according to the following guidelines:
22.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or
outages, while exercising its right to first
access, GTE shall make all reasonable efforts to
grant access to as many other entities with
Attachments as is reasonably safe.
(b) Where simultaneous access is not possible, access
will be granted by GTE on a first come, first
served basis.
22.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies not
resulting in service disruptions or outages, while
exercising its right to first access, GTE shall
make all reasonable efforts to grant access to as
many other entities with Attachments as is
reasonably safe.
(b) Where GTE is unable to grant simultaneous access
to all other entities with Attachments, access
will granted according to the level of damage to
the Attachments of each entity and the likelihood
that a given level of damage will result in
service disruption. Where the likelihood that a
service disruption will result is not clearly
discernible, access will be on a first come, first
served basis.
22.2 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Attachments, or any
action
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or failure to act by GTE, under this Section 22 shall not
constitute a basis for any claim by Licensee against GTE for
any damage to Licensee's Attachments or disruption of
Licensee's services, or any other direct or indirect damages
of any kind whatsoever incurred by Licensee.
23. Damage Suspected to Licensee's Facilities Only.
23.1 In the event Licensee receives information that Licensee's
Attachments are damaged, Licensee shall notify GTE of said
damage at a number to be provided later by GTE. This is a
24-hour, 7 days per week notification number. Licensee
shall provide GTE all information known to it regarding the
damage to Licensee's Attachments.
23.2 In the event GTE receives notice that Licensee's Facilities
are damaged, GTE will notify Licensee of said damage by
telephone at the Licensee's emergency telephone number. GTE
shall provide Licensee all information known to it regarding
the damage to Licensee's Attachments.
23.3 After the giving of such notice by either Licensee or GTE,
Licensee shall be authorized to perform emergency
restoration maintenance activities in connection with
Licensee's Attachments, subject to the provisions of this
Agreement.
23.4 Without limiting any other indemnification or hold harmless
provisions of this Agreement, Licensee agrees that any
decision by GTE regarding access to Licensee's Attachments,
or any action or failure to act by GTE, appropriately
or inappropriately, under this Section shall not be the
basis for any claim by Licensee against GTE for any damage
to Licensee's Attachments or disruption of Licensee's
services, or any other direct or indirect damages of any
kind whatsoever incurred by Licensee and Licensee shall
indemnify and hold GTE harmless from any such claim.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any
poles or other GTE property used for Licensee's Attachments; provided,
however, that GTE shall condition any such sale, assignment or other
disposition subject to the rights granted to Licensee pursuant to this
Agreement. GTE shall promptly notify Licensee of any proposed sale,
assignment or other disposition of any poles or other GTE property
used for Licensee's Attachments.
25. Notices.
Any written notice to be given to a party to this Agreement shall be
in writing and given or made by means of telegram, facsimile
transmission, certified or registered mail, express mail or other
overnight delivery service, or hand delivery, proper postage or other
charges prepaid, and addressed or directed to the respective parties
as follows:
To Licensee: _________________________
_________________________
_________________________
To GTE: _________________________
_________________________
_________________________
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Any notice given by personal delivery shall be deemed to have been
given on the day of actual delivery and, if given by registered or
certified mail, return receipt requested, on the date of receipt
thereof and, if given by facsimile transmission, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the next business day if not given during normal
business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any
of term, right, condition or other provision of this Agreement
shall constitute or be construed as a waiver of any term, right or
condition or other provision of this Agreement.
27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding by
GTE to compel Licensee to comply with its obligations to
indemnify GTE pursuant to this Agreement or (ii) a
suit, action or proceeding to compel either party to comply
with the dispute resolution procedures set forth in this
section, the parties agree to use the following procedure to
resolve any dispute, controversy or claim arising out of or
relating to this Agreement or its breach.
27.2 At the written request of a party, each party shall
designate a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute,
controversy or claim arising under this Agreement. The
parties intend that these negotiations be conducted by
non-lawyer, business representatives. The substance of the
negotiations shall be left to the discretion of the
representatives. Upon mutual agreement, the representatives
may utilize other alternative dispute resolution procedures
such as mediation to assist in the negotiations. Discussions
and correspondence between the representatives for purposes
of these negotiations shall be treated as confidential,
undertaken for purposes of settlement, shall be exempt from
discovery and production, and shall not be admissible in the
arbitration described below or in any subsequent lawsuit
without the concurrence of all parties. Documents identified
in or provided during such negotiations, which are not
prepared for purposes of the negotiations, shall not be so
exempt and may, if otherwise admissible, be admitted as
evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is not
reached within sixty (60) days of the initial written
request, the dispute, controversy or claim shall be
submitted to binding arbitration by a single arbitrator
pursuant to the rules of the American Arbitration
Association (AAA), except as hereinafter provided. Discovery
in any proceeding before the AAA shall be controlled by the
arbitrator and shall be permitted to the extent set forth in
this section. Parties may exchange, in any combination, up
to thirty-five (35) (none of which may contain subparts)
written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60)
days of the demand for arbitration and shall be held in the
city where GTE's local offices are located. The arbitrator
shall rule on the dispute, controversy or claim by issuing a
written opinion within thirty (30) days after the close of
hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
27.4 Each party shall bear its own costs, including attorneys'
fees, incurred in connection with any of the foregoing
procedures. A party seeking discovery shall reimburse
the responding
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party the cost of reproducing documents (to include search
time and reproduction time costs). The fees associated with
any arbitration, including the fees of the arbitrator, shall
be divided equally between the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, each party
shall ensure that any and all activities it undertakes pursuant to
this Agreement shall comply with all applicable laws, including,
without limitation, all applicable provisions of (i) workers'
compensation laws, (ii) unemployment compensation laws, (iii) the
Federal Social Security Law, (iv) the Fair Labor Standards Act, and
(v) all laws, regulations, rules, guidelines, policies, orders,
permits and approvals of any governmental authority relating to
environmental matters and/or occupational safety.
29. Force Majeure.
Neither party shall have any liability for its delays or its failure
in performance due to fire, flood, explosion, pest damage, power
failures, strikes or labor disputes, acts of God, the Elements,
war, civil disturbances, acts of civil or military authorities or the
public enemy, inability to secure raw materials, transportation
facilities, fuel or energy shortages, or other cause beyond its
control.
30. Assignment.
30.1 The rights and obligations of Licensee under this Agreement
shall not be assigned, transferred or sub-licensed, in whole
or in part, without the prior written consent of GTE.
An assignment, transfer or sub-license of this Agreement by
Licensee shall not relieve Licensee of its obligations under
this Agreement. Any assignment attempted without the prior
written consent of GTE shall be void.
30.2 GTE shall have the right to assign this Agreement and to
assign its rights and delegate its obligations and
liabilities under this Agreement, either in whole or in
part. GTE shall provide notice to Licensee of any assignment
which shall state the effective date thereof. Upon the
effective date and to the extent of the assignment, GTE
shall be released and discharged from all obligations and
liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision hereof,
nor any inclusion by reference shall be construed as being
for the benefit of any person or entity not a signatory
hereto.
30.4 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall
be governed and construed under the laws of the State of
____________ without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations, guidelines, orders, or
tariffs that are currently in force or that may be prescribed by any
federal, state or local governmental authority. The parties agree
to modify, in writing, the affected term(s) and condition(s) of this
Agreement to bring them into compliance with such law, rule,
regulation, guideline, order, or tariff. Should any term of this
Agreement be determined by a
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court or other entity with competent jurisdiction to be unenforceable,
all other terms of this Agreement shall remain in full force and
effect.
33. Headings.
All headings contained in this Agreement are for convenience only and
are not intended to affect the meaning or interpretation of any
part of this Agreement.
34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this
Agreement. There are no understandings or representations, express or
implied, not expressly set forth in this Agreement. This Agreement
shall not be modified or amended except by a writing signed by the
party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
__________________________________ __________________________________
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If Applicable)
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EXHIBIT __
ATTACHMENT FEES
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APPENDIX L
CONDUIT OCCUPANCY AGREEMENT
1. Parties.
This agreement (Agreement) is between GTE SOUTHWEST INCORPORATED,
a State of _______ corporation having its principal office at________
("GTE"), and DIGITAL TELEPORT, INC., a corporation of the State of
_________ , having its principal office at_________ ("Licensee").
2. Definitions.
2.1 "GTE's conduit(s)" or "GTE conduit(s)" means any reinforced
passage or opening in, on, under/over or through the ground
capable of containing communications facilities.
2.2 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
2.3 "Cable Television Services" means the transmission to
subscribers of off-the-air pickup of broadcast signals or
the transmission, without separate charge, of locally
originated closed circuit television to the subscribers of
off-the-air service.
2.4 "Conduit" or "Duct" means a single enclosed raceway used to
house Innerduct.
2.5 "Innerduct," unless otherwise specified or approved by GTE,
shall mean a single enclosed raceway 1" or 1-1/4" in
diameter, placed within duct and used for housing
communications facilities.
2.6 "Facilities" means all facilities, including, but not limited
to, cables, equipment and associated hardware, owned and
utilized by the Licensee which occupy an innerduct.
2.7 "Make-Ready Work" means all work, including, but not limited
to, rearrangement, removal, or transfer of existing
facilities, placement, repair, or replacement of duct or
innerduct, or any other changes required to accommodate the
Licensee's Facilities in a conduit.
2.8 "Manholes" and "handholes" mean subsurface enclosures which
personnel may enter and use for the purpose of installing,
operating and maintaining communications facilities.
2.9 "Hazardous Materials" means (I) any substance, material or
waste now or hereafter defined or characterized as hazardous,
extremely hazardous, toxic or dangerous within the meaning of
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law,
ordinance, statute, rule or regulation of any governmental
body or authority, (ii) any substance, material or waste now
or hereafter classified as a contaminant or pollutant under
any law, ordinance, statute, rule or regulation of any
governmental body or authority or (iii) any other substance,
material or waste, the manufacture, processing, distribution,
use, treatment, storage, placement, disposal, removal or
transportation of which is now or hereafter subject to
regulation under any law, ordinance, statute, rule or
regulation of any governmental body or authority.
2.10 "Occupancy Fee" means the fee paid by Licensee to GTE per
linear foot for each innerduct occupied by Licensee's
Facilities in GTE's Conduit(s).
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3. Purpose.
Licensee represents to GTE that Licensee has a need to occupy, place
and maintain communications facilities within GTE's conduit(s) for the
purpose of providing Telecommunications Service. GTE agrees to permit
Licensee to occupy, place and maintain communications facilities within
GTE's conduit(s) as GTE may allow pursuant to the terms of this
Agreement.
4. Grant of License.
GTE grants to Licensee and Licensee accepts from GTE a non-exclusive
revocable license to occupy, place and maintain in a designated space
in specified GTE conduits Licensee's Facilities on the terms and
conditions set forth herein. Licensee shall have no further right,
title, or other interest in connection with GTE's conduit(s). GTE shall
have the right to grant, renew or extend privileges to others not
parties to this Agreement to occupy, place and maintain facilities in
or otherwise use any or all of GTE's conduit(s). Nothing herein is
intended to, nor should it be construed to require GTE to construct or
modify any facilities not needed for its own service requirements. GTE
grants this license in reliance on the representation of Licensee that
Licensee intends to provide Telecommunications Service with Licensee's
Facilities covered by this Agreement.
5. Term.
Subject to the termination provisions contained in this Agreement, the
term of this Agreement shall be two (2) years from the effective date
referenced in the first paragraph of this Agreement and shall continue
in effect for consecutive one (1) year terms until either Party gives
the other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
then-current term. In the event notice is given less than ninety (90)
calendar days prior to the end of the current term, this Agreement
shall remain in effect for ninety (90) calendar days after such notice
is received, provided, that in no case shall the term be extended
beyond ninety (90) calendar days after the end of the current term.
6. Conduit Occupancy Requests.
6.1 Upon execution of this Agreement, Licensee shall have the
right to submit a written Conduit Occupancy Request ("COR")
to GTE specifying the GTE conduits in which it desires to
place its Facilities. Each COR shall be in a form specified
by GTE, which form may be revised from time to time by GTE.
CORs received by GTE shall be processed on a first come,
first served basis. GTE will determine the availability of
space for Licensee's Facilities in the GTE conduit(s)
specified in the COR within thirty (30) Business Days of its
submission. Upon approval of the COR, GTE shall return a
copy thereof to Licensee bearing an endorsement
acknowledging GTE's authorization. All of Licensee's
Facilities placed in GTE's conduit(s) pursuant to an
approved COR shall become subject to all of the terms and
conditions of this Agreement. Licensee may submit subsequent
CORs for approval by GTE as needed. All of Licensee's
Facilities shall be placed in innerduct unless otherwise
approved by GTE. No facilities of any kind shall be placed
in any GTE conduit(s) identified in a COR until that COR has
been approved by GTE.
6.2 Licensee shall pay GTE a fee for processing a COR to
compensate GTE for the general administrative costs as well
as the actual engineering costs reasonably incurred. The
fee for engineering costs shall be computed by multiplying
the fully loaded hourly rate for an engineer times the
number of hours reasonably required by each engineer to
inspect the GTE conduits included in the COR. GTE will
charge its then current rates for
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administrative and engineering costs, as may be changed
from time to time by GTE to remain consistent with
prevailing costs.
6.3 Upon receiving an approved COR, Licensee shall have the
right, subject to the terms of this Agreement, to
place and maintain Licensee's Facilities described in the
COR in the innerducts of the GTE conduit(s) identified
therein.
6.4 In the event Make-Ready Work is necessary to accommodate
Licensee's Facilities, GTE shall notify Licensee of such
fact and provide Licensee with an estimate of the total cost
of such Make-Ready Work. Within fifteen (15) days after
receiving such notice from GTE, Licensee shall notify GTE
either (1) that Licensee shall pay all of the costs actually
incurred to perform the Make-Ready Work and shall pay the
total estimated amount to GTE at least ten (10) days prior
to the date the Make-Ready Work is to begin or (2) that it
desires to cancel its COR.
6.5 Nothing herein shall confer any right upon Licensee to place
power cables or related power equipment in GTE conduit(s) or
Manholes. Licensee shall place equipment of this nature in
its own pull boxes outside of GTE's Conduit(s) or Manholes.
Cable connectors or splicing devices shall not be used by
Licensee in GTE's conduit(s) or innerducts.
7. Availability of Conduit Maps.
Existing conduit maps will be made available for viewing by Licensee
for the purpose of pre-order planning at the GTE area engineering
offices during normal business hours, subject to reasonable advance
notification. While a formal written request will not be required in
connection with the first request by Licensee to view conduit maps, GTE
reserves the right to refuse any subsequent viewing request or require
written justification for the request if Licensee has demonstrated that
it does not have a good faith intention to submit a COR. If the
availability of specific point-to-point conduits can be determined at
the time of viewing conduit maps, maps reflecting such point-to-point
conduits may be made available for copying. Licensee shall pay to GTE a
fee for making such copies available sufficient to cover the general
administrative costs incurred. IN MAKING CONDUIT MAPS AVAILABLE, GTE
WILL BE MAKING NO EXPRESS OR IMPLIED WARRANTY REGARDING THEIR ACCURACY
OTHER THAN THAT THEY ARE THE SAME CONDUIT MAPS USED BY GTE IN ITS
DAY-TO-DAY OPERATIONS.
8. Availability of Information Regarding Space In Conduits.
GTE will provide information regarding the availability of conduit
space within thirty (30) Business Days of a written request by
Licensee. Because GTE will endeavor to determine available space as
quickly as possible, a shorter interval may be experienced for requests
of a limited scope where physical field verification is not necessary.
In the event the thirty (30) Business Day time frame cannot be met, GTE
shall so advise Licensee and shall seek a mutually satisfactory
alternative response date. No representation regarding the availability
of space shall be made in the absence of a physical field verification.
9. Authority to Place Licensee's Facilities.
9.1 Before Licensee places any of Licensee's Facilities in GTE's
conduit(s) pursuant to an approved COR, Licensee, upon
request, shall submit sufficient evidence to GTE of its
authority to maintain the Facilities to be placed in GTE's
conduit(s) within the public streets, highways and other
thoroughfares or on private property. Licensee shall be
solely responsible for obtaining all licenses,
authorizations, permits and consents from federal,
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state and municipal authorities or private property
owners that may be required to place and
maintain Licensee's Facilities in GTE's conduit(s).
9.2 GTE shall not attempt to prevent or delay the granting of
any rights-of-way, easements, licenses, authorizations,
permits and consents from any federal, state or
municipal authorities, or private property owners that may
be required by Licensee to place Licensee's Facilities in
GTE's conduit(s).
9.3 If any right-of-way, easement, license, authorization,
permit or consent obtained by Licensee is subsequently
revoked or denied for any reason, Licensee's permission to
occupy GTE's conduit(s) shall terminate immediately and
Licensee shall promptly remove Licensee's Facilities. Should
Licensee fail to remove Licensee's Facilities within thirty
(30) days of receiving notice to do so from GTE, GTE shall
have the option to remove Licensee's Facilities and store
them in a public warehouse or elsewhere at the expense of
and for the account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE becoming
liable for any loss or damages to Licensee occasioned
thereby. All costs incurred by GTE to remove Licensee's
Facilities shall be reimbursed to GTE by Licensee upon
demand.
9.4 Upon notice from GTE to Licensee that the cessation of the
use of any portion of GTE's conduit(s) has been ordered or
directed by any federal, state or municipal authority, or
private property owner, Licensee's permission to occupy such
GTE conduit(s) shall terminate immediately and Licensee
promptly shall remove Licensee's Facilities. Should Licensee
fail to remove Licensee's Facilities within thirty (30) days
of receiving notice to do so from GTE, GTE shall have the
option to remove Licensee's Facilities and store them in a
public warehouse or elsewhere at the expense of and for the
account of Licensee without GTE being deemed guilty of
trespass or conversion, and without GTE becoming liable for
any loss or damages to Licensee occasioned thereby. All
costs incurred by GTE to remove Licensee's Facilities shall
be reimbursed to GTE by Licensee upon demand by GTE.
10. Placement of Licensee's Facilities.
10.1 Licensee shall, at its sole expense, place and maintain
Licensee's Facilities in GTE's conduit(s) in accordance with
(I) such requirements and specifications as GTE shall from
time to time prescribe in writing, (ii) all rules or orders
now in effect or that hereafter may be issued by any
regulatory agency or other authority having jurisdiction,
and (iii) all currently applicable requirements and
specifications of the National Electrical Safety Code, and
the applicable rules and regulations of the Occupational
Safety And Health Act. Licensee agrees to comply, at its
sole risk and expense, with all specifications included in
Exhibits __ through __ hereto, as may be revised from time
to time by GTE.
10.2 Licensee's Facilities shall be tagged at each manhole so as
to identify Licensee as the owner of the Facilities. The tags
shall be of sufficient size and lettering so as to be easily
read.
11. Failure of Licensee to Occupy Conduit Space.
Upon approval of a COR, Licensee shall have sixty (60) days in which to
begin the placement of Licensee's Facilities in the GTE conduit(s)
covered by the COR. If Licensee has not begun placing its Facilities
within that sixty (60) day period, Licensee shall so advise GTE with a
written explanation for the delay. If Licensee fails to advise GTE of
its delay, with a written explanation
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therefor, or if Licensee fails to act in good faith by not making a
bona fide effort to begin placing its Facilities within the sixty (60)
days prescribed by this Section, the previously approved COR shall be
deemed rescinded by GTE and Licensee shall have no further right to
place Licensee's Facilities pursuant to that COR.
12. Occupancy Fees.
12.1 Licensee shall pay to GTE an Occupancy Fee, as specified in
Exhibit ___ hereto, for each linear foot of innerduct
occupied by Licensee's Facilities in GTE's conduit(s). If
Licensee's Facilities occupy more than one innerduct, a
separate Occupancy Fee shall be paid by Licensee for each
innerduct occupied. The Occupancy Fee specified in Exhibit
___ hereto is the fee applicable to 1" or 1-1/4" diameter
innerduct. GTE reserves the right to charge a higher fee for
innerduct of greater diameter. The Occupancy Fee may be
increased by GTE from time to time as permitted by law upon
sixty (60) days written notice to Licensee.
12.2 Occupancy Fees shall become due and payable on the date a
COR is approved by GTE for all GTE innerducts identified in
that COR on a pro rata basis until the end of the calendar
year and thereafter on an annual basis within thirty (30)
days of the receipt of a statement from GTE specifying the
fees to be paid. Any payment after thirty (30) days shall
bear interest at the rate of eighteen percent (18%) per
annum or the maximum rate allowed by law, whichever is less.
12.3 GTE shall maintain an inventory of the total linear footage
of innerduct occupied by Licensee's Facilities in GTE's
conduit(s) based upon the cumulative linear footage per
innerduct from all CORs approved by GTE. GTE may, at its
option, conduct a physical inventory of Licensee's
Facilities for purposes of determining the Occupancy Fees to
be paid by Licensee under this section. It shall be
Licensee's sole responsibility to notify GTE of any and all
removals of Licensee's Facilities from GTE's conduit(s).
Written notice of such removals (unless they are covered by
Section 17 of this Agreement) shall be provided to GTE at
least thirty (30) days prior to the removal. Each Notice of
Removal shall be in a form specified by GTE. Licensee shall
remain liable for all Occupancy Fees until Licensee's
Facilities have been physically removed from GTE's conduits.
13. Modifications, Additions or Replacements of Licensee's Facilities.
13.1 Licensee shall not modify, add to or replace Licensee's
Facilities in any GTE conduit(s) without first notifying GTE
in writing of the intended modification, addition or
replacement at least thirty (30) days prior to the date the
activity is scheduled to begin. The required notification
shall include: (1) the date the activity is scheduled to
begin, (2) a description of the planned modification,
addition or replacement, (3) a representation that the
modification, addition or replacement will not require any
space other than the space previously designated for
Licensee's Facilities, and (4) a representation that the
modification, addition or replacement will not impair the
structural integrity of the GTE conduit(s) involved.
13.2 Should GTE determine that the modification, addition or
replacement specified by Licensee in its notice will require
more space than that allocated to Licensee or will require
any modification, replacement or reinforcement of the GTE
conduit(s) involved in order to accommodate Licensee's
modification, addition or replacement, GTE will so notify
Licensee, whereupon Licensee shall be required to submit a
COR in compliance with this Agreement in order to obtain
authorization for the modification, addition or replacement
of Licensee's Facilities.
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13.3 Access to GTE's conduit(s) for repairs, modifications,
additions, or replacements required in emergency situations
shall be governed by the provisions of Section 21 of this
Agreement.
14. Unauthorized Occupancy of GTE Conduit.
14.1 It is agreed that a charge equal to five (5) times the
amount of the then current Occupancy Fee shall be paid by
Licensee to GTE for each unauthorized occupancy of GTE's
conduit(s) by Licensee. Such payment shall be deemed
liquidated damages and not a penalty. Licensee also shall
pay GTE an Occupancy Fee for each unauthorized occupancy
accruing from the date the unauthorized occupancy first
began. In the event that the date the unauthorized occupancy
first began cannot be determined, such date shall be deemed
the date of the last physical inventory made in accordance
with this Agreement or, if no physical inventory has been
conducted, the date the first COR from Licensee was approved
in accordance with this Agreement. Licensee also shall pay
to GTE all costs incurred by GTE to rearrange Licensee's
Facilities that are unauthorized if such rearrangement is
required to safeguard GTE's facilities or to accommodate the
facilities of another party whose facilities would not have
required a rearrangement but for the presence of Licensee's
unauthorized facilities. Licensee also shall pay to GTE all
costs incurred by GTE to reinforce, replace or modify any
GTE conduit(s), which reinforcement, replacement or
modification is required as a result of the unauthorized
occupancy by Licensee. The Occupancy Fee referenced in this
subsection 14.1 shall be determined in the same manner as
such a fee would have been determined if the occupancy had
been authorized by GTE.
14.2 For purposes of this section, an unauthorized occupancy
shall include, but not be limited to:
14.2.1 The presence of Licensee's Facilities in any GTE
conduit which conduit is not identified in any
COR approved in accordance with this Agreement;
14.2.2 The presence of Licensee's Facilities
in any GTE conduit that occupies more space
than that allocated to Licensee by GTE;
14.2.3 Licensee's Facilities that are not placed in
accordance with the provisions of this Agreement
or the appropriate COR issued pursuant to this
Agreement;
14.2.4 An addition or modification by Licensee to its
pre-existing Facilities in any GTE conduit that
impairs the structural integrity of that GTE
conduit.
14.2.5 The presence of facilities in GTE's conduit(s)
placed by Licensee that are owned or controlled
by and for the use of a party other than
Licensee.
15. Modification or Alteration GTE Conduits.
15.1 In the event GTE plans to modify or alter any GTE conduit(s)
that house Licensee's Facilities, GTE shall provide Licensee
notice of the proposed modification or alteration at least
fourteen (14) days prior to the time the proposed
modification or alteration is scheduled to take place.
Should Licensee decide to modify or alter Licensee's
Facilities in the GTE conduit(s) to be modified or altered
by GTE, Licensee shall so notify GTE in
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writing. In such event, Licensee shall bear a
proportionate share of the total costs incurred by GTE to
make the GTE conduit(s) accessible. Licensee's proportionate
share of the total cost shall be based on the ratio of the
amount of new space occupied by Licensee to the total amount
of new space occupied by all of the parties joining in the
modification.
15.2 In the event GTE moves, replaces or changes the location,
alignment or grade of GTE's conduit(s) ("relocation") for
reasons beyond GTE's control, Licensee concurrently shall
relocate Licensee's Facilities. Licensee shall be solely
responsible for the costs of the relocation of Licensee's
Facilities.
16. Disclaimer of Warranties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR a PARTICULAR
PURPOSE.
17. Default and Remedies.
17.1 The occurrence of any one of the following shall be deemed a
Material Default by Licensee under this Agreement:
17.1.1 Failure by Licensee to pay any fee or other sum
required to be paid under the terms of this
Agreement and such default continues for a
period of five (5) days after written notice
thereof to Licensee;
17.1.2 Failure by Licensee to perform or observe any
other term, condition, covenant, obligation or
provision of this Agreement and such default
continues for a period of thirty (30) days after
written notice thereof from GTE (provided that if
such default is not curable within such thirty
(30) day period, the period will be extended if
Licensee commences to cure such default within
such thirty (30) day period and proceeds
diligently thereafter to effect such cure);
17.1.3 The filing of any tax or mechanic's lien against
any GTE conduit(s) which is not bonded or
discharged within thirty (30) days of the date
Licensee receives notice that such lien has been
filed;
17.1.4 Licensee's voluntary or involuntary bankruptcy;
17.1.5 Licensee's knowing use or maintenance of
Licensee's Facilities in violation of any
law or regulation, or in aid of any unlawful act
or undertaking;
17.1.6 If any authorization which may be required of the
Licensee by any governmental or private authority
for the placement, operation or maintenance of
Licensee's Facilities is denied or revoked.
17.2 In the event of a Material Default, GTE, without any further
notice to the Licensee (except where expressly provided for
below or required by applicable law) may do any one or more
of the following:
17.2.1 Perform, on behalf and at the expense of
Licensee, any obligation of Licensee
under this Agreement which Licensee has failed to
perform and of which GTE shall have given
Licensee notice, the cost of which performance
shall be paid by Licensee to GTE upon demand;
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17.2.2 Terminate this Agreement by giving notice of such
termination to Licensee and remove Licensee's
Facilities and store them in a public warehouse
or elsewhere at the expense of and for the
account of Licensee without GTE being deemed
guilty of trespass or conversion, and without GTE
becoming liable for any loss or damages to
Licensee occasioned thereby; or
17.2.3 Exercise any other legal or equitable right or
remedy which GTE may have.
17.3 Any costs and expenses incurred by GTE (including, without
limitation, reasonable attorneys' fees) in enforcing this
Agreement shall be paid to GTE by Licensee upon demand.
17.4 Upon termination of this Agreement by GTE, Licensee shall
remain liable to GTE for any and all fees, other payments
and damages which may be due or sustained prior to such
termination, all reasonable costs, fees and expenses,
including, without limitation, reasonable attorneys' fees
incurred by GTE in pursuit of its remedies hereunder, and
additional liquidated damages which shall be an amount
equal to one full year of Occupancy Fees.
17.5 All rights and remedies of GTE set forth in this Agreement
shall be cumulative and none shall exclude any other right or
remedy, now or hereafter allowed by or available under any
statute, ordinance, rule of court, or the common law, either
at law or in equity, or both.
18. Indemnification.
18.1 Licensee shall compensate GTE for the full actual loss,
damage or destruction of GTE's property that in any way
arises from or is related to this Agreement or activities
undertaken pursuant to this Agreement (including, without
limitation, the installation, construction, operation or
maintenance of Licensee's Facilities).
18.2 Licensee will further indemnify, defend and hold harmless
GTE and GTE's agents, officers, employees and assigns, from
any and all losses, damages, costs, expenses (including,
without limitation, reasonable attorneys' fees), statutory
fines or penalties, actions or claims for personal injury
(including death), damage to property, or other damage or
financial loss of whatever nature in any way arising out of
or connected with this Agreement or activities undertaken
pursuant to this Agreement (including, without limitation,
the installation, construction, operation or maintenance of
Licensee's Facilities), except to the extent caused by the
negligence or willful misconduct on the part of GTE or GTE's
agents, officers, employees and assigns. Licensee further
indemnifies GTE from subsequent taxes and fees that may be
levied by municipalities ROWs in association with these
agreements. Such fees that are levied would be in addition
to the attachment/occupancy fees reflected in this
Agreement. Licensee expressly assumes all liability for
actions brought against GTE and GTE's agents, officers,
employees and assigns, by Licensee's agents, officers or
employees and Licensee expressly waives any immunity from
the enforcement of this indemnification provision that might
otherwise be provided by workers' compensation law or by
other state or federal laws.
18.3 Without limiting any of the foregoing, Licensee assumes all
risk of, and agrees to relieve GTE of any and all liability
for, loss or damage (and the consequences of loss or damage)
to any of Licensee's Facilities placed in any GTE conduit(s)
and any other financial loss sustained by Licensee, whether
caused by fire, extended coverage perils, or other casualty,
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except to the extent caused by the negligence or willful
misconduct on the part of GTE or GTE's agents, officers,
employees and assigns.
18.4 Without limiting the foregoing, Licensee expressly agrees to
indemnify, defend and hold harmless GTE and GTE's agents,
officers, employees and assigns from any and all claims
asserted by customers of Licensee in any way arising out of
or in connection with this Agreement or Licensee's
Attachments, except to the extent caused by the negligence
or willful misconduct on the part of GTE or GTE's agents,
officers, employees and assigns.
18.5 Notwithstanding anything to the contrary in this Agreement,
Licensee further shall indemnify and hold harmless GTE, its
agents, officers, employees and assigns from and against any
claims, liabilities, losses, damages, fines, penalties and
costs (including, without limitation, reasonable attorneys'
fees) whether foreseen or unforeseen, which the indemnified
parties suffer or incur because of: (I) any discharge of
Hazardous Waste resulting from acts or omissions of Licensee
or the Licensee's predecessor in interest; (ii) acts or
omissions of the Licensee, its agents, employees,
contractors or representatives in connector with any cleanup
required by law, or (iii) failure of Licensee to comply with
Environmental, Safety and Health Laws.
18.6 In no event shall GTE be liable to Licensee for any special,
consequential or indirect damages (including, without
limitation, lost revenues and lost profits) arising out this
Agreement or any obligation arising hereunder, whether in an
action for or arising out of breach of contract, tort or
otherwise.
18.7 Licensee shall indemnify, protect and hold harmless GTE from
and against any and all claims for libel and slander,
copyright and/or patent infringement arising directly or
indirectly by reason of installation of Licensee's equipment
in GTE's Ducts pursuant to this Agreement.
19. Insurance.
19.1 Licensee shall carry insurance, at its sole cost and
expense, sufficient to cover its indemnification obligations
as set forth in Section 18 of this Agreement. Such
insurance shall include, but not be limited to, coverage
against liability due to personal injury or death of persons
in the amount of $500,000 as to any one person and
$1,000,000 as to any one accident; coverage against
liability due to property damage in the amount of $500,000
as to each accident and $500,000 aggregate; and coverage
necessary to fully protect both it and GTE from all claims
under any worker's compensation laws that may be applicable.
19.2 All insurance required of Licensee under this Agreement
shall remain in force for the entire life of this Agreement.
The company or companies issuing such insurance shall be
approved by GTE and GTE shall be named as an additional
insured in each such policy. Licensee shall submit to GTE
certificates by each insurer to the effect that the insurer
has insured Licensee for all potential liabilities of
Licensee under this Agreement, and that it will not cancel
or change any policy of insurance issued to Licensee except
upon thirty (30) days notice to GTE. In the event Licensee's
insurance coverage is to be canceled by reason of
non-payment of premiums due, GTE shall have the option of
paying any amount due and Licensee shall forthwith reimburse
GTE the full amount paid by GTE.
19.3 Licensee shall promptly advise GTE in writing of any and all
claims for damages, including, but not limited to, damage to
property or injury to or death of persons, allegedly arising
out of or in any manner related, directly or indirectly, to
the presence or use of Licensee's Facilities.
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19.4 Licensee shall furnish bond or satisfactory evidence of
contractual insurance coverage, the terms of which shall be
subject to GTE's approval, in the amount of ten thousand
dollars ($10,000) to guarantee the payment of any sums which
may become due to GTE for rentals, inspections or for work
performed by GTE for the benefit of Licensee under this
Agreement, including the removal of Licensee's equipment
pursuant to any of the provisions hereof. All bonds must
specify that the GTE be notified thirty (30) days prior to
the expiration or cancellation of the policy.
20. Taxes.
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation as
GTE requires that qualifies the obligated Party for a full or partial
exemption. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The obligated Party
may contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The collecting Party shall cooperate in
any such contest by the other Party. The other Party will indemnify the
collecting Party from any sales or use taxes that may be subsequently
levied on payments by the other Party by the collecting Party.
21. Emergency Restoration Procedures.
In the event of an emergency, restoration procedures may be affected by
the presence of Licensee's Facilities in GTE's conduit(s). While GTE
shall not be responsible for the repair of Licensee's Facilities that
are damaged (except by mutual written agreement), GTE shall nonetheless
control access to its Conduits if the restoration is to be achieved in
an orderly fashion.
21.1 Where GTE and Licensee are involved in emergency
restorations, access to GTE's conduit(s) will be controlled
by GTE's Maintenance District Manager or his/her on-site
representative according to the following guidelines:
21.1.1 Service Disruptions/Outages
(a) In the event of service disruptions and/or
outages, while exercising its right to first
access, GTE shall make all reasonable efforts to
grant access to as many other entities with
facilities in GTE's conduit(s) as is reasonably
safe.
(b) Where simultaneous access is not possible, access
will be granted by GTE on a first come, first
served basis.
21.1.2 Service Affecting Emergencies
(a) In the event of service affecting emergencies
not resulting in service disruptions or outages,
while exercising its right to first access, GTE
shall make all reasonable efforts to grant access
to as many other entities with facilities in GTE's
conduit(s) as is reasonably safe.
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(b) Where GTE is unable to grant simultaneous
access to all other entities with facilities in
GTE's conduit(s), access will granted according to
the level of damage to the facilities of each
entity and the likelihood that a given level of
damage will result in service disruption. Where
the likelihood that a service disruption will
result is not clearly discernible, access will be
on a first come, first served basis.
21.2 Without limiting any other indemnification or hold
harmless provisions of this Agreement, Licensee agrees that
any decision by GTE regarding access to Licensee's
Facilities, or any action or failure to act by GTE under
this Section 21 shall not constitute a basis for any claim
by Licensee against GTE for any damage to Licensee's
Facilities or disruption of Licensee's services, or any
other direct or indirect damages of any kind whatsoever
incurred by Licensee.
22. Damage Suspected to Licensee's Facilities Only.
22.1 In the event Licensee receives information that
Licensee's Facilities are damaged, Licensee shall notify GTE
of said damage at [---TELEPHONE NUMBER---]. This is a
24-hour, 7 days per week notification number. Licensee shall
provide GTE all information known to it regarding the damage
to Licensee's Facilities.
22.2 In the event GTE receives notice that Licensee's
Facilities are damaged, GTE will notify Licensee of said
damage by telephone at the Licensee's emergency telephone
number. GTE shall provide Licensee all information known to
it regarding the damage to Licensee's Facilities.
22.3 After the giving of such notice by either Licensee or
GTE, Licensee shall be authorized to perform emergency
restoration maintenance activities in connection with
Licensee's Facilities, subject to the provisions of this
Agreement.
22.4 Without limiting any other indemnification or hold
harmless provisions of this Agreement, Licensee agrees that
any decision by GTE regarding access to Licensee's
facilities, or any action or failure to act by GTE,
appropriately or inappropriately, under this Section shall
not be the basis for any claim by Licensee against GTE for
any damage to Licensee's Facilities or disruption of
Licensee's services, or any other direct or indirect damages
of any kind whatsoever incurred by Licensee and Licensee
shall indemnify and hold GTE harmless from any such claim.
23. Access to GTE's Manholes/Handholes.
23.1 GTE will allow Licensee to audit manholes/handholes
that are included in any COR submitted to GTE to confirm
usability. Licensee shall give GTE at least fourteen (14)
days advance written notice of its desire to audit and shall
obtain all authorizations from appropriate authorities
required to open the manholes/handholes. GTE shall have the
right to have a GTE employee or agent present when its
manholes/handholes are being opened. Such GTE employee or
agent shall have the authority to suspend Licensee's
activities in and around GTE's manholes/handholes if, in the
sole discretion of said employee or agent, any hazardous
conditions arise or any unsafe practices are being followed
by Licensee's employees, agents, or contractors. Licensee
agrees to reimburse GTE the cost of having GTE's employee or
agent present. Such charge shall be GTE's fully loaded labor
rates then in effect.
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23.2 For purposes other than to audit usability, GTE's
manholes/handholes shall be opened only as permitted by GTE
and only after Licensee has obtained all necessary
authorizations from appropriate authorities to open
manholes/handholes and conduct work operations therein. GTE
shall have the right to have a GTE employee or agent present
at any site at which its manholes/handholes are being
opened. Such GTE employee or agent shall have the authority
to suspend Licensee's work operations in and around GTE's
manholes/handholes if, in the sole discretion of said
employee or agent, any hazardous conditions arise or any
unsafe practices are being followed by Licensee's employees,
agents, or contractors. Licensee agrees to reimburse GTE the
cost of having GTE's employee or agent present. Such charge
shall be GTE's fully loaded labor rates then in effect. The
presence of GTE's authorized employee or agent shall not
relieve Licensee of its responsibility to conduct all of
its work operations in and around GTE's conduit(s) in a
safe and workmanlike manner, in accordance with the terms of
this Agreement.
24. Abandonment.
Nothing in this Agreement shall prevent or be construed to prevent GTE
from abandoning, selling, assigning or otherwise disposing of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities; provided, however, that GTE shall condition any such sale,
assignment or other disposition subject to the rights granted to
Licensee pursuant to this Agreement. GTE shall promptly notify Licensee
of any proposed sale, assignment or other disposition of any GTE
conduit(s) or other GTE property used in connection with Licensee's
Facilities.
25. Notices.
Any written notice to be given to a party to this Agreement shall be in
writing and given or made by means of telegram, facsimile transmission,
certified or registered mail, express mail or other overnight delivery
service, or hand delivery, proper postage or other charges prepaid, and
addressed or directed to the respective parties as follows:
To Licensee: ______________________________
______________________________
______________________________
To GTE: ______________________________
______________________________
______________________________
Any notice given by personal delivery shall be deemed to have been
given on the day of actual delivery and, if given by registered or
certified mail, return receipt requested, on the date of receipt
thereof and, if given by facsimile transmission, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the next business day if not given during normal
business hours.
26. Non-Waiver of Terms and Conditions.
No course of dealing, course of performance or failure to enforce any
of term, right, condition or other provision of this Agreement shall
constitute or be construed as a waiver of any term, right or condition
or other provision of this Agreement.
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27. Dispute Resolution.
27.1 Except in the case of (i) a suit, action or proceeding
by GTE to compel Licensee to comply with its obligations to
indemnify GTE pursuant to this Agreement or (ii) a suit,
action or proceeding to compel either party to comply with
the dispute resolution procedures set forth in this section,
the parties agree to use the following procedure to resolve
any dispute, controversy or claim arising out of or relating
to this Agreement or its breach.
27.2 At the written request of a party, each party shall
designate a knowledgeable, responsible representative to
meet and negotiate in good faith to resolve any dispute,
controversy or claim arising under this Agreement. The
parties intend that these negotiations be conducted by
non-lawyer, business representatives. The substance of the
negotiations shall be left to the discretion of the
representatives. Upon mutual agreement, the representatives
may utilize other alternative dispute resolution procedures
such as mediation to assist in the negotiations. Discussions
and correspondence between the representatives for purposes
of these negotiations shall be treated as confidential,
undertaken for purposes of settlement, shall be exempt from
discovery and production, and shall not be admissible in the
arbitration described below or in any subsequent lawsuit
without the concurrence of all parties. Documents identified
in or provided during such negotiations, which are not
prepared for purposes of the negotiations, shall not be so
exempt and may, if otherwise admissible, be admitted as
evidence in any subsequent proceeding.
27.3 If a resolution of the dispute, controversy or claim is
not reached within sixty (60) days of the initial written
request, the dispute, controversy or claim shall be
submitted to binding arbitration by a single arbitrator
pursuant to the rules of the American Arbitration
Association (AAA), except as hereinafter provided. Discovery
in any proceeding before the AAA shall be controlled by the
arbitrator and shall be permitted to the extent set forth in
this section. Parties may exchange, in any combination, up
to thirty-five (35) (none of which may contain subparts)
written interrogatories, demands to produce documents and
requests for admission. Each party may also to take the oral
deposition of one (1) witness. Additional discovery may be
permitted upon mutual agreement of the parties. The
arbitration hearing shall be commenced within sixty (60)
days of the demand for arbitration and shall be held in the
city where GTE's local offices are located. The arbitrator
shall rule on the dispute, controversy or claim by issuing a
written opinion within thirty (30) days after the close of
hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
27.4 Each party shall bear its own costs, including
attorneys' fees, incurred in connection with any of the
foregoing procedures. A party seeking discovery shall
reimburse the responding party the cost of reproducing
documents (to include search time and reproduction time
costs). The fees associated with any arbitration, including
the fees of the arbitrator, shall be divided equally between
the parties.
28. Compliance With Laws.
Notwithstanding anything to the contrary in this Agreement, Licensee
shall ensure that any and all activities it undertakes pursuant to this
Agreement shall comply with all applicable laws, including, without
limitation, all applicable provisions of (I) workers' compensation
laws, (ii) unemployment compensation laws, (iii) the Federal Social
Security Law, (iv) the Fair Labor Standards Act, and (v) all laws,
regulations, rules, guidelines, policies, orders, permits and
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approvals of any governmental authority relating to environmental
matters and/or occupational safety.
29. Force Majeure.
Except for payment of the Occupancy Fees and other amounts payable
under this Agreement, neither party shall have any liability for its
delays or its failure in performance due to fire, flood, explosion,
pest damage, power failures, strikes or labor disputes, acts of God,
the Elements, war, civil disturbances, acts of civil or military
authorities or the public enemy, inability to secure raw materials,
transportation facilities, fuel or energy shortages, or other cause
beyond its control.
30. Assignment.
30.1 The rights and obligations of Licensee under this
Agreement shall not be assigned, transferred or
sub-licensed, in whole or in part, without the prior written
consent of GTE. An assignment, transfer or sub-license of
this Agreement by Licensee shall not relieve Licensee of its
obligations under this Agreement. Any assignment attempted
without the prior written consent of GTE shall be void.
30.2 GTE shall have the right to assign this Agreement and
to assign its rights and delegate its obligations and
liabilities under this Agreement, either in whole or in
part. GTE shall provide notice to Licensee of any assignment
which shall state the effective date thereof. Upon the
effective date and to the extent of the assignment, GTE
shall be released and discharged from all obligations and
liabilities under this Agreement.
30.3 Neither this Agreement nor any term or provision
hereof, nor any inclusion by reference shall be construed as
being for the benefit of any person or entity not a
signatory hereto.
30.4 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns.
31. Applicable Law.
This Agreement, and the rights and obligations contained in it, shall
be governed and construed under the laws of the State of ____________
without regard to its conflicts of laws provisions.
32. Subsequent Law.
The terms and conditions of this Agreement shall be subject to any and
all applicable laws, rules, regulations or guidelines that subsequently
may be prescribed by any federal, state or local governmental
authority. To the extent required by any such subsequently prescribed
law, rule, regulation or guideline, the parties agree to modify, in
writing, the affected term(s) and condition(s) of this Agreement to
bring them into compliance with such law, rule, regulation or
guideline. Should any term of this Agreement be determined by a court
or other entity with competent jurisdiction to be unenforceable, all
other terms of this Agreement shall remain in full force and effect.
33. Headings.
All headings contained in this Agreement are for convenience only and
are not intended to affect the meaning or interpretation of any part of
this Agreement.
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34. Entire Agreement.
The terms and conditions of this Agreement supersede all prior oral or
written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. This Agreement shall not be
modified or amended except by a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
For GTE: For Licensee:
GTE
_______________________________ _________________________
(Signature of Authorized Agent) (Signature of Officer)
(Printed Name of Authorized Agent) (Printed Name of Officer)
(Title) (Title)
(Date) (Date)
ATTEST:
Corporate Seal (If
Applicable)
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EXHIBIT______
OCCUPANCY FEES
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APPENDIX M
RECIPROCAL COMPENSATION FOR CALL TERMINATION
1. This document describes the reciprocal compensation arrangements
between DTI and GTE for Local Tariff, Toll and Switched Access
Services. The Parties shall compensate each other for transport and
termination of such traffic at the rates provided in Appendix D and/or
the appropriate Parties' Switched Access Tariff.
2. Compensation for Call Termination
A. Reciprocal compensation does not apply in a resale
environment.
B. The following compensation terms shall apply in all cases
where DTI purchases GTE's unbundled Local Switching:
1. For local intra-switch calls between lines connected to
GTE's switch where DTI has purchased GTE's unbundled Local
Switching, the Parties agree to impose no call termination
charges on each other. GTE's Local Switching charge will
apply as described below where the call is:
(a) Originated by DTI's customer and completed to a
GTE customer:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to
DTI.
(b) Originated by DTI's customer and completed to
the customer of a Third Party LEC (not affiliated with
DTI) using GTE's unbundled Local Switching:
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to
DTI.
(c) Originated by DTI's customer and completed to another
DTI's customer using GTE's unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office will apply to
DTI.
(d) Originated by a GTE customer and terminated to
DTI's customer using GTE's unbundled Local Switching.
(1) No Local Switching charge will apply.
(e) Originated by the customer of a Third Party LEC
(not affiliated with DTI) using GTE's unbundled Local
Switching and terminated to DTI's customers using GTE's
unbundled Local Switching.
(1) No Local Switching charge will apply to DTI.
2. For Local inter-switch calls where DTI has purchased GTE's
unbundled Local Switching.
GTEs charges will apply to DTI described below where the call is:
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(a) Originated from DTI's end-user customer using GTE's
unbundled Local Switching and completed to a GTE customer.
(1) (For use of the local switch): Local Switching charge
at the originating office.
(2) a mileage-based transport charge will apply when DTI
uses GTE's transport.
(3) (For call termination): Charges for local
interconnection/call termination, when applicable.
(b) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to a Third Party LEC (not
affiliated with DTI) customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply
when DTI uses GTE's transport.
(c) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to the interconnected network
of a Third Party LEC (not affiliated with DTI).
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply
when DTI uses GTE's transport, and mileage shall be
measured between the originating office and the POI of
the Third Party's network.
(d) Originated from DTI's customer using GTE's unbundled
Local Switching and completed to DTI's customer using GTE's
unbundled Local Switching.
(1) (For use of the local switch): Local Switching
charge at the originating office.
(2) a mileage-based transport charge will apply
when DTI uses GTE's transport.
(3) (For use of the local switch): Local Switching
charge at the terminating office.
(d) Originated by a GTE customer and terminated to DTI's
customer using GTE's unbundled Local Switching.
(1) (For use at local switch): Local Switching Charge at
the terminating office.
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(2) (For call termination): DTI shall charge GTE
for local interconnection/call termination, when
applicable.
(f) Originated by a customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local Switching
and terminated to DTI's customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
(g) Originated by a customer of the interconnected network
of a third-party LEC (not affiliated with DTI) and
terminated to DTI's customer using GTE's unbundled Local
Switching.
(1) (For use of the local switch): Local Switching
charge at the terminating office.
3. For intraLATA toll calls where DTI has purchased GTE's unbundled Local
Switching, charges per Unbundled Network Element pricing shall apply as
follows:
A. Originated by DTI's customer and completed to a GTE customer.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC (Residual Interconnection Charge)
at the originating office.
2. Shared transport charge between the two offices will apply
when DTI uses GTE's transport.
3. (For call termination): End Office Switching charge
at the terminating office (Switched Access Rate).
4. RIC and CCLC at the terminating office.
B. Originated by DTI's customer and completed to the customer of a
third-party LEC (not affiliated with DTI) using GTE's unbundled
Local Switching in a distant end office.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the originating office.
2. Shared transport charge between the two offices will
apply when DTI uses GTE's transport.
C. Originated by DTI customer and completed to the network of a
third-party LEC (not affiliated with DTI) interconnected with
GTE's network.
1. (For use of the local switch): Local Switching charge, plus
RIC and CCLC, at the originating office.
2. Common transport charge will apply when DTI uses GTE's
transport, and mileage shall be measured between the
originating office and the POI of the Third Party's network.
3. Tandem Switching, where applicable.
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D. Originated by DTI's customer and completed by another of DTI's
customers being served through GTE's unbundled Local Switching in
a distant office.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the originating office.
2. Shared transport charge between the two offices will
apply when DTI uses GTE's transport.
3. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
E. Originated by a GTE customer and terminated to DTI's customer
using GTE's unbundled Local Switching.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
2. (For call termination): DTI will charge GTE Local
Switching at the terminating office (Switched Access Rate).
3. (For call termination): DTI will charge GTE NIC and
CCLC at the terminating office.
F. Originated by the customer of a third-party LEC (not
affiliated with DTI) using GTE's unbundled Local Switching in a
distant end office and terminated to DTI's customer using GTE's
unbundled Local Switching.
1. (For use of the local switch): Local Switching charge
plus RIC and CCLC at the terminating office.
G. Originated by a customer of the network of a third-party LEC
(not affiliated with DTI) interconnected with GTE's network and
terminated to DTI's customer using GTE's unbundled Local
Switching.
1. (For use of the local switch): Local Switching charge plus
RIC and CCLC at the terminating office.
4. For intrastate Switched Access calls where DTI's is using GTE's
unbundled Local Switching for calls originated from or terminated to an
IXC for completion:
a. For calls originated from DTI's customer to DTI's own IXC switch
(or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Originating RIC and CCLC.
3. GTE will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
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4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
B. For calls originating from DTI's customer to an IXC's switch
not affiliated with DTI.
1. (For use of the local switch): DTI's customer to an
IXC's switch not affiliated with DTI.
2. Originating RIC and CCLC.
3. GTE shall charge the non-affiliated IXC for the
following originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge the non-affiliated IXC for the following
Switched Access elements on a meet-point
basis:
(a) Originating RIC and CCLC;
(b) Local Switching.
C. For calls terminating to DTI's end-user customer from DTI's
own IXC switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCLC.
3. GTE will charge DTI's IXC (affiliate) the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC (affiliate) for the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC and CCLC.
(b) Local Switching.
D. For calls terminating to DTI's customer from an IXC switch not
affiliated with DTI.
1. (For use of the local switch): Local Switching charge at
the terminating office.
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2. Terminating RIC and CCLC.
3. GTE shall charge the IXC for the following terminating
Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC for the following Switched Access
elements on a meet-point basis:
(a) Terminating RIC and CCLC;
(b) Local Switching.
5. For interstate Switched Access calls where DTI is using GTE's unbundled
Local Switching for calls originated from or terminated to an IXC for
completion:
a. For calls originated from DTI's customer to DTI's own IXC switch
(or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge
at the originating office.
2. Originating Residual Interconnection Charge (RIC) and
CCL.
3. GTE shall charge DTI's IXC affiliate for the following
originating Switched Access on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following Switched
Access elements on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
B. For calls originated from DTI's customer to an IXC's switch
not affiliated to DTI.
1. (For use of the local switch): Local Switching charge at
the terminating office.
2. Originating RIC and CCLC.
3. GTE shall charge the IXC for the following originating
Switched Access on a meet-point basis:
(a) Local Transport;
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<PAGE> 233
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access elements
on a meet-point basis:
(a) Originating RIC;
(b) Originating CCLC;
(c) Local Switching.
C. For calls terminating to DTI's customer for DTI's own IXC
switch (or that of an affiliate) for completion.
1. (For use of the local switch): Local Switching charge at
the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge DTI's IXC (affiliate) the following
Switched Access elements on a meet-point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge DTI's IXC affiliate the following
Switched Access elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
D. For calls terminating to DTI's customer from an IXC
switch not affiliated with DTI.
1. (For use of the local switch): Local Switching charge
at the terminating office.
2. Terminating RIC and CCL.
3. GTE will charge the non-affiliated IXC for the
following terminating Switched Access on a meet-
point basis:
(a) Local Transport;
(b) Tandem Switching.
4. DTI will charge IXC the following Switched Access
elements on a meet-point basis:
(a) Terminating RIC;
(b) Terminating CCLC;
(c) Local Switching.
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<PAGE> 234
APPENDIX 46A
MCIm TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III of this Agreement and subject to all of
the terms and conditions thereof, and after notice as called for in Section 46,
the following MCIm TERMS referred to in Section 46 will be substituted for the
GTE TERMS which are set out in Appendix 46B as and when Section 46 calls for
them to be substituted. When the MCIm Agreement is selected pursuant to the
provisions of Section 46, the parties shall modify this Appendix by replacing
the descriptions of issues below with the specific rates and terms and
conditions of the selected MCIm Agreement that describes those precise issues
are attached hereto as Exhibits to this Appendix.
ARTICLE V, SECTION 1
1. Telecommunications Services Provided for Resale.
1.1 At the request of MCIm, and pursuant to the requirements of the
Act, and FCC Rules and Regulations, GTE shall make available to
MCIm for unrestricted resale, all Telecommunications Services
that GTE currently provides or may offer hereafter at retail to
subscribers who are not Telecommunications Carriers. Resale shall
be unrestricted except as provided herein. GTE shall also provide
service functions, as set forth in Section 3.4 of this Article.
The Telecommunications Services and service functions provided by
GTE to MCIm pursuant to this Article are collectively referred to
as "Local Resale."
1.2 To the extent that this Article describes services which GTE
shall make available to MCIm for resale pursuant to this
Agreement, this list of services is neither all inclusive nor
exclusive. All Telecommunications Services of GTE which are to be
offered for resale are subject to the terms herein.
1.7 GTE shall allow MCIm to initiate "as is transfers" of local
exchange Telecommunications Services. For purposes of this
Section 1.7, an "as is transfer" is the transfer of all the
Telecommunications Services and features available for resale
that are currently being provided for the specified account
without the requirement of a specific enumeration of the services
and features on the LSR without interruption of service.
ARTICLE V, SECTION 2
2. No Restrictions on Resale. MCIm may resell to any and all classes of
end users Telecommunications Services obtained from GTE under this
Agreement and subject to applicable tariffs. GTE will not prohibit nor
impose unreasonable or discriminatory conditions or limitations on the
resale of its Telecommunications Services. GTE agrees to remove all
tariff restrictions which prohibit or limit the aggregation and resale
of any such Telecommunications Services, including, but not limited to,
CENTREX aggregation, feature and service aggregation, and resale of
Telecommunications Services to another reseller. Notwithstanding the
foregoing, to the extent that there is a conflict between the terms,
conditions and other matters in such tariffs, and any specific
provision of this Agreement, the terms and conditions of this Agreement
shall control.
2.1 Restrictions on Resale:
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<PAGE> 235
2.1.1 MCIm agrees not to resell Residential Access Lines
to non-residential subscribers.
2.1.2 MCIm may not use an STS switch as a Central Office
Switch to provide local exchange services.
2.2 Services Available for Resale Without an Avoided Cost Discount:
2.2.1 The following services are available for resale
without an avoided cost discount:
2.2.1.1 Switched and special access;
2.2.1.2 Cellular interconnection;
2.2.1.3 Distance learning;
2.2.1.4 976 Service;
2.2.1.5 Promotional offerings of less than
ninety (90) days;
2.2.1.6 TSPS; and
2.2.1.7 Existing Individual Case Basis ("ICB")
customer specific contracts.
ARTICLE V, SECTION 3
3. Services Not Available for Resale.
3.1 The following services are not available for resale:
3.1.1 Inside Wire maintenance;
3.1.2 Voice Mail;
3.1.3 Public pay telephone lines (except as noted in Sections
3.2.11 and 3.2.12); and
3.1.4 Semi-Public pay telephone lines (except as noted in
Sections 3.2.11 and 3.2.12).
ARTICLE VI, SECTION 2
2. Unbundled Network Elements.
2.1 GTE shall offer Network Elements to MCIm on an unbundled basis
on rates, terms and conditions that are just, reasonable, and
non-discriminatory in accordance with the terms and conditions of
this Agreement.
APPENDIX C, SECTION 1
1. Services.
1.1 Local Service Resale. The prices charged to DTI for Local
Service shall be calculated using the avoided cost discount
applicable in Texas, determined on the basis of the retail rate
charged to subscribers for the telecommunications service
requested. The interim wholesale discount shall be
N-2
<PAGE> 236
22.99% off the applicable retail rate for all GTE services
subject to resale. Those services identified in Article V,
Section 2, will be available for resale without an avoided
cost discount. This interim discount shall remain in effect
until the Commission determines a permanent wholesale discount in
accordance with the Act. Once determined, said wholesale
discount shall apply instead of the interim discount for the
remaining Term of this Agreement.
1.2 The prices shall be based on GTE's retail rates (including all
promotions and contracts as described I Article V) applicable on
the Effective Date, less the applicable discount. If GTE changes
its retail rates after DTI executes this Agreement, the
applicable discount shall be applied to the retail rates as
changed.
1.2.1 Non-recurring Charges for Resale Services:
1.2.1.1 With the exception of the Changeover
Service Order Charge, non-recurring charges
for Resale Services shall be at the
applicable tariffed rate less the avoided
cost discount.
1.2.1.2 Besides a "changeover" charge, GTE
shall not charge any additional non-recurring
charges to switch a customer from GTE to DTI.
If a customer changes its service to DTI and
orders services in addition to those supplied
by its previous local service provider, GTE
shall charge DTI the Subsequent Service Order
Charge stated in Appendix 44A and no other
charges shall apply.
1.2.3 PIC change charges shall apply whenever
the primary IXC selection for a resale
customer is changed by DTI.
1.3 Unbundled Network Elements. The recurring and non-recurring
prices charged to DTI for specific Network Elements are in
Attachment I to this Appendix. The prices listed in this Appendix
are interim only and are subject to change to conform with the
rates for Unbundled Network Elements and non-recurring charges as
ordered by the Commission subsequent to the Effective Date of
this Agreement. Once the Commission-determined prices are
adopted, said prices will be substituted for the interim prices
and shall apply for the remainder of the Term of this Agreement,
unless otherwise changed by the Commission.
N-3
<PAGE> 237
TERMS/PRICES ADOPTED FROM THE MCIm ARBITRATION AGREEMENT
<TABLE>
<CAPTION>
<S> <C> <C>
1. UNBUNDLED LOOP
2-Wire Loops, per month $ 25.49
4-Wire Loops, per month $ 36.53
Specially Conditioned Loops TBD
Loop Concentrator/Multiplexer TBD
Feeder TBD
Distribution TBD
2. NETWORK INTERFACE DEVICE
Basic NID, per line, per month $ 1.44
12xNID, per line, per month $ 2.04
3. LOCAL SWITCHING
2-Wire Port, per month $ 4.28
DS-1 Port, per month $ 81.15
End Office Switching, per MOU $ 0.004085154
4. TANDEM SWITCHING
Tandem Switching, per avg. MOU $ 0.001041118
5. INTEROFFICE TRANSMISSION
Common Transport
Transport termination, per termination per MOU $ 0.00007125
Transport Facility per MOU per mile $ 0.00000221
Dedicated Transport
DS-0/Voice Grade Facility per Air-Line-Mile, per month $ 2.60
DS-1 Facility per Air-Line-Mile, per month $ 0.97
DS-1 per Termination, per month $ 31.02
DS-3 Facility per Air-Line-Mile, per month $ 24.50
DS-3 per termination, per month $315.90
Multiplexing
DS-1 to Voice MUX, per month $
DS-3 to DS-1 MUX, per month $
6. NONRECURRING CHARGES
6.1 UNBUNDLED SERVICES
Element Ordering (loop or port)
Initial Element Order, per order $ 47.25
Transfer of Elements Charge, per order $ 16.00
Subsequent Element Order, per order $ 24.00
Customer Service Record Search, per request $ 5.25
Installation
Unbundled Loop, per loop $ 11.00
Unbundled Port, per port $ 11.00
Loop Facility Charge, per order (*Note 1) $ 64.00
6.2 RESALE SERVICES (*Note 2)
Initial Service Order per order Service Order Charge Primary, each
Changeover Service Order Charge (*Note 3) Secondary Service Order Charge
</TABLE>
N-4
<PAGE> 238
<TABLE>
<S> <C>
Subsequent Service Order, per order Service Order Charge, Secondary Charge
Installation, Per Line Line Connection Charge, per line
Outside Facility Connection Charge, Premises Visit Charge, each; any
per order (*Note 4) applicable Line Extension or Special
Construction Charges; any other
applicable tariffed charges
PIC Change Charge $ 4.48
7. BILLING AND RECORDING TBD
</TABLE>
(*NOTE 1) The Loop Facility Charge will apply when field work is required
for establishment of new unbundled loop service.
(*NOTE 2) The following charges listed are to be taken from GTE's retail
services tariff and are subject to the wholesale discount of
22.99%.
(*NOTE 3) Not subject to the wholesale discount.
(*NOTE 4) The Outside Facility Charge will apply when field wok is
required for establishment of new resale service. The terms,
conditions and rules that apply for this work are described in
GTE's retail local service tariffs.
N-5
<PAGE> 239
APPENDIX 46B
GTE TERMS
GTE/DTI OPT-IN NEGOTIATION ISSUES
Pursuant to Section 46 of Article III of this Agreement and subject to all of
the terms and conditions of that Section 46, each of the following rates or
terms may be replaced or supplemented by the correlative rate or term set forth
in the MCIm TERMS listed in Appendix 46A, as and when provided in Section 46 and
only until, as long as, and under the conditions prescribed by Section 46.
- - The resale discount and rates in Appendix F.
- - Sections 2.2, 2.3, 3.3, 5.2 and 5.3, or Article VI.
- - Sections 2.1, 2.2 and 2.3 of Article VII.
O-1
<PAGE> 1
EXHIBIT 10.27
Sprint
MASTER RESALE AGREEMENT
with
DIGITAL TELEPORT INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
<S> <C> <C> <C>
PART A - INTERCONNECTION AND RESALE AGREEMENT 1
PART A-GENERAL TERMS AND CONDITIONS 1
Section 1. Scope of this Agreement 1
Section 2. Regulatory Approvals 2
Section 3. Term and Termination 4
Section 4. Charges and Payment 5
Section 5. Audits and Examinations 5
Section 6. Bona Fide Request Process for Further Unbundling 7
Section 7. Intellectual Property Rights 8
Section 8. Limitation of Liability 8
Section 9. Indemnification 9
Section 10. Remedies 10
Section 11. Branding 10
Section 12. Confidentiality and Publicity 11
Section 13. Warranties 13
Section 14. Assignment and Subcontract 13
Section 15. Governing Law 13
Section 16. Relationship of Parties 14
Section 17. No Third Party Beneficiaries 14
Section 18. Notices 14
Section 19. Waivers 14
Section 20. Survival 15
Section 21. Force Majeure 15
Section 22. Dispute Resolution 15
Section 23. Taxes 16
Section 24. Responsibility for Environmental Hazards 17
Section 25. Amendments and Modifications 19
Section 26. Severability 19
Section 27. Headings Not Controlling 19
Section 28. Entire Agreement 19
Section 29. Counterparts 20
Section 30. Successors and Assigns 20
Section 31. Implementation Plan 20
PART B - DEFINITIONS 23
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C> <C> <C>
PART C - ATTACHMENT I - PRICE SCHEDULE 33
1. General Principles 33
2. Local Service Resale 33
3. Interconnection and Reciprocal Compensation 33
4. Unbundled Network Elements 34
PART C - ATTACHMENT II - LOCAL RESALE 35
Section 1. Telecommunications Services Provided for Resale 35
Section 2. General Terms and Conditions 35
2.1 Pricing 35
2.2 Requirements for Specific Services 35
2.2.1 CENTREX Requirements 35
2.2.2 Voluntary Federal and State Subscriber Financial
Assistance Programs 36
2.2.3 Grandfathered Services 37
2.2.4 N11 Service 37
2.2.5 Contract Service Arrangements, Special Ar-
rangements, and Promotions 37
2.2.6 COCOT Lines 37
2.2.7 Voice Mail Service 38
2.2.8 Hospitality Service 38
2.2.9 Telephone Line Number Calling Cards 38
PART C - ATTACHMENT III - NETWORK ELEMENTS 39
Section 1. General 39
Section 2. Unbundled Network Elements 39
2.3 Standards for Network Elements 39
Section 3. Loop 40
3.1 Definition 40
Section 4. Local Switching 42
4.1 Definition 42
4.2 Technical Requirements 42
4.3 Interface Requirements 43
Section 5. Directory Assistance Service 43
Section 6. Operator Services 44
Section 7. Transport 44
7.1 Common Transport 44
7.2 Dedicated Transport 45
Section 8. Tandem Switching 45
8.1 Definition 45
8.2 Technical Requirements 46
8.3 Interface Requirements 47
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
Section 9. Network Interface Device 47
9.1 Definition 47
9.2 Technical Requirements 48
Section 10. Signaling Systems and Databases 49
10.1 Signaling Link Transport 49
10.2 Line Information Database (LIDB) 52
10.3 Toll Free Number Database 54
Part C - ATTACHMENT IV - INTERCONNECTION 55
Section 1. Local Interconnection Trunk Arrangement 55
Section 2. Compensation Mechanisms 56
2.1 Interconnection Point 56
2.2 Compensation for Local Traffic Transport and
Termination 56
Section 3. Signaling 57
Section 4. Network Servicing 58
4.1 Trunk Forecasting 58
4.2 Grade of Service 59
4.3 Trunk Servicing 59
Section 5. Network Management 59
5.1 Protective Protocols 59
5.2 Expansive Protocols 60
5.3 Mass Calling 60
Section 6. Usage Measurement 60
Section 7. Responsibilities of the Parties 61
PART C - ATTACHMENT V - COLLOCATION 63
Section 1 Introduction 63
Section 2 Technical Requirements 63
Section 3 Physical Security 80
Section 4 License 83
Section 5 Technical References 83
PART C - ATTACHMENT VI - RIGHTS OF WAY (ROW), CONDUITS,
POLE ATTACHMENTS 85
Section 1. Introduction 85
Section 2. Definitions 85
Section 3. Requirements 87
3.1 General 87
3.2 Pre-Ordering Disclosure Requirements 88
3.3 Attachment Requests 89
3.4 Authority to Place Attachments 91
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
3.5 Capacity 92
3.6 Sharing of Right of Way 93
3.7 Emergency Situations 93
3.8 Attachment Fees 93
3.9 Additions and Modifications to Existing Attachments 94
3.10 Noncompliance 95
3.11 Surveys and Inspections of Attachments 95
3.12 Notice of Modification or Alteration of Poles, Ducts,
Conduits, or Other ROW by Sprint 95
3.13 Termination of Section 3 or An Individual
Attachment by CLEC 96
3.14 Abandonment 96
3.15 Dispute Resolution Procedures 97
PART C - ATTACHMENT VII - INTERIM NUMBER PORTABILITY 98
Section 1. Sprint Provision of Interim Number Portability 98
Section 2. Interim Number Portability (INP) 98
Section 3. Requirements for INP 100
3.1 Cut-Over Process 100
3.2 Testing 100
3.3 Installation Timeframes 100
3.4 Call Referral Announcements 101
3.5 Engineering and Maintenance 101
3.6 Operator Services and Directory Assistance 101
3.7 Number Reservation 102
PART C - ATTACHMENT VIII - GENERAL BUSINESS REQUIRE-
MENTS 103
Section 1. General Business Requirements 103
1.1 Procedures 103
1.2 Service Offerings 104
Section 2. Ordering and Provisioning 105
2.1 General Business Requirements 105
2.2 Service Order Process Requirements 107
2.3 Systems Interfaces and Information Exchanges 111
2.4 Standards 114
Section 3. Billing 114
3.1 Procedures 114
3.2 Revenue Protection 116
Section 4. Provision of Subscriber Usage Data 116
4.1 Procedures 116
4.2 Information Exchange and Interfaces 121
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C> <C>
Section 5. General Network Requirements 121
Section 6. Miscellaneous Services and Functions 123
6.0 General 123
6.1 General Requirements 123
6.2 Systems Interfaces and Exchanges 141
PART C - ATTACHMENT IX - Reporting Standards 151
Section 1. General 151
Section 2. Parity and Quality Measurements 151
</TABLE>
<PAGE> 7
PART A
INTERCONNECTION AND RESALE AGREEMENT
This Interconnection and Resale Agreement (the Agreement"), entered into
this 30th day of September 1997, is entered into by and between Digital
Teleport Inc. (DTI) ("CLEC"), a Missouri corporation, and United Telephone
Company of Kansas ("Sprint''), a Kansas corporation, to establish the rates,
terms and conditions for local interconnection, local resale, and purchase of
unbundled network elements (individually referred to as the "service" or
collectively as the "services").
WHEREAS, the Parties wish to interconnect their local exchange networks in
a technically and economically efficient manner for the transmission and
termination of calls, so that customers of each can seamlessly receive calls
that originate on the other's network and place calls that terminate on the
other's network, and for CLEC's use in the provision of exchange access ("Local
Interconnection"); and
WHEREAS, CLEC wishes to purchase Telecommunications Services for resale to
others, and Sprint is willing to provide such service; and
WHEREAS, CLEC wishes to purchase unbundled network elements, ancillary
services and functions and additional features ("Network Elements"), and to use
such services for itself or for the provision of its Telecommunications
Services to others, and Sprint is willing to provide such services; and
WHEREAS, the Parties intend the rates, terms and conditions of this
Agreement, and their performance of obligations thereunder, to comply with the
Communications Act of 1934, as amended by the Telecommunications Act of 1996
(the "Act"), the Rules and Regulations of the Federal Communications Commission
("FCC"), and the orders, rules and regulations of the Missouri Public Service
Commission (the "Commission");
Now, therefore, in consideration of the terms and conditions contained
herein, CLEC and Sprint hereby mutually agree as follows:
PART A -- GENERAL TERMS AND CONDITIONS
SECTION 1. SCOPE OF THIS AGREEMENT
1.1 This Agreement, including Parts A, B, and C, specifies the
rights and obligations of each party with respect to the
establishment, purchase, and sale of Local Interconnection, resale
of Telecommunications Services and Unbundled Network Elements.
This PART A sets forth the general
<PAGE> 8
terms and conditions governing this Agreement. Certain terms used
in this Agreement shall have the meanings defined in PART B --
DEFINITIONS, or as otherwise elsewhere defined throughout this
Agreement. Other terms used but not defined herein will have the
meanings ascribed to them in the Act, in the FCC's, and in the
Commission's Rules and Regulations. PART C sets forth, among
other things, descriptions of the services, pricing, technical and
business requirements, and physical and network security
requirements.
LIST OF ATTACHMENTS COMPRISING PART C:
<TABLE>
<S> <C>
I. Price Schedule
II. Local Resale
III. Network Elements
IV. Interconnection
V. Collocation
VI. Rights of Way
VII. Number Portability
VIII. General Business Requirements
IX. Reporting Standards
</TABLE>
1.2 Sprint shall not discontinue any interconnection arrangement,
Telecommunications Service, or Network Element provided or required
hereunder without providing CLEC thirty (30) days' prior written
notice of such discontinuation of such service, element or
arrangement. Sprint agrees to cooperate with CLEC with any
transition resulting from such discontinuation of service and to
minimize the impact to customers which may result from such
discontinuance of service.
1.3 Sprint shall provide notice of network changes and upgrades in
accordance with Sections 51.325 through 51.335 of Title 47 of the
Code of Federal Regulations.
1.4 The services and facilities to be provided to CLEC by Sprint in
satisfaction of this Agreement may be provided pursuant to Sprint
tariffs and then current practices. Should there be a conflict
between the terms of this Agreement and any such tariffs and
practices, the terms of the tariff shall control to the extent
allowed by law or Commission order.
SECTION 2. REGULATORY APPROVALS
2.1 This Agreement, and any amendment or modification hereof, will
be submitted to the Commission for approval in accordance with
Section 252 of the Act. Sprint and CLEC shall use their best
efforts to obtain approval of this Agreement by any regulatory body
having jurisdiction
<PAGE> 9
over this Agreement and to make any required tariff modifications
in their respective tariffs, if any. CLEC shall not order
services under this Agreement before Approval Date except as may
otherwise be agreed in writing between the Parties. In the event
any governmental authority or agency rejects any provision hereof,
the Parties shall negotiate promptly and in good faith such
revisions as may reasonably be required to achieve approval.
2.2 Notwithstanding the above provisions, or any other provision in
this Agreement, this Agreement and any Attachments hereto are
subject to such changes or modifications with respect to the rates,
terms or conditions contained herein as may be ordered, allowed or
directed by the Commission or the FCC, or as may be required to
implement the result of an order or direction of a court of
competent jurisdiction with respect to its review of any appeal of
the decision of the Commission or the FCC, in the exercise of their
respective jurisdictions whether said changes or modifications
result from an order issued on an appeal of the decision of the
Commission or the FCC, a rulemaking proceeding, a generic
investigation, a tariff proceeding, a costing/pricing proceeding,
or an arbitration proceeding conducted by the Commission or FCC
which applies to Sprint or in which the Commission or FCC makes a
generic determination) to the extent that CLEC had the right and/or
opportunity to participate in said proceeding (regardless of
whether CLEC actually participates.). Any rates, terms or
conditions thus developed or modified shall be substituted in place
of those previously in effect and shall be deemed to have been
effective under this Agreement as of the effective date of the
order by the court, Commission or the FCC, whether such action was
commenced before or after the effective date of this Agreement.
If any such modification renders the Agreement inoperable or
creates any ambiguity or requirement for further amendment to the
Agreement, the Parties will negotiate in good faith to agree upon
any necessary amendments to the Agreement. Should the Parties be
unable to reach agreement with respect to the applicability of such
order or the resulting appropriate modifications to this Agreement,
the Parties agree to petition such Commission to establish
appropriate interconnection arrangements under sections 251 and 252
of the Act in light of said order or decision.
2.3 In the event Sprint is required by any governmental authority
or agency to file a tariff or make another similar filing in
connection with the performance of any action that would otherwise
be governed by this Agreement, Sprint shall make reasonable efforts
to provide to CLEC its proposed tariff prior to such filing. The
other services covered by this Agreement and not covered by such
decision or order shall remain unaffected and shall remain in full
force and effect.
<PAGE> 10
2.4 The Parties intend that any additional services requested by
either party relating to the subject matter of this Agreement will
be incorporated into this Agreement by amendment.
SECTION 3. TERM AND TERMINATION
3.1 This Agreement shall be deemed effective upon the Approval
Date. No order or request for services under this Agreement shall
be processed until this Agreement is so approved unless otherwise
agreed to, in writing by the Parties.
3.2 Except as provided herein, Sprint and CLEC agree to provide
service to each other on the terms defined in this Agreement for a
period of one year, and thereafter the Agreement shall continue in
force and effect unless and until terminated as provided herein.
3.3 Either party may terminate this Agreement at the end of the
term by providing written notice of termination to the other party,
such written notice to be provided at least 180 days in advance of
the date of termination. In the event of such termination
pursuant to this Section 3.3, for service arrangements made
available under this Agreement and existing at the time of
termination, those arrangements shall continue without interruption
under either (a) a new agreement executed by the Parties, or (b)
standard interconnection terms and conditions contained in Sprint's
tariff or other substitute document that are approved and made
generally effective by the Commission or the FCC.
3.4 In the event of default, either Party may terminate this
Agreement in whole or in part provided that the non-defaulting
Party so advises the defaulting Party in writing of the event of
the alleged default and the defaulting Party does not remedy the
alleged default within 60 days after written notice thereof.
Default is defined to include:
a. Either Party's insolvency or initiation of
bankruptcy or receivership proceedings by or against
the Party; or
b. Either Party's material breach of any of the
terms or conditions hereof, including the failure to
make any undisputed payment when due.
3.5 Termination of this Agreement for any cause shall not release
either Party from any liability which at the time of termination
has already accrued to the other Party or which thereafter may
accrue in respect to
<PAGE> 11
any act or omission prior to termination or from any obligation
which is expressly stated herein to survive termination.
3.6 If Sprint sells or trades substantially all the assets used to
provide Telecommunications Services, Local Interconnection, or
Network Elements in a particular exchange or group of exchanges
Sprint may terminate this Agreement in whole or in part as to a
particular exchange or group of exchanges upon sixty (60) days
prior written notice.
SECTION 4. CHARGES AND PAYMENT
4.1 In consideration of the services provided by Sprint under this
Agreement, CLEC shall pay the charges set forth in Attachment I
subject to the provisions of Section 2.3 hereof The billing and
payment procedures for charges incurred by CLEC hereunder are set
forth in Attachment VIII.
4.2 In addition to any other applicable charges under this Section
4 and Attachment I, if CLEC purchases unbundled Local Switching
elements, CLEC shall pay Sprint:
4.2.1 for intrastate toll minutes of use traversing such
unbundled Local Switching elements, intrastate access charges
comparable to those listed in 4.2.1 above and any explicit
intrastate universal service mechanism based on access
charges.
4.3 Sprint will not accept any new or amended orders for
Telecommunications Services, Unbundled Network Elements,
Interconnection or other services under the terms of this Agreement
from CLEC while any past due, undisputed charges remain unpaid.
SECTION 5. AUDITS AND EXAMINATIONS
5.1 As used herein "Audit" shall mean a comprehensive review of
services performed under this Agreement; "Examination" shall mean
an inquiry into a specific element of or process related to
services performed under this Agreement (e.g., examination and
verification of LOAs). Either party (the "Requesting Party") may
perform one (1) Audit per 12-month period commencing with the
Approval Date. The Requesting Party may perform Examinations as
it deems necessary.
5.2 Upon thirty (30) days written notice by the Requesting Party to
Audited Party, Requesting Party shall have the right through its
authorized representative to make an Audit or Examination, during
normal
<PAGE> 12
business hours, of any records, accounts and processes which
contain information bearing upon the provision of the services
provided and performance standards agreed to under this Agreement.
Within the above-described 30-day period, the Parties shall
reasonably agree upon the scope of the Audit or Examination, the
documents and processes to be reviewed, and the time, place and
manner in which the Audit or Examination shall be performed.
Audited Party agrees to provide Audit or Examination support,
including appropriate access to and use of Audited Party's
facilities (e.g., conference rooms, telephones, copying machines).
5.3 Each party shall bear its own expenses in connection with the
conduct of the Audit or Examination. The reasonable cost of
special data extraction required by the Requesting Party to conduct
the Audit or Examination will be paid for by the Requesting Party.
For purposes of this Section 5.3, a "Special Data Extraction"
shall mean the creation of an output record or informational report
(from existing data files) that is not created in the normal course
of business. If any program is developed to Requesting Party's
specifications and at Requesting Party's expense, Requesting Party
shall specify at the time of request whether the program is to be
retained by Audited party for reuse for any subsequent Audit or
Examination.
5.4 Adjustments, credits or payments shall be made and any
corrective action shall commence within thirty (30) days from
Requesting Party's receipt of the final audit report to compensate
for any errors or omissions which are disclosed by such Audit or
Examination and are agreed to by the Parties. One and one half (1
1/2%) or the highest interest rate allowable by law for commercial
transactions shall be assessed and shall be computed by compounding
daily from the time of the overcharge to the day of payment or
credit.
5.5 Neither such right to examine and audit nor the right to
receive an adjustment shall be affected by any statement to the
contrary appearing on checks or otherwise, unless such statement
expressly waiving such right appears in writing, is signed by the
authorized representative of the party having such right and is
delivered to the other party in a manner sanctioned by this
Agreement.
5.6 This Section 5 shall survive expiration or termination of this
Agreement for a period of two (2) years after expiration or
termination of this Agreement.
<PAGE> 13
SECTION 6. BONA FIDE REQUEST PROCESS FOR FURTHER UNBUNDLING
6.1 Each Party shall promptly consider and analyze access to
categories of unbundled Network Elements not covered in this
Agreement with the submission of a Network Element Bona Fide
Request hereunder. The Network Element Bona Fide Request process
set forth herein does not apply to those services requested
pursuant to FCC Rule Section 51.319 adopted in First Report &
Order, CC Docket No. 96-98, (rel. Aug. 8, 1996).
6.2 A Network Element Bona Fide Request shall be submitted in
writing and shall include a technical description of each requested
Network Element.
6.3 The requesting Party may cancel a Network Element Bona Fide
Request at any time, but shall pay the other Party's reasonable and
demonstrable costs of processing and/or implementing the Network
Element Bona Fide Request up to the date of cancellation.
6.4 Within ten (10) business days of its receipt, the receiving
Party shall acknowledge receipt of the Network Element Bona Fide
Request.
6.5 Except under extraordinary circumstances, within thirty (30)
days of its receipt of a Network Bona Fide Request, the receiving
Party shall provide to the requesting Party a preliminary analysis
of such Network Element Bona Fide Request. The preliminary
analysis shall confirm that the receiving Party will offer access
to the Network Element or will provide a detailed explanation that
access to the Network Element does not qualify as a Network Element
that is required to be provided under the Act.
6.6 Upon receipt of the preliminary analysis, the requesting Party
shall, within thirty (30) days, notify the receiving Party of its
intent to proceed or not to proceed.
6.7 The receiving Party shall promptly proceed with the Network
Element Bona Fide Request upon receipt of written authorization
from the requesting Party. When it receives such authorization,
the receiving Party shall promptly develop the requested services,
determine their availability, calculate the applicable prices and
establish installation intervals.
6.8 As soon as feasible, but not more than ninety (90) days after
its receipt of authorization to proceed with developing the Network
Element Bona Fide Request, the receiving Party shall provide to the
requesting
<PAGE> 14
Party a Network Element Bona Fide Request quote which will include,
at a minimum, a description of each Network Element, the
availability, the applicable rates and the installation intervals.
6.9 Within thirty (30) days of its receipt of the Network Element
Bona Fide Request quote, the requesting Party must either confirm
its order for the Network Bona Fide Request pursuant to the Network
Element Bona Fide Request quote or seek arbitration by the
Commission pursuant to Section 252 of the Act.
6.10 If a Party to a Network Element Bona Fide Request believes
that the other Party is not requesting, negotiating or processing
the Network Element Bona Fide Request in good faith, or disputes a
determination, or price or cost quote, such Party may seek
mediation or arbitration by the Commission pursuant to Section 252
of the Act.
SECTION 7. INTELLECTUAL PROPERTY RIGHTS
Any intellectual property which originates from or is developed by
a Party shall remain in the exclusive ownership of that Party.
Except for a limited license to use patents or copyrights to the
extent necessary for the Parties to use any facilities or equipment
(including software) or to receive any service solely as provided
under this Agreement, no license in patent, copyright, trademark or
trade secret, or other proprietary or intellectual property right
now or hereafter owned, controlled or licensable by a Party, is
granted to the other Party or shall be implied or arise by
estoppel. It is the responsibility of each Party to ensure at no
separate, additional cost to the other Party that it has obtained
any necessary licenses in relation to intellectual property of
third parties used in its network that may be required to enable
the other Party to use any facilities or equipment (including
software), to receive any service, or to perform its respective
obligations under this Agreement. For the avoidance of doubt, the
foregoing sentence shall not preclude Sprint from charging CLEC for
such costs as permitted under a Commission order.
SECTION 8. LIMITATION OF LIABILITY
Except as otherwise set forth in this Agreement, neither Party
shall be responsible to the other for any indirect, special,
consequential or punitive damages, including (without limitation)
damages for 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"),
whether arising in contract or tort, provided that the foregoing
shall not limit a Party's obligation under Section 9 to
<PAGE> 15
indemnify, defend, and hold the other party harmless against
amounts payable to third parties. Notwithstanding the foregoing,
in no event shall Sprint's liability to CLEC for a service outage
exceed an amount equal to the proportionate charge for the
service(s) or unbundled element(s) provided for the period during
which the service was affected.
SECTION 9. INDEMNIFICATION
9.1 Each Party agrees to indemnify and hold harmless the other
Party from and against claims for damage to tangible personal or
real property and/or personal injuries arising out of the
negligence or willful act or omission of the indemnifying Party or
its agents, servants, employees, contractors or representatives.
To the extent not prohibited by law, each Party shall defend,
indemnify, and hold the other Party harmless against any loss to a
third party arising out of the negligence or willful misconduct by
such indemnifying Party, its agents, or contractors in connection
with its provision of service or functions under this Agreement.
In the case of any loss alleged or made by a Customer of either
Party, the Party whose customer alleged such loss shall indemnify
the other Party and hold it harmless against any or all of such
loss alleged by each and every Customer. The indemnifying Party
under this Section agrees to defend any suit brought against the
other Party either individually or jointly with the indemnifying
Party for any such loss, injury, liability, claim or demand. The
indemnified Party agrees to notify the other Party promptly, in
writing, of any written claims, lawsuits, or demands for which it
is claimed that the indemnifying Party is responsible under this
Section and to cooperate in every reasonable way to facilitate
defense or settlement of claims. The indemnifying Party shall have
complete control over defense of the case and over the terms of any
proposed settlement or compromise thereof. The indemnifying Party
shall not be liable under this Section for settlement by the
indemnified Party of any claim, lawsuit, or demand, if the
indemnifying Party has not approved the settlement in advance,
unless the indemnifying Party has had the defense of the claim,
lawsuit, or demand tendered to it in writing and has failed to
assume such defense. In the event of such failure to assume
defense, the indemnifying Party shall be liable for any reasonable
settlement made by the indemnified Party without approval of the
indemnifying Party.
<PAGE> 16
9.2 Each Party agrees to indemnify and hold harmless the other
Party from all claims and damages arising from the Indemnifying
Party's discontinuance of service to one of the Indemnifying
Party's subscribers for nonpayment.
9.3 When the lines or services of other companies and Carriers are
used in establishing connections to and/or from points not reached
by a Party's lines, neither Party shall be liable for any act or
omission of the other companies or Carriers.
9.4 In addition to its indemnity obligations hereunder, each Party
shall, to the extent allowed by law or Commission Order, provide,
in its tariffs and contracts with its subscribers that relate to
any Telecommunications Services or Network Element provided or
contemplated under this Agreement, that in no case shall such Party
or any of its agents, contractors or others retained by such Party
be liable to any subscriber 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 subscriber for the service(s) or function(s) that gave
rise to such loss, and (ii) Consequential Damages (as defined in
Section 8 above).
SECTION 10. REMEDIES
10.1 In addition to any other rights or remedies, and unless
specifically provided here and to the contrary, either Party may
sue in equity for specific performance.
10.2 Except as otherwise provided herein, all rights of
termination, cancellation or other remedies prescribed in this
Agreement, or otherwise available, are cumulative and are not
intended to be exclusive of other remedies to which the injured
Party may be entitled at law or equity in case of any breach or
threatened breach by the other Party of any provision of this
Agreement, and use of one or more remedies shall not bar use of any
other remedy for the purpose of enforcing the provisions of this
Agreement.
SECTION 11. BRANDING
11.1 In all cases of operator and directory assistance services
CLEC provides using services provided by Sprint under this
Agreement, Sprint shall, where technically feasible, at CLEC's sole
discretion and expense, brand any and all such services at all
points of customer contact exclusively as CLEC services, or
otherwise as CLEC may specify, or be
<PAGE> 17
provided with no brand at all, as CLEC shall determine. Sprint
may not unreasonably interfere with branding by CLEC; provided that
if there are technical limitations as to the number of CLECs that
Sprint can brand for, branding will be made available to CLEC
hereunder on a first come, first serve basis with an allowance for
an unbranded alternative for all Telecommunications Carriers.
11.2 CLEC shall provide the exclusive interface to CLEC
subscribers, except as CLEC shall otherwise specify. In those
instances where CLEC requests Sprint personnel to interface with
CLEC subscribers, such Sprint personnel shall inform the CLEC
subscribers that they are representing CLEC, or such brand as CLEC
may specify.
11.3 All forms, business cards or other business materials
furnished by Sprint to CLEC subscribers shall bear no corporate
name, logo, trademark or tradename.
11.4 Except as specifically permitted by a Party, in no event shall
either Party provide information to the other Party's subscribers
about the other Party or the other Party's products or services.
11.5 Sprint shall provide, for CLEC's review, the methods and
procedures, training and approaches to be used by Sprint to assure
that Sprint meets CLEC's branding requirements.
11.6 This Section 11 shall not confer on either Party any rights to
the service marks, trademarks and trade names owned by or used in
connection with services by the other Party, except as expressly
permitted in writing by the other Party.
SECTION 12. CONFIDENTIALITY AND PUBLICITY
12.1 All confidential or proprietary information disclosed by
either Party during the negotiations and the term of this Agreement
shall be protected by the Parties in accordance with the terms of
this Section 12. All information which is disclosed by one party
("Disclosing Party") to the other ("Recipient") in connection with
this Agreement, or acquired in the course of performance of this
Agreement, shall be deemed confidential and proprietary to the
Disclosing Party and subject to this Agreement, such information
including but not limited to, orders for services, usage
information in any form, and "CPNI", and the rules and regulations
of the FCC ("Confidential and/or Proprietary Information").
12.1.1 For a period of three (3) years from receipt of
Confidential Information, Recipient shall (i) use it only for
the purpose of
<PAGE> 18
performing under this Agreement, (ii) hold it in confidence
and disclose it only to employees or agents who have a need
to know it in order to perform under this Agreement, and
(iii) safeguard it from unauthorized use or Disclosure using
no less than the degree of care with which Recipient
safeguards its own Confidential Information.
12.1.2 Recipient shall have no obligation to safeguard
Confidential Information (i) which was in the Recipient's
possession free of restriction prior to its receipt from
Disclosing Party, (ii) which becomes publicly known or
available through no breach of this Agreement by Recipient,
(iii) which is rightfully acquired by Recipient free of
restrictions on its Disclosure, or (iv) which is
independently developed by personnel of Recipient to whom the
Disclosing Party's Confidential Information had not been
previously disclosed. Recipient may disclose Confidential
Information if required by law, a court, or governmental
agency, provided that Disclosing Party has been notified of
the requirement promptly after Recipient becomes aware of the
requirement, and provided that Recipient undertakes all
lawful measures to avoid disclosing such information until
Disclosing Party has had reasonable time to obtain a
protective order. Recipient agrees to comply with any
protective order that covers the Confidential Information to
be disclosed.
12.1.3 Each Party agrees that Disclosing Party would be
irreparably injured by a breach of this Section 12 by
Recipient or its representatives and that Disclosing Party
shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of
any breach of this Section 12. Such remedies shall not be
exclusive, but shall be in addition to all other remedies
available at law or in equity.
12.2 Unless otherwise mutually agreed upon, neither Party shall
publish or use the other Party's logo, trademark, service mark,
name, language, pictures, or symbols or words from which the other
Party's name may reasonably be inferred or implied in any product,
service, advertisement, promotion, or any other publicity matter,
except that nothing in this paragraph shall prohibit a Party from
engaging in valid comparative advertising. This paragraph 12.3
shall confer no rights on a Party to the service marks, trademarks
and trade names owned or used in connection with services by the
other Party or its Affiliates, except as expressly permitted by the
other Party.
<PAGE> 19
12.3 Neither Party shall produce, publish, or distribute any press
release or other publicity referring to the other Party or its
Affiliates, or to this Agreement, without the prior written
approval of the other Party. Each party shall obtain the other
Party's prior approval before discussing this Agreement in any
press or media interviews. In no event shall either Party
mischaracterize the contents of this Agreement in any public
statement or in any representation to a governmental entity or
member thereof.
12.4 Except as otherwise expressly provided in this Section 12,
nothing herein shall be construed as limiting the rights of either
Party with respect to its customer information under any applicable
law, including without limitation Section 222 of the Act.
SECTION 13. WARRANTIES
Except as otherwise provided herein, each Party shall perform its
obligations hereunder at a performance level at parity with that
which it uses for its own operations, or those of its Affiliates,
but in no event shall a party use less than reasonable care in the
performance of its duties hereunder.
SECTION 14. ASSIGNMENT AND SUBCONTRACT
Any assignment by either Party to any non-affiliated entity of any
right, obligation or duty, or of any other interest hereunder, in
whole or in part, without the prior written consent of the other
Party shall be void. A Party assigning this Agreement or any
right, obligation, duty or other interest hereunder to an Affiliate
shall provide written notice to the other Party. All obligations
and duties of any party under this Agreement shall be binding on
all successors in interest and assigns of such Party. No
assignment hereof shall relieve the assignor of its obligations
under this Agreement.
SECTION 15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the Act, orders of the Commission, and the FCC's Rules and
Regulations, except insofar as state law may control any aspect of
this Agreement, in which case the domestic laws of the State of
Missouri, without regard to its conflicts of laws principles, shall
govern.
<PAGE> 20
SECTION 16. RELATIONSHIP OF PARTIES
It is the intention of the Parties that Sprint be an independent
contractor and nothing contained herein shall constitute the
Parties as joint venturers, partners, employees or agents of one
another, and neither Party shall have the right or power to bind or
obligate the other.
SECTION 17. NO THIRD PARTY BENEFICIARIES
The provisions of this Agreement are for the benefit of the Parties
hereto and not for any other person, provided, however, that this
shall not be construed to prevent CLEC from providing its
Telecommunications Services to other carriers. This Agreement
shall not provide any person not a party hereto with any remedy,
claim, liability, reimbursement, claim of action, or other right in
excess of those existing without reference hereto.
SECTION 18. NOTICES
Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly given
when made in writing and delivered in person or deposited in the
United States mail, certified mail, postage prepaid, return receipt
requested and addressed as follows:
<TABLE>
<S> <C>
To CLEC: Mr. Jerry Sheehy
Vice President - IC Support
11111 Dorsett Road
St. Louis, Missouri 63043
To Sprint: Ms. Kathy Fulton
Field Service Manager
5454 West 110th Street
Overland Park, Kansas 66211
</TABLE>
If personal delivery is selected to give notice, a receipt of such
delivery shall be obtained. The address to which notices or
communications may be given to either party may be changed by
written notice given by such Party to the other pursuant to this
Section 19.
SECTION 19. WAIVERS
19.1 No waiver of any provisions of this Agreement and no consent
to any default under this Agreement shall be effective unless the
same shall
<PAGE> 21
be in writing and properly executed by or on behalf of the Party
against whom such waiver or consent is claimed.
19.2 No course of dealing or failure of any Party to strictly
enforce any term, right, or condition of this Agreement in any
instance shall be construed as a general waiver or relinquishment
of such term, right or condition.
19.3 Waiver by either party of any default by the other Party shall
not be deemed a waiver of any other default.
SECTION 20. SURVIVAL
The following provisions of this Part A shall survive the
expiration or termination of this Agreement: Sections 4, 5, 7, 8,
9, 10, 11.6, 12, 22, 23 and 24.
SECTION 21. FORCE MAJEURE
Neither Party shall be held 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, such as acts of God,
acts of civil or military authority, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, power blackouts, strikes,
work stoppage affecting a supplier or unusually severe weather.
No delay or other failure to perform shall be excused pursuant to
this Section 21 unless delay or failure and consequences thereof
are beyond the control and without the fault or negligence of the
Party claiming excusable delay or other failure to perform. In
the event of any such excused delay in the performance of a Party's
obligation(s) under this Agreement, the due date for the
performance of the original obligation(s) shall be extended by a
term equal to the time lost by reason of the delay. In the event
of such delay, the delaying Party shall perform its obligations at
a performance level no less than that which it uses for its own
operations. In the event of such performance delay or failure by
Sprint, Sprint agrees to resume performance in a nondiscriminatory
manner and not favor its own provision of Telecommunications
Services above that of CLEC.
SECTION 22. DISPUTE RESOLUTION
22.1 The Parties recognize and agree that the Commission has
continuing jurisdiction to implement and enforce all terms and
conditions of this Agreement. Accordingly, the Parties agree that
any dispute arising out of or relating to this Agreement that the
Parties themselves cannot
<PAGE> 22
resolve may be submitted to the Commission for resolution. The
Parties agree to seek expedited resolution by the Commission, and
shall request that resolution occur in no event later than sixty
(60) days from the date of submission of such dispute. If the
Commission appoints an expert(s) or other facilitator(s) to assist
in its decision making, each party shall pay half of the fees and
expenses so incurred. During the Commission proceeding each Party
shall continue to perform its obligations under this Agreement
provided, however, that neither Party shall be required to act in
any unlawful fashion. This provision shall not preclude the
Parties from seeking relief available in any other forum.
22.2 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 thirty (30) 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 all undisputed amounts to
the Billing Party. The balance of the Disputed Amount shall
thereafter be paid with appropriate late charges, if appropriate,
upon final determination of such dispute.
22.3 If the Parties are unable to resolve the issues related to the
Disputed Amounts in the normal course of business within thirty
(30) days after delivery to the Billing Party of notice of the
Disputed Amounts, each of the Parties shall appoint a designated
representative that has authority to settle the dispute and that 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. The specific
format for such discussions will be left to the discretion of the
designated representatives, however all reasonable requests for
relevant information made by one Party to the other Party shall be
honored.
22.4 If the Parties are unable to resolve issues related to the
Dispute Amounts within thirty (30) days after the Parties'
appointment of designated representatives pursuant to subsection
22.3, then either Party may file a compliant with the Commission to
resolve such issues or proceed with any other remedy pursuant to
law or equity. The Commission may direct payment of any or all
funds plus applicable late charges to be paid to either Party.
SECTION 23. TAXES
<PAGE> 23
Any Federal, state or local excise, license, sales, use, or other
taxes or tax-like charges (excluding any taxes levied on income)
resulting from the performance of this Agreement shall be borne by
the Party upon which the obligation for payment is imposed under
applicable law, even if the obligation to collect and remit such
taxes is placed upon the other party. Any such taxes shall be
shown as separate items on applicable billing documents between the
Parties. The Party obligated to collect and remit taxes shall do
so unless the other Party provides such Party with the required
evidence of exemption. The Party so obligated to pay any such
taxes may contest the same in good faith, at its own expense, and
shall be entitled to the benefit of any refund or recovery,
provided that such party shall not permit any lien to exist on any
asset of the other party by reason of the contest. The Party
obligated to collect and remit taxes shall cooperate fully in any
such contest by the other Party by providing records, testimony and
such additional information or assistance as may reasonably be
necessary to pursue the contest.
SECTION 24. RESPONSIBILITY FOR ENVIRONMENTAL HAZARDS
24.1 CLEC shall in no event be liable to Sprint for any costs
whatsoever resulting from the presence or release of any
Environmental Hazard that CLEC did not cause or introduce to the
affected work location. Sprint hereby releases, and shall also
indemnify, defend (at CLEC's request) and hold harmless CLEC and
each of CLEC's officers, directors and employees from and against
any losses and expenses that arise out of or result from (i) any
Environmental Hazard that Sprint, its contractors or its agents
introduce to the work locations or (ii) any other presence or
release of any Environmental Hazard at any work location, except as
provided in Section 24.2 of this Part A; provided that in the event
that after CLEC notifies Sprint that CLEC, its employees,
contractors or agents plan to enter a Sprint work location and
prior to CLEC or its employees, contractors or agents entering a
work location Sprint fully informs CLEC in writing of an
Environmental Hazard at such work location then Sprint shall not be
obligated to indemnify CLEC for losses and expenses arising out of
injuries to CLEC employees, contractors or agents resulting from
their exposure to such Environmental Hazard except to the extent
such injuries are exacerbated by the acts of Sprint or its
employees, contractors, or agents.
24.2 Prior to CLEC or its employees, contractors, or agents
introducing an Environmental Hazard into a work location CLEC shall
fully inform Sprint in writing of its planned actions at such work
location and shall receive Sprint's written permission for such
actions and CLEC warrants that it shall comply with all legal and
regulatory obligations it has with
<PAGE> 24
respect to such Environmental Hazard and notices it is required to
provide with respect thereto. Sprint shall in no event be liable
to CLEC for any costs whatsoever resulting from the presence or
release of any Environmental Hazard that CLEC causes or introduces
to the affected work location. CLEC shall indemnify, defend (at
Sprint's request) and hold harmless Sprint and each of Sprint's
officers, directors and employees from and against any losses and
expenses that arise out of or result from any Environmental Hazard
that CLEC, its contractors or its agents cause or introduce to the
work location. CLEC shall be responsible for obtaining, including
payment of associated fees, all environmental permits, licenses
and/or registrations required for environmental hazards CLEC causes
or introduces to the affected work location.
24.3 In the event any suspect material within Sprint-owned,
operated or leased facilities are identified to be
asbestos-containing, CLEC will, at CLECs expense, notify Sprint
before commencing any activities and ensure that to the extent any
activities which it undertakes in the facility disturb any
asbestos-containing materials (ACM) or presumed asbestos containing
materials (PACM) as defined in 29 CFR Section 1910.1001, such CLEC
activities shall be undertaken in accordance with applicable local,
state and federal environmental and health and safety statutes and
regulations. Except for abatement activities undertaken by CLEC
or equipment placement activities that result in the generation or
disturbance of asbestos containing material, CLEC shall not have
any responsibility for managing, nor be the owner of, not have any
liability for, or in connection with, any asbestos containing
material. Both Parties agree to immediately notify the other if
the Party undertakes any asbestos control or asbestos abatement
activities that potentially could affect CLEC equipment or
operations, including, but not limited to, contamination of
equipment.
24.4 Within ten (10) business days of CLEC's request for any space
in Sprint owned or controlled facility, Sprint shall provide any
information in its possession regarding the known environmental
conditions of the space provided for placement of equipment and
interconnection including, but not limited to, the existence and
condition of known hazardous levels of friable asbestos, lead
paint, hazardous substance contamination, or hazardous levels of
radon. Information is considered in a Party's possession under
this Agreement if it is in such Party's possession, or the
possession of a current employee of Sprint's.
24.5 If the space provided for the placement of equipment,
interconnection, or provision of service contains known
environmental contamination or hazardous material, particularly but
not limited to
<PAGE> 25
hazardous levels of friable asbestos, lead paint or hazardous
levels of radon, which makes the placement of such equipment or
interconnection hazardous, Sprint shall offer an alternative space,
if available, for CLEC's consideration. If interconnection is
complicated by the presence of environmental contamination or
hazardous materials, and an alternative route is available, Sprint
shall make such alternative route available for CLEC's
consideration. If there is no alternative or CLEC declines same,
and CLEC occupies the hazardous space, CLEC does so at its own risk
and shall indemnify Sprint from all liability for damages or injury
arising from the presence of the environmental contamination or
hazardous materials.
24.6 Subject to this Section 24 and to Sprint's standard security
procedures, which procedures will be provided to CLEC, Sprint shall
allow CLEC at CLEC's expense to perform any environmental site
investigations, including, but not limited to, asbestos surveys,
which CLEC deems to be necessary in support of its collocation
needs.
SECTION 25. AMENDMENTS AND MODIFICATIONS
No provision of this Agreement shall be deemed waived, amended or
modified by either party unless such a waiver, amendment or
modification is in writing, dated, and signed by both Parties.
SECTION 26. SEVERABILITY
Subject to Section 2 - Regulatory Approvals, if any part of this
Agreement is held to be invalid for any reason, such invalidity
will affect only the portion of this Agreement which is invalid.
In all other respects this Agreement will stand as if such invalid
provision had not been a part thereof, and the remainder of the
Agreement shall remain in full force and effect.
SECTION 27. HEADINGS NOT CONTROLLING
The headings and numbering of Sections, Parts and Attachments in
this Agreement are for convenience only and shall not be construed
to define or limit any of the terms herein or affect the meaning or
interpretation of this Agreement.
SECTION 28. ENTIRE AGREEMENT
This Agreement, including all Parts and Attachments and subordinate
documents attached hereto or referenced herein, all of which are
hereby
<PAGE> 26
incorporated by reference herein, constitute the entire matter
thereof, and supersede all prior oral or written agreements,
representations, statements, negotiations, understandings,
proposals, and undertakings with respect to the subject matter
thereof.
SECTION 29. COUNTERPARTS
This Agreement may be executed in counterparts. Each counterpart
shall be considered an original and such counterparts shall
together constitute one and the same instrument.
SECTION 30. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon, and inure to the benefit of,
the Parties hereto and their respective successors and permitted
assigns.
SECTION 31. IMPLEMENTATION PLAN
31.1 Implementation Team. This Agreement sets forth the overall
standards of performance for services, processes, and systems
capabilities that the Parties will provide to each other, and the
intervals at which those services, processes and capabilities will
be provided. The Parties understand that the arrangements and
provision of services described in this Agreement shall require
technical and operational coordination between the Parties.
Accordingly, the Parties agree to form a team (the "Implementation
Team") that shall develop and identify those processes, guidelines,
specifications, standards and additional terms and conditions
necessary to support the terms of this Agreement. Within thirty
(30) days after the Approval Date, each Party shall designate, in
writing, no more than four (4) persons to be permanent members of
the Implementation Team; provided that either Party may include in
meetings or activities such technical specialists or other
individuals as may be reasonably required to address a specific
task, matter or subject. Each Party may replace its
representatives by delivering written notice thereof to the other
Party.
31.2 Implementation Plan. Within one hundred twenty (120) days
after the Approval Date, the agreements reached by the
Implementation Team shall be documented in an operations manual
(the "Implementation Plan"). The Implementation Plan shall
address the following matters, and may include any other matters
agreed upon by the Implementation Team:
31.2.1 the respective duties and responsibilities of the
Parties with respect to the administration and maintenance of
the interconnections (including signaling) specified in
Attachment 3
<PAGE> 27
and the trunk groups specified in Attachment 4 and, including
standards and procedures for notification and discoveries of
trunk disconnects;
31.2.2 disaster recovery and escalation provisions;
31.2.3 access to Operations Support Systems functions
provided hereunder, including gateways and interfaces;
31.2.4 escalation procedures for ordering, provisioning,
billing, and maintenance;
31.2.5 single points of contact for ordering, provisioning,
billing, and maintenance;
31.2.6 service ordering and provisioning procedures,
including provision of the trunks and facilities;
31.2.7 provisioning and maintenance support;
31.2.8 conditioning and provisioning of collocation space and
maintenance of Virtually Collocated equipment;
31.2.9 procedures and processes for Directories and Directory
Listings;
31.2.10 billing processes and procedures;
31.2.11 network planning components including time intervals;
31.2.12 joint systems readiness and operational readiness
plans;
31.2.13 appropriate testing of services, equipment,
facilities and Network Elements;
31.2.14 monitoring of inter-company operational processes;
31.2.15 procedures for coordination of local PIC changes and
processing;
31.2.16 physical and network security concerns; and
31.2.17 such other matters specifically referenced in this
Agreement that are to be agreed upon by the Implementation
Team and/or contained in the Implementation Plan.
<PAGE> 28
31.3 Action of the Implementation Team. The Implementation Plan
may be amended from time to time by the Implementation Team as the
team deems appropriate. Unanimous written consent of the
permanent members of the Implementation Team shall be required for
any action of the Implementation Team. If the Implementation Team
is unable to act, the existing provisions of the Implementation
Plan shall remain in full force and effect.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed by its duly authorized representatives.
<TABLE>
<S> <C>
DIGITAL TELEPORT INC. UNITED TELEPHONE COMPANY OF KANSAS
By: /s/ J. W. Sheehy By: /s/ John L. Roe
Name: J. W. "Jerry" Sheehy Name: John L. Roe
Title: /s/ Vice Pres IC Support Title: Vice Pres. - Carrier & Regulatory
Date: 9/30/97 Date: 10/1/97
</TABLE>
<PAGE> 29
PART B -- DEFINITIONS
"911 SITE ADMINISTRATOR" is a person assigned by CLEC to establish and maintain
E911 service location information for its subscribers.
"911 SERVICE" means a universal telephone number which gives the public direct
access to the Public Safety Answering Point (PSAP). Basic 911 service
collects 911 calls from one or more local exchange switches that serve a
geographic area. The calls are then sent to the correct authority designated
to receive such calls.
"ASR" (ACCESS SERVICE REQUEST) means the industry standard forms and supporting
documentation used for ordering Access Services. The ASR may be used to order
trunking and facilities between CLEC and Sprint for Local Interconnection.
"ACCESS SERVICES" refers to interstate and intrastate switched access and
private line transport services.
"ACT" means the Communications Act of 1934 as amended by the Telecommunications
Act of 1996, Public Law 104-104 of the 104th U.S. Congress, effective February
8, 1996.
"AFFILIATE" is an entity that directly or indirectly owns or controls, is owned
or controlled by, or is under common ownership or control with, another entity.
In this paragraph, "own" or "control" means to own an equity interest (or
equivalent) of at least 10% with respect to either party, or the right to
control the business decisions, management and policy of another entity.
"APPROVAL DATE" is the date on which Commission approval of the Agreement is
granted.
"GATEWAY" (ALI GATEWAY) is a telephone company computer facility that
interfaces with CLEC's 911 administrative site to receive Automatic Location
Identification (ALI) data from CLEC. Access to the Gateway will be via a
dial-up modem using a common protocol.
"AMA" means the Automated Message Accounting structure inherent in switch
technology that initially records telecommunication message information. AMA
format is contained in the Automated Message Accounting document, published by
Bellcore as GR-1100-CORE which defines the industry standard for message
recording.
"ALI" (AUTOMATIC LOCATION IDENTIFICATION) is a feature developed for E911
systems that provides for a visual display of the caller's telephone number,
address and the names of the emergency response agencies that are responsible
for that address. The Competitive Local Exchange Company will provide ALI
record
<PAGE> 30
information in National Emergency Number Association (NENA)Version #2 format.
The ALI also shows an Interim Number Portability (INP) number if applicable.
"ALI/DMS" (AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM) means the
emergency service (E911/911) database containing subscriber location
information (including name, address, telephone number, and sometimes special
information from the local service provider) used to determine to which Public
Safety Answering Point (PSAP) to route the call.
"ANI" (AUTOMATIC NUMBER IDENTIFICATION) is a feature that identifies and
displays the number of a telephone line that originates a call.
"ARS" (AUTOMATIC ROUTE SELECTION) means a service feature associated with a
specific grouping of lines that provides for automatic selection of the least
expensive or most appropriate transmission facility for each call based on
criteria programmed into the system.
"BLV/BLI" (BUSY LINE VERIFY/BUSY LINE INTERRUPT) means an operator call in
which the caller inquires as to the busy status of, or requests an interruption
of a call on another subscriber's telephone line.
"BUSINESS DAY(S) means the days of the week excluding Saturdays, Sundays, and
all official Sprint holidays.
"CABS" means the Carrier Access Billing System which is defined in a document
prepared under the direction of the Billing Committee of the OBF. The Carrier
Access Billing System document is published by Bellcore in Volumes 1, 1A, 2, 3,
3A, 4 and 5 as Special Reports SR-OPT-001868, SR-OPT-0011869, SR-OPT-001871,
SR-OPT-001872, SR-OPT-001873, SR-OPT-001874, and SR-OPT-001875, respectively,
and contains the recommended guidelines for the billing of access and other
connectivity services. Sprint's carrier access billing system is its Carrier
Access Support System (CASS). CASS mirrors the requirements of CABS.
"CPN" (CALLING PARTY NUMBER) is a Common Channel Signaling parameter which
refers to the number transmitted through the network identifying the calling
party.
"CENTRAL OFFICE SWITCH" or "CENTRAL OFFICE" means a switching entity within the
public switched network, including but not limited to end office switches and
tandem office switches. Central office switches may be employed as
combination End Office/Tandem Office Switches (Combination Class 5/Class 4).
"CENTREX" means a Telecommunications Service associated with a specific
grouping of lines that uses central office switching equipment for call routing
to handle direct dialing of calls, and to provide numerous private branch
exchange-like features.
<PAGE> 31
"CHARGE NUMBER" is a CCS parameter which refers to the number transmitted
through the network identifying the billing number of the calling party.
"CLASS" (Bellcore Service Mark) - means service features that utilize the
capability to forward a calling party's number between end offices as part of
call setup. Features include Automatic Callback, Automatic Recall, Caller ID,
Call Trace, and Distinctive Ringing.
"CLEC" means a Competitive Local Exchange Carrier.
"COLLOCATION" means the right of CLEC to place equipment in the Sprint's
central offices or other Sprint locations. This equipment may be placed via
either a physical or virtual collocation arrangement. With physical
collocation, CLEC obtains dedicated space to place and maintain its equipment.
With virtual collocation, Sprint will install and maintain equipment that CLEC
provides to Sprint.
"COMMISSION" means the Kansas Corporation Commission.
"CCS" (COMMON CHANNEL SIGNALING) means a method of digitally transmitting call
set-up and network control data over a digital signaling network fully separate
from the public switched telephone network that carries the actual call.
"CONFIDENTIAL AND/OR PROPRIETARY INFORMATION" has the meaning set forth in
Section 21 of Part A -- General Terms.
"CONTRACT YEAR" means a twelve (12) month period during the term of the
contract commencing on the Approval Date and each anniversary thereof.
"CONTROL OFFICE" is an exchange carrier center or office designated as its
company's single point of contact for the provisioning and maintenance of its
portion of local interconnection arrangements.
"CUSTOM CALLING FEATURES" - means a set of Telecommunications Service features
available to residential and single-line business customers including
call-waiting, call-forwarding and three-party calling.
"CUSTOMER PROPRIETARY NETWORK INFORMATION" ("CPNI") - means (A) information
that relates to the quantity, technical configuration, type, destination, and
amount of use of a Telecommunications Service subscribed to by any customer of
a Telecommunications Carrier, and that is made available to the carrier by the
customer solely by virtue of the carrier customer relationship; and (B)
information contained in the bills pertaining to telephone exchange service or
telephone toll service received by a customer of a carrier.
<PAGE> 32
"DBMS" (DATABASE MANAGEMENT SYSTEM) is a computer process used to store, sort,
manipulate and update the data required to provide selective routing and ALI.
"DIRECTORY ASSISTANCE DATABASE" refers to any subscriber record used by Sprint
in its provision of live or automated operator-assisted directory assistance
including but not limited to 411, 555-1212, NPA-555-1212.
"DIRECTORY ASSISTANCE SERVICES" provides listings to callers. Directory
Assistance Services may include the option to complete the call at the caller's
direction.
"DISCLOSER" means that party to this Agreement which has disclosed Confidential
Information to the other party.
"E911" (ENHANCED 911 SERVICE) means a telephone communication service which
will automatically route a call dialed "911" to a designated public safety
answering point (PSAP) attendant and will provide to the attendant the calling
party's telephone number and, when possible, the address from which the call is
being placed and the emergency response agencies responsible for the location
from which the call was dialed.
"E911 MESSAGE TRUNK" is a dedicated line, trunk or channel between two central
offices or switching devices which provides a voice and signaling path for E911
calls.
ELECTRONIC INTERFACES - means access to operations support systems consisting
of preordering, ordering, provisioning, maintenance and repair and billing
functions. For the purposes of this Agreement, Sprint shall provide
Electronic Interfaces in accordance with Exhibit 2.
"EMERGENCY RESPONSE AGENCY" is a governmental entity authorized to respond to
requests from the public to meet emergencies.
"ENVIRONMENTAL HAZARD" means any substance the presence, use, transport,
abandonment or disposal of which (i) requires investigation, remediation,
compensation, fine or penalty under any Applicable Law (including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act, Superfund Amendment and Reauthorization Act, Resource Conservation
Recovery Act, the Occupational Safety and Health Act and provisions with
similar purposes in applicable foreign, state and local jurisdictions) or (ii)
poses risks to human health, safety or the environment (including, without
limitation, indoor, outdoor or orbital space environments) and is regulated
under any Applicable Law.
"ESN" (EMERGENCY SERVICE NUMBER) is a number assigned to the ALI and selective
routing databases for all subscriber telephone numbers. The ESN designates a
unique combination of fire, police and emergency medical service response
agencies that serve the address location of each in-service telephone number.
<PAGE> 33
"EMR" means the Exchange Message Record System for exchanging
telecommunications message information for billable, non-billable, sample,
settlement and study data. EMR format is contained in BR-010-200-010 CRIS
Exchange Message Record, published by Bellcore and which defines the industry
standard for exchange message records.
"ENHANCED DIRECTORY ASSISTANCE" refers to directory Assistance services,
including but not limited to reverse search, talking yellow pages, and locator
services.
"EIS" (EXPANDED INTERCONNECTION SERVICE) is the collocation arrangement which
Sprint provides in its designated wire centers.
"GRANDFATHERED SERVICE" means service which is no longer available for new
customers and is limited to the current customer at their current locations
with certain provisioning limitations, including but not limited to upgrade
denials, feature adds/changes and responsible/billing party.
"FCC INTERCONNECTION ORDER" is the Federal Communications Commission's First
Report and Order and Second Report and Order in CC Docket No. 96-98 released
August 8, 1996; as subsequently amended or modified by the FCC from time to
time.
"ILEC" means the incumbent local exchange carrier.
"IXC" (INTEREXCHANGE CARRIER) means a provider of interexchange
telecommunications services.
"INP" (INTERIM NUMBER PORTABILITY) is a service arrangement whereby subscribers
who change local service providers may retain existing telephone numbers
without impairment of quality, reliability, or convenience when remaining at
their current location or changing their location within the geographic area
served by the initial carrier's serving central office. (Notwithstanding the
foregoing, the parties acknowledge that the provision of INP through Remote
Call Forwarding results in a lesser grade of service.)
"IP" (INTERCONNECTION POINT) is a mutually agreed upon point of demarcation
where the networks of Sprint and CLEC interconnect for the exchange of traffic.
"LIDB" (LINE INFORMATION DATA BASE(S)) means a Service Control Point (SCP)
database that provides for such functions as calling card validation for
telephone line number cards issued by Sprint and other entities and validation
for collect and billed-to-third services.
"LOCAL SERVICE REQUEST" means an industry standard form used by the Parties to
add, establish, change or disconnect local services.
<PAGE> 34
"LOCAL TRAFFIC" means traffic (excluding Commercial Mobile Radio Services
traffic, e.g., paging, cellular, PCS) that is originated and terminated within
a given local calling area, or mandatory expanded area service (EAS) area, as
defined by State commissions or, if not defined by state commissions, then as
defined in existing Sprint tariffs.
"MSAG" (MASTER STREET ADDRESS GUIDE (MSAG)) is a database defining the
geographic area of an E911 service. It includes an alphabetical list of the
street names, high-low house number ranges, community names, and emergency
service numbers provided by the counties or their agents to Sprint.
"CLEC 911 DATABASE RECORDS" are the CLEC subscriber records to be provided by
CLEC to Sprint for inclusion in Sprint's E911 database.
"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 Telecommunications Industry Solutions (ATIS). The MECAB
document, published by Bellcore as Special Report SR-BDS-000983, contains the
recommended guidelines for the billing of an access service provided by two or
more LECs (including a LEC and a CLEC), or by one LEC in two or more states
within a single LATA.
"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 under the auspices 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 recommended guidelines for processing orders for
access service which is to be provided by two or more LECs (including a LEC and
a CLEC).
"NANP" means the "North American Numbering Plan," the system or method of
telephone numbering employed in the United States, Canada, and certain
Caribbean countries. It denotes the three digit Numbering Plan Area code and
a seven digit telephone number made up of a three digit Central Office code
plus a four digit station number.
"NENA" (NATIONAL EMERGENCY NUMBER ASSOCIATION (NENA)) is an association with a
mission to foster the technological advancement, availability and
implementation of 911 nationwide.
"NETWORK ELEMENT" means a facility or equipment used in the provision of a
Telecommunications Service. Such term also includes features, functions, and
capabilities that are provided by means of such facility or equipment,
including subscriber numbers, databases, signaling systems, and information
sufficient for billing
<PAGE> 35
and collection or used in the transmission, routing, or other provision of a
Telecommunications Service.
"NP" (NUMBER PORTABILITY) means the ability of users of Telecommunications
Services to retain, at the same location, existing telecommunications numbers
without impairment of quality, reliability, or convenience when switching from
one telecommunications carrier to another. .
"NPA" (NUMBERING PLAN AREA) (sometimes referred to as an area code) is the
three digit indicator which is designated by the first three digits of each
10-digit telephone number within the NANP. Each NPA contains 800 possible NXX
Codes. There are two general categories of NPA, "eographic NPAs" and
"Non-Geographic NPAs." A "Geographic NPA" is associated with a defined
geographic area, and all telephone numbers bearing such NPA are associated with
services provided within that Geographic area. A "Non-Geographic NPA," also
known as a "Service Access Code (SAC Code)" is typically associated with a
specialized telecommunications service which may be provided across multiple
geographic NPA areas; 500, 800, 900, 700, and 888 are examples of
Non-Geographic NPAs.
"NXX," "NXX CODE," OR "CENTRAL OFFICE CODE," OR "CO CODE" is the three digit
switch entity indicator which is defined by the fourth, fifth and sixth digits
of a 10 digit telephone number within the North America Numbering Plan
("NANP").
"OBF" means the Ordering and Billing Forum, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS)
"OBSOLETE SERVICE" means a service that is outmoded/outdated but yet has
current subscribers to the services. Such service is no longer available for
new customers and with existing customers there is no assurance of the service
continuing to function. Any technical or feature change to the customer's
service will eliminate such service at the time of request.
"OPERATOR SYSTEMS" is the Network Element that provides operator and automated
call handling with billing, special services, subscriber telephone listings,
and optional call completion services.
"OPERATOR SERVICES" provides (1) operator handling for call completion (e.g.
collect calls); (2) operator or automated assistance for billing after the
subscriber has dialed the called number (e.g. credit card calls); and (3)
special services (e.g. BLV/BLVI, Emergency Agency Call).
"PARITY" means, subject to the availability, development and implementation of
necessary industry standard Electronic Interfaces, the provision by Sprint of
services, Network Elements, functionality or telephone numbering resources
under this
<PAGE> 36
Agreement to CLEC on terms and conditions, including provisioning and repair
intervals, no less favorable that those offered to Sprint, its Affiliates or
any other entity that obtains such services, Network Elements, functionality or
telephone numbering resources. Until the implementation of necessary
Electronic Interfaces, Sprint shall provide such services, Network Elements,
functionality or telephone numbering resources on a non-discriminatory basis to
CLEC as it provides to its Affiliates or any other entity that obtains such
services, Network Elements, functionality or telephone numbering resources.
"Parties" means, jointly, DTI and Sprint, and no other entity, affiliate,
subsidiary or assign.
"PARTY" means either DTI or Sprint, and no other entity, affiliate, subsidiary
or assign.
"P.01 TRANSMISSION GRADE OF SERVICE (GOS)" means a trunk facility provisioning
standard with the statistical probability of no more than one call in 100
blocked on initial attempt during the average busy hour.
"PLU" (PERCENT LOCAL USAGE) is a calculation which represents the ratio of the
local minutes to the sum of local and intraLATA toll minutes between exchange
carriers sent over Local Interconnection Trunks. Directory assistance,
BLV/BLVI, 900, 976, transiting calls from other exchange carriers and switched
access calls are not included in the calculation of PLU.
"POP" means an IXC's point of presence.
"PROPRIETARY INFORMATION" shall have the same meaning as Confidential
Information.
"PSAP" (PUBLIC SAFETY ANSWERING POINT (PSAP)) is the public safety
communications center where 911 calls placed by the public for a specific
geographic area will be answered.
"RATE CENTER" means the geographic point and corresponding geographic area
which are associated with one or more particular NPA-NXX codes which have been
assigned to Sprint (or CLEC) for its provision of Basic Exchange
Telecommunications Services. The "rate center point" is the finite geographic
point identified by a specific V&H coordinate, which is used to measure
distance-sensitive end user traffic to/from the particular NPA-NXX designations
associated with the specific Rate Center. The "rate center area" is the
exclusive geographic area identified as the area within which Sprint (or CLEC)
will provide Basic Exchange Telecommunications Services bearing the particular
NPA-NXX designations associated with the specific Rate Center. The Rate
Center point must be located within the Rate Center area.
<PAGE> 37
"REAL TIME" means the actual time in which an event takes place, with the
reporting on or the recording of the event simultaneous with its occurrence.
"RECIPIENT" means that party to this Agreement (a) to which Confidential
Information has been disclosed by the other party or (b) who has obtained
Confidential Information in the course of providing services under this
Agreement.
"RESELLER" is a category of Local Exchange service providers who obtain dial
tone and associated Telecommunications Services from another provider for
resale to their end user subscribers.
"ROW" (RIGHT OF WAY (ROW)) has the meaning set forth in Section 2.13 of
Attachment VI of this Agreement.
"ROUTING POINT" means a location which Sprint or CLEC has designated on its own
network as the homing (routing) point for traffic inbound to Basic Exchange
Services provided by Sprint or CLEC which bear a certain NPA-NXX designation.
The Routing Point is employed to calculate mileage measurements for the
distance-sensitive transport element charges of Switched Access Services.
Pursuant to Bellcore Practice BR 795-100-100, the Routing Point may be an "End
Office" location, or a "LEC Consortium Point of Interconnection." Pursuant to
that same Bellcore Practice, examples of the latter shall be designated by a
common language location identifier (CLLI) code with (x)KD in positions 9, 10,
11, where (x) may by any alphanumeric A-Z or 0-9. The above referenced
Bellcore document refers to the Routing Point as the Rating Point. The Rating
Point/Routing Point need not be the same as the Rate Center Point, nor must it
be located within the Rate Center Area, but must be in the same LATA as the
NPA-NXX.
"SECAB" means the Small Exchange Carrier Access Billing document prepared by
the Billing Committee of the OBF. The Small Exchange Carrier Access Billing
document, published by Bellcore as Special Report SR OPT-001856, contains the
recommended guidelines for the billing of access and other connectivity
services.
"SELECTIVE ROUTING" is a service which automatically routes an E911 call to the
PSAP that has jurisdictional responsibility for the service address of the
telephone that dialed 911, irrespective of telephone company exchange or wire
center boundaries.
"SIGNALING TRANSFER POINT" or "STP" means a signaling point that performs
message routing functions and provides information for the routing of messages
between signaling points within or between CCIS networks. An STP transmits,
receives and processes CCIS messages.
"SWITCH" means a Central Office Switch as defined in this Part B.
<PAGE> 38
"SWITCHED ACCESS DETAIL USAGE DATA" means a category 1101XX record as defined
in the EMR Bellcore Practice BR 010-200-010.
"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: Feature Group A, Feature Group B, Feature Group D,
800/888 access and 900 access and their successor or similar Switched Exchange
Access Services.
"SYNCHRONOUS OPTICAL NETWORK" or "SONET" is an optical interface standard that
allows interworking of transmission products from multiple vendors (i.e.
mid-span meets). The base rate is 51.84 MHps (OC-1/STS-1 and higher rates are
direct multiples of the base rate up to 1.22 GHps.
"TANDEM OFFICE SWITCHES" which are Class 4 switches which are used to connect
and switch trunk circuits between and among end office switches and other
tandems.
"TECHNICALLY FEASIBLE" refers solely to technical or operational concerns,
rather than economic, space, or site considerations.
"TELECOMMUNICATIONS" means the transmission, between or among points specified
by the user, of information of the user's choosing, without change in the form
or content of the information as sent and received.
"TELECOMMUNICATION SERVICES" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
"THOUSANDS BLOCK OF NUMBERS" shall mean 1000 or more consecutive numbers
beginning and ending on a digit boundary, e.g., 949-1000 to 949-1999.
"TRCO" means Trouble Reporting Control Office.
"VOLUNTARY FEDERAL SUBSCRIBER FINANCIAL ASSISTANCE PROGRAMS" are government
programs that subsidize the provision of Telecommunications Services to
low-income subscribers, pursuant to requirements established by the appropriate
state regulatory body.
"WIRE CENTER" denotes a building or space within a building which serves as an
aggregation point on a given carrier's network, where transmission facilities
and circuits are connected or switched. Wire center can also denote a
building in which one or more central offices, used for the provision of Basic
Exchange Services and access services, are located. However, for purposes of
EIC service, Wire Center shall mean those points eligible for such connections
as specified in the FCC Docket No. 91-141, and rules adopted pursuant thereto.
<PAGE> 39
PART C - ATTACHMENT I
PRICE SCHEDULE
1. GENERAL PRINCIPLES
1.1 Subject to the provisions of Sections 2 and 12 of Part A of this
Agreement, all rates provided under this Agreement shall remain in effect
for the term of this Agreement.
2. LOCAL SERVICE RESALE
The rates that CLEC shall pay to Sprint for Local Resale are as set forth
in Table 1 of this Attachment and shall be applied consistent with the
provisions of Attachment II of this Agreement .
3. INTERCONNECTION AND RECIPROCAL COMPENSATION
3.1 The rates to be charged for the exchange of Local Traffic are set
forth in Table 1 of this Attachment and shall be applied consistent with
the provisions of Attachment IV of this Agreement.
3.2 Compensation for the termination of toll traffic and the origination
of 800 traffic between the interconnecting parties shall be based on the
applicable access charges in accordance with FCC and Commission Rules and
Regulations and consistent with the provisions of Attachment IV of this
Agreement.
3.3 Where a toll call is completed through Sprint's INP arrangement
(e.g., remote call forwarding, flexible DID, etc.) to a CLEC's
subscriber, CLEC shall be entitled to applicable access charges in
accordance with the FCC and Commission Rules and Regulations. If a
national standard billing method has not been developed for a CLEC to
directly bill a carrier access for a toll call that has been completed
using interim number portability, then a blended rate method will be
used.
3.3.1 The Parties will jointly determine the amount of traffic that
will be considered INP'ed traffic for compensation purposes. The
ported party shall charge the porting party for each minute of INP
traffic at the INP blended rate specified in section 3.3.2, in lieu
of any other compensation charges for terminating such traffic.
The traffic that is not identified as INP'ed will be compensated as
local interconnection as set forth in section 3.1.
<PAGE> 40
3.3.2 For compensation of the INP traffic, the Parties shall
jointly develop a process which will allow compensation for INP'ed
traffic to be based on the initial origination point and final
terminated point of the INP'ed call. The full reciprocal
compensation rate, as listed in the Pricing Schedule, shall apply
for local traffic, and full switched access charges, as listed in
applicable tariffs, shall apply for intraLATA and interLATA. All
three sets of rates will be weighted together based on the agreed
minutes of use patterns to establish a single set of blended rates
for all INP'ed traffic.
3.4 CLEC shall pay a transit rate, comprised of the transport and tandem
rate elements, as set forth in Table 1 of this Attachment when CLEC uses
a Sprint access tandem to terminate a local call to a third party LEC or
another CLEC. Sprint shall pay CLEC a transit rate equal to the Sprint
rate referenced above when Sprint uses a CLEC switch to terminate a local
call to a third party LEC or another CLEC.
4. UNBUNDLED NETWORK ELEMENTS
The charges that CLEC shall pay to Sprint for Unbundled Network Elements
are set forth in Table 1 of this Attachment I.
<PAGE> 41
NETWORK ELEMENT PRICE LIST - SPRINT KANSAS
<TABLE>
<CAPTION>
RATE ELEMENT SOURCE RECURRING RATE NRC
<S> <C> <C> <C>
TELRIC COST STUDY
Service Order NRC $25.15
Service Order Listing Only $20.82
Central Office Interconnection Charge $10.25
Trip charge $16.61
Outside Plant Interconnection (2-W) $47.14
Outside Plant Interconnection (4-W) $53.87
NID Installation Charge $26.94
NID Connection Charge $13.47
Testing $1.41
Loop Rework Charge (2-W) $33.27
Loop Rework Charge (4-W) $53.85
Trouble Isolation and Testing $66.46
NID TELRIC COST STUDY
1 Line $0.77
2 Line $1.11
Smartjack $14.30
LOOP TELRIC COST STUDY
Analog 2-wire Band 1 $27.71
Band 2 $38.37
Band 3 $50.32
Band 4 $62.23
Band 5 $97.28
Analog 4-wire
Band 1 $46.55
Band 2 $64.47
Band 3 $84.54
Band 4 $104.55
Band 5 $163.44
Digital 2-wire ICB
Digital 4-wire ICB
ISDN ICB
DS1 ICB
HDSL ICB
Local Switching TELRIC COST STUDY
Band 1 $7.06
Band 2 $10.89
Band 3 $15.33
ISDN ICB
CENTREX ICB
PBX ICB
DS1 ICB
Intrastate CCL Orig* Interstate Access Tariff Current tariff rate
Intrastate CCL Term* Current tariff rate
RIC* Current tariff rate
LOOP & PORT COMB. Discount TELRIC COST STUDY
(1 Line NID, 2 Wire Loop, & Basic Port) $1.68
FEATURES TELRIC COST STUDY
</TABLE>
<PAGE> 42
NETWORK ELEMENT PRICE LIST - SPRINT KANSAS
<TABLE>
<CAPTION>
RATE ELEMENT SOURCE RECURRING RATE NRC
<S> <C> <C> <C>
CCF Package* $0.49 $2.49
CLASS Package* $10.60 $4.38
CENTREX Package* $13.65 $26.87
- 3 Way Conf/Consult/Hold Transfer $2.09 $15.33
- - Conf Calling - 6 Way Station Control $3.07 $22.99
- Dial Transfer to Tandem Tie Line $0.11 $77.52
- Direct Connect $0.02 $17.78
- Meet Me Conference $20.86 $29.95
- Multi-Hunt Service $0.06 $19.93
INTERIM NUMBER PORTABILITY TELRIC COST STUDY
RCF Residential $0.04 $0.96
RCF Business $0.21 $0.96
Call Path Residential $0.01 $0.31
Call Path Business $0.04 $0.31
TANDEM SWITCHING TELRIC COST STUDY
$0.003897 $88.21
TRANSPORT Interstate Access Tariff
DS 1 Rates varies $180.77
DS 3 Rates varies $206.93
Common $0.002446 N/A
RECIPROCAL COMPENSATION TELRIC COST STUDY
End Office $0.009705 $88.21
Tandem Switching $0.003897 $88.21
Transport
DS 1 Rates varies $180.77
DS 3 Rates varies $206.93
Common $0.002446 N/A
INTERCONNECTION TELRIC COST STUDY
CROSS CONNECTION
DS0 Elec X-Conn ICB N/A
DS1 Elec X-Conn ICB N/A
DS3 Elec X-Conn ICB N/A
</TABLE>
<PAGE> 43
NETWORK ELEMENT PRICE LIST - SPRINT KANSAS
<TABLE>
<CAPTION>
RATE ELEMENT SOURCE RECURRING RATE NRC
<S> <C> <C> <C>
COMMON CHANNELL SIGNALING
INTERCONNECTION SERVICE
STP Port TELRIC COST STUDY See Page 4 See Page 4
STP Switching TELRIC COST STUDY See Page 4 See Page 4
56.0 Kpbs Channel Termination Interstate Access Tariff See Page 4 See Page 4
56.0 Kbps SS7 Link Fixed Interstate Access Tariff See Page 4 See page 4
56.0 Kbps SS7 Line Per Mile Interstate Access Tariff See Page 4 See Page 4
1.544 MBS Channel Termination Interstate Access Tariff See Page 4 See Page 4
1.544 MBPS SS7 Link Fixed Interstate Access Tariff See Page 4 See Page 4
1.544 MBPS SS7 Link Per Mile Interstate Access Tariff See Page 4 See Page 4
Multiplexing DS1 to DS0 TELRIC COST STUDY See Page 4 See Page 4
LINE INFORMATION DATABASE
LIDB Administration Service TELRIC COST STUDY $0.055 N/A
LIDB Database Transport per query Interstate Access Tariff $0.0016 N/A
LIDB Database per query Interstate Access Tariff $0.0366 N/A
Toll Free Code Access Service query Interstate Access Tariff $0.007520 N/A
Toll Free Code Optional Service query Interstate Access Tariff $0.001255 N/A
DIRECTORY ASSISTANCE SERVICES
DA Database Listing & Update per listing/update TELRIC COST STUDY $0.07 N/A
DA Data Base Query Service per query TELRIC COST STUDY $0.0968 N/A
TOLL & LOCAL OPERATOR SERVICES TELRIC COST STUDY
Toll and Local Assistance Service (Live) per attempt $0.5230 N/A
DA OPERATOR SERVICE TELRIC COST STUDY
DA Operator Service (Live) per attempt $0.310 N/A
911 TANDEM PORT TELRIC COST STUDY
Per DSO Equivalent Port $21.60 $114.15
OPERATIONAL SUPPORT SYSTEMS
OSS Interfaces* ICB ICB
* Sprint is working on OSS and rates will be added
as they are developed.
</TABLE>
<PAGE> 44
NETWORK ELEMENT PRICE LIST - SPRINT KANSAS
<TABLE>
RATE ELEMENT SOURCE RECURRING RATE NRC
STP INTERCONNECTON
STP interconnection (in pairs) can be obtained at any of the
following locations. Associated recurring and non-recurring
rates are based on the applicable state charges.
Operating Point
State Exchange Code CLLI Code
<S> <C> <C> <C>
Florida Tallahassee 230-010-000 THLSFLXA21W
Tallahassee 230-011-000 THLSFLXB21W
Winter Park 239-111-000 WNPKFLXA11W
Altamonte Springs 239-211-000 ALSPFLXA21W
Tennessee Bristol 239-004-000 BRSTTNXA21W
Johnson City 239-002-000 JHCYTNXC21W
Minnesota Osseo 239-151-000 OSSEMNXO21W
Chaska 239-152-000 CHSKMNXC21W
Missouri Warrensburg 239-162-000 WRBGMOXA21W
Jefferson City 239-161-000 JFCYMOXA21W
New Jersey Clinton 239-203-000 CLTNNJXJ77W
Newton 239-202-000 NWTNNJXU77W
Nevada Las Vegas 230-001-000 LSVGNVXB00W
Las Vegas 230-002-000 LSVGNVXG00W
North Carolina Rocky Mount 239-200-000 RCMTNCXA01W
Fayettville 239-201-000 FYVLNCXA01W
Ohio Mansfield 239-204-000 MNFDOHXA24W
Lima 239-205-000 LIMAOHXA25W
Pennsylvania Chambersburg 239-207-000 CHBGPAXC77W
Carlisle 239-206-000 CRLSPAXC77W
Texas Athens 239-141-000 ATHNTXXA21W
Humble 239-142-000 HMBLTXXA21W
</TABLE>
OPERATOR & DIRECTORY ASSISTANCE
Operator and Directory Assistance can be obtained from any of
the four Sprint regional centers. The recurring and
non-recurring rates are based on the regional centers which
are located in:
Las Vegas, Nevada
Mansfield, Ohio
Rocky Mount, North Carolina
Winter Park, Florida
<PAGE> 45
PART C - ATTACHMENT II
LOCAL RESALE
SECTION 1. TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE
1.1 At the request of CLEC, and pursuant to the requirements of the
Act, and FCC and Commission Rules and Regulations, Sprint shall
make available to CLEC for resale Telecommunications Services that
Sprint currently provides or may provide hereafter at retail to
subscribers who are not telecommunications carriers. Such resale
may be as allowed by the FCC and Commission. The
Telecommunications Services provided by Sprint to CLEC pursuant to
this Attachment II are collectively referred to as "Local Resale."
1.2 To the extent that this Attachment describes services which
Sprint shall make available to CLEC for resale pursuant to this
Agreement, this list of services is neither all inclusive nor
exclusive.
SECTION 2. GENERAL TERMS AND CONDITIONS
2.1 PRICING. The prices charged to CLEC for Local Resale are set
forth in Attachment I of this Agreement.
2.2 REQUIREMENTS FOR SPECIFIC SERVICES
2.2.1 CENTREX REQUIREMENTS
2.2.1.1 At CLEC's option, CLEC may purchase the entire
set of CENTREX features or a subset of any one such
feature. The CENTREX Service provided for resale will
meet the requirements of this Subsection 2.3.1.
2.2.1.2 All features and functions of CENTREX Service,
including CENTREX Management System (CMS), whether
offered under tariff or otherwise, shall be available
to CLEC for resale.
2.2.1.3 Sprint shall make information required for an
"as is" transfer of CENTREX subscriber service,
features, functionalities and CMS capabilities
available to CLEC.
<PAGE> 46
2.2.1.4 All service levels and features of CENTREX
Service provided by Sprint for resale by CLEC shall be
at parity with the service levels and features of
CENTREX Service Sprint provides its subscribers.
2.2.1.5 Consistent with Sprint's tariffs, CLEC may
aggregate the CENTREX local exchange, and IntraLATA
traffic usage of CLEC subscribers to qualify for volume
discounts on the basis of such aggregated usage.
2.2.1.6 CLEC may request that Sprint suppress the need
for CLEC subscribers to dial "9" when placing calls
outside the CENTREX System. Should CLEC request this
capability for its subscriber, the subscriber will not
be able to use 4 digit dialing.
2.2.1.7 CLEC may resell call forwarding in conjunction
with CENTREX Service.
2.2.1.8 CLEC may purchase any CENTREX Service for
resale subject to the minimum number of lines required
by Sprint's tariff to qualify for CENTREX Service, but
otherwise without restriction on the maximum number of
lines that may be purchased for such service.
2.2.1.9 Sprint shall make available to CLEC for resale
intercom calling within the same CENTREX system. To
the extent that Sprint offers its own subscribers
intercom calling between different CENTREX systems,
Sprint shall make such capability available to CLEC for
resale..
2.2.1.10 CLEC may resell Automatic Route Selection
("ARS"). CLEC may aggregate multiple CLEC subscribers
on dedicated access facilities where such aggregation
is allowed by law, rule or regulation.
2.2.2 VOLUNTARY FEDERAL AND STATE
SUBSCRIBER FINANCIAL ASSISTANCE PROGRAMS
Subsidized local Telecommunications Services are provided to
low-income subscribers pursuant to requirements established
by the appropriate state regulatory body, and include
programs such as Voluntary Federal Subscriber Financial
Assistance Program and Link-Up America. Voluntary Federal
and State Subscriber Financial Assistance Programs are not
Telecommunications
<PAGE> 47
Services that are available for resale under this Agreement.
However, when a Sprint subscriber who is eligible for such a
federal program or other similar state program chooses to
obtain Local Resale from CLEC and CLEC serves such subscriber
via Local Resale, Sprint shall identify such subscriber's
eligibility to participate in such programs to CLEC in
accordance with the procedures set forth herein.
2.2.3 GRANDFATHERED SERVICES. Sprint shall offer for resale
to CLEC all Grandfathered Services solely for the existing
grandfathered base. Sprint shall make reasonable efforts to
provide CLEC with advance copy of any request for the
termination of service and/or grandfathering to be filed by
Sprint with the Commission.
2.2.4 N11 SERVICE
2.2.4.1 Sprint agrees not to offer any new N11
Telecommunications Services after the Approval Date of
this Agreement unless Sprint makes any such service
available for resale.
2.2.4.2 CLEC shall have the right to resell any N11
Telecommunications Service, including but not limited
to 411 or 611 services, existing as of the Approval
Date. Where technically feasible, these services
shall be unbranded and routed to CLEC, as required by
CLEC pursuant to Part A, Section 12.
2.2.5 CONTRACT SERVICE ARRANGEMENTS, SPECIAL ARRANGEMENTS,
AND PROMOTIONS. Sprint shall offer for resale all of its
Telecommunications Services available at retail to
subscribers who are not Telecommunications Carriers,
including but not limited to Contract Service Arrangements
(or ICB), Special Arrangements (or ICB), and Promotions in
excess of ninety (90) days, all in accordance with FCC and
Commission Rules and Regulations.
2.2.6 COCOT LINES
2.2.6.1 COCOT lines will not be resold at wholesale
prices under this Agreement.
<PAGE> 48
2.2.7 VOICE MAIL SERVICE
Voice Mail Service is not a Telecommunications Service
available for resale under this Agreement. However, where
available, Sprint shall make available for Local Resale the
SMDI-E (Station Message Desk Interface-Enhanced), or SMDI,
Station Message Desk Interface where SMDI-E is not available,
feature capability allowing for Voice Mail Services. Sprint
shall make available the MWI (Message Waiting Indicator)
stutter dial tone and message waiting light feature
capabilities. Sprint shall make available CFB/DA (Call
Forward on Busy/Don't Answer), CF/B (Call Forward on Busy),
and CF/DA (Call Forward Don't Answer) feature capabilities
allowing for Voice Mail services.
2.2.8 HOSPITALITY SERVICE
Sprint shall provide all blocking, screening, and all other
applicable functions available for hospitality lines under
tariff.
2.2.9 TELEPHONE LINE NUMBER CALLING CARDS.
Sprint shall maintain customer information for CLEC customers
who subscribe to resold Sprint local service dial tone lines,
in Sprint's LIDB in the same manner that it maintains
information in LIDB for its own similarly situated end-user
subscribers. Sprint shall update and maintain, on the same
schedule that it uses for its own similarly situated end-user
subscribers, the CLEC information in LIDB.
Until such time as Sprint's LIDB has the software capability
to recognize a resold number as CLEC's, Sprint shall store
the resold number in its LIDB at no charge and shall retain
revenue for LIDB look-ups to the resold number. At such
time as Sprint's LIDB has the software capability to
recognize that the resold number is CLEC's then, if CLEC
desires to store resold numbers on Sprint's LIDB, the parties
shall negotiate a separate LIDB database storage and look-up
agreement.
<PAGE> 49
PART C - ATTACHMENT III
NETWORK ELEMENTS
SECTION 1. GENERAL
Pursuant to the following terms, Sprint will unbundle and
separately price and offer Unbundled Network Elements such that
CLEC will be able to subscribe to and interconnect to whichever of
these unbundled elements CLEC requires for the purpose of providing
local telephone service to its end-users. It is CLEC's obligation
to combine Sprint-provided elements with any facilities and
services that CLEC may itself provide.
SECTION 2. UNBUNDLED NETWORK ELEMENTS
2.1 Sprint shall offer Network Elements to CLEC for the purpose of
offering Telecommunication Services to CLEC subscribers. Sprint
shall offer Network Elements to CLEC on an unbundled basis on
rates, terms and conditions that are just, reasonable, and
non-discriminatory in accordance with the terms and conditions of
this Agreement. The initial set of Network Elements include:
1) Local Loop
2) Network Interface Device (NID)
3) Switching Capability
-- Local Switching
-- Tandem Switching
4) Interoffice Transmission Facilities
-- Dedicated
-- Common
5) Signaling Networks & Call Related Databases
6) Operations Support Systems
7) Operator Services & Directory Assistance
2.2 CLEC may use one or more Network Elements to provide any
feature, function, capability, or service option that such Network
Element(s) is technically capable of providing.
2.3 Standards for Network Elements
2.3.1 Each Network Element provided by Sprint to CLEC shall
be at parity with the quality of design, performance,
features, functions, capabilities and other characteristics,
including but not limited to levels and types of redundant
equipment and facilities for
<PAGE> 50
power, diversity and security, that Sprint provides to
itself, Sprint's own subscribers, to a Sprint Affiliate or to
any other entity.
Section 3. Loop
3.1 Definition
3.1.1. A "Loop" is a transmission path between the main
distribution frame [cross-connect], or its equivalent, in a
Sprint Central Office or wire center, and up to the Network
Interface Device at a customer's premises, to which CLEC is
granted exclusive use. This includes, but is not limited
to, two-wire and four-wire cooper analog voice-grade loops,
two-wire and four-wire loops that are conditioned to transmit
the digital signals needed to provide services such as ISDN
and DS1-level signals. This also includes DS-3, OC-n and
STS-n services (e.g., n = 1,3,12...). Sprint will also
provide conditioned loops (e.g., ADSL, HDSL) for
Telecommunications Services requiring loop unfettered by any
intervening equipment (e.g., filters, load coils, range
extenders) so that CLEC can use these loops for a variety of
Telecommunications Services that can be supported by use of
copper by attaching appropriate terminal equipment at the
ends.
3.2. Digital Loops
3.2.1. Sprint will provide loops conditioned for ADSL and
HDSL without electronic terminal equipment at the ends unless
otherwise specified by CLEC. If Sprint does not have
available the facilities requested by CLEC or if the service
requested exceeds the spectrum compatibility of the
transmission path, then CLEC will issue a bona fide request
to Sprint for the appropriate facilities.
3.2.2. Sprint requires CLEC to provide in writing the grade
of service desired in a particular loop (e.g., ISDN-BRI, PRI,
ADSL, HDSL, DS1, etc.) so that the loop may be engineered to
meet the appropriate spectrum compatibility requirements.
If CLEC requires a change in the grade of service of a
particular loop, e.g. changing from ISDN service to ADSL,
CLEC shall notify Sprint in writing of the requested change
in grade of service. If Sprint finds that it is not
technically feasible to provide the new level of service to
CLEC, Sprint will notify CLEC that it is unable to meet
CLEC's request. If a particular grade of service is
installed
<PAGE> 51
but CLEC uses the loop to provide a service that exceeds the
engineered capacity of a medium (i.e., interferes with other
services) a mutually agreed upon process will be developed to
resolve the issue.
3.2.3. If Sprint uses Integrated Digital Loop Carrier or
other similar remote concentration devices, Sprint will make
alternative arrangements at CLEC's request, to provide an
unbundled local loop. Alternative arrangements may include
copper facilities, dedicated transmission equipment or the
deployment of newer devices providing for multiple hosting.
The cost of modifications will be recovered from the
requesting CLEC.
3.2.4. Reverse ADSL Loops - all ADSL ATU-C units in Sprint's
network, including those integrated into DSLAMs, should
either reside within a Sprint host or remote central office.
If an ADSL copper loop should start at an outside location,
and looped through a host or remote, and then onto the
customer, the copper plant from the outside location to the
Sprint central office must be a facility dedicated to ADSL
transmission only and not part of Sprint's regular feeder or
distribution plant.
3.3. CLEC shall meet the power spectral density requirement given
in the respective technical references listed below:
3.3.1 For Basic Rate ISDN: Bellcore TR-NWT-000393 Generic
Requirements for ISDN Basic Access Digital Subscriber Lines.
3.3.2 For HDSL installations: Bellcore TA-NWT-001210 Generic
Requirements for High-Bit-Rate Digital Subscriber Lines.
Some fractional T1 derived products operating at 768 kbps may
use the same standard.
3.3.3. For ADSL: ANSI T1.413-1995 (Issue 1) Asymmetrical
Digital Subscriber Line (ADSL) Metallic Interface. Note:
Issue 2 of the standard will be balloted soon. It will drop
a option that was in Issue 1 called Power Boost. Sprint does
not permit the Power Boost option used in its local network.
3.3.4. As an alternative to Sections 3.3.1, .3.3.2. and
3.3.3, CLEC may meet the requirements given in ANSI document
T1E1.4/97-180R1, "Normative Text for Spectral Compatibility
Evaluations" dated June 30, 1997.
<PAGE> 52
SECTION 4. LOCAL SWITCHING
4.1 Definition:
4.1.1 Local Switching is the Network Element that provides
the functionality required to connect the appropriate lines
or trunks wired to the Main Distributing Frame (MDF) or
Digital Cross Connect (DSX) panel to a desired line or trunk.
Such functionality shall include all of the features,
functions, and capabilities that the underlying Sprint switch
providing such Local Switching function provides for Sprint's
own services. Functionality may include, but is not limited
to: line signaling and signaling software, digit reception,
dialed number translations, call screening, routing,
recording, call supervision, dial tone, switching, telephone
number provisioning, announcements, calling features and
capabilities (including call processing), Centrex, or Centrex
like services, Automatic Call Distributor (ACD), CLEC
pre-subscription (e.g., long distance Carrier, intraLATA
toll), Carrier Identification Code (CIC) portability
capabilities, testing and other operational features inherent
to the switch and switch software.
4.2 Technical Requirements
4.2.1 Sprint shall provide its standard recorded
announcements (as designated by CLEC) and call progress tones
to alert callers of call progress and disposition. CLEC
will use the BFR process for unique announcements in
accordance with Section 6 of Part A of this Agreement.
4.2.2 Sprint shall change a subscriber from Sprint's
Telecommunications Services to CLEC's Telecommunications
Services without loss of feature functionality unless
expressly agreed otherwise by CLEC.
4.2.3 Sprint shall control congestion points such as mass
calling events, and network routing abnormalities, using
capabilities such as Automatic Call Gapping, Automatic
Congestion Control, and Network Routing Overflow.
Application of such control shall be competitively neutral
and not favor any user of unbundled switching or Sprint.
4.2.4 Sprint shall offer all Local Switching features that
are technically feasible and provide feature offerings at
parity with those provided by Sprint to itself or any other
party.
<PAGE> 53
4.3 Interface Requirements:
4.3.1 Sprint shall provide the following interfaces to loops:
4.3.1.1 Standard Tip/Ring interface including loopstart
or groundstart, on-hook signaling (e.g., for calling
number, calling name and message waiting lamp);
4.3.1.2 Coin phone signaling;
4.3.1.3 Basic and Primary Rate Interface ISDN adhering
to ANSI standards Q.931, Q.932 and appropriate Bellcore
Technical Requirements;
4.3.1.4 Two-wire analog interface to PBX to include
reverse battery, E&M, wink start and DID;
4.3.1.5 Four-wire analog interface to PBX to include
reverse battery, E&M, wink start and DID;
4.3.1.6 Four-wire DS1 interface to PBX or subscriber
provided equipment (e.g., computers and voice response
systems);
4.4 Sprint shall provide access to interfaces, including but not
limited to:
4.4.1 SS7 Signaling Network, Dial Plus or Multi-Frequency
trunking if requested by CLEC;
4.4.2 Interface to CLEC operator services systems or Operator
Services through appropriate trunk interconnections for the
system; and
4.4.3 Interface to CLEC directory assistance services through
the CLEC switched network or to Directory Services through
the appropriate trunk interconnections for the system; and
950 access or other CLEC required access to interexchange
carriers as requested through appropriate trunk interfaces.
SECTION 5. DIRECTORY ASSISTANCE SERVICE
5.1 Sprint shall provide for the routing of directory assistance
calls (including but not limited to 411, 555-1212, NPA-555-1212)
dialed by CLEC subscribers directly to, at CLEC's option, either
(a) the CLEC DA
<PAGE> 54
service platform to the extent Sprint's switch can perform this
customized routing, or (b) Sprint's DA service platform to the
extent there is a DA service platform for that serving area.
5.1.1 Sprint shall provide CLEC with the same level of
support for the provisioning of Directory Assistance as
Sprint provides itself. Quality of service standards shall
be measured at the aggregate level in accordance with
standards and performance measurements that are at parity
with the standards and/or performance measurements that
Sprint uses and/or which are required by law or regulatory
agency rules or orders.
5.1.2 Directory Assistance services provided by Sprint to
CLEC subscribers shall be branded in accordance with Section
11 of Part A of this Agreement.
SECTION 6: OPERATOR SERVICES
6.1 Sprint shall provide for the routing of local Operator Services
calls (including but not limited to 0+, 0-) dialed by CLEC
subscribers directly to either the CLEC operator Service platform
or Sprint Operator Service platform to the extent Sprint's switch
can perform this customized routing.
6.1.1. Sprint shall provide Operator Services to CLEC as
described below until, at CLEC's discretion, Sprint routes
calls to the CLEC Local Operator Services platform.
6.1.1.1.1 Sprint agrees to provide CLEC subscribers the
same Operator Services available to Sprint subscribers.
Sprint shall make available its service enhancements
on a non-discriminatory basis.
6.1.1.1.2 Operator Services provided to CLEC
subscribers shall be branded in accordance with Section
11 of Part A of this Agreement.
6.1.2 Sprint shall exercise the same level of fraud control
in providing Operator Service to CLEC that Sprint provides
for its own operator service.
SECTION 7: TRANSPORT
7.1 Common Transport
<PAGE> 55
7.1.1 Definition: Common Transport provides a local
interoffice transmission path between the Sprint tandem
switch and a Sprint or CLEC end office switch. Common
transport is shared between multiple customers and is
required to be switched at the tandem.
7.1.2 Sprint shall offer Common Transport at DS0, DS1, DS3,
STS-1 or higher transmission bit rate circuits.
7.1.3 Sprint shall be responsible for the engineering,
provisioning, and maintenance of the underlying equipment and
facilities that are used to provide Common Transport
7.2 Dedicated Transport
7.2.1 Definition:
Dedicated Transport provides a local interoffice
transmission path between Sprint and/or CLEC central
offices. Dedicated transport is limited to the use of
a single customer and does not require switching at a
tandem.
7.2.2 Technical Requirements
Where technologically feasible and available, Sprint
shall offer Dedicated Transport consistent with the
underlying technology as follows:
7.2.2.1 When Sprint provides Dedicated Transport as a
circuit or a system, the entire designated transmission
circuit or system (e.g., DS1, DS3, STS-1 ) shall be
dedicated to CLEC designated traffic.
7.2.2.2 Where Sprint has technology available, Sprint
shall offer Dedicated Transport using currently
available technologies including, but not limited to,
DS1 and DS3 transport systems, SONET (or SDH)
Bi-directional Line Switched Rings, SONET (or SDH)
Unidirectional Path Switched Rings, and SONET (or SDH)
point-to-point transport systems (including linear
add-drop systems), at all available transmission bit
rates.
SECTION 8 TANDEM SWITCHING
8.1 Definition:
<PAGE> 56
Tandem Switching is the function that establishes a
communications path between two switching offices (connecting
trunks to trunks) through a third switching office (the
tandem switch) including but not limited to CLEC, Sprint,
independent telephone companies, IXCs and wireless Carriers.
8.2 Technical Requirements
8.2.1 The requirements for Tandem Switching include, but are
not limited to, the following:
8.2.1.1 Interconnection to Sprint tandem(s) will
provide CLEC local interconnection for local and toll
access service purposes to the Sprint end offices and
NXXs which interconnect with that tandem(s) either
directly or through other Sprint facilities for local
and toll service purposes, and to other companies which
are likewise connected to that tandem(s).
8.2.1.2 Interconnection to a Sprint tandem for transit
purposes will provide CLEC interexchange access to
Sprint, Interexchange Carriers ("IXCs"), Carriers,
ILECs, and CMRS providers which are connected to that
tandem.
8.2.1.3 Where a Sprint Tandem Switch also provides
End-Office Switch functions, interconnection to a
Sprint tandem serving that exchange will also provide
CLEC access to Sprint's end offices and access the NXXs
served by that individual end-office.
8.2.2 Tandem Switching shall preserve CLASS/LASS features and
Caller ID as traffic is processed.
8.2.3 To the extent technically feasible, Tandem Switching
shall record billable events and send them to the area
billing centers designed by CLEC.
8.2.4 Tandem Switching shall control congestion using
capabilities such as Automatic Congestion Control and Network
Routing Overflow. Congestion control provided or imposed on
CLEC traffic shall be at parity with controls being provided
or imposed on Sprint traffic (e.g. Sprint shall not block
CLEC traffic and leave its traffic unaffected or less
affected.)
<PAGE> 57
8.2.5 The Local Switching and Tandem Switching functions may
be combined in an office. If this is done, both Local
Switching and Tandem switching shall provide all of the
functionality required of each of those Network Elements in
this Agreement.
8.2.6 Tandem Switching shall provide interconnection to the
E911 PSAP where the underlying Tandem is acting as the E911
Tandem.
8.3 Interface Requirements
8.3.1 Tandem Switching shall interconnect, with direct
trunks, to all carriers with which Sprint interconnects.
8.3.2 Sprint shall provide all signaling necessary to provide
Tandem Switching with no loss of feature functionality.
SECTION 9 NETWORK INTERFACE DEVICE
9.1 Definition:
The Network Interface Device (NID) is a single-line
termination device or that portion of a multiple-line
termination device required to terminate a single line or
circuit. The function of the NID is to establish the
network demarcation point between a carrier and its
subscriber. The NID features two independent chambers or
divisions which separate the service provider's network from
the subscriber's inside wiring. Each chamber or division
contains the appropriate connection points or posts to which
the service provider, and the subscriber each make their
connections. The NID or protector provides a protective
ground connection, provides protection against lightning and
other high voltage surges and is capable of terminating
cables such as twisted pair cable.
9.1.1 CLEC may connect its NID to Sprint's NID.
9.1.2 With respect to multiple-line termination devices, CLEC
shall specify the quantity of NIDs it requires within such
device.
Figure 1 shows a schematic of a NID.
<PAGE> 58
[Graphic]
FIGURE 1 - NETWORK INTERFACE DEVICE
9.2 Technical Requirements
9.2.1 The Sprint NID shall provide a clean, accessible point
of connection for the inside wiring and for the Distribution
Media and/or cross connect to CLEC's NID and shall maintain a
connection to ground that meets the requirements set forth
below. Each party shall ground its NID independently of the
other party's NID.
9.2.2 The NID shall be the interface to subscribers' premises
wiring for all loop technologies.
<PAGE> 59
SECTION 10 SIGNALING SYSTEMS AND DATABASES
10.1 Signaling Systems
10.1.1 Signaling Link Transport
10.1.1.1 Definition:
Signaling Link Transport is a set of two or
four dedicated 56 Kbps transmission paths
between CLEC-designated Signaling Points of
Interconnection (SPOI) that provides
appropriate physical diversity and a cross
connect at a Sprint STP site.
10.1.1.2 Technical Requirements
10.1.1.2.1 Signaling Link Transport shall
consist of full duplex mode 56 Kbps
transmission paths.
10.1.1.3 Interface Requirements
10.1.1.3.1 There shall be a DS1 (1.544 Mbps)
interface at the CLEC-designated SPOIs. Each
56 Kbps transmission path shall appear as a
DS0 channel within the DS1 interface.
10.1.2 Signaling Transfer Points (STPs)
10.1.2.1 Definition:
Signaling Transfer Points (STPs) provide
functionality that enable the exchange of SS7
messages among and between switching elements,
database elements and signaling transfer
points.
10.1.2.1.1 Figure 2 depicts Signaling Transfer
Points.
<PAGE> 60
[Graphic]
FIGURE 2 - SIGNALING TRANSFER POINTS.
10.1.2.2 Technical Requirements
STPs shall provide access to and fully support
the functions of all other Network Elements
connected to the Sprint SS7 network. These
include:
10.2.2.2.1 Sprint Local Switching or Tandem
Switching;
10.2.2.2.2 Sprint Service Control
Points/DataBases;
10.2.2.2.3 Third-party local or tandem
switching systems; and
10.2.2.2.4 Third-party-provided STPs.
<PAGE> 61
10.1.2.3 Interface Requirements
10.1.2.3.1 Sprint shall provide the following
STPs options to connect CLEC or
CLEC-designated local switching systems or
STPs to the Sprint SS7 network:
10.1.2.3.1.1 An A-link interface from
CLEC local switching systems; and,
10.1.2.3.1.2 B or D-link interface from
CLEC STPs.
10.1.2.3.2 Each type of interface shall be
provided by one or more sets (layers) of
signaling links, as follows:
10.1.2.3.2.1 An A-link layer shall
consist of two links, as depicted in
Figure 3.
[Graphic]
FIGURE 3. A-LINK INTERFACE
10.1.2.3.2.2 A B or D-link layer shall
consist of four links, as depicted in
Figure 4.
<PAGE> 62
[Graphic]
Figure 4. D-Link Interface
10.1.2.3.3 Signaling point of
Interconnection (SPOI) for each link
shall be located at a cross-connect
element, such as a DSX-1, in the
Central Office (CO) where the Sprint
STPs is located. There shall be a DS1
or higher rate transport interface at
each of the SPOIs. Each signaling
link shall appear as a DSO channel
within the DS1 or higher rate
interface.
10.2 Line Information Database (LIDB)
10.2.1 The LIDB is a transaction-oriented database accessible
through Common Channel Signaling (CCS) networks. It
contains records associated with subscribers Line
Numbers and Special Billing Numbers. LIDB accepts
queries from other Network Elements, or CLEC's network,
and provides appropriate responses. The query
originator need not be the owner of LIDB data. LIDB
queries include functions such as screening billed
numbers that provides the ability to accept Collect or
Third Number Billing calls and validation of Telephone
Line Number based non-proprietary calling cards. The
interface for the LIDB functionality is the interface
between the Sprint CCS network and other CCS networks.
LIDB also interfaces to administrative systems. The
administrative system interface provides Work Centers
with an interface to LIDB for functions such as
provisioning, auditing of data, access to LIDB
measurements and reports.
<PAGE> 63
10.2.2 Technical Requirements
10.2.2.1 Prior to the availability of a long-term
solution for Number Portability, Sprint shall enable
CLEC to store in Sprint's LIDB any subscriber Line
Number or Special Billing Number record, whether ported
or not, for which the NPA-NXX or NXX-0/IXX Group is
supported by that LIDB.
10.2.2.2 Prior to the availability of a long-term
solution for Number Portability, Sprint shall enable
CLEC to store in Sprint's LIDB any subscriber Line
Number or Special Billing Number record, whether ported
or not, and NPA-NXX and NXX-0/IXX Group Records,
belonging to an NPA-NXX or NXX-0/1 XX owned by CLEC.
10.2.2.3 Subsequent to the availability of a long-term
solution for Number Portability, Sprint shall enable
CLEC to store in Sprint's LIDB any subscriber Line
Number or Special Billing Number record, whether ported
or not, regardless of the number's NPA-NXX or
NXX-0/IXX.
10.2.2.4 Sprint shall perform the following LIDB
functions for CLEC's subscriber records in LIDB:
Billed Number Screening (provides information such as
whether the Billed Number may accept Collect or Third
Number Billing calls); and Calling Card Validation.
10.2.2.5 Sprint shall process CLEC's subscriber records
in LIDB at parity with Sprint subscriber records, with
respect to other LIDB functions (as defined in the
technical reference in Section 13.5). Sprint shall
indicate to CLEC what additional functions (if any) are
performed by LIDB in their network.
10.2.2.6 Sprint shall perform backup and recovery of
all of CLEC's data in LIDB at parity with backup and
recovery of all other records in the LIDB, including
sending to LIDB all changes made since the date of the
most recent backup copy.
<PAGE> 64
10.3 Toll Free Number Database
10.3.1 Definition
10.3.1.1 The Toll Free Number Database provides
functionality necessary for toll free (e.g., 800 and
888) number services by providing routing information
and additional vertical features during call set-up in
response to queries from SSPs. Sprint shall provide
the Toll Free Number Database in accordance with the
following:
10.3.2 Technical Requirements
10.3.2.1 Sprint shall make the Sprint Toll Free Number
Database available for CLEC to query, from CLEC's
designated switch including Sprint unbundled local
switching with a toll-free number and originating
information.
10.3.2.2 The Toll Free Number Database shall return
carrier identification and, where applicable, the
queried toll free number, translated numbers and
instructions as it would in response to a query from a
Sprint switch.
10.3.3 Interface Requirements
10.3.3.1 The signaling interface between the CLEC or
other local switch and the Toll-Free Number database
shall use the TCAP protocol, together with the
signaling network interface.
<PAGE> 65
PART C - ATTACHMENT IV
INTERCONNECTION
SECTION 1. LOCAL INTERCONNECTION TRUNK ARRANGEMENT
1.1 The Parties agree to initially use 2-Way trunks
(1-way directionalized) for an interim period of 120 days
after date of initial trunk turn-up. Either Party may extend
the use of 1-way trunks for an additional 30 days, if
necessary for engineering and billing purposes; provided that
the Parties shall transition all 1-way trunks established
under this Agreement.
1.1.1 The Parties shall initially reciprocally terminate
Local Traffic and IntraLATA/lnterLATA toll calls originating
on each others' networks as follows:
1.1.1.1 The Parties shall make available to each other
two-way trunks for the reciprocal exchange of combined
Local Traffic, and non-equal access IntraLATA toll
traffic.
1.1.1.2 Separate two-way trunks will be made available
for the exchange of equal-access InterLATA or IntraLATA
interexchange traffic that transits Sprint's network.
Upon agreement between CLEC and Sprint, equal access
InterLATA and/or IntraLATA traffic may be combined on
the same trunk group as Local Traffic, non-equal access
IntraLATA toll traffic, and local transit traffic.
1.1.1.3 Separate trunks will be utilized for connecting
CLEC's switch to each 911/E911 tandem.
1.1.1.4 Separate trunk group will be utilized for
connecting CLEC's switch to Sprint's Operator Service
center for operator-assisted busy line
interrupt/verify.
1.1.1.5 Separate trunk group will be utilized for
connecting CLEC's switch to Sprint's Directory
Assistance center in instances where CLEC is purchasing
Sprint's unbundled Directory Assistance service.
<PAGE> 66
1.2 Interconnection Point
1.2.1 "Interconnection Point" or "IP" means the physical
point that establishes the technical interface, the test
point, and the operational responsibility hand-off between
CLEC and Sprint for the local interconnection of their
networks.
1.2.2 CLEC will be responsible for engineering and
maintaining its network on its side of the IP. Sprint will
be responsible for engineering and maintaining its network on
its side of the IP. If and when the parties choose to
interconnect at a mid-span meet, CLEC and Sprint will jointly
provision the facilities that connect the two networks.
Sprint will be required to provide fifty (50) percent of the
facilities or to its exchange boundary, whichever is less.
CLEC will be required to provide fifty (50) percent of the
facilities or to Sprint's exchange boundary, whichever is
greater.
SECTION 2. COMPENSATION MECHANISMS
2.1 Interconnection Point
2.1.1 Each party is responsible for bringing their
facilities to the IP.
2.2 Compensation for Local Traffic Transport and Termination
2.2.2 The IP determines the point at which the originating
carrier shall pay the terminating carrier for the completion
of that traffic. The following compensation elements shall
apply:
2.2.2.1 "Transport", which includes the two rate
elements of transmission and any necessary tandem
switching of Local Traffic from the
interconnection point between the two carriers to
the terminating carrier's end-office switch that
directly serves the called end-user.
2.2.2.2 "Termination", which includes the
switching of Local Traffic at the terminating
carrier's end office switch.
2.3 When a CLEC subscriber places a call to Sprint's
subscriber, CLEC will hand off that call to Sprint at the IP.
Conversely, when Sprint hands over Local Traffic to CLEC for
CLEC to transport and terminate, Sprint may use the
established IP or Sprint may designate its own IP.
<PAGE> 67
2.4 CLEC and Sprint may designate an IP at any
technically feasible point including but not limited to any
electronic or manual cross-connect points, collocations,
entrance facilities, and mid-span meets. The transport and
termination charges for Local Traffic flowing through an IP
shall be as follows:
2.4.1 When calls from CLEC are terminating on Sprint's
network through the Sprint tandem switch, CLEC will pay
Sprint for transport charges from the IP to the tandem for
dedicated transport. CLEC shall also pay a charge for
tandem switching, or common transport to the end office, and
end-office termination.
2.4.2 When Sprint terminates calls to CLEC's subscribers
using CLEC's switch, Sprint shall pay CLEC for transport
charges from the IP to the CLEC switching center for
dedicated transport. Sprint shall also pay to CLEC a charge
symmetrical to its own charges for the functionality actually
provided by CLEC for call termination.
2.4.3 CLEC may choose to establish direct trunking to any
given end office. If CLEC leases trunks from Sprint, it
shall pay charges for dedicated transport. For calls
terminating from CLEC to subscribers served by these
directly-trunked end offices, CLEC shall also pay an
end-office termination. For Sprint traffic terminating to
CLEC over the direct end office trunking, compensation
payable by Sprint shall be the same as that detailed in
Section 2.4.2 above.
SECTION 3. SIGNALING
3.1 Signaling protocol. The parties will interconnect their
networks using SS7 signaling where technically feasible and
available as defined in FR 905 Bellcore Standards including ISDN
user part ("ISUP") for trunk signaling and transaction capabilities
application part ("TCAP") for CCS-based features in the
interconnection of their networks. All Network Operations Forum
(NOF) adopted standards shall be adhered to.
3.2 Refer to Attachment III, Section 10 for detailed terms of SS7
Network Interconnection.
3.3 Standard interconnection facilities shall be extended
superframe (ESF) with B8ZS line code. Where ESF/B8ZS is not
available, CLEC will agree to using other interconnection protocols
on an interim basis until the standard ESF/B8ZS is available.
Sprint will provide anticipated dates of availability for those
areas not currently ESF/B8ZS compatible.
<PAGE> 68
3.3.1 Where CLEC is unwilling to utilize an alternate
interconnection protocol, CLEC will provide Sprint an initial
forecast of 64 Kbps clear channel capability ("64K CCC")
trunk quantities within 30 days of the Approval Date
consistent with the forecasting agreements between the
parties. Upon receipt of this forecast, the parties will
begin joint planning for the engineering, procurement, and
installation of the segregated 64K CCC Local Interconnection
Trunk Groups, and the associated B8ZS extended super frame
("ESF") facilities, for the sole purpose of transmitting 64K
CCC data calls between CLEC and Sprint. Where additional
equipment is required, such equipment would be obtained,
engineered, and installed on the same basis and with the same
intervals as any similar growth job for IXC, CLEC, or Sprint
internal customer demand for 64K CCC trunks. Where
technically feasible, these trunks will be established as
two-way.
SECTION 4. NETWORK SERVICING
4.1 Trunk Forecasting:
4.1.1 The Parties shall work towards the development of joint
forecasting responsibilities for traffic utilization over
trunk groups. Orders for trunks that exceed forecasted
quantities for forecasted locations will be accommodated as
facilities and or equipment are available. The Parties
shall make all reasonable efforts and cooperate in good faith
to develop alternative solutions to accommodate orders when
facilities are not available. Intercompany forecast
information must be provided by the Parties to each other
once a year. The annual forecasts shall include:
4.1.1.1 Yearly forecasted trunk quantities (which
include baseline data that reflect actual tandem
and end office Local Interconnection and meet
point trunks and tandem-subtending Local
Interconnection end office equivalent trunk
requirements for no more than two years (current
plus one year);
4.1.1.2 The use of Common Language Location
Identifier (CLLI-MSG), which are described in
Bellcore documents BR 795-100-100 and BR
795-400-100;
4.1.1.3 Description of major network projects
that affect the other Party will be provided in
the semi-annual forecasts. Major network
projects include but are not limited to trunking
or network rearrangements, shifts in anticipated
traffic
<PAGE> 69
patterns, or other activities by either party
that are reflected by a significant increase or
decrease in trunking demand for the following
forecasting period.
4.1.2 Parties shall meet to review and reconcile their
forecasts if forecasts vary significantly.
4.1.3 Each Party shall provide a specified point of contact
for planning forecasting and trunk servicing purposes.
4.1.4 Trunking can be established to tandems or end offices
or a combination of both via either one-way or two-way
trunks. Trunking will be at the DS-0 level, DS-1 level,
DS-3/OC-3 level, or higher, as agreed upon by CLEC and
Sprint. Initial trunking will be established between the
CLEC switching centers and Sprint's access tandem(s). The
Parties may utilize direct end office trunking depending upon
tandem exhaust, traffic volumes, or by mutual agreement.
4.2 Grade of Service
4.2.1 A blocking standard of one percent (.01 ) during the
average busy hour, as defined by each Party's standards, for
final trunk groups between a CLEC end office and a Sprint
access tandem carrying meet point traffic shall be
maintained. All other final trunk groups are to be
engineered with a blocking standard of one percent (.01).
Direct end office trunk groups are to be engineered with a
blocking standard of one percent (.01).
4.3 Trunk Servicing
4.3.1 Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an ASR, or
another industry standard eventually adopted to replace the
ASR for local service ordering.
SECTION 5. NETWORK MANAGEMENT
5.1 Protective Protocols
5.1.1 Either Party may use protective network traffic
management controls such as 7-digit and 10-digit code
gaps on traffic toward each others network, when
required to protect the public switched network from
congestion due to facility failures, switch congestion
or failure or focused overload. CLEC and Sprint will
immediately
<PAGE> 70
notify each other of any protective control action
planned or executed.
5.2 Expansive Protocols
5.2.1 Where the capability exists, originating or terminating
traffic reroutes may be implemented by either party to
temporarily relieve network congestion due to facility
failures or abnormal calling patterns. Reroutes will not be
used to circumvent normal trunk servicing. Expansive
controls will only be used when mutually agreed to by the
parties.
5.3 Mass Calling
5.3.1 CLEC and Sprint shall cooperate and share pre-planning
information, where available, regarding cross-network
call-ins expected to generate large or focused temporary
increases in call volumes, to prevent or mitigate the impact
of these events on the public switched network.
SECTION 6. USAGE MEASUREMENT
6.1 Each Party shall calculate terminating
interconnection minutes of use based on standard AMA
recordings made within each Party's network, these recordings
being necessary for each Party to generate bills to the other
Party. In the event either Party cannot measure minutes
terminating on its network, the other Party shall provide the
measuring mechanism or the Parties shall otherwise agree on an
alternate arrangement.
6.2 Measurement of minutes of use over Local
Interconnection trunk groups shall be in actual conversation
seconds. The total conversation seconds over each individual
Local Interconnection trunk group will be totaled for the
entire monthly bill period and then rounded to the next whole
minute.
6.3 Each Party shall provide to the other, within 20
business days after the end of each quarter (commencing with
the first full quarter after the effective date of this
Agreement), a usage report with the following information
regarding traffic sent by the recording Party over the Local
Interconnection trunk groups whether the arrangement is direct
interconnection or transit through a third party:
<PAGE> 71
6.3.1 Total traffic volume described in terms of minutes and
messages and by call type (local, toll, and other) terminated
to each other over the Local Interconnection trunk groups,
and
6.3.2.Percent Local Use (PLU)
SECTION 7. RESPONSIBILITIES OF THE PARTIES
7.1 Sprint and CLEC agree to treat each other fairly,
nondiscriminatorily, and equally for all items included in
this Agreement, or related to the support of items included in
this Agreement.
7.2 CLEC and Sprint will review engineering
requirements on a semi-annual basis and establish forecasts
for trunk and facilities utilization provided under this
Agreement. Sprint and CLEC will work together to begin
providing these forecasts within 30 days from the Approval
Date. New trunk groups will be implemented as dictated by
engineering requirements for either Sprint or CLEC.
7.3 CLEC and Sprint shall share responsibility for
all Control Office functions for Local Interconnection Trunks
and Trunk Groups, and both parties shall share the overall
coordination, installation, and maintenance responsibilities
for these trunks and trunk groups.
7.4 CLEC is responsible for all Control Office
functions for the meet point trunking arrangement trunks and
trunk groups, and shall be responsible for the overall
coordination, installation, and maintenance responsibilities
for these trunks and trunk groups.
7.5 CLEC and Sprint shall:
7.5.1 Provide trained personnel with adequate and compatible
test equipment to work with each other's technicians.
7.5.2 Notify each other when there is any change affecting
the service requested, including the due date.
7.5.3 Coordinate and schedule testing activities of their own
personnel, and others as applicable, to ensure its
interconnection trunks/trunk groups are installed per the
interconnection order, meet agreed-upon acceptance test
requirements, and are placed in service by the due date.
<PAGE> 72
7.5.4 Perform sectionalization to determine if a trouble is
located in its facility or its portion of the interconnection
trunks prior to referring the trouble to each other.
7.5.5 Advise each other's Control Office if there is an
equipment failure which may affect the interconnection
trunks.
7.5.6 Provide each other with a trouble reporting/repair
contact number that is readily accessible and available 24
hours/7 days a week. Any changes to this contact
arrangement must be immediately provided to the other party.
7.5.7 Provide to each other test-line numbers and access to
test lines.
7.5.8 Cooperatively plan and implement coordinated repair
procedures for the meet point and Local Interconnection
trunks and facilities to ensure trouble reports are resolved
in a timely and appropriate manner.
<PAGE> 73
PART C - ATTACHMENT V
COLLOCATION
SECTION 1. INTRODUCTION
This Attachment sets forth the requirements for Collocation.
SECTION 2. TECHNICAL REQUIREMENTS
2.1 Sprint shall provide space, as requested by CLEC, to meet
CLEC's needs for placement of equipment, interconnection, or
provision of service ("Collocated Space") in accordance with this
Attachment V and Sprint's FCC #1 tariff and United Telephone
Company of Missouri tariff.
2.1.1 CLEC shall not occupy or use the Collocated Space, or
permit the Collocated Space to be occupied or used, for any
purpose, act or thing, whether or not otherwise permitted by
this Agreement, if such purpose, act or thing (i) is in
violation of any public law, ordinance or governmental
regulation; (ii) may be dangerous to persons or property;
(iii) may invalidate or increase the amount of premiums
beyond such increase as results from the contemplated
occupancy for any insurance policy carried on the building or
covering its operation; or (iv) violates the terms of this
Agreement.
2.2 Sprint shall provide intraoffice facilities (e.g., DS0, DS-1,
DS-3,-and other available transmission speeds) as agreed to by CLEC
and Sprint to meet CLEC's need for placement of equipment,
interconnection, or provision of service.
2.3 Sprint agrees to allow CLEC's employees and designated agents
unrestricted but escorted access to CLEC dedicated space in manned
Sprint offices twenty-four (24) hours per day each day of the week.
CLEC shall use reasonable efforts to provide Sprint twenty-four
(24) hours prior notice of such access. Sprint may place
reasonable security restrictions, including an escort requirement
and charge for such escort, on access by CLEC's employees and
designated agents to the Collocated Space in unmanned Sprint
offices. Notwithstanding the above, Sprint agrees that such space
shall be available to CLEC's employees and designated agents
twenty-four (24) hours per day each day of the week upon
twenty-four (24) hours prior notice. In no case should any
reasonable security restrictions be more restrictive than those
Sprint places on their own
<PAGE> 74
personnel, except with respect to an escort requirement as set
forth above.
2.4 CLEC may collocate the amount and type of equipment it deems
necessary in its Collocated Space in accordance with FCC Rules and
Regulations and Sprint's FCC #1 tariff and United Telephone Company
of Missouri tariff. Such equipment shall meet Bellcore
specifications and be manufactured by a Sprint approved vendor.
Approved vendors will, at a minimum, be vendors Sprint currently
approves for its own use. Sprint will approve additional vendors
provided they meet industry standards.
2.5 Sprint shall permit a collocating telecommunications carrier to
interconnect its network with that of another collocating
telecommunications carrier at the Sprint premises and to connect
its collocated equipment to the collocated equipment of another
telecommunications carrier within the same premises. Sprint in
all cases shall provide such interconnections.
2.6 Sprint shall permit CLEC or its designated subcontractor to
perform the construction of physical collocation arrangements,
provided, however, that any such CLEC subcontractor shall be
subject to Sprint's approval, such approval shall not be
unreasonably withheld. Approval by Sprint shall be based on the
same criteria it uses in approving contractors for its own
purposes.
2.7 CLEC shall not make substantial installations, alterations or
additions in or to the Collocated Space without submitting plans
and specifications to Sprint and securing the prior written consent
of Sprint in each instance. Sprint's consent shall not be
unreasonably withheld or unduly delayed for non-structural interior
alteration to the Collocated Space that do not adversely affect the
building's appearance, value, structural strength and mechanical
integrity. Such work shall be done at the sole expense of CLEC.
2.7.1 All installations, alterations and additions shall be
constructed in a good and workmanlike manner and only new and
good grades of material shall be used, and shall comply with
all insurance requirements, governmental requirements, and
terms of this Agreement. Work shall be performed at such
times and in such manner as to cause a minimum of
interference with Sprint's transaction of business. CLEC
shall permit Sprint to inspect all construction operations
within the premises and to approve contractors, which
approval shall not be unreasonably withheld. If alterations
are made by CLEC's contractors, CLEC shall furnish to Sprint
prior to commencement thereof, building permits and
<PAGE> 75
certificates of insurance to be provided by CLEC's
contractors and sub-contractors. Any such insurance to be
provided by CLEC's contractors or sub-contractors shall
provide for coverage in amounts not less than as required by
Sprint of CLEC under Section 2.45 of this Attachment V.
Upon completion of any installation, alteration or addition,
contractor's affidavits and full and final waivers of lien
covering all labor and material expended and used shall be
furnished to Sprint. CLEC and its contractors and
subcontractors shall hold Sprint harmless from all claims,
costs, damages, liens and expenses which may arise out of or
be connected in any way with installations, alterations or
additions.
2.7.2 All installations, alterations and additions which take
the form of fixtures, except trade fixtures, placed in the
Collocated Space by and at the expense of CLEC or others
shall become the property of Sprint, and shall remain upon
and be surrendered with the Collocated Space. Upon
termination of a license for Collocated Space, however,
Sprint shall have the right to require CLEC to remove such
fixtures and installations, alterations or additions at
CLEC's expense, and to surrender the Collocated Space in the
same condition as it was prior to the making of any or all
such improvements, reasonable wear and tear excepted.
2.7.3 All fixtures and other equipment to be used by CLEC in,
about or upon the premises shall be subject to the prior
written approval of Sprint, which shall not be unreasonably
withheld.
2.8 Sprint shall provide basic telephone service with a connection
jack as ordered by CLEC from Sprint for the Collocated Space.
Upon CLEC's request, this service shall be available at the
Collocated Space on the day that the space is turned over to CLEC
by Sprint.
2.9 Sprint shall provide adequate lighting, ventilation, power,
heat, air conditioning, and other environmental conditions for
CLEC's space and equipment. These environmental conditions shall
adhere to Bellcore Network Equipment Building System (NEBS)
standards TR-EOP-000063 or other mutually agreed standards.
2.9.1 If CLEC locates equipment or facilities in the
Collocated Space which Sprint determines affect the
temperature or other environmental conditions otherwise
maintained by Sprint in the building, Sprint reserves the
right to provide and install supplementary air conditioning
units or other environmental control devices for the
Collocated Space, and the cost of providing, installing,
operating and maintaining any such supplementary air
<PAGE> 76
conditioning units or other environmental control devices
made necessary solely by CLEC's equipment or facilities shall
be paid by CLEC to Sprint.
2.9.2 If CLEC's equipment or facilities requires cooling
capability in excess of that normally provided by Sprint for
its own equipment, any required supplementary air
conditioning required by CLEC shall be paid by CLEC to
Sprint.
2.10 Where available and subject to Sprint's standard security
procedures, Sprint shall provide access to eyewash stations, shower
stations, bathrooms, and drinking water within the collocated
facility on a twenty-four (24) hours per day, seven (7) days per
week basis for CLEC personnel and its designated agents.
2.11 Sprint shall provide all ingress and egress of fiber and power
cabling to Collocated Spaces. CLEC's specific diversity
requirements for each site or Network Element will be provided in
the collocation request.
2.12 Each party shall ensure protection of the other party's
proprietary subscriber information. In conjunction with any
collocation arrangement Sprint and CLEC shall adhere to the
provisions of Section 13 of Part A of this Agreement.
2.13 Sprint shall participate in and adhere to negotiated and
agreed to service guarantees and Performance Standards, if any.
2.14 Sprint shall provide CLEC with written notice five (5)
business days prior to those instances where Sprint or its
subcontractors may be performing work in the general area of the
Collocated Space, or in the general area of the AC and DC power
plants which support CLEC equipment. Sprint will inform CLEC by
telephone of any emergency related activity that Sprint or its
subcontractors may be performing in the general area of the
Collocated Space, or in the general area of the AC and DC power
plants which support CLEC equipment. Notification of any
emergency related activity shall be made immediately prior to the
start of the activity so that CLEC can take any action required to
monitor or protect its service.
2.15 Sprint shall, at its sole expense, except as hereinafter
provided, provide repair and maintenance of heating, cooling and
lighting equipment and regularly scheduled refurbishments or
decorating to the Collocated Space, building and property, in a
manner consistent with Sprint's normal business practices.
<PAGE> 77
2.15.1 Sprint shall, where practical, provide CLEC with 24
hours prior notice before making repairs and/or performing
maintenance on the Collocated Space; provided, however, that
Sprint shall have no obligation to provide such notice if
Sprint determines, in the exercise of its sole discretion,
that such repair or maintenance must be done sooner in order
to preserve the safety of the building or the Collocated
Space, or if required to do so by any court or governmental
authority. Work shall be completed during normal working
hours or at other times identified by Sprint; provided,
however, that CLEC shall pay Sprint for overtime and for any
other expenses incurred if such work is done during other
than normal working hours at CLEC's request. CLEC shall have
the right, at its sole expense, to be present during repair
or maintenance of the Collocated Space.
2.16 CLEC shall provide Sprint with written notice five (5)
business days prior to those instances where CLEC or its
subcontractors may be performing work in the general area of the
Collocated Space, or in the general area of the AC and DC power
plants which support Sprint equipment. CLEC will inform Sprint by
telephone of any emergency related activity that CLEC or its
subcontractors may be performing in the general area of the
Collocated Space, or in the general area of the AC and DC power
plants which support Sprint equipment. Notification of any
emergency related activity shall be made immediately prior to the
start of the activity so that Sprint can take any action required
to monitor or protect its service.
2.17 To the extent Sprint performs the construction of the physical
collocation arrangement, Sprint shall construct the Collocated
Space in compliance with mutually agreed collocation request. Any
deviation to CLEC's order must thereafter be approved by CLEC.
2.18 CLEC and Sprint will complete an acceptance walk through of
those portions of the collocation arrangement provided by Sprint.
Exceptions that are noted during this acceptance walk through shall
be corrected by Sprint within five (5) business days after the walk
through except where circumstances reasonably warrant additional
time. In such event, subject to CLEC's consent, which shall not
be unreasonably withheld, Sprint shall be given additional time.
The correction of these exceptions from the original collocation
request shall be at Sprint's expense.
2.19 Sprint shall provide detailed Telephone Equipment drawings
depicting the exact location, type, and cable termination
requirements (i.e., connector type, number and type of pairs, and
naming convention)
<PAGE> 78
for Sprint Point of Termination Bay(s) to CLEC within ten (10)
business days of acceptance of CLEC's request for Collocated Space.
2.20 Sprint shall provide detailed drawings depicting the exact
path, with dimensions, for CLEC Outside Plant Fiber ingress and
egress into Collocated Space within ten (10) business days of the
acceptance of CLEC's request for Collocated Space.
2.21 Sprint shall provide detailed power cabling connectivity
information including the sizes and number of power feeders to CLEC
within ten (10) business days of the acceptance of CLEC's request
for Collocated Space.
2.22 To the extent Sprint performs the construction of the physical
collocation arrangement, Sprint shall provide positive confirmation
to CLEC when construction of Collocated Space is 50% completed.
This confirmation shall also include confirmation of the scheduled
completion and turnover dates.
2.23 Sprint shall provide the following information to CLEC within
ten (10) business days of receipt of a written request from CLEC:
2.23.1 Work restriction guidelines.
2.23.2 Sprint or Industry technical publication guidelines
that impact the design of Sprint collocated equipment.
2.23.3 Sprint contacts (names and telephone numbers) for the
following areas:
Engineering
Physical & Logical Security
Provisioning
Billing (Related to Collocation Services)
Operations
Site and Building Managers
Environmental and Safety
2.23.4 Escalation process for the Sprint employees (names,
telephone numbers and the escalation order) for any disputes
or problems that might arise pursuant to CLEC's collocation.
2.24 Power as referenced in this document refers to any electrical
power source supplied by Sprint for CLEC equipment. It includes
all superstructure, infrastructure, and overhead facilities,
including, but not limited to, cable, cable racks and bus bars.
Sprint will supply power to
<PAGE> 79
support CLEC equipment at equipment specific DC and AC voltages.
At a minimum, Sprint shall supply power to CLEC at parity with that
provided by Sprint to itself or to any third party. If Sprint
performance, availability, or restoration falls below industry
standards, Sprint shall bring itself into compliance with such
industry standards as soon as technologically feasible.
2.24.1 Central office power supplied by Sprint into the CLEC
equipment area, shall be supplied in the form of power
feeders (cables) on cable racking into the designated CLEC
equipment area. The power feeders (cables) shall
efficiently and economically support the requested quantity
and capacity of CLEC equipment. The termination location
shall be as requested by CLEC.
2.24.2 Sprint shall provide power as requested by CLEC to
meet CLEC's need for placement of equipment, interconnection,
or provision of service.
2.24.3 Sprint power equipment supporting CLEC's equipment
shall:
2.24.3.1 Comply with applicable industry standards
(e.g., Bellcore, NEBS and IEEE) or manufacturer's
equipment power requirement specifications for
equipment installation, cabling practices, and physical
equipment layout or at minimum, at parity with that
provided for similar Sprint equipment;
2.24.3.2 Have redundant power feeds with physical
diversity and battery back-up as required by the
equipment manufacturer's specifications for CLEC
equipment, or, at minimum, at parity with that provided
for similar Sprint equipment;
2.24.3.3 Provide, upon CLEC's request, the capability
for real time access to power performance monitoring
and alarm data that impacts (or potentially may impact)
CLEC traffic;
2.24.3.4 Provide central office ground, connected to a
ground electrode located within the Collocated Space,
at a level above the top of CLEC equipment plus or
minus 2 feet to the left or right of CLEC's final
request; and
<PAGE> 80
2.24.3.5 Provide feeder cable capacity and quantity to
support the ultimate equipment layout for CLEC
equipment in accordance with CLEC's collocation
request.
2.24.3.6 To the extent Sprint performs the construction
of physical collocation arrangements, Sprint shall,
within ten (10) business days of CLEC's request:
2.24.3.6.1 The standard prices for
collocation are as set forth in Sprint's
tariffs, and nonstandard charges shall be
negotiated between the parties.
2.24.3.6.2 Provide an installation schedule
and access that will allow Sprint and CLEC
installation efforts in parallel without
jeopardizing either party's personnel
safety or existing services;
2.24.3.6.3 Provide information on existing
power plant alarms that adhere to Bellcore
Network Equipment Building System (NEBS)
standards TREOP-000063;
2.24.3.7 Sprint shall provide cabling that adheres to
Bellcore Network Equipment Building System (NEBS)
standards TR-EOP-000063; 2.24.3.8 Sprint shall provide
Lock Out-Tag Out and other electrical safety procedures
and devices in conformance with the most stringent of
OSHA or industry guidelines.
2.24.3 Sprint will provide CLEC with written notification
within ten (10) business days of any scheduled AC or DC power
work or related activity in the collocated facility that will
or might cause an outage or any type of power disruption to
CLEC equipment located in Sprint facility. Sprint shall
provide CLEC immediate notification by telephone of any
emergency power activity that would impact CLEC equipment.
2.24.4 CLEC will provide Sprint with written notification
within ten (10) business days of any scheduled AC or DC power
work or related activity in the collocated facility that will
or might cause an outage or any type of power disruption to
Sprint equipment located in CLEC facility. CLEC shall
provide Sprint immediate notification by telephone of any
emergency power activity that would impact Sprint equipment.
<PAGE> 81
2.25 To the extent that space for virtual collocation is available,
Sprint shall provide virtual collocation where physical collocation
is not practical for technical reasons or because of space
limitations. Sprint shall take collocator demand into account
when renovating existing facilities and constructing or leasing new
facilities.
2.26 Where collocation space and associated requirements are
available, intervals for physical collocation shall be a maximum of
three months from the requested date, subject to additional time
for asbestos removal or extraordinary construction as mutually
agreed upon by CLEC and Sprint. Virtual collocations will have a
maximum interval of 2 months.
2.27 CLEC may choose to lease unbundled transport from the Sprint,
or from a third carrier, rather than construct to the Sprint
facility where equipment will be collocated.
2.28 Sprint will maintain, at CLEC's expense, CLEC's virtually
collocated equipment in a manner equal to that with which it
maintains its own equipment. Maintenance includes the change out
of electronic cards provided by CLEC and per CLEC's request.
2.29 As part of the license granted in Section 4 herein, CLEC, its
employees, agents and invitees shall have a non-exclusive right to
use those portions of the common area of the building as are
designated by Sprint from time to time, including, but not limited
to, the right to use rest rooms in proximity to the Collocated
Space, corridors and other access ways from the entrance to the
building, the Collocated Space, and the parking areas adjacent to
the building for vehicles of persons while working for or on behalf
of CLEC at the Collocated Space; provided, however, that Sprint
shall have the right to reserve parking spaces for Sprint's
exclusive use or by other occupants of the building. Sprint does
not guarantee that there is or will be sufficient parking spaces in
parking areas to meet CLEC's needs. All common areas shall remain
under the exclusive control and management of Sprint, and Sprint
shall have the right to change the level, location and arrangement
of parking areas and other common areas as Sprint may deem
necessary. Use of all common areas shall be subject to such
reasonable rules and regulations as Sprint may from time to time
impose, such as those set forth in Section 2.3 of this Attachment
V.
2.30 Where available, Sprint shall furnish passenger elevator
service as necessary to reach the Collocated Space or common areas
to which CLEC has access pursuant to the terms of this Attachment V
24 hours a day, seven days a week. Where available, freight
elevator service when
<PAGE> 82
used by CLEC's contractors, employees or agents shall be provided
at times reasonably satisfactory to Sprint.
2.31 CLEC shall regularly inspect the Collocated Space to ensure
that the Collocated Space is in good working condition. CLEC
shall promptly notify Sprint of any damage to the Collocated Space
or of the need to perform any repair or maintenance of the
Collocated Space, fixtures and appurtenances (including hardware,
heating, cooling, ventilating, electrical and other mechanical
facilities in the Collocated Space). CLEC shall keep the
Collocated Space clean and trash free.
2.31.1 The cost of all repairs and maintenance performed by
or on behalf of Sprint to the Collocation Space or building
which are, in Sprint's reasonable judgment, beyond normal
repair and maintenance, or are made necessary as a result of
misuse or neglect by CLEC or CLEC's employees, invitees, or
agents, shall be paid by CLEC to Sprint within 10 days after
being billed for such repairs and maintenance by Sprint.
2.32 CLEC shall, with the prior written consent of Sprint, have the
right to provide additional fire protection systems within the
Collocated Space; provided, however, that CLEC may not install or
use sprinklers or carbon dioxide fire suppression systems within
the building or the Collocated Space. If any governmental bureau,
department or organization or Sprint's insurance carrier requires
that changes, modifications, or alterations be made to the fire
protection system, or that additional stand alone fire
extinguishing, detection or protection devices be supplied within
the Collocated Space, such changes, modifications or additions
shall be made by CLEC at it's expense, following review and
approval by Sprint prior to any work being done. If any
governmental bureau, department or organization or Sprint's
insurance carrier requires that changes or modifications be made to
the fire protection system or that additional stand alone fire
extinguishing, detection or protection devices be supplied within
that portion of the building in which the Collocated Space of
CLEC's in general are located, such changes, modifications, or
additions shall be made by Sprint and CLEC shall reimburse Sprint
for the cost thereof in the same proportion as the square footage
of the Collocated Space as compared to the total square footage of
the affected portion of the building.
2.33 CLEC, its employees, agents, contractors, and business
invitees shall (i) comply with all rules and regulations which
Sprint may from time to time adopt for the safety, environmental
protection, care, cleanliness and/or preservation of the good order
of the building, the property and the Collocated Space and its
tenants and occupants, and (ii) comply, at its
<PAGE> 83
own expense, with all ordinances which are applicable to the
Collocated Space and with all lawful orders and requirements of any
regulatory or law enforcement agency requiring the correction,
prevention and abatement of nuisances in or upon the Collocated
Space during the term of this Agreement or any extension hereof.
2.34 CLEC shall not cut or drill into, drive nails or screws into,
install conduit or wires, or in any way deface any part of the
Collocated Space or the building, outside or inside, without the
prior written consent of Sprint. If CLEC desires signal,
communications, alarm or other utility or service connections
installed or changed, the same shall be made by and at the expense
of CLEC. Sprint shall have the right of prior approval of such
utility or service connections, and shall direct where and how all
connections and wiring for such service shall be introduced and
run. In all cases, in order to maintain the integrity of the
halon space for proper halon concentration, and to ensure
compliance with Sprint's fireproofing policy, any penetrations by
CLEC, whether in the Collocated Space, the building or otherwise,
shall be sealed as quickly as possible by CLEC with Sprint-approved
fire barrier sealants, or by Sprint at CLEC's cost.
2.35 CLEC shall not exceed the uniformly distributed live load
capacity.
2.36 CLEC equipment within the Collocated Space shall be connected
to Sprint's grounding system.
2.37 CLEC shall post in a prominent location visible from the
common building area, the telephone numbers of emergency contact
personnel for 24 hour emergency use by Sprint. CLEC will promptly
update this information as changes occur.
2.38 CLEC shall not paint, display, inscribe or affix any sign,
trademark, picture, advertising, notice, lettering or direction on
any part of the outside or inside of the Sprint location, or on the
Collocated Space, without the prior written consent of Sprint.
2.39 CLEC shall not use the name of the Sprint building or Sprint
for any purpose other than that of the business address of CLEC, or
use any picture or likeness of the Sprint building on any
letterhead, envelope, circular, notice or advertisement, without
the prior written consent of Sprint.
2.40 CLEC shall not exhibit, sell or offer for sale, rent or
exchange in the Collocated Space or on the Sprint property any
article, thing or service except those ordinarily embraced within
the use of the Collocated Space specified in this Attachment V,
without the prior written consent of Sprint.
<PAGE> 84
2.41 CLEC shall not place anything or allow anything to be placed
near the glass of any door, partition or window which Sprint
determines is unsightly from outside the Collocated Space; take or
permit to be taken in or out of other entrances of the Sprint
building, or take or permit to be taken on any passenger elevators,
any item normally taken through service entrances or elevators; or
whether temporarily, or accidentally, or otherwise, allow anything
to remain in, place, or store anything in, or obstruct in any way,
any passageway, exit, stairway, elevator, or shipping platform.
CLEC shall lend its full cooperation to keep such areas free from
all obstruction and in a clean and sightly condition, move all
supplies, furniture and equipment directly to the Collocated Space
as soon as received, and move all such items and waste, other than
waste customarily removed by employees of the building.
2.42 CLEC shall not do or permit anything to be done upon the
premises, or bring or keep anything thereon which is in violation
of any federal, state or local laws or regulations (including
environmental laws or regulations not previously described), or any
rules, regulations or requirements of the local fire department,
Fire Insurance Rating Organization, or any other similar authority
having jurisdiction over the building. CLEC shall not do or
permit anything to be done upon the premises which may in any way
create a nuisance, disturb, endanger, or otherwise interfere with
the Telecommunications Services of Sprint, any other occupant of
the building, their patrons or customers, or the occupants of
neighboring property, or injure the reputation of the property.
2.42.1 CLEC shall not, without the prior written consent of
Sprint: (i) install or operate any lead-acid batteries,
refrigerating, heating or air conditioning apparatus or carry
on any mechanical business in the premises; (ii) use the
premises for housing, lodging, or sleeping purposes; (iii)
permit preparation or warming of food, presence of cooking or
vending equipment, sale of food or smoking in the premises;
or (iv) permit the use of any fermented, intoxicating or
alcoholic liquors or substances in the premises or permit the
presence of any animals except those used by the visually
impaired. Sprint may, in its sole discretion, withhold such
consent, or impose any condition in granting it, and revoke
its consent at will.
2.43 Sprint reserves the right to stop any service when Sprint
deems such stoppage necessary by reason of accident or emergency,
or for repairs improvements or otherwise; however, Sprint agrees to
use its best efforts not to interfere with CLEC's use of the
Collocation Space. Sprint does not warrant that any service will
be free from interruptions caused by
<PAGE> 85
labor controversies, accidents, inability to obtain fuel, water or
supplies, governmental regulations, or other causes beyond the
reasonable control of Sprint.
2.43.1 No such interruption of service shall be deemed an
eviction or disturbance of CLEC's use of the Collocation
Space or any part thereof, or render Sprint liable to CLEC
for damages, by abatement of collocation charges, except as
set forth in the tariff, or relieve CLEC from performance of
its obligations under this Agreement. CLEC hereby waives
and releases all other claims against Sprint for damages for
interruption or stoppage of service.
2.43.2 Sprint shall have the right to reduce heat, light,
water and power as required by any mandatory or voluntary
conservation programs.
2.44 Sprint shall have the following rights, and others not
specifically excluded in this Agreement, exercisable without notice
and without liability to CLEC for damage or injury to property,
person or business (all claims for damage being hereby released),
and without effecting an eviction or disturbance of CLEC's use or
possession or giving rise to any claim for offsets, or abatement of
rent:
2.44.1 To change the name or street address of the building;
2.44.2 To install and maintain signs on the exterior and
interior of the building or anywhere on the property;
2.44.3 To designate all sources furnishing sign painting and
lettering, ice, mineral or drinking water, beverages, foods,
towels, vending machines or toilet supplies used or consumed
on the premises;
2.44.4 To use any means Sprint may deem proper to open
Collocation Space doors in an emergency. Entry into the
Collocation Space obtained by Sprint by any such means shall
not be deemed to be forcible or unlawful entry into or a
detainment of or an eviction of CLEC from the Collocation
Space or any portion thereof;
2.44.5 To utilize the space within the building in such a
manner as will best enable it to fulfill its own service
requirements;
2.44.6 At any time, to decorate and to make, at its own
expense, repairs, alterations, additions, and improvements,
structural or
<PAGE> 86
otherwise, in or to the premises, the property, or any part
thereof (including, without limitation, the permanent or
temporary relocation of any existing facilities such as
parking lots or spaces), and to perform any acts related to
the safety, protection or preservation thereof, and during
such operations to take into and through the premises or any
part of the property all material and equipment required, and
to close or suspend temporarily operation of entrances,
doors, corridors, elevators or other facilities, provided
that Sprint shall limit inconvenience or annoyance to CLEC as
reasonably possible under the circumstances;
2.44.7 To do or permit to be done any work in or about the
Collocation Space or the property or any adjacent or nearby
building, land, street or alley;
2.44.8 To grant to anyone the exclusive right to conduct any
business or render any service on the property, provided such
exclusive right shall not operate to exclude CLEC from the
use expressly permitted by this Agreement;
2.44.9 If it becomes necessary in Sprint's reasonable
judgment, and there are no other reasonable alternatives, to
require CLEC to move to equivalent Collocation Space in the
building upon receipt of sixty (60) days written notice from
Sprint, in which event, Sprint shall pay all moving costs,
and the charges for collocation provided for herein shall
remain the same; and
2.44.10 To designate all spaces occupied by CLEC's
facilities under this Agreement.
2.45 CLEC shall carry insurance, at CLEC's expense, insuring CLEC
and, except for worker's compensation, and showing Sprint as
additional insured and/or loss payee, as its interest may appear.
Such insurance shall contain such terms and conditions, provide
such coverages and exclusions and be written by such companies as
Sprint shall find satisfactory.
2.45.1 As of the date that CLEC begins construction of any
portion of a physical collocation arrangement or as of the
date that CLEC begins to occupy any physical collocation
arrangement under this Agreement, whichever is earlier, CLEC
shall maintain the following coverages in the following
amounts; provided, however, that Sprint retains the right to
require additional and/or different coverages and amounts
during the term of this Agreement:
<PAGE> 87
2.45.1.1 Commercial general liability, occurrence form,
in limits of not less than $1,000,000 combined single
limit for bodily injury, personal injury and property
damage liability insurance to include coverage for
products/completed operations and explosion, collapse
and underground liability;
2.45.1.2 "All Risk" property insurance on a full
replacement cost basis, insuring CLEC's real and
personal property situated on or within the property.
CLEC may elect to insure business interruption and
contingent business interruption, as it is agreed that
Sprint has no liability for loss of profit or revenues
should an interruption of service occur;
2.45.1.3 Business auto insurance, including all owned,
non-owned and hired automobiles, in an amount of not
less than $1,000,000 combined single limit for bodily
injury and property damage liability;
2.45.1.4 Worker's compensation insurance in accordance
with statutory requirements, and employer's liability
with a minimum amount of $500,000 per accident; and
2.45.1.5 Umbrella or excess liability in an amount not
less than $5,000,000 per occurrence and aggregate to
provide excess limits over all primary liability
coverages.
2.45.2 The limits of the insurance policies obtained by CLEC
as required above shall in no way limit CLEC's liability to
Sprint should CLEC be liable to Sprint under the terms of
this Agreement or otherwise.
2.45.3 CLEC shall furnish to Sprint a certificate or
certificates of insurance, satisfactory in form and content
to Sprint, evidencing that the above coverage is in force and
has been endorsed and to guarantee that the coverage will not
be canceled or materially altered without first giving at
least 30 days prior written notice to Sprint.
2.45.4 All policies required of CLEC shall contain evidence
of the insurer's waiver of the right of subrogation against
Sprint for any insured loss covered thereunder. All
policies of insurance shall be written as primary policies
and not contributing with or in excess of the coverage, if
any, that Sprint may carry. Any other provisions contained
in this Section, this Attachment or this Agreement
<PAGE> 88
notwithstanding, the amounts of all insurance required to be
obtained by CLEC shall not be less than an amount sufficient
to prevent Sprint from becoming a co-insurer.
2.46 If the premise or a portion thereof sufficient to make the
premises substantially unusable shall be destroyed or rendered
unoccupiable by fire or other casualty, Sprint may, at its option,
restore the premises to its previous condition A license granted
under this Attachment shall not terminate unless, within 90 days
after the occurrence of such casualty, Sprint notifies CLEC of its
election to terminate said license. If Sprint does not elect to
terminate said license, Sprint shall repair the damage to the
premises caused by such casualty.
2.46.1 Notwithstanding any other contrary provision of this
Agreement, if any casualty is the result of any act, omission
or negligence of CLEC, its agents, employees, contractors,
licensees, customers or business invitees, unless Sprint
otherwise elects, a license for Collocation Space shall not
terminate, and, if Sprint elects to make such repairs, CLEC
shall reimburse Sprint for the cost of such repairs, or CLEC
shall repair such damage, including damage to the building
and the area surrounding it, and the charges to be paid to
Sprint by CLEC shall not abate.
2.46.2 If the building shall be damaged by fire or other
casualty to the extent that portions are rendered
unoccupiable, notwithstanding that the Collocation Space may
be directly unaffected, Sprint may, at its election within 90
days of such casualty, terminate a license for Collocation
Space by giving written notice of its intent to terminate
said license. The termination as provided in this paragraph
shall be effective 30 days after the date of the notice.
2.46.3 Notwithstanding any other provision of this Agreement,
Sprint shall not be liable for any repair or restoration
until, and then only to the extent that, insurance proceeds
are received.
2.47 If the property, or any portion thereof which includes a
substantial part of the Collocation Space, shall be taken or
condemned by any competent authority for any public use or purpose,
the term of a Collocation Space license shall end upon, and not
before, the date when the possession of the part so taken shall be
required for such use or purpose. If any condemnation proceeding
shall be instituted in which it is sought to take or damage any
part of the property, or if the grade of any street or alley
adjacent to the property is changed by any competent authority and
such change of grade makes it necessary or desirable to
<PAGE> 89
remodel the property to conform to the changed grade, Sprint shall
have the right to terminate a Collocation Space license upon not
less than 30 days notice prior to the date of cancellation
designated in the notice. No money or other consideration shall
be payable by Sprint to CLEC for such cancellation, and CLEC shall
have no right to share in the condemnation award or in any judgment
for damages caused by such eminent domain proceedings.
2.48 At the termination of a Collocation Space license by lapse of
time or otherwise:
2.48.1 CLEC shall surrender all keys, access cards and
Sprint-provided photo identification cards to the Collocation
Space and the building to Sprint, and shall make known to
Sprint the combination of all combination locks remaining on
the Collocation Space.
2.48.2 CLEC shall remove its equipment from the Collocation
Space within thirty (30) days.
2.48.3 CLEC shall return to Sprint the Collocation Space and
all equipment and fixtures of Sprint in as good a condition
and state of repair as when CLEC originally took possession,
normal wear and tear or damage by fire or other casualty
excepted. CLEC shall be responsible to Sprint for the cost
of any repairs that shall be made necessary by the acts or
omissions of CLEC or of its agents, employees, contractors or
business invitees. Sprint reserves the right to oversee
CLEC's withdrawal from the Collocation Space and CLEC agrees
to comply with all directives of Sprint regarding the removal
of equipment and restoration of the Collocation Space,
including, without limitation, Sprint's directive to return
the Collocation Space in other than its original condition on
the date of occupancy; provided, however, that CLEC shall not
be responsible for putting the Collocation Space in other
than its original condition if to do so would put CLEC to
additional expense above and beyond that which would be
necessary to return the Collocation Space in its original
condition,
2.48.4 All installations, additions, hardware, non-trade
fixtures and improvements, temporary or permanent, except
movable furniture and equipment belonging to CLEC, in or upon
the Collocation Space, whether placed there by CLEC or
Sprint, shall be Sprint's property and shall remain upon or
in the Collocation Space, all without compensation, allowance
or credit to CLEC; provided, however, that if prior to such
termination or within ten
<PAGE> 90
(10) days thereafter, Sprint so directs, CLEC shall promptly
remove the installations, additions, hardware, non-trade
fixtures and improvements, placed in or upon the Collocation
Space by CLEC, failing which Sprint may remove the same, and
CLEC shall, upon demand, pay to Sprint the cost of such
removal and of any necessary restoration of the Collocation
Space. No cable shall be removed from inner duct or outside
cable duct except as directed by Sprint.
2.48.5 All fixtures, installations, and personal property
belonging to CLEC not removed from the Collocation Space upon
termination of a Collocation Space license and not required
by Sprint to have been removed as provided in this Attachment
V, shall be conclusively presumed to have been abandoned by
CLEC and title thereto shall pass to Sprint under this
Attachment V as if by a bill of sale.
2.48.6 If the Collocation Space is not surrendered at the
termination of the Collocation Space license, CLEC shall
indemnify Sprint against loss or liability resulting from
delay by CLEC in so surrendering the Collocation Space,
including, without limitation, any claims made by any
succeeding tenant founded on such delay.
2.49 If the owner of the building or Sprint sells, transfers or
assigns any interest in the building, or there is any material
change in the lease to which the building is subject, and such
sale, transfer, assignment or material change in the lease gives
rise to an obligation which is inconsistent with a Collocation
Space license granted under this Attachment V, Sprint's performance
under this Attachment V shall be excused to the extent of the
inconsistency. Sprint hereby agrees that it will use its
reasonable efforts to avoid any such inconsistency; provided,
however, that this obligation shall in no way obligate Sprint to
incur any out of pocket expenses in its efforts to avoid such
inconsistencies.
2.50 A Collocation Space license granted under this Attachment V
shall at all times be subject and subordinate to the lien of any
mortgage (which term shall include all security instruments) that
may be placed on the premises, building or any portion thereof and
CLEC agrees, upon demand, to execute any instrument as may be
required to effectuate such subordination.
SECTION 3. PHYSICAL SECURITY
3.1 Each party shall exercise the same degree of care [but not less
than reasonable] to prevent harm or damage to the other party or
its
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employees, agents or subscribers, or their property. Sprint and
its employees, agents or representatives shall take reasonable and
prudent steps to ensure the adequate protection of CLEC property,
equipment and services including, but not limited to:
3.1.1 Restricting access to CLEC equipment, support
equipment, systems, tools, or spaces which contain or house
CLEC equipment enclosures to CLEC employees and other
authorized non-CLEC personnel to the extent necessary to
perform their specific job function.
3.1.2 CLEC shall provide a written logbook for Sprint's
employees to sign when entering CLEC's physical Collocation
Space which houses or contains CLEC equipment or equipment
enclosures.
3.1.3 When Sprint's employees enter CLEC's physical
Collocation Space, Sprint's employees shall comply at all
times with CLEC security and safety procedures and
requirements, including but not limited to sign-in,
identification, and escort requirements while in CLEC's
physical Collocation Spaces which house or contain CLEC
equipment or equipment enclosures and in compliance with
Appendix___ hereto. In the event any issues or problems
arise under this Section 3.1 the parties agree to negotiate a
reasonable resolution to such issue or problem.
3.1.4 Ensuring that the physical collocation area which
houses CLEC's equipment is adequately secured and monitored
to prevent unauthorized entry to the same extent and at the
same level Sprint provides itself.
3.1.5 Subject to Section 2.3 of this Attachment V, allowing
CLEC to inspect or observe spaces which house or contain CLEC
equipment or equipment enclosures at any time and to furnish
CLEC with all keys, entry codes, lock combinations, or other
materials or information which may be needed to gain entry
into any secured CLEC space.
3.1.6 Limiting the keys used in its keying systems for CLEC's
physical Collocation Spaces which contains or houses CLEC
equipment or equipment enclosures to Sprint employees and
representatives to emergency access only. CLEC shall
further have the right to change locks where deemed necessary
for the protection and security of such spaces.
<PAGE> 92
3.1.7 Upon CLEC's request, installing security studs in the
hinge plates of doors having exposed hinges with removable
pins if such leads to CLEC's physical Collocation Space which
contains or houses CLEC equipment or equipment enclosures.
3.1.8 Controlling unauthorized access from passenger and
freight elevators by continuous surveillance or by personnel
security escort, installing security partitions, security
grills, locked gates or doors between elevator lobbies and
spaces which contain or house CLEC equipment or equipment
enclosures.
3.1.9 Providing real time notification to designated CLEC
personnel to indicate an actual or attempted security breach.
3.1.10 Subject to the provisions of Sections 2.9, 2.9.1 and
2.9.2 above, ensuring that areas designated to house CLEC
equipment are environmentally appropriate for the CLEC
equipment installation, and adequate to maintain proper
operating conditions for the CLEC equipment.
3.2 Sprint, at CLEC's expense, may issue non-employee photo
identification cards for each CLEC employee or vendor. Temporary
identification cards may otherwise be provided by Sprint for
employees or agents, contractors and invitees of CLEC who may
require occasional access to the Collocated Space.
3.3 Sprint may issue access cards, codes, or keys to CLEC's listed
employees or vendors where such systems are available and their use
by CLEC will not otherwise compromise building security.
3.4 Sprint reserves the right to close and keep locked all entrance
and exit doors of the building during hours Sprint may deem
advisable for the adequate protection of the building.
3.5 CLEC agrees to abide by all of Sprint's security practices for
non-Sprint employees with access to the building, including,
without limitation:
3.5.1 CLEC will supply to Sprint, and update as changes
occur, a list of its employees or approved vendors who
require access to the building. The list will include the
social security numbers of all such individuals.
3.5.2 CLEC is responsible for returning identification and
access cards, codes, or keys of its terminated employees or
its employees who no longer require access to the Collocated
Space. All cards,
<PAGE> 93
codes, or keys must be returned upon termination of this
Agreement. Unreturned or replacement cards, codes, or keys
may be subject to a reasonable fee at the discretion of
Sprint.
3.5.3 CLEC's employees, agents, invitees and vendors must
display identification cards at all times.
3.5.4 CLEC will assist Sprint in validation and verification
of identification of its employees, agents, invitees and
vendors by providing a telephone contact available 24 hours a
day, seven days a week to verify identification.
3.5.5 Before leaving the Collocated Space unattended, CLEC
shall close and securely lock all doors and windows and shut
off unnecessary equipment in the Collocated Space. Any
damage resulting from CLEC's failure to do so shall be the
responsibility of CLEC.
3.6 CLEC will allow Sprint to access its Collocated Space at all
times, via pass key or otherwise, to allow Sprint to react to
emergencies, to maintain the space (not including CLEC equipment),
and to monitor compliance with the rules and regulations of the
Occupational Health and Safety Administration or Sprint, or other
regulations and standards including but not limited to those
related to fire, safety, health, and environmental safeguards.
Except in emergencies or unless CLEC has waived such notice
elsewhere in this Attachment V, and if conditions permit, Sprint
will provide CLEC with notice of its intent to access the
Collocated Space, thereby providing CLEC the option to be present
at the time of access. CLEC shall not attach, or permit to be
attached, additional locks or similar devices to any door or
window, nor change existing locks or the mechanism thereof.
SECTION 4. LICENSE
Sprint hereby grants CLEC a license to occupy any premises or rack
space which contain collocated equipment, including without limit
all necessary ingress, egress and reasonable use of Sprint's
property, for the Term of the Agreement.
SECTION 5. TECHNICAL REFERENCES
Sprint shall provide collocation in accordance with the following
standards:
<PAGE> 94
5.1 National Electrical Code (NEC) use latest issue.
5.2 TA-NPL-000286, NEBS Generic Engineering Requirements for System
Assembly and Cable Distribution, Issue 2, (Bellcore, January 1989).
5.3 TR-EOP-000063 Network Equipment Building System (NEBS) Generic
Equipment Requirements, Issue 3, March 1988.
5.4 TR-EOP-000151, Generic Requirements for 24-, 48-, 130-, and
140- Volt Central Office Power Plant Rectifiers, Issue 1,
(Bellcore, May 1985).
5.5 TR-EOP-000232, Generic Requirements for Lead-Acid Storage
Batteries, Issue 1 (Bellcore, June 1985).
5.6 TR-NWT-000154, Generic Requirements for 24-, 48-, 130, and 140-
Volt Central Office Power Plant Control and Distribution Equipment,
Issue 2, (Bellcore, January 1992).
5.7 TR-NWT-000295, Isolated Ground Planes: Definition and
Application to Telephone Central Offices, Issue 2, (Bellcore, July
1992).
5.8 TR-NWT-000840, Supplier Support Generic Requirements (SSGR), (A
Module of LSSGR, FR-NWT-000064), Issue 1, (Bellcore, December
1991).
5.9 TR-NWT-001275 Central Office Environment Installations/Removal
Generic Requirements, Issue 1, January 1993.
<PAGE> 95
PART C - ATTACHMENT VI
RIGHTS OF WAY (ROW), CONDUITS, POLE ATTACHMENTS
SECTION 1. INTRODUCTION
This attachment sets forth the requirements for Rights of Way,
Conduits and Pole Attachments.
SECTION 2. DEFINITIONS
2.1 An "anchor" refers to a device, structure, or assembly which
stabilizes a Pole and holds it in place. An anchor assembly may
consist of a rod and fixed object or plate, typically embedded in
the ground, which is attached to a guy strand or guy wire, which,
in turn, is attached to the Pole. The term "anchor" does not
include the guy strand which connects the anchor to the Pole.
2.2 An "Attachment" is any placement of CLEC's facilities in or on
Sprint's Poles, ducts, conduits, or Right of Way.
2.3 A "conduit" is a tube or protected trough that may be used to
house communication cables. Conduit may be underground or above
ground (for example, inside buildings) and may contain one or more
inner ducts.
2.4 A "conduit system" is any combination of ducts, conduits,
manholes and handholes joined to form an integrated whole.
Conduit systems may pass through or originate in or terminate in
other facilities which may be physically connected to the conduit
system .
2.5 A "duct" is a single enclosed path to house facilities to
provide Telecommunications Services.
2.6 The terms "facility" and "facilities" refers to any property,
equipment, or items owned or controlled by any person or entity.
The terms "facility" and "facilities" include, but are not limited
to, Poles, anchors, Pole hardware, wires, cables, strands,
apparatus enclosures, or any other items attached to a Pole or
attached to hardware affixed to or associated with a Pole; conduit
and conduit systems and wires, cables, optical conductors,
associated hardware, or other equipment located within a Conduit
System. The terms "facility" and "facilities" may also include
property, equipment, and items which do not occupy a conduit system
or which are not attached to a Pole or attached to hardware affixed
to or associated with a Pole.
<PAGE> 96
2.7 An "inner duct" is one of the single enclosed pathways located
within a duct, or buried separately without the benefit of a
conduit.
2.8 The term "Make Ready Work" refers to all work performed or to
be performed to prepare Sprint's Poles, Ducts, Conduits or other
Right of Way for the requested occupancy or attachment of CLEC's
facilities. "Make ready work" includes, but is not limited to,
clearing obstructions, the rearrangement, transfer, replacement,
and removal of existing facilities on a Pole or in a conduit system
where such work is required solely to accommodate CLEC's
facilities. "Make ready work" may include the repair, or
modification of Sprint's facilities (including, but not limited to,
conduits, ducts, or manholes) or the performance of other work
required to make a Pole, conduit or duct usable for the placement
of CLEC's facilities.
2.9 A "manhole" is a subsurface enclosure that personnel may enter
and use for the purpose of installing, operating, maintaining, and
repairing communications facilities.
2.10 A "handhole" is a subsurface enclosure that is too small for
personnel to enter and is used for the purpose of installing,
operating, maintaining, and repairing communications facilities.
2.11 A "Pole" refers to Sprint Poles and anchors and does not
include poles or anchors with respect to which Sprint has no legal
authority to permit attachments by other persons or entities.
2.12 A "Pole attachment" is the connection of a facility to a Pole.
Some examples of such facilities are mechanical hardware,
grounding and transmission cable, and equipment boxes.
2.13 A "Right of Way" ("ROW") is the right to use the land or other
property of another party to place poles, conduits, cables, or
other structures and equipment, or to provide passage to access
such structures and equipment for the purpose of providing
Telecommunications Services. A ROW may run under, on, or above
public or private property (including air space above public or
private property) and may include the right to use discrete space
in buildings, building complexes, or other locations.
<PAGE> 97
SECTION 3.REQUIREMENTS
3.1 General
3.1.1 Sprint shall make Poles, ducts, conduits, conduit
systems, and other ROW available to CLEC for Attachments
under the terms and conditions set forth in this Section 3.
3.1.2 Sprint shall provide CLEC equal and non-discriminatory
access to Poles, ducts, conduits, and other ROW, it owns or
controls. Such access shall be provided on terms and
conditions equal to that provided by Sprint to itself or to
any other party consistent with Section 224 of the Act.
Further, Sprint shall not preclude or delay allocation of
these facilities to CLEC because of the potential needs of
itself or of other parties, except for work in progress,
which may be retained for Sprint facilities deployment within
three hundred sixty-five (365) calendar days of the date of
the formal CLEC request.
3.1.3 Each of the parties shall designate to the other, on
the basis of specific operating regions, single points of
contact for negotiating all issues relating to implementation
of this Section 3. The single points of contact shall also
be the contacts for all notices and demands, offers and
acceptances under this Section 3, unless otherwise agreed in
writing by the parties.
3.1.4 Excepting work in progress as described above, and
maintenance and emergency ducts as provided below, all usable
but unassigned space on Poles, or in ducts, conduits, or
other ROW owned or controlled by Sprint shall be available
for the attachments of CLEC, Sprint or other providers of
Telecommunications Services or cable television systems.
Sprint may reserve for emergency and maintenance purposes one
duct in each conduit section of its facility routes. Such
duct shall be equally accessible and available by any party
with facilities in such conduit section to use to maintain
its facilities or to restore them in an emergency.
3.1.5 All CLEC facilities placed in or upon Sprint ROW shall
be clearly tagged or labeled with CLEC ownership
identification so that it may be readily identified by Sprint
or its contractors as CLEC facilities.
3.1.6 Access to Sprint Poles, ducts, conduits or other ROW by
CLEC or its designated personnel or contractors shall be
provided
<PAGE> 98
on an escorted basis and upon a reasonable request for access
to such Poles, ducts, conduits or other ROW. CLEC shall pay
for one access escort based on an hourly rate of the
appropriate level of escorting personnel as determined by
Sprint, unless Sprint and CLEC have reached agreement that no
escort is necessary, which may be negotiated on a case by
case basis. Such escort service shall be available on a
reasonable basis 24 hours per day.
3.2 Pre-Ordering Disclosure Requirements
3.2.1 CLEC may request information regarding the availability
and conditions of Poles, ducts, conduits and other ROW prior
to the submission of Attachment Requests (as defined below).
Sprint shall provide information regarding the availability
and condition of Sprint's Poles, ducts, conduits or other ROW
for Attachments within fifteen (15) business days of a
request. If it is unable to inform CLEC about availability
and conditions within such fifteen-day interval, Sprint shall
advise CLEC within ten (10) business days after receipt of
CLEC's information request and will seek a mutually
satisfactory time period for Sprint's response, which in no
event shall exceed thirty (30) calendar days. If Sprint's
response requires a field-based survey, CLEC shall have the
option to be present at the field-based survey and Sprint
shall provide CLEC at least two (2) calendar days notice
prior to the start of such field survey. During and after
the field based survey, Sprint shall allow CLEC personnel
(with Sprint escort) to enter manholes and view Pole
structures to inspect such structures in order to confirm
usability or assess the condition of the structure.
3.2.2 Sprint shall make existing route maps of Poles, ducts,
conduits or other Right of Way available to CLEC, at a city
level, at Sprint's facilities within two (2) business days
and if such maps need to be generated, within ten (10)
business days of CLEC's request. Preparation of such maps
requested by CLEC shall be accommodated by Sprint on a
reasonable basis and at CLEC's expense, plus a reasonable
administrative fee. In making these maps and drawings
available, Sprint makes no express or implied warranty as to
the accuracy of these maps and drawings, except that they
reflect the equivalent accuracy and timeliness of information
used by Sprint in its operations.
3.2.3 Sprint shall invoice CLEC an administrative fee equal
to one hundred percent (100%) of the direct cost of providing
maps and drawings, in addition to the direct cost of copying
any requested maps or drawings.
<PAGE> 99
3.3 Attachment Requests
3.3.1 Sprint agrees to permit CLEC to place CLEC's facilities
on or in Sprint's Poles, ducts, conduits, and other ROW
pursuant to Attachment requests from CLEC approved in
accordance with this Section 3.3, on the terms and conditions
set forth herein and in the "Attachment Request".
3.3.2 At any time after the Approval Date, CLEC may submit a
written Attachment Request, in a form to be designated by
Sprint, to Sprint. An Attachment Request shall be deemed
properly submitted if it identifies with specificity the
Sprint Poles, ducts, conduits, or other ROW for which CLEC
seeks Attachment. Sprint shall approve any properly
submitted Attachment Request within ten (10) business days,
if the space has previously been determined to be available
under the procedures set forth in Section 3.2.1 of this
Attachment VI above. No Attachments shall be placed on any
Sprint Pole identified in an Attachment Request until the
Attachment Request has been approved by Sprint. CLEC may
submit subsequent Attachment Requests as needed. CLEC shall
have fourteen (14) calendar days after Sprint's return of the
approved Attachment Request to CLEC to execute the Attachment
Request and return the same to Sprint. If CLEC does not
return the Attachment Request within the fourteen (14)
calendar day interval specified above, then such request
shall be null and void and such ROW shall become immediately
available to other parties. The approved Attachment Request
shall serve as the binding attachment contract between the
parties.
3.3.3 Together with Sprint's notice of approval of an
Attachment Request submitted by CLEC, Sprint shall also
provide an estimate of the Make Ready Work costs associated
with making the space available for CLEC's Attachment.
Sprint shall complete any Make Ready Work required to enable
CLEC to install its facilities at both a reasonable cost and
within a reasonable time, both of which shall be agreed upon
by Sprint and CLEC. If such agreement does not occur within
ten (10) calendar days of Sprint's provision of a quote for
such work or CLEC determines the quote is too high, CLEC may
complete Make Ready Work on its own or hire outside
contractors to do the work at CLEC's expense. Any
contractors hired by CLEC pursuant to this Section 3 shall
meet Sprint's reasonable standards, which shall not exceed
the equivalent personnel qualifications of Sprint personnel
performing the same task. Sprint shall provide a security
escort for CLEC and CLEC
<PAGE> 100
contractor and CLEC shall pay for such escort based on an
hourly rate. Where CLEC submits an Attachment Request and
subsequently fails to return an executed Attachment Request
within fourteen calendar (14) days of Sprint's notice of
approval, CLEC shall reimburse Sprint for its reasonable cost
to provide pre-ordering information and any site survey work
and the Attachment Request shall become null and void. Upon
acceptance of an approved Attachment Request by CLEC and its
return to Sprint, Sprint shall bill CLEC for any Make Ready
Work non-recurring charges, if Sprint is to perform the Make
Ready Work. Upon completion of any required Make Ready Work
by Sprint or upon receipt of the approved Application Request
by Sprint, whichever is later, written notice shall be
provided to CLEC granting access to the ROW and advising CLEC
of the date that monthly billing for such ROW shall commence.
CLEC shall have one hundred eighty (180) calendar days to
begin attachment and/or installation of its facilities after
receipt of such notice. Any such construction shall be
completed by the end of three hundred sixty-five (365)
calendar days after receipt of such notice, unless CLEC
notifies Sprint differently and Sprint agrees to such delay.
CLEC notification to Sprint shall be provided at least sixty
(60) calendar days prior to the expiration of the three
hundred sixty-five (365) calendar day period. If CLEC does
not begin construction within this time frame, Sprint will
cease monthly billing to CLEC and the access to the ROW and
the Attachment Request shall be deemed null and void.
3.3.4 Sprint shall make space available to CLEC as soon as
any Make Ready Work to be provided by Sprint, as described in
Section 3.3.3, is completed. At that time, CLEC shall have
the right, subject to the terms and conditions of this
Agreement, to place and maintain the facilities described in
the Attachment Request in the space designated on or in
Sprint's Poles, ducts, conduits, and other ROW identified
therein. CLEC may, at its option, use CLEC or
CLEC-designated personnel, which CLEC shall identify to
Sprint prior to beginning construction, to attach its
equipment to Sprint structures, subject to Sprint's agreement
with the proposed construction methods proposed by CLEC to
perform such work. Sprint shall provide a security escort
to accompany CLEC or its contractors and CLEC shall pay for
same based on an hourly rate. Sprint may stop CLEC or its
contractors' construction activities if the same is not
performed in accordance with the approved methods. Any such
approval shall not be unreasonably withheld, delayed or
denied. Sprint may require dismissal of the CLEC or
CLEC-designated personnel in the event Sprint
<PAGE> 101
reasonably believes such personnel are not properly
performing construction hereunder.
3.3.5 If Sprint performs the Make Ready Work specified by
Section 3.3.3, CLEC agrees to pay Sprint the Make Ready Work
costs within sixty (60) business days of receiving Sprint's
invoice.
3.3.6 Sprint will provide CLEC with answers to an
environmental, health and safety questionnaire for each
Sprint facility in or on which CLEC seeks an Attachment.
CLEC may provide this questionnaire with its Attachment
Request and Sprint shall return it to CLEC with the approval
of CLEC's Attachment Request.
3.4 Authority to Place Attachments
3.4.1 Before CLEC places any Attachment pursuant to an
approved Attachment Request, CLEC shall submit evidence of
its authority to erect and maintain the facilities to be
placed on Sprint's facilities within the public streets,
highways and other thoroughfares or on private property,
where such additional authority is required by law. CLEC
shall be solely responsible for obtaining all necessary
licenses, authorizations, permits, and consents from federal,
state and municipal authorities that may be required to place
Attachments on Sprint's facilities.
3.4.2 Sprint shall not unreasonably intervene against or
attempt to delay the granting of any necessary licenses,
authorizations, permits or consents from federal, state and
municipal authorities or private property owners that may be
required for CLEC to place its Attachments on or in any
Poles, ducts, conduits, or other ROW that Sprint owns or
controls.
3.4.3 If any license, authorization, permit or consent
obtained by CLEC is subsequently revoked or denied for any
reason, permission to attach to Sprint's facilities shall
terminate immediately and CLEC shall remove its Attachments
(if any) within one hundred twenty (120) calendar days.
CLEC may, at its option, litigate or appeal any such
revocation or denial and if CLEC is diligently pursuing such
litigation or appeal, CLEC may continue to maintain its
Attachment. In doing so, CLEC agrees to indemnify Sprint
from and against any and all costs resulting from Sprint's
continuation of the Attachment which is the subject of such
litigation or appeal.
<PAGE> 102
3.5 Capacity
3.5.1 When there is insufficient space on a Pole or in a
Sprint conduit to accommodate an CLEC-requested Attachment or
occupancy, Sprint shall, at CLEC's option: (1 ) replace the
Pole or conduit with one of greater height or capacity; or
(2) permit CLEC to replace the Pole or conduit with a
Sprint-furnished Pole or conduit of greater height or
capacity, or (3) place additional Poles or conduits in the
ROW. CLEC shall be obligated to reimburse Sprint for its
proportionate share of the actual costs incurred.
3.5.2 Sprint shall permit CLEC to break out of Sprint conduit
and to maintain facilities within conduit space used by CLEC
and, where required by Sprint, shall provide CLEC designated
personnel with one escort and CLEC shall pay for such escort
based on an hourly rate. Such escort service shall be
available twenty-four (24) hours per day each day of the
week.
3.5.3 Sprint shall permit manhole interconnections and
breaking out of Sprint manholes and shall provide CLEC with
sufficient space in manholes for the racking and storage of
cable and other materials as requested by CLEC. Sprint
reserves the right to deny nonstandard requests to break out
of manholes where the location in which CLEC wants to break
out is blocked by a cable rack.
3.5.4 Sprint shall take all reasonable measures to allow
access and/or egress to all conduit systems. This shall
include but not be limited to Sprint's removal, upon CLEC's
request, of any retired cable for conduit systems to allow
for the efficient use of conduit space within a reasonable
period of time. If the parties are unable to agree on what
is reasonable (in terms of measures or time intervals), the
matter may be submitted in accordance with the Dispute
Resolution Procedures, described in Part A of this Agreement,
by either party.
3.5.5 Where a spare inner duct does not exist, Sprint shall
allow installation of an inner duct in a spare Sprint
conduit. The procedure set forth in Section 3.3.3 shall
govern such installation.
3.5.6 Neither party shall attach, or permit other entities to
attach facilities on existing facilities of the other without
the other party's prior written consent. Such consent will
not be unreasonably withheld if the requested use is to
facilitate use of the ROW by Sprint or any other party on a
temporary basis until such reasonable time as the ROW can be
expanded.
<PAGE> 103
3.5.7 CLEC acknowledges that, from time to time, it may be
necessary or desirable for Sprint to change out Poles,
relocate, reconstruct, or modify portions of its conduit
system or rearrange facilities contained therein or connected
thereto and that such changes may be necessitated by Sprint's
business needs or by factors outside of Sprint's control,
such as the decision by a municipality to widen streets or
authorized application of another entity seeking access to
Sprint's Poles or conduit systems. CLEC agrees that CLEC
will, upon Sprint's request and at Sprint's expense, but at
no cost to CLEC so long as no additional cost is incurred by
Sprint as a result of CLEC being attached, participate with
Sprint (and other licensees) in the relocation,
reconstruction, or modification of Sprint's conduit system or
facilities rearrangement.
3.6 Sharing of Right of Way
3.6.1 Sprint shall offer the use of such ROW it has obtained
from a third party to CLEC, to the extent that Sprint's
agreement with the third party explicitly permits Sprint to
grant such rights to CLEC. If said third party agreement
does not explicitly permit Sprint to grant such rights to
CLEC, Sprint will, upon CLEC's request, grant said rights to
CLEC provided that CLEC agrees, in writing, to indemnify,
defend and hold Sprint harmless from and against any loss,
cost, claim, liability, damage and expense (including
reasonable attorney fees) to third parties relating to or
arising out of the grant of such right of use to CLEC.
3.7 Emergency Situations
3.7.1 Within fifteen (15) business days after the Approval
Date, Sprint and CLEC shall mutually agree on a
non-discriminatory priority method to access Sprint manholes
and conduits in emergency situations.
3.8 Attachment Fees
3.8.1 CLEC shall pay Sprint an Attachment fee consistent with
the Act, the FCC's implementing rules and regulations
promulgated thereunder, and/or any relevant state commission
order, for each Sprint facility upon which CLEC obtains
authorization to place an Attachment. The parties agree
that any new FCC rules and regulations setting forth a new
methodology for determining the
<PAGE> 104
Attachment fee shall govern the establishment of the pricing
of Attachments.
3.8.2 Sprint shall maintain an inventory of the Sprint
facilities occupied by CLEC based upon the cumulative
facilities specified in all Attachment Requests approved in
accordance with Section 3.3. CLEC shall provide Sprint with
"as built" drawing after each Attachment is completed. CLEC
shall have the right to remove any Attachment at any time,
and it shall be CLEC's sole responsibility to notify Sprint
of any and all removals by CLEC of its Attachments from
Sprint's facilities. Such notice shall be provided to
Sprint at least thirty (30) calendar days prior to the
removal of the Attachment and shall take the form of a notice
of removal. CLEC shall remain liable for an Attachment fee
for each Sprint facility included in all approved Attachment
Requests until a notice of removal has been received by
Sprint or CLEC cancels an Attachment pursuant to Section
3.13. Sprint may, at its option, conduct a physical
inventory of the Attachments for purposes of determining the
Attachment fees to be paid by CLEC under this Section 3.
3.9 Additions and Modifications to Existing Attachments
3.9.1 CLEC shall not modify, add to or replace facilities on
any pre-existing Attachment without first notifying Sprint in
writing of the intended modification, addition or replacement
at least thirty (30) calendar days prior to the date the
activity is scheduled to begin. The required notification
shall include: (1) identification of the impacted
Attachment, (2) the date the activity is scheduled to begin,
(3) a description of the planned modification, addition or
replacement, (4) a representation that the modification,
addition or replacement will not require any space other than
the space previously designated for CLEC's Attachments, and
(5) a representation the modification, addition or
replacement will not impair the structural integrity of the
facilities involved.
3.9.2 If the modification, addition or replacement specified
by CLEC in its notice will require more space than that
currently allocated to CLEC or will require the reinforcement
of replacement of or an addition of support equipment to the
facilities involved in order to accommodate CLEC's
modification, addition or replacement, CLEC will submit an
Attachment Request in compliance with Section 3.3 in order to
obtain authorization for the modification, addition or
replacement of its facilities.
<PAGE> 105
3.10 Noncompliance
3.10.1 If, at any time, Sprint determines that CLEC's
facilities or any part thereof have not been placed or
maintained or are not being used in accordance with the
requirements of this Section 3, Sprint may send written
notice to CLEC specifying the alleged noncompliance. If
CLEC does not dispute Sprint's assertion in writing within
thirty (30) calendar days of receipt thereof, CLEC will,
within sixty (60) calendar days of receipt of the notice of
noncompliance, provide Sprint with a schedule for bringing
CLEC's facilities into compliance (which schedule shall be
subject to Sprint's agreement, which agreement shall not be
unreasonably withheld) and shall bring such facilities into
compliance within the time periods specified in such
schedule.
3.10.2 If CLEC disputes Sprint's assertion of noncompliance,
CLEC shall notify Sprint of the basis of CLEC's belief that
CLEC's facilities are compliant. If the parties are unable
to agree on whether a noncompliance exists within thirty (30)
calendar days of receipt of the noncompliance notice by CLEC,
then the issue shall be resolved pursuant to the Dispute
Resolution Procedures set forth in Part A of this Agreement.
3.11 Surveys and Inspections of Attachments
3.11.1 The exact location of Attachments on or in Sprint's
facilities may be determined through a survey (at Sprint's
expense) to be made not more than once per calendar year by
Sprint. If so requested, CLEC and/or any other entity
owning or jointly owning the facilities with Sprint may
participate in the survey.
3.11.2 Apart from surveys conducted in accordance with
Section 3.11.1 above, Sprint shall have the right to inspect
(at Sprint's expense) any Attachment on or in Sprint's
facilities as conditions may warrant upon written notice to
CLEC. No joint survey or inspection by Sprint shall operate
to relieve CLEC of any responsibility, obligation or
liability assumed under this Agreement.
3.12 Notice of Modification or Alteration of Poles,
Ducts, Conduits, or Other ROW by Sprint
3.12.1 If Sprint plans to modify or alter any Sprint
facilities upon which CLEC has Attachments, Sprint shall
provide CLEC notice of
<PAGE> 106
the proposed modification or alteration at least sixty (60)
calendar days prior to the time the proposed modification or
alteration is scheduled to take place. If CLEC decides not
to modify or add to its existing Attachment, CLEC shall
participate at no cost in such modification and
rearrangement. If CLEC adds to or modifies its facilities
CLEC shall be charged its proportionate share of the
reasonable costs incurred by Sprint for such modification or
rearrangement. CLEC shall make all rearrangements of its
facilities within such period of time, which shall not be
less than sixty (60) calendar days, as is jointly determined
to be reasonable by the parties based on the amount of
rearrangements necessary and a desire to minimize chances for
service interruption or facility-based service denial to an
CLEC customer.
3.13 Termination of Section 3 or An Individual Attachment by CLEC
3.13.1 This Section 3 may be terminated by CLEC any time
prior to the expiration of its term by providing written
notice to Sprint of its intent to terminate not less than
ninety (90) calendar days prior to the date such termination
is to become effective. Within one hundred twenty (120)
calendar days after the date this Section 3 is terminated,
CLEC shall cause all of its Attachments to be removed from
all of Sprint's Poles. In the event CLEC fails to remove
its Attachments as required by this Section 3, Sprint shall
have the option to remove all such Attachments and store them
in a public warehouse or elsewhere at the expense of and for
the account of CLEC without Sprint being deemed guilty of
trespass or conversion, and without Sprint becoming liable
for any loss or damages to CLEC occasioned thereby.
3.13.2 Sprint may terminate, at any time, an Attachment under
this Agreement upon thirty (30) calendar days in connection
with any taking or condemnation of property on which such
Attachment is located by a competent authority for any public
use or purpose.
3.14 Abandonment
3.14.1 Nothing in this Agreement shall prevent or be
construed to prevent Sprint from abandoning, selling,
assigning or otherwise disposing of any Poles, conduit
systems, or other Sprint property used for Attachments,
provided, however, that Sprint shall condition any such sale,
assignment or other disposition subject to the rights granted
to CLEC pursuant to this Agreement. Sprint shall promptly
notify CLEC of any proposed sale, assignment or
<PAGE> 107
other disposition of any facilities or other Sprint property
used for CLEC's Attachments.
3.15 Dispute Resolution Procedures
3.15.1 If either party has declared the other in default of
any provisions of this Attachment VI, or has otherwise
notified the other party that it is not in compliance with
the terms of this Section 3, either party may invoke the
Dispute Resolution Procedures, described in Part A of this
Agreement, or the procedures described in the Act, the FCC's
First Interconnection Order, Section 1217-1231 and the FCC's
Rules at 47 CFR Section 1.1401-1.1416. In the event either
party invokes the Dispute Resolution Procedures as provided
herein, Sprint will continue to process Attachment Requests
pursuant to this Section 3.
3.15.2 Sprint will not be relieved of its obligations to
process Attachment Requests by CLEC if CLEC is alleged to be
in default of this Section 3 for nonpayment of fees and
charges due Sprint under this Section 3, so long as such
default is (1) the subject of Dispute Resolution Procedures
as set forth in Part A of this Agreement; or (2) being
adjudicated before the FCC or any other court, regulatory
body, agency, or tribunal having jurisdiction over such
dispute.
<PAGE> 108
PART C - ATTACHMENT VII
INTERIM NUMBER PORTABILITY
SECTION 1. SPRINT PROVISION OF INTERIM NUMBER PORTABILITY
Sprint shall provide interim number portability in accordance with
requirements of the Act and FCC Rules and Regulations. INP shall
be provided with minimum impairment of functionality, quality,
reliability and convenience to subscribers of CLEC services.
SECTION 2. INTERIM NUMBER PORTABILITY (INP)
INP shall be provided to the extent technical capabilities allow,
by Remote Call Forwarding ("RCF") or Direct Inward Dialing (DID).
2.1 Remote Call Forwarding: Remote Call Forwarding (RCF) is an
INP method to provide subscribers with service-provider portability
by redirecting calls within the telephone network. When RCF is
used to provide interim number portability, calls to the ported
number will first route to the Sprint switch to which the ported
number was previously assigned. The Sprint switch will then
forward the call to a number associated with the CLEC designated
switch to which the number is ported. CLEC may order any
additional paths to handle multiple simultaneous calls to the same
ported telephone number.
2.2 DID is an INP method that makes use of direct inward dialing
trunks. Each DID trunk group used for INP is dedicated to
carrying FLEX-DID INP traffic between the Sprint end office and the
CLEC switch. Traffic on these trunks cannot overflow to other
trunks, so the number of trunks shall be conservatively engineered
by Sprint. Also, inter-switch signaling is usually limited to
multi-frequency (MF). This precludes passing CLID to the CLEC
switch.
2.3. The trunking requirements will be agreed upon by Sprint and
CLEC resultant from application of sound engineering principles.
These trunking options may include SS7 signaling, inband signaling,
and may be one way or two way. The trunks used may be the same as
those used for exchange of other Local Traffic and toll traffic
between Sprint and CLEC.
2.4 LERG Reassignment: Portability for an entire NXX shall be
provided by utilizing reassignment of the block to CLEC through the
Local Exchange Routing Guide (LERG). Updates to translations in
the Sprint switching office from which the telephone number is
ported will be made
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by Sprint prior to the date on which LERG changes become effective,
in order to redirect calls to the CLEC switch via route indexing.
2.5 Other Currently Available Number Portability Provisions:
2.5.1 Where SS7 is available, Sprint shall exchange with
CLEC, SS7 TCAP messages as required for the implementation of
Custom Local Area Signaling Services (CLASS) or other
features available in the Sprint network, if technically
feasible.
2.5.2 Upon notification that CLEC will be initiating INP,
Sprint shall disclose to CLEC any technical or capacity
limitations that would prevent use of the requested INP in
the affected switching office. Sprint and CLEC shall
cooperate in the process of porting numbers to minimize
subscriber out-of-service time, including updating switch
translations where necessary within five (5) minutes after
notification that physical cut-over has been completed (or
initiated), as CLEC may designate.
2.5.3 For INP, CLEC shall have the right to use the existing
Sprint 911 infrastructure for all 911 capabilities. When
RCF is used for CLEC subscribers, both the ported numbers and
shadow numbers shall be stored in ALI databases. CLEC shall
have the right to verify the accuracy of the information in
the ALI databases.
2.5.4 When any INP method is used to port a subscriber, the
donor provider must maintain the Line Information Database
(LIDB) record for that number to reflect appropriate
conditions as reported to it by the porting service provider.
The donor must outclear call records to CLEC for billing
and collection from the subscriber. Until such time as
Sprint's LIDB has the software capability to recognize a
ported number as CLEC's, Sprint shall store the ported number
in its LIDB at no charge and shall retain revenue for LIDB
look-ups to the ported number. At such time as Sprint's
LIDB has the software capability to recognize that the ported
number is CLEC's then, if CLEC desires to store numbers on
Sprint's LIDB, the parties shall negotiate a separate LIDB
database storage and look-up agreement.
2.5.5 Sprint should send a CARE transaction 2231 to notify
IXC that access is now provided by a new CLEC for that
number.
<PAGE> 110
SECTION 3. REQUIREMENTS FOR INP
3.1 Cut-Over Process
3.1.1 Sprint and CLEC shall cooperate in the process of
porting numbers from one carrier to another so as to limit
service outage for the ported subscriber.
3.1.1.1 For a Coordinated Cutover Environment, Sprint
shall verbally coordinate with CLEC the disconnect and
switch translations as close to the requested time as
possible. The coordination shall be pre-specified by
CLEC and agreed to by both parties and in no case shall
begin more than 30 minutes after the agreed upon time.
3.1.1.2 For a Non-Coordinated Cutover Environment,
Sprint shall schedule a mechanized update of disconnect
and switch translations at the CLEC requested cutover
time. Such updates will be available to CLEC at
parity with Sprint's own availability for such
activity. Sprint shall provide an operations contact
whom CLEC can reach in the event manual intervention is
needed to complete the cutover. In the event of
manual intervention, and if Sprint is unable to resolve
the issue within sixty (60) minutes, Sprint shall
notify CLEC of the issue and CLEC and Sprint shall
determine the plan to resolve it.
3.2 Testing
Sprint and CLEC shall cooperate in conducting CLEC's testing to
ensure interconnectivity between systems. Sprint shall inform CLEC
of any system updates that may affect the CLEC network and Sprint
shall, at CLEC's request, perform tests to validate the operation
of the network. Additional testing requirements may apply as
specified by this Agreement.
3.3 Installation Timeframes
3.3.1 Installation Time Frames for RCF ILNP where no other
work is required, will be as follows:
3.3.1.1 Business Lines and Trunks:
3.3.1.1.1 After the FOC date has been
established: Orders of 1-20 lines in three (3)
business days; Orders of 21-40 lines in seven (7)
business days;
<PAGE> 111
Orders of 41-60 in twelve (12) business days;
Orders of over 60 lines will have an installation
timeframe mutually agreed upon by Sprint and
CLEC.
3.3.1.2 Residential Lines:
3.3.1.2.1 Within two (2) business days of Service
Order Receipt by Sprint.
3.3.2 If a subscriber elects to move its Telephone Exchange
Service back to Sprint while on an INP arrangement, Sprint
shall notify CLEC of the Subscriber's termination of service
with CLEC and the Subscriber's instructions regarding its
telephone number(s) within two (2) business days of receiving
notification from the Subscriber.
3.4 Call Referral Announcements
3.4.1 Sprint shall allow CLEC to order all referral
announcements, and specify the particular announcement from
Sprint's standard set of call referral announcement options,
on a per telephone number basis, for telephone numbers which
CLEC has ported from Sprint to CLEC and for which INP
measures have, at CLEC's direction, been terminated.
3.5 Engineering and Maintenance
Sprint and CLEC will cooperate to ensure that performance of
trunking and signaling capacity is engineered and managed at levels
which are at parity with that provided by Sprint to its subscribers
and to ensure effective maintenance testing through activities such
as routine testing practices, network trouble isolation processes
and review of operational elements for translations, routing and
network fault isolation.
3.6 Operator Services and Directory Assistance
With respect to operator services and directory assistance
associated with INP for CLEC subscribers, Sprint shall provide the
following:
3.6.1 While INP is deployed:
3.6.1.1 Sprint shall allow CLEC to order provisioning
of Telephone Line Number (TLN) calling cards and Billed
Number Screening (BNS), in its LIDB for ported numbers,
<PAGE> 112
as specified by CLEC. Sprint shall continue to allow
CLEC access to its LIDB. Other LIDB provisions are
specified in this Agreement.
3.6.1.2 Where Sprint has control of directory listings
for NXX codes containing ported numbers, Sprint shall
maintain entries for ported numbers as specified by
CLEC.
3.6.2 Sprint shall provide a 10-Digit Global Title
Translation (GTT) Node for routing queries for TCAP-based
operator services (e.g., LIDB).
3.6.3 Sprint OSS shall meet all requirements specified in
"Generic Operator Services Switching Requirements for Number
Portability," Issue 1.00, Final Draft, April 12, 1996.
Editor - Nortel.
3.7 Number Reservation
3.7.1 When a subscriber ports to another service provider and
has previously secured, via a tariffed offering, a
reservation of line numbers from the donor provider for
possible activation at some future point, these reserved but
inactive numbers shall "port" along with the active numbers
being ported by the subscriber in order to ensure that the
end user subscriber will be permitted to expand its service
using the same number range it could use if it remained with
the donor provider.
<PAGE> 113
PART C - ATTACHMENT VIII
GENERAL BUSINESS REQUIREMENTS
SECTION 1. GENERAL BUSINESS REQUIREMENTS
1.1 PROCEDURES
1.1.1 Contact with Subscribers
1.1.1.1 Each Party at all times shall be the primary
contact and account control for all interactions with
its subscribers, except as specified by that Party.
Subscribers include active subscribers as well as those
for whom service orders are pending.
1.1.1.2 Each Party shall ensure that any of its
personnel who may receive subscriber inquiries, or
otherwise have opportunity for subscriber contact from
the other Party's subscribers regarding the other
Party's services: (i) provide appropriate referrals
to subscribers who inquire about the other Party's
services or products; (ii) do not in any way disparage
or discriminate against the other Party, or its
products or services; and (iii) do not provide
information about its products or services during that
same inquiry or subscriber contact.
1.1.1.3 Sprint shall not use CLEC's request for
subscriber information, order submission, or any other
aspect of CLEC's processes or services to aid Sprint's
marketing or sales efforts.
1.1.2 Expedite, Escalation, and Disaster Procedures
1.1.2.1 No later than thirty (30) days after the
Approval Date of this Agreement, Sprint and CLEC shall
develop mutually acceptable escalation and expedite
procedures which may be invoked at any point in the
Service Ordering, Provisioning, Maintenance, and
Subscriber Usage Data transfer processes to facilitate
rapid and timely resolution of disputes. In addition,
Sprint and CLEC will establish intercompany contacts
lists for purposes of handling subscriber and other
matters which require attention/resolution outside of
normal business procedures within thirty (30) days
after the Approval Date of this Agreement. Each party
shall notify the other party of any changes to its
escalation contact list at least one (1) week before
such changes are effective.
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1.1.2.2 No later than thirty (30) days after the
Approval Date of this Agreement, Sprint shall provide
CLEC with contingency plans for those cases in which
normal Service Ordering, Provisioning, Maintenance,
Billing, and other procedures for Sprint's unbundled
Network Elements, features, functions, and resale
services are inoperable.
1.1.3 Subscriber of Record
1.1.3.1 Sprint shall recognize CLEC as the Subscriber
of Record for all Network Elements or services for
resale ordered by CLEC and shall send all notices,
invoices, and information which pertain to such ordered
services directly to CLEC. CLEC will provide Sprint
with addresses to which Sprint shall send all such
notices, invoices, and information.
1.2 SERVICE OFFERINGS
1.2.1. Sprint shall provide CLEC with access to new services,
features and functions concurrent with Sprint's notice to
CLEC of such changes, if such service, feature or function is
installed and available in the network or as soon thereafter
as it is installed and available in the network, so that CLEC
may conduct market testing.
1.2.2 Essential Services
1.2.2.1 For purposes of service restoral, Sprint shall
designate a CLEC access line as an Essential Service
Line (ESL) at Parity with Sprint's treatment of its own
subscribers and applicable state law or regulation, if
any.
1.2.3 TTY/TDD
1.2.3.1 Sprint shall cooperate with CLEC to provide
Telecommunications Services at parity to serve TTY/TDD
subscribers.
1.2.4 Blocking Services
Upon request from CLEC, Sprint shall provide blocking
of 700, 900, and 976 services, or other services of
similar type as may now exist or be developed in the
future, and shall provide Billed Number Screening
(BNS), including required LIDB updates, or equivalent
service for blocking completion of bill-to-third party
and
<PAGE> 115
collect calls, on a line, PBX, or individual service
basis. Blocking shall be provided the extent (a) it
is an available option for the Telecommunications
Service resold by CLEC, or (b) it is technically
feasible when requested by CLEC as a function of
unbundled Network Elements.
1.2.5 Training Support
1.2.5.1 Sprint shall provide training, on a
non-discriminatory basis, for all Sprint employees who
may communicate, either by telephone or face-to-face,
with CLEC subscribers. Such training shall include
compliance with the branding requirements of this
Agreement including without limitation provisions of
forms, business cards and "Not at Home' notices.
1.2.6 Carrier Identification Codes
Sprint shall provide to CLEC the active Codes (CIC) for
both Dial 1 and 800 services for each of its access
tandems and shall provide updates promptly as those
codes change from time to time.
SECTION 2. ORDERING AND PROVISIONING
2.1 GENERAL BUSINESS REQUIREMENTS
2.1.1 Ordering and Provisioning Parity
2.1.1.1 Sprint shall provide necessary ordering and
provisioning business process support as well as those
technical and systems interfaces as may be required to
enable CLEC to provide the same level and quality of
service for all resale services, functions, features,
capabilities and unbundled Network Elements at Parity.
2.1.2 Local Carrier Service Center
(LCSC)/Single Point of Contact (SPOC)
2.1.2.1 Sprint shall provide a Local Carrier Service
Center or equivalent which shall serve as CLEC's Single
Point of Contact (SPOC) for all activities involved in
the ordering and provisioning of Sprint's unbundled
Network Elements, features, functions, and resale
services.
2.1.2.2 The SPOC shall provide to CLEC a nationwide
telephone number (available from 6:00 a.m. to 8:00
p.m. Eastern Standard Time, Monday through Friday,
and 8:00 am through 5:00 P.M.
<PAGE> 116
Eastern Standard Time on Saturday) answered by
competent, knowledgeable personnel and trained to
answer questions and resolve problems in connection
with the ordering and provisioning of unbundled Network
Elements (except those associated with local trunking
interconnection), features, functions, capabilities,
and resale services.
2.1.2.3 Sprint shall provide, as requested by CLEC,
through the SPOC, provisioning and premises visit
installation support in the form of coordinated
scheduling, status, and dispatch capabilities during
Sprint's standard business hours and at other times as
agreed upon by the parties to meet subscriber demand.
2.1.3 Street Address Guide (SAG)
2.1.3.1 Within thirty (30) days after the Approval Date
of this Agreement or as otherwise mutually agreed,
Sprint shall provide to CLEC the SAG data, or its
equivalent, in an electronic format mutually agreeable
to the parties. All changes and updates to the SAG
shall be provided to in a mutually agreed format and
timeframe.
2.1.4 CLASS and Custom Features
2.1.4.1 CLEC may order the entire set of CLASS, CENTREX
and Custom features and functions, or a subset of any
one of such features.
2.1.5 Number Administration/Number Reservation
2.1.5.1 Sprint shall provide testing and loading of
CLEC's NXX on the same basis as Sprint provides itself
or its affiliates. Further, Sprint shall provide CLEC
with access to abbreviated dialing codes, access
arrangements for 555 line numbers, and the ability to
obtain telephone numbers, including vanity numbers,
while a subscriber is on the phone with CLEC. Sprint
shall provide the same range of number choices to CLEC,
including choice of exchange number, as Sprint provides
its own subscribers. Reservation and aging of numbers
shall remain Sprint's responsibility.
2.1.5.2 In conjunction with an order for service,
Sprint shall accept CLEC orders for vanity numbers and
blocks of numbers for use with complex services
including, but not limited to, DID, CENTREX, and
Hunting arrangements, as requested by CLEC.
<PAGE> 117
2.1.5.3 For simple services number reservations and
aging of Sprint's numbers, Sprint shall provide
real-time confirmation of the number reservation. For
number reservations associated with complex services,
Sprint shall provide confirmation of the number
reservation within twenty-four (24) hours of CLEC's
request. Consistent with the manner in which Sprint
provides numbers to its own subscribers, no telephone
number assignment is guaranteed until service has been
installed.
2.2 SERVICE ORDER PROCESS REQUIREMENTS
2.2.1 Service Migrations and New Subscriber Additions
2.2.1.1 For resale services, Sprint shall not
disconnect any subscriber service or existing features
at any time during the migration of that subscriber to
CLEC service without prior CLEC agreement.
2.2.1.2 For services provided through unbundled Network
Elements, Sprint shall recognize CLEC as an agent, in
accordance with OBF developed processes, for the
subscriber in coordinating the disconnection of
services provided by another CLEC or Sprint. In
addition, Sprint and CLEC will work cooperatively to
ensure that a subscriber is not disconnected from
service during these conversions.
2.2.1.3 Unless otherwise directed by CLEC and when
technically capable, when CLEC orders resale services
or Network Elements all trunk or telephone numbers
currently associated with existing services shall be
retained without loss of feature capability and without
loss of associated ancillary services including, but
not limited to, Directory Assistance and 911/E911
capability.
2.2.1.4 For subscriber conversions requiring
coordinated cut-over activities, on a per order basis,
Sprint and CLEC will agree on a scheduled conversion
time, which will be a designated four-hour time period
within a designated date.
2.2.1.5 End user service interruptions shall be held to
a minimum, and in any event shall not exceed the time
Sprint experiences when performing such work for its
own subscribers.
2.2.1.6 A general Letter of Agency ("LOA") initiated by
Carrier or Sprint will be required to process a PLC or
PIC change order. No
<PAGE> 118
LOA signed by the end-user will be required to process
a PLC or PIC change ordered by Carrier or Sprint.
Carrier and Sprint agree that PLC and PIC change orders
will be supported with appropriate documentation and
verification as required by FCC and Commission rules.
In the event of a subscriber complaint of an
unauthorized PLC record change where the Party that
ordered such change is unable to produce appropriate
documentation and verification as required by FCC and
Commission rules (or, if there are no rules applicable
to PLC record changes, then such rules as are
applicable to changes in long distance carriers of
record), such Party shall be liable to pay and shall
pay all nonrecurring charges associated with
reestablishing the subscriber's local service with the
original local carrier.
2.2.2 Intercept Treatment and Transfer Service Announcements
2.2.2.1 Sprint shall provide unbranded intercept
treatment and transfer of service announcements to
CLEC's subscribers. Sprint shall provide such
treatment and transfer of service announcement in
accordance with local tariffs and as provided to
similarly situated Sprint subscribers for all service
disconnects, suspensions, or transfers.
2.2.3 Due Date
2.2.3.1 Sprint shall supply CLEC with due date
intervals to be used by CLEC personnel to determine
service installation dates.
2.2.3.2 Sprint shall use best efforts to complete
orders by the CLEC requested DDD within agreed upon
intervals and performance measures.
2.2.4 Subscriber Premises Inspections and Installations
2.2.4.1 CLEC shall perform or contract for all CLEC's
needs assessments, including equipment and installation
requirements, at the subscriber premises.
2.2.4.2 Sprint shall provide CLEC with the ability to
schedule subscriber premises installations. The
parties shall mutually agree on an interim process to
provide this functionality during the implementation
planning process.
2.2.5 Firm Order Confirmation (FOC)
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2.2.5.1 Sprint shall provide to CLEC, a Firm Order
Confirmation (FOC) for each CLEC order. The FOC shall
contain the appropriate data elements as defined by the
OBF standards.
2.2.5.2 For a revised FOC, Sprint shall provide
standard detail as defined by the OBF standards.
2.2.5.3 Sprint shall provide to CLEC the date that
service is scheduled to be installed.
2.2.6 Order Rejections
2.2.6.1 Sprint shall reject and return to CLEC any
order that Sprint cannot provision, due to technical
reasons, missing information, or jeopardy conditions.
When an order is rejected, Sprint shall, in its reject
notification, specifically describe all of the reasons
for which the order was rejected. Sprint shall not
reject any orders on account of the Desired Due Date.
2.2.7 Service Order Changes
2.2.7.1 If an installation or other CLEC ordered work
requires a change from the original CLEC service order
in any manner, Sprint shall call CLEC in advance of
performing the installation or other work to obtain
authorization. Sprint shall then provide CLEC an
estimate of additional labor hours and/or materials.
After all installation or other work is completed,
Sprint shall promptly notify CLEC of costs.
2.2.7.1.1 If additional work is completed on a
service order, as approved by CLEC, the cost of
the additional work must be reported promptly to
CLEC.
2.2.7.1.2 If a service order is partially
completed, notification must identify the work
that was done and work remaining to complete.
2.2.7.2 If a CLEC subscriber requests a service change
at the time of installation or other work being
performed by Sprint on behalf of CLEC, Sprint, while at
the subscriber premises, shall direct the CLEC
subscriber to contact CLEC.
2.2.8 Cooperative Testing
<PAGE> 120
2.2.8.1 Network Testing
2.2.8.1.1 Sprint shall perform all its standard
pre-service testing prior to the completion of
the order.
2.2.8.1.2 Within 24 hours of CLEC's request for
scheduled cooperative maintenance testing, Sprint
shall perform said testing with CLEC (including
trouble shooting to isolate any problems) to test
Network Elements purchased by CLEC in order to
identify any problems.
2.2.9 Service Suspensions/Restorations
2.2.9.1 Upon CLEC's request through an Industry
Standard (OBF) Suspend/Restore Order, or mutually
agreed upon interim procedure, Sprint shall suspend or
restore the functionality of any Network Element,
feature, function, or resale service to which
suspend/restore is applicable. Sprint shall provide
restoration priority on a per network element basis in
a manner that conforms with any applicable regulatory
Rules and Regulations or government requirements.
2.2.10 Order Completion Notification
2.2.10.1 Upon completion of the requests submitted by
CLEC, Sprint shall provide to CLEC a completion
notification in an industry standard (i.e. OBF) or in
a mutually agreed format. The completion notification
shall include detail of the work performed, to the
extent this is defined within OBF guidelines, and in an
interim method until such standards are defined.
2.2.11 Specific Unbundling Requirements
2.2.11.1 CLEC may order and Sprint shall provision
unbundled Network Elements. However, it is CLEC's
responsibility to combine the individual network
elements should it desire to do so.
2.2.11.2 When CLEC orders Network Elements that are
currently connected Sprint shall ensure such Network
Elements remain connected and functional without any
disconnection or disruption. This shall be known as
Contiguous Network Connection of Network Elements.
There shall be no charge for such pre-existing
connections.
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2.3 SYSTEMS INTERFACES AND INFORMATION EXCHANGES
2.3.1 General Requirements
2.3.1.1 Sprint shall provide to CLEC Electronic
Interface(s) for transferring and receiving information
and executing transactions for all business functions
directly or indirectly related to Service Ordering and
Provisioning of Network Elements, features, functions
and Telecommunications Services, as specified in
Exhibit to Part A. The Interface(s) shall be
developed/designed for the transmission of data from
CLEC to Sprint, and from Sprint to CLEC.
2.3.1.2 Interim interfaces or processes may be
modified, if so agreed by CLEC and Sprint, during the
interim period.
2.3.1.3 Until the real-time, Electronic Interface is
available, Sprint agrees that the Local Carrier Service
Center (LCSC) or similar function will accept CLEC
orders. Orders will be transmitted to the LCSC via an
interface or method agreed upon by CLEC and Sprint.
2.3.2 For any CLEC subscriber Sprint shall provide, subject
to applicable rules, orders, and decisions, CLEC with access
to Customer Proprietary Network Information (CPNI) without
requiring CLEC to produce a signed Letter of Agency (LOA),
based on CLEC's blanket representation that subscriber has
authorized CLEC to obtain such CPNI.
2.3.2.1 The preordering Electronic Interface includes
the provisioning of Customer Proprietary Network
Information (CPNI) information from Sprint to CLEC.
The Parties agree to execute a Letter of Authorization
(LOA) agreement prior to requesting CPNI for a Sprint
end user, and to request end user CPNI only when the
end user has specifically given permission to receive
CPNI. The Parties agree that they will conform to FCC
and/or state regulations regarding the provisioning of
CPNI between the parties, and regarding the use of that
information by the requesting party.
2.3.2.2 The requesting Party will document end user
permission obtained to receive CPNI, whether or not the
end user has agreed to change local service providers.
For end users changing service from one party to the
other, specific end user LOAs may be requested by the
Party receiving CPNI requests to investigate possible
slamming incidents, and for other reasons agreed to by
the Parties. The receiving Party may also request
documentation of an LOA if CPNI is requested and a
subsequent service order for the change of local
service is not received.
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2.3.2.3 On a schedule to be determined by Sprint,
Sprint will perform a comparison of requests for CPNI
to service orders received for the change of Local
Service to CLEC. Sprint will produce a report of
unmatched requests for CPNI, and may require an LOA
from CLEC for each unmatched request. CLEC agrees to
provide evidence of end user permission for receipt of
CPNI for all end users in the request by Sprint within
three (3) business days of receipt of a request from
Sprint. Should Sprint determine that there has been a
substantial percentage of unmatched LOA requests,
Sprint reserves the right to immediately disconnect the
preordering Electronic Interface.
2.3.2.4 If CLEC is not able to provide the LOA for 95%
of the end users requested by Sprint, or if Sprint
determines that the LOA is inadequate, CLEC will be
considered in breach of the agreement. CLEC can cure
the breach by submitting to Sprint evidence of an LOA
within three (3) business days of notification of the
breach.
2.3.2.5 Should CLEC not be able to cure the breach in
the timeframe noted above, Sprint will provide written
notice to CLEC that Sprint will disconnect the
preordering Electronic Interface between the Parties.
Sprint will provide its manual interim systems and
procedures for CLEC's use, which will not provide
parity of service to CLEC. Sprint will suspend the
calculation of the preordering service quality measures
agreed to in Attachment 9 until, in Sprint's
determination, CLEC has corrected the problem that
caused the breach.
2.3.2.6 Sprint will reconnect the preordering
Electronic Interface upon Sprint's timely review and
acceptance of evidence provided by CLEC to correct the
problem that caused the breach.
2.3.2.7 Should Sprint disconnect the preordering
Electronic Interface to CLEC three times in any twenty
four (24) month period for breach of these preordering
procedures, Sprint may permanently disconnect the
preordering Electronic Interface, and/or may terminate
the Interconnection Agreement in accordance with Part A
herein.
2.3.2.8 If CLEC and Sprint do not agree that CLEC
requested CPNI for a specific end user, or that Sprint
has erred in not accepting proof of an LOA, the Parties
may immediately request dispute resolution in
accordance with Part A . Sprint will not disconnect
the preordering Electronic Interface during the
Alternate Dispute Resolution process.
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2.3.2.9 When available per Electronic Interface
Implementation Plan, Sprint shall provide to CLEC
Electronic Interface to Sprint information systems to
allow CLEC to assign telephone number(s) (if the
subscriber does not already have a telephone number or
requests a change of telephone number) at Parity.
2.3.2.10 When available per Electronic Interface
Implementation Plan, Sprint shall provide to CLEC a
real-time, Electronic Interface to schedule dispatch
and installation appointments at Parity.
2.3.2.11 When available per Electronic Interface
Implementation Plan, Sprint shall provide to CLEC a
real-time, Electronic Interface to Sprint subscriber
information systems which will allow CLEC to determine
if a service call is needed to install the line or
service at Parity.
2.3.2.12 When available per Electronic Interface
Implementation Plan, Sprint shall provide to CLEC a
real-time, Electronic Interface to Sprint information
systems which will allow CLEC to provide service
availability dates at Parity.
2.3.2.13 When available per Electronic Interface
Implementation Plan, Sprint shall provide to CLEC a
real-time, Electronic Interface which transmits status
information on service orders at Parity. Until
real-time Electronic Interface is available, Sprint
agrees that Sprint will provide proactive status on
service orders at the following critical intervals:
acknowledgment, firm order confirmation, and completion
according to interim procedures to be mutually
developed.
2.3.3 Ordering and Provisioning for Unbundling
2.3.3.1 To the extent Sprint has such information,
Sprint shall provide to CLEC upon request advance
information of the details and requirements for
planning and implementation of NPA splits at least 6
months prior to implementation of the split.
2.3.3.2 Sprint shall provide to CLEC information on
charges associated with special construction.
Until real-time, Electronic Interface is
available, Sprint agrees that Sprint will promptly
notify CLEC of any charges associated with
necessary construction.
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2.4 Standards
2.4.1 General Requirements
2.4.1.1 CLEC and Sprint shall agree upon the
appropriate ordering and provisioning codes to be used
for Network Elements. These codes shall apply to all
aspects of the unbundling of that element and shall be
known as data elements as defined by the
Telecommunications Industry Forum Electronic Data
Interchange Service Order Subcommittee (TCIF-EDI-SOSC).
SECTION 3. BILLING
3.1 PROCEDURES
3.1.1 Sprint shall comply with various industry, OBF, and
other standards referred to throughout this Agreement.
Sprint and CLEC will review any changes to industry
standards, and Sprint's interpretation of these standards
before they are implemented by Sprint. Until industry
standards are adopted and implemented, Sprint shall utilize
an interim process as determined by Sprint and reviewed by
CLEC as part of the Implementation Plan.
3.1.2 Sprint shall bill CLEC for each service supplied by
Sprint to CLEC pursuant to this Agreement at the rates set
forth in this Agreement.
3.1.3 Sprint shall provide to CLEC a single point of contact
for interconnection and Network Elements at Sprint's National
Access Service Center (NASC), and for resale at Sprint's IPOC
to handle any Connectivity Billing questions or problems that
may arise during the implementation and performance of the
terms and conditions of this Agreement.
3.1.4 Sprint shall provide a single point of contact at each
Sprint data center for handling of any data exchange
questions or problems that may arise during the
implementation and performance of the terms and conditions of
this Agreement.
3.1.5 Subject to the terms of this Agreement, including
without limitation Sections 3.1.6 of this Attachment VIII,
CLEC shall pay Sprint within thirty (30) days from the Bill
Date. If the payment due date is a Saturday, Sunday or a
has been designated a bank holiday payment shall be made the
next business day.
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3.1.6 Billed amounts which are being investigated, queried,
or for which claims have or may be filed shall be handled in
accordance with the procedures set forth in Part A Section 23
of this Agreement.
3.1.7 Sprint will assess late payment charges to CLEC in
accordance with the applicable tariff or, if there is no
tariff Sprint will assess a late payment charge equal to the
lesser of one and one-half percent (1 1/2%) or the maximum
rate allowed by law per month of the balance due, until the
amount due, including late payment charges, is paid in full.
3.1.8 Sprint shall credit CLEC for incorrect Connectivity
Billing charges including without limitation: overcharges,
services ordered or requested but not delivered, interrupted
services, services of poor quality and installation problems
if caused by Sprint. Such reimbursements shall be set forth
in the appropriate section of the Connectivity Bill pursuant
to CABS, or SECAB standards.
3.1.9 The parties agree to record call information for
interconnection in accordance with this Subsection 3.1. To
the extent technically feasible, each party shall record all
call detail information associated with every call originated
or terminated to the other party's local exchange subscriber.
Sprint shall record for CLEC the messages that Sprint
records for its end users. These records shall be provided
at a party's request and shall be formatted pursuant to
Bellcore's EMR standards and the terms and conditions of this
Agreement. These records shall be transmitted to the other
party on non-holiday business days in EMR format via CDN.
Sprint and CLEC agree that they shall retain, at each party's
sole expense, copies of all EMR records transmitted to the
other party for at least forty five (45) calendar days after
transmission to the other party.
3.1.10 Sprint shall be responsible for billing and collecting
charges from IXCs for access related to interexchange calls
generated by resale subscribers.
3.1.11 Sprint shall establish a switched access meet point
billing arrangement with CLEC. This arrangement will
include tandem routed IXC calls and IXC calls.
3.1.11.1 CLEC will bill for CLEC common line, local
switching, RIC, and its portion of the transport
charges for tandem routed IXC calls.
3.1.11.2 SPRINT and CLEC will provide all necessary
switched access records to each other for access
billing.
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3.2 REVENUE PROTECTION
3.2.1 Sprint shall make available to CLEC, at parity with
what Sprint provides to itself, its Affiliates and other
local telecommunications CLECs, all present and future fraud
prevention or revenue protection features, including
prevention, detection, or control functionality embedded
within any of the Network Elements. These features include,
but are not limited to screening codes, information digits
assigned such as information digits '29' and '70' which
indicate prison and COCOT pay phone originating line types
respectively, call blocking of domestic, international, 800,
888, 900, NPA-976, 700, 500 and specific line numbers, and
the capability to require end-user entry of an authorization
code for dial tone. Sprint shall, when technically capable
and consistent with the implementation schedule for OSS,
additionally provide partitioned access to fraud prevention,
detection and control functionality within pertinent
Operations Support Systems ("OSS").
SECTION 4. PROVISION OF SUBSCRIBER USAGE DATA
This Section 4 sets forth the terms and conditions for Sprint's
provision of Recorded Usage Data (as defined in this Attachment
VIII) to CLEC and for information exchange regarding long distance
billing.
4.1 PROCEDURES
4.1.1 General
4.1.1.1 Sprint shall comply with various industry and
OBF standards referred to throughout this Agreement..
4.1.1.2 Sprint shall comply with OBF standards when
recording and transmitting Usage Data.
4.1.1.3 Sprint shall record all usage originating from
CLEC subscribers using service ordered by CLEC, where
Sprint records those same services for Sprint
subscribers. Recorded Usage Data includes, but is not
limited to, the following categories of information:
-- Use of CLASS/LASS/Custom Features that
Sprint records and bills for its
subscribers on a per usage basis
-- Calls To Information Providers Reached Via
Sprint Facilities will be provided in
accordance with Section 4.1.1.7
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-- Calls To Directory Assistance Where Sprint
Provides Such Service To An CLEC Subscriber
-- Calls Completed Via Sprint-Provided Operator
Services Where Sprint Provides Such Service
To CLEC's Local Service Subscriber and where
Sprint records such usage for its
subscribers using Industry Standard Bellcore
EMR billing records.
-- For Sprint-Provided Centrex Service, Station
Level Detail
4.1.1.4 Retention of Records: Sprint shall maintain a
machine readable back-up copy of the message detail
provided to CLEC for a minimum of forty-five (45)
calendar days. During the 45 day period, Sprint shall
provide any data back-up to CLEC upon the request of
CLEC. If the 45 day has expired, Sprint may provide
the data back-up at CLEC's expense.
4.1.1.5 Sprint shall provide to CLEC Recorded Usage
Data for CLEC subscribers. Sprint shall not submit
other CLEC local usage data as part of the CLEC
Recorded Usage Data.
4.1.1.6 Sprint shall not bill directly to CLEC
subscribers any recurring or non-recurring charges for
CLEC's services to the subscriber except where
explicitly permitted to do so within a written
agreement between Sprint and CLEC.
4.1.1.7 Sprint will record 976/N11 calls and transmit
them to the Information Service Provider ("ISP") for
billing. Sprint will not bill these calls to either
the CLEC or the CLEC's end user.
4.1.1.8 Sprint shall provide Recorded Usage Data to
CLEC billing locations as agreed to by the Parties.
4.1.1.9 Sprint shall establish a Local Carrier Service
Center (LCSC) or similar function to serve as CLEC's
single point of contact to respond to CLEC call usage,
data error, and record transmission inquiries.
4.1.1.10 Sprint shall provide CLEC with a single point
of contact and remote identifiers (IDs) for each
sending location.
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4.1.1.11 CLEC shall provide a single point of contact
responsible for receiving usage transmitted by Sprint
and receiving usage tapes from a courier service in the
event of a facility outage.
4.1.1.12 Sprint shall bill and CLEC shall pay the
charges for Recorded Usage Data. Billing and payment
shall be in accordance with the applicable terms and
conditions set forth in the Connectivity Billing and
Recording Section of this Attachment VIII
4.1.2 Charges
4.1.2.1 Sprint shall bill for message provisioning,
data transmission and for data tape charges.
4.1.3 Central Clearinghouse & Settlement
4.1.3.1 Sprint and CLEC shall agree upon
Clearinghouse and Incollect/Outcollect procedures.
4.1.3.2 Sprint shall settle with CLEC for both
intra-region and inter-region billing exchanges of
calling card, bill-to-third party, and collect calls
under separately negotiated settlement arrangements.
4.1.4 Lost Data
4.1.4.1 Loss of Recorded Usage Data - CLEC Recorded
Usage Data determined to have been lost, damaged or
destroyed as a result of an error or omission by Sprint
in its performance of the recording function shall be
recovered by Sprint at no charge to CLEC. In the
event the data cannot be recovered by Sprint, Sprint
shall estimate the messages and associated revenue,
with assistance from CLEC, based upon the method
described below. This method shall be applied on a
consistent basis, subject to modifications agreed to by
Sprint and CLEC. This estimate shall be used to
adjust amounts CLEC owes Sprint for services Sprint
provides in conjunction with the provision of Recorded
Usage Data.
4.1.4.2 Partial Loss - Sprint shall review its daily
controls to determine if data has been lost. When
there has been a partial loss, actual message and
minute volumes shall be reported, if possible through
recovery as discussed in 4.1.4.1 above. Where actual
data are not available, a full day shall be estimated
for the recording entity, as outlined in the following
paragraphs. The amount of the partial loss is then
determined by subtracting the
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data actually recorded for such day from the estimated
total for such day.
4.1.4.3 Complete Loss - When Sprint is unable to
recover data as discussed in 4.1.4.1 above estimated
message and minute volumes for each loss consisting of
an entire AMA tape or entire data volume due to its
loss prior to or during processing, lost after receipt,
degaussed before processing, receipt of a blank or
unreadable tape, or lost for other causes, shall be
reported.
4.1.4.4 Estimated Volumes - From message and minute
volume reports for the entity experiencing the loss,
Sprint shall secure message/minute counts for the four
(4) corresponding days of the weeks preceding that in
which the loss occurred and compute an average of these
volumes. Sprint shall apply the appropriate average
revenue per message ("arpm") agreed to by CLEC and
Sprint to the estimated message volume for messages for
which usage charges apply to the subscriber to arrive
at the estimated lost revenue.
4.1.4.5 If the day of loss is not a holiday but one (1)
(or more) of the preceding corresponding days is a
holiday, use additional preceding weeks in order to
procure volumes for two (2) non-holidays in the
previous two (2) weeks that correspond to the day of
the week that is the day of the loss
4.1.4.6 If the loss occurs on a weekday that is a
holiday (except Christmas and Mother's day), Sprint
shall use volumes from the two (2) preceding Sundays.
4.1.4.7 If the loss occurs on Mother's day or Christmas
day, Sprint shall use volumes from that day in the
preceding year multiplied by a growth factor derived
from an average of CLEC's most recent three (3) month
message volume growth. If a previous year's message
volumes are not available, a settlement shall be
negotiated.
4.1.5 Testing, Changes and Controls
4.1.5.1 The Recorded Usage Data, EMR format, content,
and transmission process shall be tested as agreed upon
by CLEC and Sprint.
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4.1.5.2 Periodic Review: Control procedures for all
usage transferred between Sprint and CLEC shall require
periodic review. This review may be included as part
of an Audit of Sprint by CLEC or as part of the normal
production interface management function. Breakdowns
which impact the flow of usage between Sprint and CLEC
must be identified and jointly resolved as they occur.
The resolution may include changes to control
procedures, so similar problems would be avoided in the
future. Any changes to control procedures would need
to be mutually agreed upon by CLEC and Sprint.
4.1.5.3 Sprint Software Changes
4.1.5.3.1 When Sprint plans to introduce any
software changes which impact the format or
content structure of the usage data feed to CLEC,
designated Sprint personnel shall notify CLEC no
less than ninety (90) calendar days before such
changes are implemented.
4.1.5.3.2 Sprint shall communicate the projected
changes to CLEC's single point of contact so that
potential impacts on CLEC processing can be
determined.
4.1.5.3.3 CLEC personnel shall review the impact
of the change on the entire control structure.
CLEC shall negotiate any perceived problems with
Sprint and shall arrange to have the data tested
utilizing the modified software if required.
4.1.5.3.4 If it is necessary for Sprint to
request changes in the schedule, content or
format of usage data transmitted to CLEC, Sprint
shall notify CLEC.
4.1.5.4 CLEC Requested Changes:
4.1.5.4.1 CLEC may submit a purchase order to
negotiate and pay for changes in the content and
format of the usage data transmitted by Sprint.
4.1.5.4.2 When the negotiated changes are to be
implemented, CLEC and/or Sprint shall arrange for
testing of the modified data.
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4.2 INFORMATION EXCHANGE AND INTERFACES
4.2.1 Product/Service Specific
4.2.1.1 Sprint shall provide a Bellcore standard
42-50-01 miscellaneous charge record to support the
Special Features Star Services if these features are
part of Sprint's offering and are provided for Sprint's
subscribers on a per usage basis.
4.2.2 Rejected Recorded Usage Data
4.2.2.1 Upon agreement between CLEC and Sprint messages
that cannot be rated and/or billed by CLEC may be
returned to Sprint via CDN. Returned messages shall
be sent directly to Sprint in their original EMR
format. Standard EMR return codes shall be utilized.
4.2.2.2 Sprint may correct and resubmit to CLEC any
messages returned to Sprint. Sprint will not be
liable for any records determined by Sprint to be
billable to a CLEC end user. CLEC will not return a
message that has been corrected and resubmitted by
Sprint. Sprint will only assume liability for errors
and unguideables caused by Sprint.
SECTION 5. GENERAL NETWORK REQUIREMENTS
5.1 Sprint shall provide repair, maintenance and testing for all
Telecommunications Services and unbundled Network Elements in
accordance with the terms and conditions of this Agreement.
5.1.1 During the term of this Agreement, Sprint shall provide
necessary maintenance business process support as well as
those technical and systems interfaces at Parity. Sprint
shall provide CLEC with maintenance support at Parity.
5.1.2 Sprint shall provide, initially on a regional basis,
and subsequently on a national basis, a SPOC (Single Point of
Contact) for CLEC to report via telephone maintenance issues
and trouble reports twenty four (24) hours a day and seven
(7) days a week.
5.1.3 Sprint shall provide CLEC maintenance dispatch
personnel on the same schedule that it provides its own
subscribers.
5.1.4 Sprint shall cooperate with CLEC to meet maintenance
standards for all Telecommunications Services and unbundled
network elements
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ordered under this Agreement. Such maintenance standards
shall include, without limitation, standards for testing,
network management, call gapping, and notification of
upgrades as they become available.
5.1.5 All Sprint employees or contractors who perform repair
service for CLEC subscribers shall follow Sprint standard
procedures in all their communications with CLEC subscribers.
These procedures and protocols shall ensure that: (1 )
Sprint employees or contractors shall perform repair service
that is equal in quality to that provided to Sprint
subscribers; (2) trouble calls from CLEC subscribers shall
receive response time priority that is equal to that of
Sprint subscribers and shall be handled on a "first come
first served" basis regardless of whether the subscriber is a
CLEC subscriber or an Sprint subscriber.
5.1.6 Sprint shall provide CLEC with scheduled maintenance,
including, without limitation, required and recommended
maintenance intervals and procedures, for all
Telecommunications Services and network elements provided to
CLEC under this Agreement equal in quality to that currently
provided by Sprint in the maintenance of its own network.
5.1.7 Sprint shall give maximum advanced notice to CLEC of
all nonscheduled maintenance or other planned network
activities to be performed by Sprint on any network element,
including, without limitation, any hardware, equipment,
software, or system, providing service functionality which
may potentially impact CLEC subscribers.
5.1.8 For purposes of this subsection 5.1 an emergency
network outage is defined as an outage affecting more than
25% of subscriber facilities in a single exchange.
5.1.9 On all misdirected calls from CLEC subscribers
requesting repair, Sprint shall provide such CLEC subscriber
with the correct CLEC repair telephone number as such number
is provided to Sprint by CLEC.
5.1.10 Upon establishment of an Electronic Interface, Sprint
shall notify CLEC via such electronic interface upon
completion of trouble report. The report shall not be
considered closed until such notification is made. CLEC
will contact its subscriber to determine if repairs were
completed and confirm the trouble no longer exists.
5.1.11 Sprint and CLEC may mutually agree to performance
reporting as business needs demand.
<PAGE> 133
5.1.12 Once the electronic gateway is established between
Sprint and CLEC, Sprint agrees that CLEC may report troubles
directly to a single Sprint repair/maintenance center for
both residential and business subscribers, unless otherwise
agreed to by CLEC.
5.1.13 Sprint shall perform all testing for resold
Telecommunications Services.
5.1.14 Sprint shall provide test results to CLEC, if
appropriate, for trouble clearance. In all instances,
Sprint shall provide CLEC with the disposition of the
trouble.
5.1.15 If Sprint initiates trouble handling procedures, it
will bear all costs associated with that activity. If CLEC
requests the trouble dispatch, then CLEC's subscriber will
bear the cost.
SECTION 6. MISCELLANEOUS SERVICES AND FUNCTIONS
6.0 GENERAL
6.0.1 To the extent that Sprint does not provide the
services described in this Section 6 to itself, Sprint
will use reasonable efforts to facilitate the
acquisition of such services for or by CLEC through the
existing service provider. CLEC must contract
directly with the service provider for such services.
6.1 GENERAL REQUIREMENTS
6.1.1 Basic 911 and E911 General Requirements
6.1.1.1 Basic 911 and E911 provides a caller access to
the appropriate emergency service bureau by dialing a
3-digit universal telephone number (911). Basic 911
and E911 access from Local Switching shall be provided
to CLEC in accordance with the following:
6.1.1.2 E911 shall provide additional routing
flexibility for 911 calls. E911 shall use subscriber
data, contained in the Automatic Location
Identification/Data Management System (ALI/DMS), to
determine to which Public Safety Answering Point (PSAP)
to route the call.
6.1.1.3 If available, Sprint shall offer a third type
of 911 service, S911. All requirements for E911 also
apply to S911 with the
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exception of the type of signaling used on the
interconnection trunks from the local switch to the
S911 tandem.
6.1.1.4 Basic 911 and E911 functions provided to CLEC
shall be at parity with the support and services that
Sprint provides to its subscribers for such similar
functionality.
6.1.1.5 Basic 911 and E911 access when CLEC purchases
Local Switching shall be provided to CLEC in accordance
with the following:
6.1.1.5.1 Sprint shall conform to all state
regulations concerning emergency services.
6.1.1.5.2 For E911, Sprint shall use its service
order process to update and maintain subscriber
information in the ALI/DMS data base. Through
this process, Sprint shall provide and validate
CLEC subscriber information resident or entered
into the ALI/DMS data base.
6.1.1.6 Sprint shall provide for overflow 911 traffic
to be routed to Sprint Operator Services or, at CLEC's
discretion, directly to CLEC operator services.
6.1.1.7 Basic 911 and E911 access from the CLEC local
switch shall be provided to CLEC in accordance with the
following:
6.1.1.7.1 If required by CLEC, Sprint shall
interconnect direct trunks from the CLEC network
to the E911 PSAP, or the E911 tandems as
designated by CLEC. Such trunks may
alternatively be provided by CLEC.
6.1.1.7.2 In government jurisdictions where
Sprint has obligations under existing agreements
as the primary provider of the 911 System to the
county ("Host SPRINT"), CLEC shall participate in
the provision of the 911 System as follows:
6.1.1.7.2.1 Each party shall be responsible
for those portions of the 911 System for
which it has control, including any
necessary maintenance to each party's
portion of the 911 System.
6.1.1.7.2.2 Host SPRINT shall be
responsible for maintaining the E-911
database. Sprint shall be
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responsible for maintaining the E-911
routing database.
6.1.1.7.3 If a third party, is the primary
service provider to a government agency, CLEC
shall negotiate separately with such third party
with regard to the provision of 911 service to
the agency. All relations between such third
party and CLEC are totally separate from this
Agreement and Sprint makes no representations on
behalf of the third party.
6.1.1.7.4 If CLEC or its Affiliate is the primary
service provider to a government agency, CLEC and
Sprint shall negotiate the specific provisions
necessary for providing 911 service to the agency
and shall include such provisions in an amendment
to this Agreement.
6.1.1.7.5 Interconnection and database access
shall be priced as specified in Attachment I or
at any rate charged to other interconnected
CLECs, whichever is lower.
6.1.1.7.6 Sprint shall comply with established,
competitively neutral intervals for installation
of facilities, including any collocation
facilities, diversity requirements, etc.
6.1.1.7.7 In a resale situation, where it may be
appropriate for Sprint to update the ALI
database, Sprint shall update such database with
CLEC data in an interval at parity with that
experienced by Sprint subscribers, or other
CLECs, whichever is faster, at no additional
cost.
6.1.1.8 Sprint shall transmit to CLEC daily all
changes, alterations, modifications, and updates to the
emergency public agency telephone numbers linked to all
NPA NXX's. This transmission shall be electronic and
be a separate feed from the subscriber listing feed.
6.1.1.9 Sprint shall provide to CLEC the necessary
Network Elements in order for CLEC to provide E911/911
services to government agencies. If such elements are
not available from Sprint, Sprint shall offer E911/911
service for resale by CLEC to government agencies.
6.1.1.10 The following are Basic 911 and E91 1 Database
Requirements:
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6.1.1.10.1 The ALI database shall be managed by
Sprint, but is the property of Sprint and any
participating telephone company and SPRINT for
those records provided by the company.
6.1.1.10.2 To the extent allowed by the
governmental agency, and where available, copies
of the MSAG shall be provided within three
business days from the time requested and
provided on diskette, magnetic tape, or in a
format suitable for use with desktop computers.
6.1.1.10.3 CLEC shall be solely responsible for
providing CLEC database records to Sprint for
inclusion in Sprint's ALI database on a timely
basis.
6.1.1.10.4 Sprint and CLEC shall arrange for the
automated input and periodic updating of the E911
database information related to CLEC end users.
Sprint shall work cooperatively with CLEC to
ensure the accuracy of the data transfer by
verifying it against the Master Street Address
Guide (MSAG). Sprint shall accept
electronically transmitted files or magnetic tape
that conform to National Emergency Number
Association (NENA) Version #2 format.
6.1.1.10.5 CLEC shall assign an E911 database
coordinator charged with the responsibility of
forwarding CLEC end user ALI record information
to Sprint or via a third-party entity, charged
with the responsibility of ALI record transfer.
CLEC assumes all responsibility for the accuracy
of the data that CLEC provides to Sprint.
6.1.1.10.6 CLEC shall provide information on new
subscribers to Sprint within one (1) business day
of the order completion. Sprint shall update
the database within two (2) business days of
receiving the data from CLEC. If Sprint detects
an error in the CLEC provided data, the data
shall be returned to CLEC within two (2) business
days from when it was provided to Sprint. CLEC
shall respond to requests from Sprint to make
corrections to database record errors by
uploading corrected records within two (2)
business days. Manual entry shall be allowed
only in the event that the system is not
functioning properly.
6.1.1.10.7 Sprint agrees to treat all data on
CLEC subscribers provided under this Agreement as
strictly
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confidential and to use data on CLEC subscribers
only for the purpose of providing E911 services.
6.1.1.10.8 Sprint shall adopt use of a CLEC Code
(NENA standard five-character field) on all ALI
records received from CLEC. The CLEC Code will
be used to identify the CLEC of record in INP
configurations. The NENA CLEC Code for CLEC is
"CLEC".
6.1.1.10.9 Sprint shall identify which ALI
databases cover which states, counties or parts
thereof, and identify and communicate a Point of
Contact for each.
6.1.1.11 The following are basic 911 and E911 Network
Requirements:
6.1.1.11.1 Sprint, at CLEC's option, shall
provide a minimum of two (2) E911 trunks per
Numbering Plan Area (NPA) code, or that quantity
which will maintain P.01 transmission grade of
service, whichever is the higher grade of
service. These trunks will be dedicated to
routing 911 calls from CLEC's switch to a Sprint
selective router.
6.1.1.11.2 Sprint shall provide the selective
routing of E911 calls received from CLEC's
switching office. This includes the ability to
receive the ANI of CLEC's subscriber, selectively
route the call to the appropriate PSAP, and
forward the subscriber's ANI to the PSAP.
Sprint shall provide CLEC with the appropriate
CLLI codes and specifications regarding the
tandem serving area associated addresses and
meet-points in the network.
6.1.1.11.3 Copies of Selective Routing Boundary
Maps shall be available to CLEC. Each map shows
the boundary around the outside of the set of
exchange areas served by that selective router.
The map provides CLEC the information necessary
to set up its network to route E911 callers to
the correct selective router.
6.1.1.11.4 CLEC shall ensure that its switch
provides an eight-digit ANI consisting of an
information digit and the seven-digit exchange
code. CLEC shall also ensure that its switch
provides the line number of the calling station.
Where applicable, CLEC shall send a ten-digit
ANI to Sprint.
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6.1.1.11.5 Each ALI discrepancy report shall be
jointly researched by Sprint and CLEC.
Corrective action shall be taken immediately by
the responsible party.
6.1.1.11.6 Where Sprint controls the 911 network,
Sprint should provide CLEC with a detailed
written description of, but not limited to, the
following information:
6.1.1.11.6.1 Geographic boundaries of the
government entities, PSAPs, and exchanges
as necessary.
6.1.1.11.6.2 LECs rate centers/exchanges,
where "Rate Center" is defined as a
geographically specified area used for
determining mileage dependent rates in the
Public Switched Telephone Network.
6.1.1.11.6.3 Technical specifications for
network interface, Technical specifications
for database loading and maintenance.
6.1.1.11.7 Sprint shall identify special routing
arrangements to complete overflow.
6.1.1.11.8 Sprint shall begin restoration of E911
and/or E911 trunking facilities immediately upon
notification of failure or outage. Sprint must
provide priority restoration of trunks or
networks outages on the same terms/conditions it
provides itself and without the imposition of
Telecommunications Service Priority (TSP).
6.1.1.11.9 Sprint shall identify any special
operator-assisted calling requirements to support
911.
6.1.1.11.10 Trunking shall be arranged to
minimize the likelihood of central office
isolation due to cable cuts or other equipment
failures. There will be an alternate means of
transmitting a 911 call to a PSAP in the event of
failures.
6.1.1.11.11 Circuits shall have interoffice, loop
and CLEC system diversity when such diversity can
be achieved using existing facilities. Circuits
will be divided as equally as possible across
available CLEC systems. Diversity will be
maintained or upgraded to utilize the highest
level of diversity available in the network.
<PAGE> 139
6.1.1.11.12 Repair service shall begin
immediately upon receipt of a report of a
malfunction. Repair service includes testing
and diagnostic service from a remote location,
dispatch of or in-person visit(s) of personnel.
Technicians will be dispatched without delay.
6.1.1.11.13 All 911 trunks must be capable of
transmitting and receiving Baudot code or ASII
necessary to support the use of
Telecommunications Devices for the Deaf
(TTY/TDDs).
6.1.1.12 Basic 911 and E911 Additional Requirements
6.1.1.12.1 All CLEC lines that have been ported
via INP shall reach the correct PSAP when 911 is
dialed. Sprint shall send both the ported
number and the CLEC number (if both are received
from CLEC). The PSAP attendant shall see both
numbers where the PSAP is using a standard ALI
display screen and the PSAP extracts both numbers
from the data that is sent.
6.1.1.12.2 Sprint shall work with the appropriate
government agency to provide CLEC the ten-digit
POTS number of each PSAP which sub-tends each
Sprint selective router 911 tandem to which CLEC
is interconnected.
6.1.1.12.3 Sprint shall notify CLEC 48 hours in
advance of any scheduled testing or maintenance
affecting CLEC 911 service, and provide
notification as soon as possible of any
unscheduled outage affecting CLEC 911 service.
6.1.1.12.4 CLEC shall be responsible for
reporting all errors, defects and malfunctions to
Sprint. Sprint shall provide CLEC with the
point of contact for reporting errors, defects,
and malfunctions in the service and shall also
provide escalation contacts.
6.1.1.12.5 CLEC may enter into subcontracts with
third parties, including CLEC Affiliates, for the
performance of any of CLEC's duties and
obligations stated herein.
<PAGE> 140
6.1.1.12.6 Sprint shall provide sufficient
planning information regarding anticipated moves
to SS7 signaling, for 911 services, for the next
12 months.
6.1.1.12.7 Sprint shall provide notification of
any impacts to the 911 services provided by
Sprint to CLEC resulting from of any pending
tandem moves, NPA splits, or scheduled
maintenance outages, with enough time to react.
6.1.1.12.8 Sprint shall identify process for
handling of "reverse ALI" inquiries by public
safety entities.
6.1.1.12.9 Sprint shall establish a process for
the management of NPA splits by populating the
ALI database with the appropriate new NPA codes.
6.1.1.12.10 Sprint must provide the ability for
CLEC to update 911 databases with end user
information for lines that have been ported via
INP or NP.
6.1.2 Directory Assistance Service
6.1.2.1 Sprint shall provide for the routing of
directory assistance calls (including but not limited
to 411, 555-1212, NPA-555-1212) dialed by CLEC
subscribers directly to, at CLEC's option, either (a)
the CLEC DA service platform to the extent Sprint's
switch can perform this customized routing, or (b)
Sprint DA service platform to the extent there is a DA
service platform for that serving area.
6.1.2.2 CLEC subscribers shall be provided the
capability by Sprint to dial the same telephone numbers
for access to CLEC Directory Assistance that Sprint
subscribers dial to access Sprint Directory Assistance.
6.1.2.3 Sprint shall provide Directory Assistance
functions and services to CLEC for its subscribers as
described below until Sprint routes calls to the CLEC
Directory Assistance Services platform.
6.1.2.3.1 Sprint agrees to provide CLEC
subscribers with the same Directory Assistance
service available to Sprint subscribers.
6.1.2.3.2 Sprint shall notify CLEC in advance of
any changes or enhancements to its DA service,
and shall make
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available such service enhancements on a
non-discriminatory basis to CLEC.
6.1.2.3.3 Sprint shall provide Directory
Assistance to CLEC subscribers in accordance with
Sprint's internal local operator procedures and
standards.
6.1.2.3.4 Sprint shall provide CLEC with the same
level of support for the provisioning of
Directory Assistance as Sprint provides itself.
Quality of service standards shall be measured at
the aggregate level in accordance with standards
and performance measurements that are at parity
with the standards and/or performance
measurements that Sprint uses and/or which are
required by law, regulatory agency, or by
Sprint's own internal procedures, whichever are
the most rigorous.
6.1.2.3.5 Service levels shall comply, at a
minimum, with State Regulatory Commission
requirements for number of rings to answer,
average work time, and disaster recovery options.
6.1.2.3.6 CLEC or its designated representatives
may inspect any Sprint owned or sub-contracted
office, which provides DA services, upon five (5)
business days notice to Sprint.
6.1.2.3.7 Directory Assistance services provided
by Sprint to CLEC subscribers shall be branded in
accordance with Section 11 of Part A of this
Agreement.
6.1.2.3.8 Sprint shall provide the following
minimum Directory Assistance capabilities to
CLEC's subscribers:
6.1.2.3.8.1 A maximum of two subscriber
listings and/or addresses or Sprint parity
per CLEC subscriber request.
6.1.2.3.8.2 Telephone number and address to
CLEC subscribers upon request, except for
non-published/unlisted numbers, in the same
states where such information is provided
to Sprint subscribers.
6.1.2.3.8.3 Upon CLEC's request, call
completion to the requested number for
local and intraLATA toll
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calls shall be sent to the network
specified by CLEC where such call
completion routing is technically feasible.
If fulfillment of such routing request is
not technically feasible, Sprint shall
promptly notify CLEC if and when such
routing becomes technically feasible.
Rating and billing responsibility shall be
agreed to by CLEC and Sprint.
6.1.2.3.8.4 Populate the Directory
Assistance database in the same manner and
in the same time frame as for Sprint
subscribers.
6.1.2.3.8.5 Any information provided by a
Directory Assistance Automatic Response
Unit (ARU) shall be repeated the same
number of times for CLEC subscribers as for
Sprint's subscribers.
6.1.2.4 Sprint shall provide CLEC call detail records
in a mutually agreed format and manner.
6.1.3 Operator Services
6.1.3.1 Sprint shall provide for the routing of local
operator services calls (including but not limited to
0+, 0-) dialed by CLEC subscribers directly to either
the CLEC operator service platform or Sprint operator
service platform to the extent Sprint's switch can
perform this customized routing, as specified by CLEC.
6.1.3.2 CLEC subscribers shall be provided the
capability by Sprint to dial the same telephone numbers
to access CLEC operator service that Sprint subscribers
dial to access Sprint operator service.
6.1.3.3 Sprint shall provide Operator Services to as
described below until, at CLEC's discretion, Sprint
routes calls to the CLEC Local Operator Services
platform.
6.1.3.3.1 Sprint agrees to provide CLEC
subscribers the same Operator Services available
to Sprint subscribers. Sprint shall make
available its service enhancements on a
non-discriminatory basis.
6.1.3.3.2 Operator Services provided to CLEC
subscribers shall be branded in accordance with
Section 11 of Part A of this Agreement.
<PAGE> 143
6.1.3.3.3 Sprint shall provide the following
minimum Operator Service capabilities to CLEC
subscribers:
6.1.3.3.3.1 Sprint shall complete 0+ and 0-
dialed local calls.
6.1.3.3.3.2 Sprint shall complete 0+
intraLATA toll calls.
6.1.3.3.3.3 Sprint shall complete calls
that are billed to a 0+ access calling
card.
6.1.3.3.3.4 Sprint shall complete
person-to-person calls.
6.1.3.3.3.5 Sprint shall complete collect
calls.
6.1.3.3.3.6 Sprint shall provide the
capability for callers to bill to a third
party and complete such calls.
6.1.3.3.3.7 Sprint shall complete
station-to-station calls.
6.1.3.3.3.8 Sprint shall process emergency
calls.
6.1.3.3.3.9 Sprint shall process Busy Line
Verify and Busy Line Verify and Interrupt
requests.
6.1.3.3.3.10 To the extent not prohibited
by law or regulation, Sprint shall process
emergency call trace.
6.1.3.3.3.11 Sprint shall process
operator-assisted directory assistance
calls.
6.1.3.3.3.12 Sprint shall provide basic
rate quotes, subject to Sprint's operator
systems being capable to perform unique
rating for CLEC.
6.1.3.3.3.13 Sprint shall process
time-and-charges requests, at parity with
Sprint's own service offerings.
6.1.3.3.3.14 Sprint shall route 0- traffic
directly to a "live" operator team.
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6.1.3.3.3.15 When requested by CLEC, Sprint
shall provide instant credit on operator
services calls as provided to Sprint
subscribers or shall inform CLEC
subscribers to call an 800 number for CLEC
subscriber service to request a credit.
Sprint shall provide one 800 number for
business subscribers and another for
residential subscribers.
6.1.3.3.3.16 Caller assistance for the
disabled shall be provided in the same
manner as provided to Sprint subscribers.
6.1.3.3.3.17 When available, Sprint shall
provide operator-assisted conference
calling.
6.1.3.4 Operator Service shall provide CLEC's local
usage rates when providing rate quote and
time-and-charges services, and subject to Section
6.1.3.3.3.13 above.
6.1.3.5 Operator Service shall adhere to equal access
requirements.
6.1.3.6 Sprint shall exercise the same level of fraud
control in providing Operator Service to CLEC that
Sprint provides for its own operator service.
6.1.3.7 Sprint shall query for Billed Number Screening
restrictions when handling Collect, Third Party, and
Calling Card Calls, both for station to station and
person to person call types.
6.1.3.8 Sprint shall provide at an aggregate level for
the operator service center, service measurements and
accounting reports to CLEC at parity with the service
measurements and accounting reports Sprint provides
itself or as otherwise mutually agreed by the parties.
6.1.3.9 CLEC or its designated representatives may
inspect any Sprint owned or sub-contracted office,
which provides Operator Services, upon five (5)
business days notice to Sprint.
6.1.3.10 Sprint shall direct CLEC subscriber account
and other similar inquiries to the subscriber service
center designated by CLEC.
<PAGE> 145
6.1.3.11 Sprint shall provide call records in
accordance with Section 4 of this Attachment VIII.
6.1.3.12 Sprint shall accept and process overflow 911
traffic routed from CLEC to the underlying platform
used to provide Operator Service where such overflow is
performed by Sprint for its subscribers.
6.1.3.13 Busy Line Verification and Busy Line Verify
and Interrupt:
6.1.3.13.1 Sprint shall permit CLEC to connect
its Local Operator Service to Sprint's Busy Line
Verification and Busy Line Verify and Interrupt
("BLV/BLVI").
6.1.3.13.2 Sprint shall engineer its BLV/BLVI
facilities to accommodate the anticipated volume
of BLV/BLVI requests during the Busy Hour. CLEC
may, from time to time, provide its anticipated
volume of BLV/BLVI requests to Sprint. In those
instances when the BLV/BLVI systems and databases
become unavailable, Sprint shall promptly inform
CLEC.
6.1.4 Directory Assistance and Listings Service Requests
6.1.4.1 These requirements pertain to Sprints DA and
Listings Service Request process that enables CLEC to
(a) submit CLEC subscriber information for inclusion in
Sprint Directory Assistance and Directory Listings
databases; (b) submit CLEC subscriber information for
inclusion in published directories; and (c) provide
CLEC subscriber delivery address information to enable
Sprint to fulfill directory distribution obligations.
6.1.4.1.1 Sprint shall accept orders on a
real-time basis via electronic interface in
accordance with OBF Directory Service Request
standards within 3 months of the effective date
of this Agreement. In the interim, Sprint shall
create a standard format and order process by
which CLEC can place an order with a single point
of contact within Sprint.
6.1.4.1.2 Sprint will provide to CLEC the
following Directory Listing Migration Options,
valid under all access methods, including but not
limited to, Resale, Unbundled Network Elements
and Facilities-Based:
6.1.4.1.2.1 Migrate with no Changes:
Retain all white page listings for the
subscriber in both DA and
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DL. Transfer ownership and billing for
white page listings to CLEC.
6.1.4.1.2.2 Migrate with Additions:
Retain all white page listings for the
subscriber in both DA and DL. Incorporate
the specified additional listings order.
Transfer ownership and billing for the
white page listings to CLEC.
6.1.4.1.2.3 Migrate with Deletions:
Retain all white page listings for the
subscriber in both DA and DL. Delete the
specified listings from the listing order.
Transfer ownership and billing for the
white page listings to CLEC.
6.1.4.1.2.4 To ensure accurate order
processing, Sprint or its directory
publisher shall provide to CLEC the
following information, with updates
promptly upon changes:
6.1.4.1.2.4.1 A matrix of NXX to
central office
6.1.4.1.2.4.2 Geographical maps if
available of Sprint service area
6.1.4.1.2.4.3 A description of
calling areas covered by each
directory, including but not limited
to maps of calling areas and
matrices depicting calling
privileges within and between
calling areas
6.1.4.1.2.4.4 Listing format rules
6.1.4.1.2.4.5 Listing alphabetizing
rules
6.1.4.1.2.4.6 Standard abbreviations
acceptable for use in listings and
addresses
6.1.4.1.2.4.7 Titles and
designations
6.1.4.1.2.4.8 A list of all
available directories and their
Business Office close dates
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6.1.4.1.3 Based on changes submitted by CLEC,
Sprint shall update and maintain directory
assistance and directory listings data for CLEC
subscribers who:
6.1.4.1.3.1 Disconnect Service
6.1.4.1.3.2 Change CLEC
6.1.4.1.3.3 Install Service
6.1.4.1.3.4 Change any service which
affects DA information
6.1.4.1.3.5 Specify Non-Solicitation
6.1.4.1.3.6 Are Non-Published, Non-Listed,
or Listed
6.1.4.1.4 Sprint shall not charge for storage of
CLEC subscriber information in the DA and DL
systems.
6.1.4.1.5 CLEC shall not charge for storage of
Sprint subscriber information in the DA and DL
systems.
6.1.5 Directory Listings General Requirements. CLEC
acknowledges that many directory functions including but not
limited to yellow page listings, enhanced white page
listings, information pages, directory proofing, and yellow
pages directory distribution are not performed by Sprint but
rather are performed by and are under the control of the
directory publisher. Sprint shall use reasonable efforts to
assist CLEC in obtaining an agreement with the directory
publisher that treats CLEC at parity with the publisher's
treatment of Sprint.
6.1.5.1 This Section 6.1.5 pertains to listings
requirements published in the traditional white pages.
6.1.5.2 Sprint shall include in its master subscriber
system database all white pages listing information for
CLEC subscribers in Sprint territories where CLEC is
providing local telephone exchange services.
6.1.5.3 Sprint agrees to include one basic White pages
listing for each CLEC customer located within the
geographic scope of its White Page directories, at no
additional charge to CLEC. A basic White Pages
listing is defined as a customer name, address and
either the CLEC assigned number for a customer or the
number for
<PAGE> 148
which number portability is provided, but not both
numbers. Basic White Pages listings of CLEC customers
will be interfiled with listings of Sprint and other
LEC customers.
6.1.5.4 CLEC agrees to provide CLEC customer listing
information, including without limitation directory
distribution information, to Sprint, at no charge.
Sprint will provide CLEC with the appropriate format
for provision of CLEC customer listing information to
Sprint. The parties agree to adopt a mutually
acceptable electronic format for the provision of such
information as soon as practicable. In the event OBF
adopts an industry-standard format for the provision of
such information, the parties agree to adopt such
format.
6.1.5.5 Sprint agrees to provide White Pages database
maintenance services to CLEC. CLEC will be charged a
Service Order entry fee upon submission of Service
Orders into Sprint's Service Order Entry System, which
will include compensation for such database maintenance
services. Service Order entry fees apply when Service
Orders containing directory records are entered into
Sprint's Service Order Entry System initially, and when
Service Orders are entered in order to process a
requested change to directory records.
6.1.5.6 CLEC customer listing information will be used
solely for the provision of directory services,
including the sale of directory advertising to CLEC
customers.
6.1.5.7 In addition to a basic White Pages listing,
Sprint will provide, at the rates set forth in
Attachment II of this Agreement, tariffed White Pages
listings (e.g., additional, alternate, foreign and
non-published listings) for CLEC to offer for resale to
CLEC's customers.
6.1.5.8 Sprint agrees to provide White Pages
distribution services to CLEC customers within Sprint's
service territory at no additional charge to CLEC.
Sprint represents that the quality, timeliness, and
manner of such distribution services will be at parity
with those provided to Sprint and to other CLEC
customers.
6.1.5.9 Sprint agrees to include critical contact
information pertaining to CLEC in the "Information
Pages" of those of its White Pages directories covering
markets in which CLEC is providing or plans to commence
providing local exchange service during the publication
cycle of such directories. Critical contact
information
<PAGE> 149
includes CLEC's business office number, repair number,
billing information number, and any other information
required to comply with applicable regulations, but not
advertising or purely promotional material. CLEC will
not be charged for inclusion of its critical contact
information. The format, content and appearance of
CLEC's critical contact information will conform to
applicable Sprint and/or directory publisher guidelines
and will be consistent with the format, content and
appearance of critical contact information pertaining
to all CLECs in a directory.
6.1.5.10 Sprint will accord CLEC customer listing
information the same level of confidentiality that
Sprint accords it own proprietary customer listing
information. Sprint shall ensure that access to CLEC
customer proprietary listing information will be
limited solely to those of Sprint and Sprint's
directory publisher's employees, agents and contractors
that are directly involved in the preparation of
listings, the production and distribution of
directories, and the sale of directory advertising.
Sprint will advise its own employees, agents and
contractors and its directory publisher of the
existence of this confidentiality obligation and will
take appropriate measures to ensure their compliance
with this obligation. Notwithstanding any provision
herein to the contrary, the furnishing of White Pages
proofs to a CLEC that contains customer listings of
both Sprint and CLEC will not be deemed a violation of
this confidentiality provision.
6.1.5.11 Sprint will include Carrier's customer listing
information upon request of any third parties to
purchase Sprint's customer listing information. Upon
receipt of such requests, Sprint and Carrier will work
cooperatively to address any payments for the sale or
license of Carrier customer listing information to
third parties. Any payments due to Carrier for its
customer listing information will be net of
administrative expenses incurred by Sprint in providing
such information to third parties. Sprint will
compensate Carrier on an annual basis. The parties
advantaged that the release of Carrier's customer
listing information to Sprint directory publisher will
not constitute the sale or license of Carrier customer
listing information causing any payment obligation to
arise pursuant to this subsection 6.1.5.11.
6.1.6 Other Directory Services. Sprint will exercise
reasonable efforts to cause its directory publisher to enter
into a separate agreement with CLEC which will address other
directory services desired by CLEC as described in this
Section 6.1.6. Both parties acknowledge that Sprint's
directory publisher is not a party to this Agreement and that
the provisions
<PAGE> 150
contained in this Section 6.1.6 are not binding upon Sprint's
directory publisher.
6.1.6.1 Sprint's directory publisher will negotiate
with CLEC concerning the provision of a basic Yellow
Pages listing to CLEC customers located within the
geographic scope of publisher's Yellow Pages
directories and distribution of Yellow Pages
directories to CLEC customers.
6.1.6.2 Directory advertising will be offered to CLEC
customers on a nondiscriminatory basis and subject to
the same terms and conditions that such advertising is
offered to Sprint and other CLEC customers. Directory
advertising will be billed to CLEC customers by
directory publisher.
6.1.6.3 Directory publisher will use commercially
reasonable efforts to ensure that directory advertising
purchased by customers who switch their service to
CLECs is maintained without interruption.
6.1.6.4 Information pages, in addition to any
information page or portion of an information page
containing critical contact information as described
above in Section 6.1.5.9 may be purchased from Sprint's
directory publisher, subject to applicable directory
publisher guidelines and regulatory requirements.
6.1.6.5 Directory publisher maintains full authority as
publisher over its publishing policies, standards and
practices, including decisions regarding directory
coverage area, directory issue period, compilation,
headings, covers, design, content or format of
directories, and directory advertising sales.
6.1.7 Directory Assistance Data
6.1.7.1 This section refers to the residential,
business, and government subscriber records used by
Sprint to create and maintain databases for the
provision of live or automated operator assisted
Directory Assistance. Directory Assistance Data is
information that enables telephone exchange CLECs to
swiftly and accurately respond to requests for
directory information, including, but not limited to
name, address and phone numbers. Under the provisions
of the Act and the FCC's Interconnection order, Sprint
shall provide unbundled and non-discriminatory access
to the residential, business and government subscriber
records used by Sprint to create and maintain databases
for the provision of live or automated operator
assisted Directory Assistance. CLEC may
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combine this element with any other Network Element for
the provision of any Telecommunications Service.
6.1.7.2 Sprint shall provide an initial load of
subscriber records via magnetic tape for Sprint,
included in its Directory Assistance Database within
sixty (60) days of the Effective Date of this
Agreement. The NPAs included shall represent the
entire Sprint operating region. The initial load
shall reflect all data that is current as of one
business day prior to the provision date.
6.1.7.3 Sprint shall provide CLEC a complete list of
LECs, CLECs, and independent Telcos that provided data
to Sprint for its DA database.
6.1.7.4 All directory assistance data shall be provided
in a mutually agreed format.
6.1.7.5 On the same schedule that Sprint updates its
database Sprint shall provide updates (end user and
mass) to the Directory Assistance Database via
electronic data transfer. Updates shall be current as
of one business day prior to the date provided to CLEC.
6.1.7.6 DA data shall specify whether the subscriber is
a residential, business, or government subscriber, to
the extent Sprint so marks its own DA database records
with such indication. Additionally, data must include
all levels of indentation and all levels of information
specified in "Directory Assistance Data Information
Exchanges and Interfaces" below, to the extent Sprint's
data is so formatted.
6.1.7.7 CLEC shall pay to Sprint charges for DA
listings and updates that are developed consistent with
the Act.
6.1.7.8 Sprint shall provide complete refresh of the DA
data upon request by CLEC and at CLEC's expense.
6.1.7.9 CLEC will designate the location to which the
data will be provided, and CLEC shall order DA data
from Sprint at a state/company level.
6.2 SYSTEMS INTERFACES AND EXCHANGES
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6.2.1 Directory Assistance Data Information Exchanges and Interfaces
6.2.1.1 Subscriber List Information
6.2.1.1.1 Sprint shall provide to CLEC, within
sixty (60) days after the Approval Date of this
Agreement, or at CLEC's request, all published
Subscriber List Information (including such
information that resides in Sprint's master
subscriber system/accounts master file for the
purpose of publishing directories in any format
as specified by the Act) via an electronic data
transfer medium and in a mutually agreed to
format, on the same terms and conditions and at
the same rates that the Sprint provides
Subscriber List Information to itself or to other
third parties. All changes to the Subscriber
List Information shall be provided to CLEC
pursuant to a mutually agreed format and
schedule. Both the initial List and all
subsequent Lists shall indicate for each
subscriber whether the subscriber is classified
as residence or business class of service.
6.2.1.1.2 CLEC shall provide directory listings
to Sprint pursuant to the directory listing and
delivery requirements in the approved OBF format,
at a mutually agreed upon timeframe. Other
formats and requirements shall not be used unless
mutually agreed to by the parties.
6.2.1.2 This section addresses data format requirements
and data inclusion requirements for directory
assistance data information exchange between Sprint and
CLEC. Sprint shall provide CLEC the following where
available:
6.2.1.2.1 List of NPA-NXXs relating to the
listing records being provided.
6.2.1.2.2 List of Directory Section names and
their associated NPA-NXX's.
6.2.1.2.3 List of Community Names expected to be
associated with each of the NPA-NXX's for which
listing records shall be provided.
6.2.1.2.4 List of Independent Company names and
their associated NPA-NXXs for which their listing
data is a part of
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Sprint's directory database, but Sprint is not to
provide the listing data to CLEC under this
request.
6.2.1.2.5 Listing volume totals by directory
section, NPA, and state.
6.2.1.2.6 Average daily update volume by
directory section, NPA, and state.
6.2.1.2.7 Identify any area wide or universal
service numbers which may be listed. Identify
the telephone number to be provided to callers
outside the servicing area.
6.2.1.2.8 Identify any listing condition(s)
unique to Sprint's serving area which may require
special handling in data processing in the
directory. Indented Listings (Captions) should
be identified and delivered and/or handled as
specified.
6.2.1.3 Considerations Relating to an Indented Listing
(Caption) Set Requirements
6.2.1.3.1 Use of line numbers, or other methods,
to ensure the integrity of the caption set and
identify the sequence or placement of a listing
record within the caption set. A sufficient
range of numbers between listing records is
required to allow for the expansion of the
caption set. A method is also required to
permit the caption header record to be
identified, but each level of indent is not
required to be recapped; placement of the indent
is based on line number. This method does
require stringent edits to ensure the integrity
of the caption set.
6.2.1.3.2 Use of guideline or recapped data to
identify previously established header and
sub-header records for placement of data within
the caption set. This permits flexibility to
easily expand the caption set. This method also
requires that, in addition to the caption header
record, each level of indent be recapped in order
to properly build the caption set.
6.2.1.3.3 CLEC requires listing instruction codes
on the service order which indicate how the set
is to appear in the published directory.
<PAGE> 154
6.2.1.4 Data Processing Requirements: Sprint and CLEC
shall mutually agree to standards on the following data
processing requirements:
6.2.1.4.1 Identify type of tape to be used in
sending the test and initial load data. For
example, reel or cartridge tape. Due to the
size of an initial load, it would be generally
expected to be on tape and the daily update
activity via another media, and via a mutually
agreed to timeframe, such as NDM.
6.2.1.4.2 Identify tape or dataset label
requirements.
6.2.1.4.3 Identify tracking information
requirements. For example, use of header and
trailer records for tracking date and time, cycle
numbers, sending and receiving site codes, volume
count for the given tape/dataset. It may also
be helpful to have some filler fields for future
use.
6.2.1.4.4 Identify dates on which the other party
should not expect to receive daily update
activity.
6.2.1.4.5 Data should be received in uppercase
and lowercase pursuant to OBF standards. An
asterisk (*) should be used to advise of the need
to apply the reverse capitalization rule.
However, if the provider determines to provide
the listing data from a database that has already
messaged the data and applied the capitalization
rules, the asterisk may be omitted.
6.2.1.4.6 Identify information that shall enable
CLEC to identify listings within an indented list
(caption) set. For example:
6.2.1.4.6.1 When a particular listing has
been designated to be filed as the first
listing for a given level (0-7) of indent -
usually out of alpha sequence.
6.2.1.4.6.2 When an alternate call listing
(e.g. If no answer) relates to multiple
preceding listings of the same level.
6.2.1.4.7 Identify any other pertinent
information needed to properly process the data.
<PAGE> 155
6.2.1.5 Listing Types
<TABLE>
<S> <C>
LISTED The listing information is available for all directory requirements.
NON-LISTED The listing information is available to all directory requirements, but the information does not appear
in the published street directory.
NON-PUBLISHED A directory service may confirm, by name and address, the presence of a listing, but the telephone number
is not available. The listing information is not available in either the published directory or
directory assistance.
</TABLE>
6.2.1.6 Listing Styles
<TABLE>
<CAPTION>
LISTING STYLE DESCRIPTION
<S> <C>
STRAIGHT LINE All listing information is formatted in a straight line. Data generally consists of Name, Address,
Community, and Telephone Number. Additional data may consist of dialing instructions or other general
information relating to the listing.
INDENTED LISTING Formatted with one listing header record and multiple
SET- indented listing records. See detailed description
CAPTION SET below.
INDENTED LISTING (CAPTION) SET
HEADER RECORD Contains listed name; address and telephone number
data fields are blank.
SUB-HEADER RECORD/ May contain name data only. Associated
LISTING subordinate records are required.
INDENTED NAME Contains name data, may or may not have address
LISTING data, and telephone number data.
INDENTED ADDRESS Contains address and telephone number data; the
LISTING name data text field is blank.
</TABLE>
<PAGE> 156
<TABLE>
<S> <C>
LEVEL OF INDENT Header record is zero (0), sub-header and indented
records range from 1 -6.
</TABLE>
6.2.1.7 Data Field Elements
Requirements for Initial Processing and Daily Update Activity
<TABLE>
<CAPTION>
DATA FIELD LENGTH DATA ELEMENT FIELD
<S> <C> <C>
ACTION CODE A = Add I = In Required: 1 alpha
D = Delete or O = Out character
RECORD NUMBER Sequentially assigned number to Required: 8 digits
each record for a given process
(test, initial load, or update
activity). Number assignment
begins with 00000001 and is
incremented by 1 for each record
on the file.
NPA Area code relating to the Required: 3 digits
directory section the record is
to be listed.
COMPANY IDENTIFIER The 4-character company code as Required: 4 digits
defined in Section 8 of the
National Exchange CLEC
Association, Inc. Tariff.
DIRECTORY SECTION Name of the directory section Required: Maximum
where the record is to be listed. of 50 alpha
characters
LISTING IDENTIFIER F = Foreign Optional: 1 alpha
C = Cross-Reference character
E = Enterprise (WX number
requiring operator assistance to
connect the call)
W = Wide area or universal service
FILE PLACEMENT B = Business (4) Required: Maximum
of 3
</TABLE>
<PAGE> 157
<TABLE>
<S> <C> <C>
R = Residence (1) alpha characters
G = Government (2)
BR = Business & Residence (5)
BG = Business & Government (6)
BRG = Business, Residence, & Government
(7)
LISTING TYPE L = Listed Required: Maximum
N = Non-Listed of 2 alpha
NP = Non-Published characters
ADVANCE LISTING AVL = Advance Listing Optional: 3 alpha
This is used when it is very close to characters
the Business Office close date and the
service is not actually established but
the subscriber needs to be in the
directory. Once the service is
established, a second order is placed
without the indicator and the listing
is established permanently and sent to
DA.
LISTING STYLE S = Straight line Required: 2 alpha
I = Indented listing set characters
CH = Caption Header
CS = Caption Sub-header
An Indented listing relates to either a
caption or Straight Line Under (SLU)
set listing.
INDENT LEVEL 0 = Non-indented record Required: 1 digit
1 - 6 = Level of indented record
ADDRESS For example: 123, A-123, 123-1/2 Optional: Maximum
HOUSE NUMBER of 20 alphanumeric
characters,
including hyphen,
space, and slash
ADDRESS For example: N, S, E, W, NE, SW, Optonal: Maximum of 5
PRE-DIRECTIONAL NORTH alpha characters
</TABLE>
<PAGE> 158
<TABLE>
<S> <C> <C>
ADDRESS STREET NAME For example: Main, Optional: Maximum
Peachtree-Dunwoody, HWY 75 at Exit of 100 alpha,
30 alphanumeric
characters,
including spaces
and hyphens.
ADDRESS SUFFIX OR For example: SUITE 160, ST, or WAY Optional: Maximum of 20
THOROUGHFARE numeric, alpha, or
alphanumeric characters
Optional: Maximum
ADDRESS POST of 5 alpha
DIRECTION For example: N, S, NE, SW characters
ADDRESS ZIP CODE 5-digits or ZIP + 4 Optional: Maximum
of 10 digits,
including the
hyphen when using
ZIP + 4
COMMUNITY NAME Identifies the name of the Maximum of 50
community associated with the alphanumeric
listing record. See Glossary for characters,
more details. including spaces
and hyphen
STATE NAME Identifies the state associated Maximum of 2 alpha
ABBREVIATION with the community name; characters
2-character state abbreviation used
by the US Postal Office.
INFORMATION TEXT Miscellaneous information relating Optional: Maximum
to the listing. Including, but of 250 alpha,
not limited to, for example: TOLL numeric, or
FREE DIAL 1 & THEN, CALL COLLECT, alphanumeric
or TDD ONLY. The various types of characters
Information Text must be identified
to CLEC.
NAME - FIRST WORD Surname of a Residence or Business Required for a zero
listing, or first word of a (0) level record.
Business or Government Listing Optional if an
Multi-word or hyphenated surnames indented (level
should be treated as one word. 1-8) record, unless
the name text
present in the
indented record
relates to a
Surname.
Maximum of 50 alpha,
</TABLE>
<PAGE> 159
<TABLE>
<S> <C> <C>
numeric,
alphanumeric, or
special characters.
NAME - SUBSEQUENT Given name and/or initial(s) of Expected if the
WORD(S) a Surname listing or Additional First Word is the
word(s) for a Business or Surname of a
Government listing Residence or
Business listing.
Maximum of 250
alpha, numeric,
special, or
alphanumeric
characters.
LINEAL DESCENT e.g. SR, JR, III. If Lineal Optional: Maximum
Descent data cannot be uniquely 10 alpha characters
identified, it should be
included with the Listed Name
Subsequent Word(s) data and
placed at the end of the name
data.
TITLE(s) e.g. MRS, LT COL, RET SGR, Optional: Maximum
DR. Multiple titles are of 20 alpha
acceptable. If title data characters
cannot be uniquely identified,
it should be included with the
Listed Name Subsequent Word(s)
data and placed at the end of
the name data stream. If
lineal descent is also in the
Listed Name Subsequent Word(s)
data field, title data should
be placed following the lineal
descent data.
DEGREE e.g. MD, CPA, PHD. Multiple Optional: Maximum
degrees are acceptable. If of 20 alpha
degree data cannot be uniquely characters
identified, it should be
included with the Listed Name
Subsequent Word(s) data and
placed at the end of the name
data stream. If lineal
descent and/or title data is
also present, it should follow
title data.
NICKNAME Another name the listed Optional: Maximum
subscriber may be known by. of 20 alpha
characters
BUSINESS Term used to identify the listed Optional: Maximum
of 50
</TABLE>
<PAGE> 160
<TABLE>
<S> <C> <C>
DESIGNATION subscriber's alpha characters
professional,
business, or
location, e.g.
ATTY, CARPETS, OFC
STANDARD TELEPHONE NPA NXX-LINE Optional: 12
NUMBER * characters,
including space and
hyphen
YELLOW PAGE CLEC shall provide
PUBLISHERS to Sprint the code
ASSOCIATION (YPPA) for the directory
in which the
listing is to be
placed.
NON-STANDARD Telephone numbers Optional: Minimum
TELEPHONE NUMBER * less than or more of 1 digit, maximum
than the standard of 22 characters,
telephone number. including spaces
</TABLE> and hyphens
*Either a Standard or Non-standard telephone is required for a zero level
record unless the record is a Cross-Reference listing or an Indented
Listing (caption) Set record. A telephone number may, or may not be
present on an Indented Listing Set record for level(s) 0-7.
6.3 SYSTEMS SECURITY
6.3.1 Sprint agrees to comply with industry accepted standards
which in large measure reflect common practices and proven
technology for protecting computer resources.
<PAGE> 161
PART C - ATTACHMENT IX
REPORTING STANDARDS
SECTION 1. GENERAL
1.1 Sprint shall satisfy all service standards, intervals,
measurements, specifications, performance requirements, technical
requirements, and performance standards (Performance Standards) that
are specified in this agreement or are required by law or
regulation. In addition, Sprint's performance under this Agreement
shall be provided to CLEC will be at Parity with the performance
Sprint provides itself for like service(s).
1.2 Sprint and CLEC agree that generally remedies at law alone
are adequate to compensate CLEC for any failures to meet the
Performance Standard requirements specified in this Agreement, or
for failures to provide Customer Usage Data in accordance with this
Agreement. However, CLEC shall have the right to seek injunctive
relief and other equitable remedies to require Sprint (I) to cause
the service ordered by CLEC to meet the Performance Standards
specified by the Agreement, (ii) install or provision service
ordered by CLEC within the Due Dates specified in this Agreement and
(iii) to provide Customer Usage Data in accordance with this
Agreement.
1.3 Sprint and CLEC agree that all financial remedies available
to end-user and access customers for same or like services will be
offered to CLEC. At such time that state or federal
commission-approved credits/financial remedies are put in place
between Sprint and any of its CLEC customers, Sprint would
renegotiate this arrangement where such arrangements exist.
SECTION 2. PARITY AND QUALITY MEASUREMENTS
2.1 Sprint will develop self-reporting capabilities comparing
Sprint results with CLEC results for the following measures of
service parity within 6 months, but no later than July 1, 1998, of
the Approval Date :
Percentage of Commitment Times Met - Service Order
Percentage of Commitment Times Met - Trouble Report
Trouble Reports per 100 Access Lines (Resale only)
Percent Repeated Trouble Reports
<PAGE> 162
In the event CLEC chooses to utilize the Sprint operator service platform
the following measures will be implemented within 6 months of the date of
first use by CLEC:
Average Toll Answer Time
Average Directory Assistance Answer Time
All above measures will be implemented in a manner that is
consistent with the current measures Sprint makes of its own
performance.
2.2 Sprint will develop and implement the following measures no
later than July 1, 1998:
PRE-ORDERING/ORDERING/PROVISIONING
Prompt Transmission of Customer Service Record (CSR)
Information
Prompt transmission of Firm Order Confirmation (FOC)
PLC Changes Completed Within 24 Hours
INTERCONNECTION
Trunk Orders on or Before the Committed Due Date
Firm Order Confirmation (FOC) time delivery
Rights of Way (ROW) Conduit and Pole Attachment Availability
Trouble Reports per 100 Access Lines (Loops)
MAINTENANCE AND REPAIR
Average Clearing Time - Out of Service
Average Call Answer Time - Repair Center
2.3 Sprint will develop and implement the following measures
within 1 year, but not later than January 1, 1999 of the Approval
Date:
PRE-ORDERING/ORDERING/PROVISIONING
<PAGE> 163
Disconnect Order Completion Interval
BILLING
Advance Notice of Late Billing Associated with the Wholesale
Bill
Delivery of Mechanized Customer Service Record (CSR) for
Wholesale Bill Verification
Charges Billed in Current Wholesale Bill Period for Flat
Rated Services
Charges Billed Within 90 days for Usage Charges
Financial Accuracy of local OCC Bills
Customer Usage Data - File Transfer
Customer Usage Data - Timeliness
Customer Usage Data - Accuracy
MAINTENANCE AND REPAIR
Percent Reporting Trouble Within 5 Days of the Date Installed
<PAGE> 1
EXHIBIT 10.31
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
by and between
KLT TELECOM INC.
and
DIGITAL TELEPORT, INC.,
Dated December 31, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of December 31, 1996, by and between DIGITAL TELEPORT, INC., a Missouri
corporation (the "Company"), KLT Telecom Inc., a Missouri corporation
("Purchaser") (Purchaser and the Company each a "Party" and together the
"Parties") and, for purposes of Section 8.3, Section 8.4 and Section 9.9 only,
Richard D. Weinstein ("Weinstein").
RECITALS
A. The Company wishes to issue and sell to Purchaser 300
shares (the "Purchased Shares") of a new series of voting preferred stock, $.01
par value (the "Preferred Stock") in substantially the form set forth in the
certificate of designations attached as Exhibit A ("Certificate of
Designations"), which will be convertible into 300 shares of the Company's
common stock, $.01 par value (the "Common Stock"), subject to adjustment, on the
terms and subject to the conditions hereinafter set forth, which would, if
issued at Closing, constitute 50% of the outstanding stock of the Company;
B. Purchaser wishes to purchase the Purchased Shares, on the
terms and subject to the conditions hereinafter set forth; and
C. Weinstein owns 100% of the issued and outstanding shares of
the common stock of the Company, consisting of 300 shares of common stock..
NOW, THEREFORE, in consideration of the recitals and the
mutual covenants, representations, warranties, conditions, and agreement
hereinafter expressed, the Parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 The Purchased Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at Closing, the Company shall issue and
sell to Purchaser and Purchaser shall purchase and accept from the Company the
Purchased Shares.
1.2 Consideration. The consideration that Purchaser shall pay
the Company for the Purchased Shares shall be Forty-Five Million Dollars
($45,000,000) (the "Purchase Price"). The Purchase Price shall be payable in the
following forms:.
(a) Cash ("Cash Portion") in an amount equal to the
$45,000,000 less (i) the outstanding principal of, and interest accrued to the
Closing on, the Promissory Note of the Company payable to the Purchaser dated
April 30, 1996, as amended July 16, 1996 and as amended hereby (the "DTI
Promissory Note"), (ii) the amount previously contributed in cash by Purchaser
as capital to KCDT LLC, a Delaware limited liability company ("KCDT"), and
2
<PAGE> 3
(iii) any outstanding principal of, and interest accrued to the Closing on, any
loan from the Purchaser to KCDT ("KCDT Loan"). The Cash Portion shall be paid
as specified in Section 6.5.
(b) The contribution, on a non-recourse basis, of the
DTI Promissory Note.
(c) The contribution , on a non-recourse basis, of
the KCDT Loan, if existing.
(d) The contribution, on a non-recourse basis, of all
of Purchaser's Interest in KCDT (as such term is defined in the Limited
Liability Company Agreement of KCDT LLC ("KCDT Operating Agreement"), including
without limitation the Percentage Interest (as such term is defined the KCDT
Operating Agreement.
1.3 Closing. The consummation of the transactions contemplated
hereby (the "Closing") shall take place at the offices of Bryan Cave, 3500 One
Kansas City Place, 1200 Main Street, Kansas City, Missouri 64105, at 10:00 a.m.
local time on February 14, 1997 (the "Closing Date"), or, at such earlier or
later time as the conditions to closing have been satisfied or waived, but in no
event later than March 14, 1997.
1.4 Deliveries of the Company at Closing. Subject to the
conditions of the Company's obligations in Article V, on or before the Closing
Date, the Company shall deliver to Purchaser:
(a) a certificate executed by the Secretary (the
"Secretary's Certificate") of the Company in the form and substance of Exhibit
1.4(a);
(b) a certificate executed by the President (the
"Officer's Certificate") of the Company in the form and substance of
Exhibit 1.4(b);
(c) a Shareholders Agreement executed by Weinstein
(the "Shareholders Agreement") in the form and substance of Exhibit 1.4(c);
(d) an opinion of the Company's counsel (the
"Company's Opinion") in the form and substance of Exhibit 1.4(d);
(e) a certificate evidencing and representing the
number of shares of Preferred Stock to be issued to the Company at Closing
(computed by dividing the amount paid in cash, plus the face amount of
contributions made by KLT at Closing, by $150,000);
(f) an executed Stock Purchase Agreement;
(g) an Employment Agreement executed by Weinstein
(the "Employment Agreement") in the form and substance of Exhibit 1.4(g);
(h) a Guaranty Agreement executed by Weinstein (the
"Guaranty Agreement") in the form and substance of Exhibit 1.4(h);
(i) a Stock Pledge Agreement executed by Weinstein
(the "Stock
3
<PAGE> 4
Pledge Agreement") in the form and substance of Exhibit 1.4(i);
(j) an original stock certificate representing all
the shares owned by Weinstein in the Company;
(k) a blank stock power in the name of Purchaser (the
"Stock Power") in the form and substance of Exhibit 1.4(k);
(l) a letter from the Missouri Highway and
Transportation Commission ("MHTC"), hereinafter referred to as the "MHTC
letter", stating that the Company is not in material default under that certain
Fiber Optic Cable on Freeways in Missouri Agreement, as amended, between MHTC
and the Company;
(m) a letter from Union Electric Company ("UE"),
hereinafter referred to as the "UE Letter", stating that the Company is not
in material default under that certain Network Services Agreement, as amended,
between UE and the Company, or that certain Agreement for the Provision of
Digital Transport Service, as amended between UE and the Company; provided that
UE shall not have to take any position, and may reserve all rights and remedies,
with respect to matters addressed in that certain letter dated November 18,
1996, from UE to the Company;
(n) a letter from MCIMetro Access Transmission
Services, Inc. ("MCI"), hereinafter referred to as the "MCI Letter", stating
that the Company is not in material default under that certain IRU Agreement
between the Company and MCI dated October 3, 1995;
(o) an executed Lease Agreement (the "Lease")
between the Company and Weinstein, in the form and substance of Exhibit 1.4(m).
1.5 Deliveries of Purchaser at Closing. Subject to the
conditions to Purchaser's obligations in Article IV, at Closing, on or before
the Closing Date, Purchaser shall:
(a) make the contributions to the Company specified
in Sections 1.2(b), 1.2(c) and 1.2(d);
(b) wire transfer to the Company in immediately
available funds, to an account designated by the Company, up to $4,000,000 (in
the discretion of the Company);
(c) deliver to the Company and Weinstein a
Shareholders' Agreement executed by Purchaser;
(d) a certificate executed by the Secretary of
Purchaser ("Purchaser Secretary's Certificate") of Purchaser in the form and
substance of Exhibit 1.5(d);
(e) a certificate executed by the President of
Purchaser (Purchaser "Officer's Certificate") the form and substance of Exhibit
1.5(e);
4
<PAGE> 5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and
warranties to Purchaser; each of which is true and correct on the date hereof:
2.1 Enforceable Agreement. The Company has the full legal
right, power and authority to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Company. This
Agreement is the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms. The Shares have been duly
authorized by the Company and, when issued and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable. The execution,
delivery and performance of this Agreement by the Company, and the consummation
by the Company of the transactions contemplated hereby does not require the
consent, waiver, approval, license or authorization of any person, entity or
public authority except for such approval as may be required by the Missouri
Public Service Commission and pursuant to the Hart-Scott Rodino Antitrust
Improvements Act of 1976; this Agreement does not, with or without the giving of
notice or the passage of time or both, violate any provision of law or the
corporate charter or bylaw of the Company, or conflict with or result in a
breach, termination or acceleration of any provision of, constitute a default
under, or result in the creation of any lien, claim, security interest or
encumbrance upon any of the assets and properties of the Company pursuant to any
mortgage, deed of trust, indenture or other agreement or instrument, or any
order, law, rule, regulation, judgment or decree or any other restriction of any
kind or character, to which the Company is a party or by which the Company or
any of its assets may be bound.
2.2 Capitalization and Related Matters. As of the date hereof,
the authorized capital stock of the Company consists solely of 1,550 shares of
stock, which consist of 1,000 shares of Series A Voting Common Stock, par value
$.01, 50 shares of Series B Non-Voting Common Stock and 500 shares of Preferred
Stock, par value $.01. At Closing, the authorized capital stock of the Company
shall consist solely of 1,000 shares of Common Stock, par value $.01, and 500
shares of Preferred Stock, par value $.01 per share. As of the date hereof, 300
shares of Series A Voting Common Stock are issued and outstanding and are held
of record by Weinstein. All of the issued and outstanding shares of Common Stock
were duly authorized and validly issued and are fully paid and non-assessable.
None of the Purchased Shares are subject to any preemptive rights of
shareholders of the Company, nor will any of them be issued in violation of any
right of first refusal or other similar right in favor of any person. Except as
set forth on Schedule 2.2, (a) there are no outstanding (i) other securities of
the Company, (ii) subscriptions, warrants, rights or options to acquire
securities of the Company, or (iii) any plans, understandings or agreements to
issue any such subscriptions, warrants, rights or options, or to otherwise
acquire any securities of the Company, and (b) the Company is not subject to any
obligation to issue, deliver, redeem, or otherwise acquire or retire the
Purchased Shares or any other securities of the Company.
2.3 Corporate Existence and Qualification. The Company is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Missouri; it is duly qualified and in good standing in each
foreign jurisdiction where such qualification is required, except where the
failure to so qualify and be in good standing will not have a material adverse
effect on the business, financial condition, operations or prospects of the
Company taken as a whole ("Material Adverse Effect"). The Company has the
corporate power and authority to own and use its properties and to transact the
business in which it is engaged.
5
<PAGE> 6
2.4 Affiliates. Except as set forth on Schedule 2.4, the
Company has no Affiliates. For purposes of this Agreement, an "Affiliate" of a
person means any person or entity which is controlling, controlled by, or under
common control with, directly or indirectly through any person or entity, the
person referred to, and, if the person referred to is a natural person, any
member of such person's family.
2.5 Property and Permits. Except as set forth on Schedule 2.5,
the Company is the sole owner of all right, title and interest in and to all
assets reflected on the Balance Sheet and all property, real and personal,
tangible and intangible, used by it in, or necessary for it to transact, the
business in which it is engaged, free and clear of all mortgages, security
interests, claims, restrictions, and other encumbrances, and there exists no
restriction on the use or transfer of such assets or property, in each case
except where such would not have a Material Adverse Effect. Except as set forth
on Schedule 2.5, and except as would not have a Material Adverse Effect, no
assets or property of the Company are in the possession of others and the
Company holds no property on consignment. Except as set forth on Schedule 2.5
and except as would not have a Material Adverse Effect, all tangible such assets
and property are in good condition and repair, ordinary wear and tear excepted,
and fit for their intended purpose, and are not in Material violation of
applicable zoning or other Law. Except as set forth on Schedule 2.5, the Company
holds all permits, licenses and other approvals necessary to conduct the
business in which it is engaged. There are no assets of the Company not
reflected on the Company's Balance Sheet in accordance with Generally Accepted
Accounting Principles ("GAAP").
2.6 Condition and Sufficiency of Assets - Network and
Equipment. Except as set forth on Schedule 2.6, the network and equipment of the
Company are structurally sound, are in good operating conditions and repair, and
are adequate for the uses to which they are being put, and none of such network
and equipment are in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that would not have a Material Adverse Effect.
2.7 Financial Statements.
(a) The Company has furnished or made available to
Purchaser (i) the balance sheet of the Company as of June 30, 1996 and
June 30, 1995, and the related statements of earnings, stockholders'
equity and changes in financial position or cash flow for the fiscal
years then ended and for the period from June 23, 1989 (inception) to
June 30, 1996, and all notes and schedules thereto (the "Annual
Financial Statements"), and (ii) the balance sheet of the Company as of
October 31, 1996, and the related statements of earnings and changes in
financial position for the period then ended, (the "Interim Financial
Statements"; together with the Annual Financial Statements, the
"Financial Statements"). The Annual Financial Statements have been
audited by Deloitte & Touche, independent public accountants.
(b) The Financial Statements, (i) present fairly, in
all material respects, the financial position, results of operations,
and cash flows of the Company at the dates and for the periods
indicated, and (ii) have been prepared in accordance with GAAP subject
to year-end audit adjustments.
(c) To the knowledge of the Company, the Company does
not have any liabilities or obligations (whether accrued, absolute,
contingent, unliquidated or otherwise), except as would not have a
Material Adverse Effect and except (i) as set forth in the Financial
Statements (including notes thereto) unless any such liabilities are
not required to be set forth therein in accordance with GAAP, (ii) as
set forth on Schedule 2.7, or (iii) to the extent they arise in the
ordinary course of the business of the Company and are not required to
be set forth in a Schedule hereto, and (iv) Taxes (defined below)
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<PAGE> 7
incurred since the date of the Balance Sheet.
2.8 Books and Records; Returns and Reports; Taxes. The books
and records of the Company fairly reflect, in accordance with GAAP, all
transactions relating to the Company and all items of income and expense, assets
and liabilities and accruals relating to the Company. The Company has not
engaged in any transaction, maintained any bank account or used any corporate
funds except for transactions, bank accounts and funds which have been and are
reflected in the normally maintained books and records of the Company.
2.9 Stock and Securities. Except for KCDT, the Company does
not own directly or indirectly the stock or the securities of any other
corporation nor does the Company own directly or indirectly any interest in a
general partnership, limited partnership, limited liability company, business
trust, joint venture, or any other entity.
2.10 Taxes. Except as set forth on Schedule 2.10:
(a) The Company timely has filed or caused to be
timely filed with the appropriate Government entity all federal, state,
local and foreign income franchise, excise, payroll, sales and use,
property and withholding tax returns and reports required to be filed
pursuant to any applicable federal, state, local and foreign tax laws
by or on behalf of the Company, including estimated tax and
informational returns ("Tax Returns") and no Tax Returns have been
amended. All Tax Returns are true, correct, and complete in all
material respects.
(b) All Taxes (whether or not reflected in Tax
Returns as filed) payable by the Company with respect to all periods
reflected on Tax Returns have been fully paid, and there are no grounds
for the assertion or assessment of any additional Taxes against the
Company or its assets with respect to such periods. All accrued, but
unpaid Taxes are properly reflected on the books of the Company.
(c) No Tax Returns of the Company are the subject of
an audit and there are no audits of any Tax Returns in process or
threatened. There is no waiver of any statute of limitations in effect
with respect to any Tax Returns.
(d) There are no tax liens, whether imposed by any
federal, state, local or foreign taxing authority, outstanding against
any of the assets, properties or business of the Company.
(e) As used in this Agreement, "Taxes" means all
taxes, charges, fees, levies, or other like assessments, including
without limitation income, gross receipts, ad valorem, value added,
premium, excise, real property, personal property, windfall profit,
sales, use, transfer, license, withholding, employment, payroll, and
franchise taxes imposed by the United States or any other nation,
state, or bilateral or multilateral governmental authority, any local
governmental unit or subdivision thereof, or any branch, agency, or
judicial body thereof ("government"); and shall include any interest,
fines, penalties, assessments, or additions to tax resulting from,
attributable to, or incurred in connection with any such Taxes or any
contest or dispute thereof.
2.11 Absence of Certain Changes or Events. Except for any
changes resulting or relating to the build-out of the KCDT network, since June
30, 1996, except as contemplated in this Agreement or set forth in the Financial
Statements or Schedule 2.11 hereto, there has not been:
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(a) Any change in the business, financial condition,
or operations of the Company taken as a whole that has resulted in a
Material Adverse Effect;
(b) Any declaration, setting aside, or payment of any
dividend or any distribution (in cash or in kind) to any shareholder of
the Company with respect to any securities of the Company, or any
direct or indirect redemption, purchase or other acquisition by the
Company of any of its securities;
(c) Any increase (other than increases in accordance
with past practice) in compensation or other remuneration payable by
the Company to or for the benefit of or committed to be paid to or for
the benefit of any shareholder, director, officer, agent, or employee
of the Company who received salary in fiscal year 1995 in excess of
$60,000, or in any benefits granted under any Plan with or for the
benefit of any such shareholder, director, officer, agent, or employee;
(d) Any material transaction entered into or carried
out by the Company other than in the ordinary course of business;
(e) Any borrowing or incurrence of any other
indebtedness, contingent or other, of a material amount by or on behalf
of the Company; or any endorsement, assumption, or guarantee of payment
or performance of any loan or obligation of any other person or entity
by the Company;
(f) Any material change made by the Company in its
methods of doing business or of accounting;
(g) Any grant by the Company of any mortgage,
security interest, or other encumbrance with respect to any of the
assets and property, real and personal, tangible and intangible, of the
Company (the "Property");
(h) Any sale, lease, or disposition of, or any
agreement to sell, lease, or dispose of, any of its Property other than
arm's-length sales, leases, or dispositions in the ordinary course of
business of the Company or which would not have a Material Adverse
Effect, to persons other than Affiliates of the Company or the Company;
(i) Any loan or advance made by the Company to any
person or entity except for advances not material in amount made in the
ordinary course of business to employees who are not Affiliates of the
Company; or
(j) disposed of or permitted to lapse any
Intellectual Property as defined in Section 2.14, except as would not
have an Material Adverse Effect;
(k) issued, sold or transferred any stock, bond,
debenture or other corporate security of the Company, whether newly
issued or held in treasury;
(l) experienced damage, destruction or loss (whether
or not covered by insurance) having a Material Adverse Effect;
(m) guaranteed the obligation of any person, firm or
corporation or other entity, except by the endorsement of negotiable
instruments for deposit or collection in the ordinary course of
business; or
(n) Any binding commitment or agreement by the
Company to do any
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of the foregoing items (b) through (m).
2.12 Compliance With Laws. The Company is in compliance with,
and not in breach or in default of, all applicable federal, state and local
laws, ordinances, rules and regulations relating to its business and assets and
properties except where such noncompliance, breach or default would not have a
Material Adverse Effect, and the Company is in compliance with the provisions of
its Articles of Incorporation or Bylaws. Without limiting the generality of the
foregoing:
(a) Permits and Licenses. Schedule 2.12 sets forth a
true, correct and complete list, and the Company has delivered to
Purchaser true, correct and complete copies, of all permits, licenses,
approvals, certifications and other authorizations (and the requests
and applications therefore) which the Company is required to hold to
own its assets and properties and/or conduct its business as currently
conducted, except where noncompliance would not have a Material Adverse
Effect. The Company has all permits, licenses, approvals,
certifications, or other authorizations to issue its shares of stock,
notes and other interests pursuant to the capitalization of the Company
as contemplated by this Agreement, and/or to otherwise consummate the
transactions contemplated by this Agreement, other than such approval
as is required by the Missouri Public Service Commission or pursuant to
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act").
(b) Compliance with Other Regulations and Court
Orders. The Company is not in violation of any order of any court of
law or equity or any regulatory or administrative body which has
jurisdiction over the Company ("Court Order") or other rule or
regulation, and the assets and properties of the Company have not been
used or operated by the Company or any other person or entity in
violation of any regulation or Court Order, except in any such case as
would not have a Material Adverse Effect. The Company has made all
filings or notifications required to be made by it under any rules or
regulations applicable to the Company, its businesses and/or its assets
and properties except where noncompliance would not have a Material
Adverse Effect. Neither the Company nor any director, officer, employee
or agent of, nor any consultant to, the Company has unlawfully offered,
paid, or agreed to pay, directly or indirectly, any money or anything
of value to, or for the benefit of, any individual who is or was a
candidate for public office, or an official or employee of any
governmental or regulatory body or authority or a director, officer or
employee of any client, customer or supplier of the Company.
2.13 Intellectual Property Rights. The Company has no patents,
patent rights, patent applications, trademarks, trademark applications, trade
names, service marks, copyrights (the "Intellectual Property"). The Company owns
or possesses adequate licenses or other rights to use all Intellectual Property
necessary to conduct the Company's business as now operated. No claim is pending
or, to the knowledge of the Company, threatened, alleging that the present or
past operations of the Company infringe or conflict with the asserted
Intellectual Property rights of others, and neither the Company nor any employee
or officer of the Company or any other party has any rights whatsoever in any of
the Intellectual Property.
2.14 Litigation. Except as set forth on Schedule 2.14, (a)
there is no suit, claim, litigation, proceeding (administrative, judicial, or in
arbitration, mediation or alternative dispute resolution), Government or grand
jury investigation, or other action (any of the foregoing, "Action") pending or,
to the knowledge of the Company, threatened against the Company or involving its
business, any of its Property, or, in connection with its business, any of its
shareholders, directors, officers, agents, or other personnel, including without
limitation any
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Action challenging, enjoining, or preventing this Agreement or the consummation
of the transactions contemplated hereby, and (b) the Company is not subject to
any order, writ, injunction, or decree of any court or other Government entity
("Order") other than Orders of general applicability.
2.15 Environmental Matters.
(a) Compliance With Environmental Regulations. the
Company has operated its business in compliance with all applicable
environmental statutes, regulations, orders, decisions and restrictions
of the United States of America (including state, county and
local-statutes, regulations, orders, decisions and restrictions) (the
"Environmental Regulations") except where noncompliance would not have
a Material Adverse Effect.
(b) Environmental Permits and Approvals. Schedule
2.15 sets forth a true, correct and complete list, and the Company has
delivered to Purchaser true, correct and complete copies, of all
permits and approvals held by the Company with respect to the
refinement, production, storage, handling, processing, disposal,
treatment, transportation, discharge or release of any Hazardous
Substances (as such term is defined below), as required for the
operation of the business of the Company as presently conducted or
which relate to the assets and properties (including without
limitation, any leasehold interests) of the Company. Schedule 2.15 sets
forth a true, correct and complete list of all of the waste dumps and
disposal sites used by the Company and the names of the entities
engaged in the handling, transportation and disposal of Hazardous
Substances from any property owned or leased by the Company. For
purposes of this Agreement the term "Hazardous Substances" shall mean
materials defined as "hazardous substances", "hazardous wastes" or
"solid wastes" under any of the Environmental Regulations.
(c) Environmental Proceedings. No reports have been
filed by the Company, or to the Company's knowledge, by others, with
respect to the Company or its assets or properties (including, without
limitation, any leasehold interests) disclosing the presence of any
Hazardous Substances upon or with respect to the Company or its
properties (including without limitation, any leasehold interest).
There has not been and is not now any suit, action, arbitration, legal,
administrative or regulatory proceeding pending or, to the best
knowledge of the Company, any pending investigation or threatened suit,
action, arbitration, legal, administrative or regulatory proceeding,
with respect to the Company, its assets or properties (including
without limitation, any leasehold interests), relating to the
refinement, production, storage, handling, processing, disposal,
treatment, transportation, discharge or release of Hazardous
Substances.
2.16 Contracts.
(a) Set forth on Schedule 2.16 is a list of each
written or oral contract, agreement, lease, indenture, and evidence of
indebtedness, to which the Company is a party or of which it is a
beneficiary which involves outstanding, contingent, or continuing
liability or obligation of or to the Company ("Contract") and which (i)
is material to the business, financial condition or operations of the
Company taken as a whole, (ii) involves (A) a guaranty, indemnity, or
power of attorney, or (B) a sharing of payments or joint venture, or
(iii) is not in the ordinary course of business of the Company.
(b) Each of the Contracts is a valid, binding and
enforceable obligation of the Company and, to the knowledge of the
Company, the other parties thereto. Except as indicated on Schedule
2.16, (i) the Company is not, and (ii) to the knowledge of the
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Company, no other party to a Contract is, in default under or
in breach or violation of any Contract, except where such default
breach or violation would not have a Material Adverse Effect, and no
event has occurred that, through the passage of time or the giving of
notice, or both, would constitute, and neither the execution of this
Agreement nor the Closing hereunder do or will constitute or result
in, such a default, breach or violation, cause the acceleration of any
obligation of any party thereto or the creation of a lien or
encumbrance upon any Property or the Purchased Shares, or require any
consent thereunder, except as would not have a Material Adverse
Effect.
2.17 Insurance. The Company has at all times maintained: (a)
general comprehensive liability insurance against such risks as are customarily
insured against by companies similar to the Company and in at least such amounts
as are usually carried by persons engaged in the same or a similar business, and
(b) insurance as required by law or under any agreement to which the Company is
or has been a party, including without limitation, unemployment and workers'
compensation coverage. A list of each such insurance policy is set forth on
Schedule 2.17. The Company is not in default with respect to its obligations
under any insurance policy maintained by it. To the knowledge of the Company,
all insurance coverage applicable to the Company, its business, assets and
officers and directors is in full force and effect, is valid, binding and
enforceable in accordance with its terms against the respective insurers,
insures the Company in reasonably sufficient amounts against all risks usually
insured against by persons operating similar businesses or properties in the
localities where such businesses or properties are located and has been issued
by insurers of recognized responsibility. To the knowledge of the Company, there
is no default under any such coverage nor has there been any failure to give
notice or present any claim under any such coverage in a due and timely fashion.
There are no outstanding unpaid premiums except in the ordinary course of
business and no notice of cancellation or nonrenewal of any such coverage has
been received. Except as otherwise disclosed in the Disclosure Documents, there
are no provisions in such insurance policies for retroactive or retrospective
premium adjustments. To the knowledge of the Company, no event has occurred
which reasonably might form the basis of any claim against the Company, its
business, assets or officers and directors or which might materially increase
the insurance premiums payable for any such coverage. Except as set forth on
Schedule 2.17, there are no outstanding performance bonds covering or issued for
the benefit of the Company.
2.18 Officers, Directors, Employees, and Consultants. Set
forth on Schedule 2.18 is a list of: (a) all current directors of the Company,
(b) all current officers (with office held) of the Company, (c) all employees
(active or other) of the Company, (d) all current paid consultants to the
Company, and (e) all retirees and terminated employees of the Company for which
the Company has any benefits responsibility or other continuing or contingent
obligation, together, in each case, with the current rate of compensation (if
any) payable to each.
2.19 Transactions With Related Persons. Except as set forth on
Schedule 2.19 hereto, the Company has no obligations, contractual or otherwise,
owed to or owing from, directly or indirectly, the Company or any Affiliate of
the Company. Except as set forth on Schedule 2.19, no director, officer,
Affiliate, or shareholder of the Company has any material financial interest,
direct or indirect, in any supplier or customer of, or other business which has
any significant transactions or other business relationship with, the Company.
2.20 Labor Matters.
(a) Except as to anything which would not result in a
Material Adverse Effect, the Company is in compliance with all
applicable federal, state and local laws and regulations respecting
employment and employment practices, and terms and conditions of
employment and wages and hours, including, without limitation, the
Immigration
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Control and Reform Act of 1986, minimum wage and overtime
payment laws, the Occupational Safety and Health Act of 1970, as
amended, and any state or local occupational health and safety laws and
unemployment and workers' compensation laws, the Worker Adjustment and
Retraining Notification Act, any other labor relations laws or
governmental regulations or policies promulgated thereunder, Title VII
of the Civil Rights Act of 1964, as amended, the Equal Employment
Opportunity Act of 1972, as amended, the Age Discrimination in
Employment Act, as amended or the Reconciliation Act of 1972, as
amended, and there is no unfair labor practice complaint against the
Company pending before the National Labor Relations Board or any
comparable state or local agency relating to the employees of the
Company.
(b) Collective Bargaining. No collective bargaining,
works council, union representation or other similar agreement
presently covers the employees of the Company, nor has any in the past
covered employees of the Company, nor is any currently being negotiated
by the Company and there is no labor strike, dispute, slowdown,
stoppage, solicitation of union authorization cards or union
certification petition actually pending or, to the knowledge of the
Company, threatened against or involving the Company.
(c) Except as set forth on Schedule 2.20:
(i) The Company is not and has not
engaged in any unfair labor practice which would result in a
Material Adverse Effect;
(ii) There is no labor strike, dispute,
slowdown, or stoppage pending or, to the knowledge of the
Company, threatened against the Company;
(iii) No right of representation exists
respecting the Company's employees;
(iv) No collective bargaining agreement is
currently being negotiated and no organizing effort is
currently being made with respect to the Company's employees;
and
(v) No current or former employee of the
Company has made or, to the knowledge of the Company
threatened to make a claim against the Company on account of
or for (A) overtime pay, other than overtime pay for the
current payroll period, (B) wages or salary (excluding current
bonus, accruals and amounts accruing under pension and
profit-sharing plans) for any period other than the current
payroll period, (C) vacation, time off or pay in lieu of
vacation or time off, other than that earned in respect of the
current fiscal year, or (D) any violation of any Law relating
to minimum wages or maximum hours of work.
2.21 Employee Benefit Matters.
(a) Except as set forth on Schedule 2.21, the Company
does not have outstanding and is not a party to or subject to liability
under: (i) any agreement, arrangement, plan, or policy that involves
(A) any pension, retirement, profit sharing, deferred compensation,
bonus, stock option, stock purchase, health, welfare, or incentive
plan; or (B) welfare or "fringe" benefits, including without limitation
vacation, severance, disability, medical, hospitalization, dental, life
and other insurance, tuition, company car, club dues, sick leave,
maternity, paternity or family leave, or other benefits; or (ii) any
employment, consulting, engagement, or retainer agreement or
arrangement (i) and (ii)
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together the "Plans" and each item thereunder a "Plan"). True, correct
and complete copies of all documents creating or evidencing any Plan
listed on Schedule 2.21 have been delivered to Purchaser. There are no
negotiations, demands or proposals which are pending or threatened or
which have been made since June 30, 1996, which concern matters now
covered, or that would be covered, by the foregoing types of agreement,
arrangement, plan or policy.
(b) Each Plan has been administered in compliance
with its terms, and, except as set forth on Schedule 2.21, in
compliance with, and the Company has no direct or indirect liability
under, the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or other Law applicable to any Plan. Each Plan that is
intended to qualify under Section 401(a) or Section 509(c)(9) of the
Code has received a favorable determination letter from the Internal
Revenue Service (a copy of which has been provided to Purchaser) and
related trusts have been determined to be exempt from taxation. Nothing
has occurred that would cause and no Action is pending or, to the
knowledge of the Company, threatened which could result in the loss of
such exemption or qualification.
(c) (i) The Company has not made any contributions to
any multi-employer plan (as defined in ERISA) or to any pension plan
subject to the minimum funding standards of ERISA or Title IV of ERISA,
(ii) the Company has never been a member of a controlled group which
contributed to any such plans; and (iii) the Company has never been
under common control with an employer which contributed to any such
plans.
(d) Nothing has occurred which would cause the loss
of qualification or exemption or the imposition of any liability,
penalty or tax under ERISA or the Code with respect to the operation of
any of the Benefit Plans. All amendments required to bring the Benefit
Plans into conformity with all of the applicable provisions of ERISA or
the Code have been made.
(e) The Company has not terminated or taken action
terminate any employee benefit plans.
(f) All of the Plans, to the extent applicable, are
in compliance with the continuation of health benefit provisions
contained in the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, and with Section 1862(b)(4)(A)(i) of the Social
Security Act, and the Company does not have any liability for any
excise tax imposed by Code Section 5000.
(g) There is no violation of ERISA with respect to
the filing of applicable reports and notices regarding the Benefit
Plans with the Secretary of Labor and the Secretary of the Treasury or
the furnishing of such documents to the participants or beneficiaries
of the Benefit Plans.
(h) There are no pending claims or lawsuits which
have been asserted or instituted against the assets of any of the
Benefit Plans or against any fiduciary of the Benefit Plans with
respect to the operation of the Benefit Plans.
(i) The Benefit Plans have been maintained in
accordance with their terms and with all provisions of ERISA thereto
and neither the Company, Weinstein nor any "party in interest" or
"disqualified person" with respect to the Benefit Plans has engaged in
a "prohibited transaction" within the meaning of Section 4975 of the
Code or
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Title I, Part 4 of ERISA.
(j) None of the Benefit Plans which are "employee
welfare benefit plans" within the meaning of Section 3(1) of ERISA
provides for continuing benefits or coverage after termination or
retirement from employment except as provided in the Consolidated
Omnibus Budget Reconciliation Act of 1985. Each such plan is in
compliance with the provisions of ERISA, the applicable provisions of
the Code and all other applicable law, except where such noncompliance
would not have a Material Adverse Effect.
2.22 Discrimination and Occupational Safety and Health. To the
knowledge of the Company, no person has any claim, or basis for any Action
against the Company arising out of any Law relating to discrimination in
employment or employment practices or occupational safety and health standards.
The Company has not received any notice from any person alleging a violation of
such law or occupational safety or health standards.
2.23 Disclosure. To the Company's knowledge, there are no
misleading misstatements in any of the representations and warranties made by
the Company in this Agreement or in any of the agreements, exhibits,
certificates and instruments delivered or to be delivered by the Company
pursuant to this Agreement, except as would not have a Material Adverse Effect,
and the Company has not omitted to state any fact necessary to make such
representations and warranties not misleading, except as would not have a
Material Adverse Effect. The Company has delivered the Disclosure Documents, and
to the Company's knowledge, the Company has delivered all documents in its
possession as requested by Purchaser's counsel pursuant to its correspondence
dated December 19, 1996 (the "Due Diligence Request"), a copy of which is
attached hereto as Schedule 2.23, except as would otherwise not have a Material
Adverse Effect.
2.24 Brokers, Finders. Except as set forth on Schedule 2.24,
no finder, broker, agent, or other intermediary, acting on behalf of the
Company, is entitled to a commission, fee, or other compensation or obligation
in connection with the negotiation or consummation of this Agreement or any of
the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and
warranties to the Company, each of which is true and correct on the date hereof:
3.1 Authorization. Purchaser is a Missouri corporation, duly
organized, validly existing and in good standing under the laws of Missouri.
Purchaser has all requisite power and authority to execute and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. This Agreement constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
3.2 Investment Representation.
(a) Purchaser recognizes that an investment in the
Company is highly speculative and involves significant risks.
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(b) Purchaser has been afforded the opportunity to
ask questions and receive answers concerning the terms and conditions
of its purchase of the Purchased Shares and to obtain any additional
information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to verify the accuracy
of the information set forth in this Agreement. No oral or written
statement or inducement which is contrary to the information set forth
in this Agreement has been made by or on behalf of the Company to
Purchaser.
(c) Purchaser is an "accredited investor" (as defined
in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Purchased
Shares.
(d) Purchaser (i) has adequate means of providing for
its current needs and possible contingencies, (ii) has no need for
liquidity in its investment, (iii) is able to bear the economic risks
of such investment, and (iv) at the present time, can afford a complete
loss of such investment.
(e) Purchaser is purchasing the Purchased Shares for
its own account, for investment purposes, and not for distribution,
assignment or resale to others. No other person has any direct or
indirect beneficial interest in the Purchased Shares.
(f) Purchaser understands that (i) there is and will
be no market for the Purchased Shares, (ii) the sale of such securities
has not been and will not be registered under the Securities Act or any
state securities laws in reliance on the exemption for nonpublic
offerings provided by Section 4(2) of the Act and Regulation D
promulgated thereunder and analogous state securities laws provisions,
and must be held indefinitely unless they are subsequently registered
under the Securities Act and applicable state securities laws or an
exemption from such registration is available, (iii) the Company is
under no obligation to register such securities on Purchaser's behalf
or to assist it in complying with any exemption from registration, and
(iv) such securities may not be sold pursuant to Rule 144 promulgated
by the Securities and Exchange Commission pursuant to the Securities
Act unless all of the conditions of that Rule are met.
(g) Purchaser understands that no Federal or state
agency has passed upon the Purchased Shares or made any finding or
determination as to the fairness of an investment therein or any
recommendation or endorsement thereof. Purchaser will not transfer the
Purchased Shares without registering or qualifying the same under
applicable state securities laws unless such transfer is exempt under
such laws.
(h) Purchaser has not relied upon any information or
representations and warranties of the Company with respect to its
investment in the Company except for the information, representations
and warranties expressly set forth in this Agreement and the Disclosure
Documents.
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(i) Purchaser is not any employee benefit plan,
pension plan, profit sharing plan, stock bonus plan, employee savings
plan, HR-10 or Keogh plan, or any plan or arrangement similar to any of
the foregoing (including a plan maintained for the benefit of
self-employed individuals or an individual retirement account or
annuity).
3.3 Projections. Purchaser understands that the financial
projections provided to them on December 18, 1996 represent only good faith
estimates by the Company. Purchaser understands that the Company cannot and does
not assure or guarantee the attainment of such projections, that the Company
makes no representations or warranties concerning such projections (and that no
representations or warranties herein should be read to imply otherwise), and
that there has been a delay in obtaining the equity investment assumed in such
projections. The foregoing should not be read to prevent the u se of Schedule
9.16 for purposes of Section 5(a) of the Certificate of Designations.
3.4 Governmental and Other Approvals. Except for filings under
the HSR Act, Purchaser is not required to give any notice to, make any filing
with or obtain any authorization, consent or approval of, any Government or
agency thereof or any other third party in order to consummate the transactions
contemplated by this Agreement.
3.5 No Sandbag. Purchaser has no knowledge of any breach by
the Company of its representations, warranties and covenants hereunder.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser at Closing shall be subject to
the satisfaction at Closing of each of the following conditions:
4.1 Hart-Scott. The waiting period specified under the HSR Act
shall have expired or earlier terminated, and any other necessary regulatory
approvals shall have been obtained (including without limitation from the
Missouri Public Service Commission).
4.2 Consents. The Company shall have delivered to Purchaser
the consents referred to in Sections 1.4 (l), (m), and (n);
4.3 Execution of Shareholders' Agreement. The Company and
Weinstein shall have executed and delivered the Shareholders' Agreement.
4.4 Weinstein Guaranty. Weinstein shall have executed and
delivered the Weinstein Guaranty.
4.5 Lease. The Company and Weinstein shall have entered into a
lease in substantially the form of Exhibit D hereto.
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4.6 Employment Agreement. The Company and Weinstein shall have
entered into the Employment Agreement.
4.7 Certificate of Designations. The Company shall have filed
the Certificate of Designations.
4.8 Delivery of Documents The documents to be delivered at the
Closing by the Company as set forth in Section 1.4 shall have been delivered.
4.9 Representations and Warranties True as of the Closing. The
representations and warranties of the Company contained in this Agreement or in
any schedule, certificate or document delivered by the Company to Purchase
pursuant to the provisions hereof shall have been true in all material respects
on the date hereof without regard to any schedule updates furnished by the
Company after the date hereof and shall be true in all material respects on the
Closing Date with the same effect as though such representations and warranties
were made as of such date.
4.10 Compliance with this Agreement. The Company shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
4.11 Closing Certificate. Purchaser shall have received a
certificate from the Company dated the Closing Date, certifying in such detail
as Purchaser may reasonably request that the conditions specified in Sections
4.9 and 4.10 hereof have been fulfilled and certifying that the Company has
obtained all consents and approvals required with respect to it.
4.12 Opinions of Counsel for Company. Bryan Cave LLP, counsel
for the Company, shall have delivered to Purchaser a written opinion, dated the
Closing Date, in the form of Exhibit 1.4(d) hereto with only such changes as
shall be in form and substance reasonably satisfactory to Purchaser and its
counsel.
4.13 No Threatened or Pending Litigation. On the Closing Date,
no suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or by pending before any court or governmental or
regulatory official, body or authority in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
or the consummation of the transactions contemplated hereby, and no
investigation that might result in any such suit, action or proceeding shall be
pending or threatened.
4.14 Key Company Arrangements. Each of the employees of the
Company mutually agreed by the Company and Purchaser shall have executed and
delivered an employment/confidentiality/non-compete agreement in a form mutually
agreed to by Purchaser and the Company.
4.15 Approval of Counsel; Corporate Matters. All actions,
proceedings, resolutions, instruments and documents required to carry out this
Agreement or incidental hereto
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<PAGE> 18
and all other related legal matters shall have been approved on the Closing date
by Shughart, Thomson & Kilroy. P.C., counsel for Purchaser, in the exercise of
their reasonable judgment. Company shall also have delivered to Purchaser such
other documents, instruments, certifications and further assurances as such
counsel may reasonable require.
ARTICLE V
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligations of the Company at Closing shall be subject to
the satisfaction at the Closing of the following conditions:
5.1 Hart-Scott. The waiting period specified under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 shall have expired or
earlier terminated.
5.2 Execution of Shareholders' Agreement. Purchaser shall have
executed a Shareholders' Agreement in substantially the form attached hereto.
5.3 Delivery of Purchase Price Purchaser shall have delivered
such portion and form of the Purchase Price as required by Section 1.5.
5.3 Delivery of Documents The documents to be delivered at the
Closing by the Purchaser as set forth in Section 1.5, shall have been delivered.
5.4 Representations and Warranties True as of the Closing. The
representations and warranties of the Purchaser contained in this Agreement or
in any schedule, certificate or document delivered by Purchaser to the Company
pursuant to the provisions hereof shall have been true in all material respects
on the date hereof without regard to any schedule updates furnished by the
Purchaser after the date hereof and shall be true in all material respects on
the Closing Date with the same effect as though such representations and
warranties were made as of such date.
5.5 Compliance with this Agreement. Purchaser shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
5.6 Closing Certificate. The Company shall have received a
certificate from Purchaser dated the Closing Date, certifying in such detail as
the Company may reasonably request that the conditions specified in Sections 5.4
and 5.5 hereof have been fulfilled and certifying that Purchaser has obtained
all consents and approvals required with respect to it.
5.7 Opinions of Counsel for Purchaser. Counsel for Purchaser,
shall have delivered to the Company a written opinion, dated the Closing Date,
in the form of Exhibit 5.7 hereto with only such changes as shall be in form and
substance reasonably satisfactory to the Company and its counsel.
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<PAGE> 19
5.8 No Threatened or Pending Litigation. On the Closing Date,
no suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or by pending before any court or governmental or
regulatory official, body or authority in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
or the consummation of the transactions contemplated hereby, and no
investigation that might result in any such suit, action or proceeding shall be
pending or threatened.
5.9 Key Company Arrangements. Each of the employees of the
Company mutually agreed by the Company and Purchaser shall have executed and
delivered an employment/confidentiality/non-compete agreement in a form mutually
agreed to by Purchaser and Company.
5.10 Approval of Counsel; Corporate Matters. All actions,
proceedings, resolutions, instruments and documents required to carry out this
Agreement or incidental hereto and all other related legal matters shall have
been approved on the Closing date by Bryan Cave L.L.C., counsel for the Company,
in the exercise of their reasonable judgment. Purchaser shall also have
delivered to the Company such other documents, instruments, certifications and
further assurances as such counsel may reasonable require.
ARTICLE VI
COVENANTS
6.1 Financial Statements and Other Information. So long as the
Purchaser shall be a shareholder, the Company shall furnish to the Purchaser and
each such subsequent holder:
(a) within 120 days after the end of each fiscal year
of the Company, a consolidated balance sheet of the Company as of the
end of such fiscal year and the related consolidated statements of
operations, changes in stockholders' equity and cash flows of the
Company for the fiscal year then ended, together with supporting notes
thereto, audited and certified in accordance GAAP by a firm of
independent public accounts of recognized national standing selected by
the Company; and
(b) within 30 days after the end of each month, a
consolidated balance sheet of the Company and its subsidiaries and the
related consolidated statements of operations and cash flows of the
Company, unaudited and subject to normal year-end adjustments, such
balance sheet to be as of the end of such month and such statements of
operations and cash flows to be for such month (with a comparison to
budget for such month) and for the period from the beginning of the
fiscal year to the end of such month (with a comparison to budget for
such period), and shall be accompanied by a narrative explanation of
the results;
6.2 Business Plan By the beginning of the first month of each
fiscal year, the Company shall submit a business plan for that year, including a
detailed projected income
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<PAGE> 20
statement, balance sheet, and cash flow by month, along with a general business
and market forecast for the year. The business plan shall be formally approved
by the Board of Directors by unanimous vote.
6.3 Conduct Prior to Closing. All financing or financing
commitments (debt or equity) of the Company, between the date hereof and the
earlier of (i) the termination of this Agreement, or (ii) Closing, shall be
approved by Purchaser in its sole discretion. (It is understood that, pursuant
to the Shareholder's Agreement, Purchaser shall have also have the right to
approve all financing and financing commitments which would close after
Closing).
6.4 Cooperation. Each Party shall reasonably cooperate, as to
matters under such Party's control, in the satisfaction of conditions to the
obligations of the Parties at Closing; provided that the foregoing shall not
require either Party to waive any material condition herein to its obligations
at Closing or to incur any substantial cost not otherwise required hereunder.
6.5 Payment of Purchase Price.
(a) Purchaser shall pay up to $4 million of the Cash Portion
at Closing (in the discretion of the Company). The Company shall pay the balance
of the Cash Portion as needed to fund the Company's activities, provided that at
least twenty (20) days prior to the date of each draw THE COMPANY shall provide
Purchaser with a verified statement signed by Weinstein that 70% or more of the
Purchase Price, other than expenses of the Company incurred in connection with
the Company's financing efforts (not to exceed $1,000,000) ("Financing
Expenses"), has been used directly by the Company in property, plant and
equipment. the Company shall provide Purchaser with an itemization of the
Financing Expenses at Closing.
(b) Upon each payment specified in Section 6.5(a), the Company
shall issue a Preferred Stock certificate for a number of shares equal to the
payment divided by $150,000.
6.6 Key-Man Life Insurance. At Closing, the Company shall
provide evidence of a $10 million of key-man life insurance on the life on
Weinstein. Following Closing, the Company shall maintain such insurance as long
as such coverage is reasonably available.
6.7 Amendment of Articles Prior to Closing, the Company shall
amend its articles of incorporation to require that it shall take a vote of
shares holding at least 90% of the voting power of the Company's voting stock to
approve the actions set forth in the Shareholder Agreement as requiring the
approval of both the Company and Purchaser as shareholders.
6.8 Termination of Lending Contemporaneously with the
execution of this Agreement, the Company shall verify in writing that it has
canceled the financing commitment from the Company dated December 24, 1996.
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<PAGE> 21
6.9 Energy Services Following the Closing, Purchaser shall
have the right of first offer from the Company concerning ENERGY SERVICES rights
and contracts in the entire the Company service area. Prior to Closing, the
Company shall make no agreement or take any action inconsistent with this
covenant.
6.10 Status Reports Following the Closing, the Company shall
provide Purchaser weekly with the Company weekly status reports on the build-out
of the Company fiber optic network for the 30 months following Closing or lesser
time as approved by Purchaser.
6.11 Non-Voting Common Stock Prior to Closing, the Company
shall amend its articles to eliminate the Company's Class B non-voting common
stock.
ARTICLE VII
RESTRICTED SECURITIES
7.1 Legend. Any shares of Preferred or Common Stock acquired
by Purchaser pursuant to this Agreement (and any securities issued with respect
thereto as a result of a stock dividend or stock split, or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization) shall be imprinted with a legend in substantially the following
form:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES ACTS, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO
THE REGISTRATION PROVISIONS OF SUCH ACTS OR AN EXEMPTION THEREFROM. THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER CONTAINED IN A CERTAIN STOCK PURCHASE
AGREEMENT AND A CERTAIN SHAREHOLDERS AGREEMENT, BY AND AMONG THE
COMPANY AND THE PURCHASER OF SUCH SHARES, COPIES OF WHICH ARE AVAILABLE
AT THE PRINCIPAL OFFICES OF THE COMPANY.
7.2 Transfer of Common Stock.
(a) Any Common Stock acquired by Purchaser pursuant
to this Agreement (and any securities issued with respect thereto as a
result of a stock dividend or stock split, or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization) ("Restricted Securities") shall be transferred only in
compliance with the Shareholder's Agreement.
(b) The transfer of the Restricted Securities shall
be subject to and shall comply with, all applicable federal and/or
state securities laws.
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<PAGE> 22
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by the Company The Company will indemnify
and hold harmless Purchaser, and its affiliates, partners,
shareholders, directors, officers, employees, agents and assigns from
and against any and all losses, liabilities, damages, actions, costs
and expenses (including without limitation reasonable attorney fees and
expenses) (collectively "Losses") resulting from the breach by the
Company of its representations, warranties and covenants contained
herein.
8.2 Indemnification by Purchaser. Purchaser will indemnify and
hold harmless the Company and its affiliates, partners, shareholders,
directors, officers, employees, agents and assigns from and against any
and all Losses resulting from the breach by the Purchaser of its
representations, warranties and covenants contained herein.
8.3 Indemnification by Weinstein Weinstein will indemnify
Purchaser and the Company for any and all Losses resulting from
judgments and awards rendered against the Company in the matter of
Alfred H. Frank v. Richard D. Weinstein and Digital Teleport, Inc.,
filed in the Circuit Court of St. Louis County.
8.4 Dispute Resolution. In the event Purchaser makes a claim
against Company pursuant to Section 8.1 above, then Purchaser shall
make written demand first against the Company for the Losses. If the
Losses are not paid by Company within thirty (30) days of said written
notice to Company, then a dispute ("Dispute") shall be deemed to exist
between the Purchaser and Company in regard to said Losses. All
Disputes and other matters in question between the parties hereto
arising out of or relating to the Losses will be decided by arbitration
in Kansas City, Missouri, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then existing, subject to
the limitations and restrictions stated in subparagraphs (a), (b), (c)
and (d) below. This agreement so to arbitrate and any other agreement
or consent to arbitrate entered into in accordance herewith as provided
in this subsection will be specifically enforceable under the
prevailing law of any court having jurisdiction.
(a) Notice of demand for arbitration must be filed in
writing with the other parties to this Agreement and with the American
Arbitration Association. The demand must be made within a reasonable
time after the Dispute or other matter in question has arisen. In no
event may the demand for arbitration be made after the date when
institution of legal or equitable proceedings based on such Dispute or
other matter in question would be barred by the applicable statute of
limitations or the survival provisions of Section 9.4 of this
Agreement.
(b) Weinstein shall receive notice of any arbitration
proceeding pursuant to this Section 8.4 and Weinstein shall have the
right to participate in any such
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<PAGE> 23
arbitration proceeding and/or assume the defense of the Company at
Weinstein's sole cost and expense.
DTI and Weinstein shall have the right to assert any
counter-claim, set-off, waiver or any other defenses in law or equity,
in any such arbitration proceeding.
(c) The award rendered by the arbitrator will be
final, judgment may be entered upon it in any court having jurisdiction
thereof, and will not be subject to modification or appeal except to
the extent permitted by Sections 10 and 11 of the Federal Arbitration
Act (9 U.S.C. Section 10, 11), as amended.
(d) The Dispute shall be heard by a single arbitrator
who shall decide the Dispute within sixty (60) days of the filing of
the Dispute with the American Arbitration Association. Upon a
determination by the arbitrator of the Dispute in favor of Purchaser,
and after a period of one hundred and fifty (150) days, if Company does
not pay any award to Purchaser, then Weinstein shall surrender his
stock in the Company to Purchaser in accordance with the terms and
conditions of the Guaranty Agreement and Pledge Agreement.
8.5 Limitation. The liability of the Company under this
Agreement shall be limited to the Purchase Price paid by Purchaser
hereunder, plus interest and expenses of litigation (including
reasonable attorney's fees).
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Confidentiality.
(a) For purposes of this Agreement, "Confidential
Information shall mean all information, in whatever form transmitted,
relating to the past, present or future business affairs of the
Company, including without limitation, research, development, or
business plans, operations or systems of the Company or another party
whose information the Company has in its possession under obligations
of confidentiality, which (a) is disclosed by the Company or its
Affiliates to Purchaser or its Affiliates, bearing an appropriate
legend indicating its confidential or proprietary nature or otherwise
disclosed in a manner consistent with its confidential or proprietary
nature, or (b) is produced or developed during the working relationship
between the parties hereto and which would, if disclosed to competitors
of the Company, give such competitors an advantage (or increase such
advantage) over the Company or diminish the Company's advantage over
such competitors. "Confidential Information" includes all information
that would be confidential information pursuant to the existing
confidentiality agreement between the Company and Purchaser.
"Confidential Information" shall not include any information
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<PAGE> 24
of the Company that: (i) is or becomes publicly known through no
wrongful act of Purchaser; (iii) is independently developed by
Purchaser without the use of other Confidential Information, (iv) is
communicated to a third party with the express written consent of the
Company, or (v) is lawfully required to be disclosed to any
governmental agency or is otherwise required to be disclosed by law,
provided that before making such disclosure Purchaser shall give the
Company an adequate opportunity to interpose an objection or take
action to assure confidential handling of such information.
(b) Each party agrees to provide to the other party
such information (including Confidential Information) as shall be
necessary to permit the performance of their respective obligations
hereunder. The Company and Purchaser shall not disclose any
Confidential Information it receives from the Company to any person
except (i) employees of Purchaser and its Affiliates who have a need to
know and who have been informed of Purchasers obligations under this
Agreement and (ii) employees of the Company and its Affiliates who have
a need to know and who have been informed of the confidential nature of
the information. Purchaser shall use not less than the same degree of
care, and in any event not less than reasonable care, to avoid
disclosure to such Confidential Information as Purchaser uses for its
own confidential information of like importance.
(c) All Confidential Information that is disclosed in
tangible form by the Company to Purchaser under this Agreement
(including without limitation documents, writings, designs, drawings,
specifications and information incorporated in computer software or
held in electronic storage media) shall be and remain the property of
the Company. All such Confidential Information shall be returned to the
Company or destroyed promptly upon written request and shall not
thereafter be retained in any form by Purchaser. The rights and
obligations of the parties under this Agreement shall survive any such
return or destruction of Confidential Information.
(d) The parties agree that, in the event of a breach
or threatened breach of the terms of this Article, the Company shall be
entitled to an injunction prohibiting any such breach. Any such relief
shall be in addition to and not in lieu of any appropriate relief in
the way of money damages. The parties acknowledge that Confidential
Information is valuable and unique and that disclosure in breach hereof
will result in irreparable injury to the Company.
9.2 Further Assurances. From and after the Closing, the
Parties shall do such acts and execute such documents and instruments as may be
reasonably required to make effective the transactions contemplated hereby.
9.3 Notice. All notices, requests, demands, and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given and made upon being delivered either
in person or by nationally recognized courier or by fax delivery to the Party
for whom it is intended, provided that a copy thereof is deposited, postage
prepaid, certified or registered mail, return receipt requested, in the United
States mail,
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<PAGE> 25
bearing the address shown in this Section 9.3 for, or such other address as may
be designated in writing hereafter by, such Party:
If to the Company:
Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, MO 63043
Fax: 314-253-6699
Attn: Richard D. Weinstein
With a copy to:
Richard D. Weinstein
11111 Dorsett Road
St. Louis, MO 63043
Fax: 314-253-6699
Attn: Richard D. Weinstein
With a copy to:
Bryan Cave LLP
One Metropolitan Square
Suite 3600
211 N. Broadway
St. Louis, MO 63102
Fax: 314-259-2020
Attn: J. Mark Klamer
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<PAGE> 26
If to Purchaser:
KLT Telecom Inc.
1201 Walnut
Kansas City, Missouri 64106
Fax: 816-556-2802
Attn: Ronald G. Wasson
With a copy to:
KLT Inc.
1201 Walnut
Kansas City, Missouri 64106
Fax: 816-556-2802
Attn: General Counsel
With a copy to:
Shughart Thomson & Kilroy
Twelve Wyandotte Plaza
120 West 12th Street
Kansas City, Missouri 64105
Fax: 816-374-0509
Attn: Robert E. Fitzgerald
9.4 Survival. All representations and warranties contained
herein shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby for a period of three
years. All covenants contained herein shall survive the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
for as long as Purchaser is a shareholder of the Corporation.
9.5 Entire Agreement. This Agreement, the Shareholders
Agreement and the Guaranty embody the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements and understandings relative to such subject
matter.
9.7 Assignment; Binding Agreement. This Agreement and various
rights and obligations arising hereunder shall inure to the benefit of and be
binding upon Purchaser, its successors, and permitted assigns and the Company,
its successors and permitted assigns. Neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be transferred, delegated, or
assigned (by operation of law or otherwise) by either of the Parties hereto
without the prior written consent of the other Party (which consent shall not be
unreasonably withheld), except that Purchaser shall have the right to transfer
and assign its rights hereunder to purchase the Purchased Shares and any other
rights or benefits afforded to it by this
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<PAGE> 27
Agreement to any entity which at the time of such transfer and assignment is
controlled by Purchaser.
9.8 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
9.9 Incorporators, Shareholders, Officers, Directors and
Employees Free From Personal Liability. No recourse under or upon any
obligation, covenant or agreement of this Agreement , other than Section 8.3 and
Section 8.4, will be had against any incorporator, shareholder, officer,
director, or employee, as such, past, present or future, of the Company or
Purchaser, or of any predecessor or successor entities, whether by virtue of any
constitution, statute, or rule of law, or by the enforcement of any assessment
or penalty or otherwise, it being expressly understood that this Agreement,
except for Section 8.3 and Section 8.4, is solely a corporate obligation, and
that no such personal liability whatsoever will attach to, or is or will be
incurred by, the incorporators, shareholders, officers, directors or employees,
as such, of the Company or Purchaser, or of any predecessor or successor
entities, under or by reason of the obligations, covenants, or agreements
contained in this Agreement and the documents referred to herein, except for
Section 8.3, Section 8.4. For purposes of the foregoing sentence, the term
"Agreement" shall not refer to any agreement set forth as an exhibit hereto
incorporated herein by reference and to which any incorporator, shareholder,
officer, director, or employee is a party in his or her personal capacity.
9.10 Knowledge. For purposes of this Agreement, "to the
Company's knowledge", "to the knowledge of the Company" or "to the best
knowledge of the Company" (or words of similar meaning) shall mean to the
knowledge of Richard D. Weinstein, as Chairman, President, Chief Executive
Office and sole shareholder of the Company. For purposes of this Agreement, "to
Purchaser's knowledge", "to the knowledge of Purchaser" or "to the best
knowledge of the Purchaser" (or words of similar meaning) shall mean to the
knowledge of Ronald G. Wasson as President of Purchaser and James Gilligan as
director and employee of Purchaser.
9.11 Schedules. The following documents ("Disclosure
Documents") are deemed to be incorporated into each of the schedules of this
Agreement: (i) the documents referenced in the data room index, a copy of which
is attached as Schedule 9.11(a); (ii) the documents referenced in Schedule
9.11(b); (iii) the documents set forth in Schedule 2.24; and (iv) the proposed
amendment with one of the Company's major customers.
9.12 Counterparts. This Agreement may be executed
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
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<PAGE> 28
9.13 Headings; Interpretation. The article and section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of the Agreement. Each
reference in this Agreement to an Article, Section, Schedule or Exhibit, unless
otherwise indicated, shall mean an Article or a Section of this Agreement or a
Schedule or Exhibit attached to this Agreement, respectively. References herein
to "days", unless otherwise indicated, are to consecutive calendar days. Both
Parties have participated substantially in the negotiation and drafting of this
Agreement and agree that no ambiguity herein should be construed against the
draftsman.
9.14 Termination of the Agreement. This Agreement may be
terminated without further liability or obligation, except for those liabilities
and obligations which expressly survive such termination,
(a) by either Party if a material breach of any
provision of this Agreement has been committed by the other Party and
such breach has not been waived;
(b) by mutual consent of the Parties; or
(c) by either Party if the Closing has not occurred
(other than through the failure of any Party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on
or before March 14, 1997, or such later date as the Parties may agree
upon.
9.15 Incorporation of Exhibits,
All of the exhibits hereto are hereby incorporated by
reference.
9.16 Quarterly EBITDA Targets
The quarterly EBITDA Targets referenced in the Certificate of
Designations is set forth in Schedule 9.16 hereto.
9.17 Governing Law.
This Agreement shall in all respects be construed in
accordance with and governed by the substantive laws of the State of Missouri,
without reference to its choice of law rules.
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<PAGE> 29
THIS AGREEMENT CONTAINS A BINDING ARBITRATION
PROVISION WHICH MAY BE ENFORCED BY THE PARTIES
IN WITNESS WHEREOF, each of the Parties hereto has
caused this Agreement to be executed as of the date first above
written.
KLT TELECOM INC:
By: /s/ R. G. Wasson
--------------------------------
Ronald G. Wasson
President
DIGITAL TELEPORT, INC.
By: /s/ Richard D. Weinstein
--------------------------------
Richard D. Weinstein,
President
* * *
Schedules to this Exhibit have been omitted in accordance with Regulation S-K
of the Commission. The omitted materials set forth the factual representations
and other factual exceptions to representations and ancillary agreements
relating to the transaction as set forth in Articles I and II herein. The
Registrant hereby agrees to furnish any such omitted schedule to the Commission
upon request.
29
<PAGE> 1
EXHIBIT 10.32
DIGITAL TELEPORT, INC.
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (the "Amendment")
dated as of February 12, 1998, by and among DIGITAL TELEPORT, INC. (the
"Company"), a Missouri corporation, DTI HOLDINGS, INC., a Missouri corporation
which wholly owns the Company, RICHARD D. WEINSTEIN ("Weinstein"), an
individual, and KLT TELECOM INC. ("KLT"), a Missouri corporation.
WITNESSETH:
WHEREAS, the Company and KLT (and, for limited purposes, Weinstein)
entered into that certain Stock Purchase Agreement, dated as of December 31,
1996 (the "Stock Purchase Agreement");
WHEREAS, the parties thereto desire to amend the Stock Purchase
Agreement as provided herein;
NOW, THEREFORE, Weinstein, KLT and the Company agree as follows:
1. Section 8.3. Section 8.3 of the Stock Purchase Agreement is, effective
as of the date hereof, amended to read in its entirety as follows:
"8.3 Indemnification by Weinstein. Weinstein will indemnify Purchaser,
the Company and DTI Holdings, Inc. ("Holdings") for any and all Losses resulting
from judgments and awards rendered against the Company and Holdings in the
matter of Alfred H. Frank v. Richard D. Weinstein and Digital Teleport, Inc.,
filed in the Circuit Court of St. Louis County (the "Frank Litigation"). Any
settlement of the Frank Litigation proposed to be paid by the Company or
Holdings must be expressly approved by the Board of Directors of Holdings."
2. Section 8.4(d). Section 8.4(d) of the Stock Purchase Agreement is,
effective as of the date hereof, amended to read in its entirety as follows:
"(d) The Dispute shall be heard by a single arbitrator who shall
decide the Dispute within sixty (60) days of the filing of the Dispute with the
American Arbitration Association. Upon a determination by the arbitrator of the
Dispute in favor of Purchaser, and after a period of one hundred and fifty (150)
days from the later of (i) the date of such determination, or (ii) the
termination of that certain Subordination Agreement by and among Purchaser,
Weinstein, Holdings and the Company dated February 12, 1998, Weinstein shall
surrender his stock in the Company to Purchaser in accordance with the terms and
conditions of the Guaranty Agreement and Pledge Agreement".
3. Definitions. Any capitalized terms used but not defined herein shall
have the meaning ascribed thereto in the Shareholders' Agreement.
<PAGE> 2
4. Effect of this Amendment. Except as otherwise specifically amended
herein, the Shareholders' Agreement, as modified by this Amendment, remains in
full force and effect.
4. Counterparts; Effectiveness. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
* * * * *
2
<PAGE> 3
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the day and year first above written.
DIGITAL TELEPORT, INC.
By: /s/ Richard D. Weinstein
-------------------------------------
Richard D. Weinstein
President and Chief Executive Officer
DTI HOLDINGS, INC.
By: /s/ Richard D. Weinstein
-------------------------------------
Richard D. Weinstein
President and Chief Executive Officer
/s/ Richard D. Weinstein
-----------------------------------------
Richard D. Weinstein
KLT TELECOM INC.
By: /s/ RG Wasson
-------------------------------------
Ronald G. Wasson
President
3
<PAGE> 1
EXHIBIT 10.33
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Consulting Agreement") is made and
entered into as of the 4th day of May, 1998, by and Digital Teleport, Inc., a
Missouri corporation (the "Company"), and H.P. Scott ("Consultant").
WITNESSETH:
WHEREAS, the Company and Consultant had previously entered into
that certain Consulting Agreement dated April 20, 1998, which this Consulting
Agreement supersedes in its entirety;
WHEREAS, the Company wishes to retain Consultant and Consultant
wishes to be retained by Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth, it is hereby agreed as follows:
1. Engagement. Consultant is hereby engaged as a consultant
to the Company. The term of Consultant's services to the Company shall commence
on the date first set forth above and shall end on the first anniversary of such
date (the "Consulting Term").
2. Consulting Services. Consultant shall perform such
consulting services as Company requests in the area of carrier's carrier sales
and swaps by the Company and any other services as Company and Consultant
mutually agree ("Consulting Services"). During the Consulting Term, Consultant
shall devote such time, attention, skill, energy and efforts as may be necessary
for the faithful performance of the Consulting Services. The Company and
Consultant currently expect that Consultant shall spend approximately 15
calendar days each month performing the Consulting Services, provided that this
expectation imposes no independent legal obligation on Consultant or Company.
Consultant shall have the title "Senior Vice President".
3. Compensation.
(a) The Company shall pay Consultant $800 a day spent
performing Consulting Services within a week of submission of invoices.
(b) The Company shall pay to Consultant a commission equal to:
(i) One percent of any cash payments received for
sales of unlit fiber optic cable strands ("Dark Fiber") to telecommunications
companies, which sales are substantially negotiated or closed during the
Consulting Term, and for which Consultant provided substantive Consulting
Services with respect thereto. A sale shall be deemed to have been substantially
1
<PAGE> 2
negotiated if all material business terms have been agreed to definitively or in
principle during the Consulting Term, or such sale closes within one month
following the Consulting Term. Substantive Consulting Services shall be deemed
to have been rendered if Consultant negotiates directly in person or by phone
with representatives of the buyer of such dark fiber. Such commission shall be
paid when cash is actually received by the Company and shall be payable even if
received following the term hereof, provided that no amount shall be payable
with respect to any cash received with respect to such sales following five
years following the end of the Consulting Term.
(ii) $200 for each route mile of Dark Fiber
(regardless of the number of strands of fiber optic cable, but with a contract
term of at least 20 years) received by the Company in a swap for Dark Fiber
owned by the Company, which swap is substantially negotiated or closed during
the Consulting Term, and for which Consultant provided substantive Consulting
Services with respect thereto. A swap shall be deemed to have been substantially
negotiated if all material business terms have been agreed to definitively or in
principle during the Consulting Term, or such swap closes within one month
following the Consulting Term. A swap shall be deemed to be closed when a
definitive indefeasible right to use ("IRU") such Dark Fiber in favor of the
Company is executed. Substantive Consulting Services shall be deemed to have
been rendered if Consultant negotiates directly in person or by phone with
representatives of the other party to such swap. Such commission shall be paid
within one month following the later of (i) the time the Company becomes
eligible to use the Dark Fibers being received or (ii) the time at which there
are no significant conditions to the Company's continued use of such Dark
Fibers, including without limitation the completion of construction by the
Company of the Dark Fibers being swapped. If a swap involves the payment by the
Company of cash, then the Consultant shall nonetheless be eligible for the
commission provided in this Section 3(b)(ii) for the route miles of Dark Fibers
received by the Company, up to the number of routes miles of Dark Fiber given by
the Company in such transaction. If a swap involves the receipt by the Company
of both cash and Dark Fibers, then the Consultant would be entitled to the
commissions payable under both Section 3(b)(i) and Section 3(b)(ii).
(iii) One percent of any cash payments received from
sales of lighted bandwidth capacity at a rate of a DS-3 or above ("Bandwidth")
to telecommunications companies, which sales are substantially negotiated or
closed during the Consulting Term, and for which Consultant provided substantive
Consulting Services with respect thereto. A sale shall be deemed to have been
substantially negotiated if all material business terms have been agreed to
definitively or in principle during the Consulting Term, or such sale closes
within one month following the Consulting Term. Substantive Consulting Services
shall be deemed to have been rendered if Consultant negotiates directly in
person or by phone with representatives of the buyer of such bandwidth. Such
commission shall be paid when cash is actually received by the Company, and
shall be payable even if received following the term hereof, provided that no
amount shall be payable with respect to any cash received with respect to such
sales following five years following the end of the Consulting Term.
2
<PAGE> 3
(iv) One percent of the value of any bandwidth
received in exchange for Bandwidth with telecommunications companies, which
exchange is substantially negotiated or closed during the Consulting Term, and
for which Consultant provided substantive Consulting Services with respect
thereto. An exchange shall be deemed to have been substantially negotiated if
all material business terms have been agreed to definitively or in principle
during the Consulting Term, or such exchange closes within one month following
the Consulting Term. Substantive Consulting Services shall be deemed to have
been rendered if Consultant negotiates directly in person or by phone with
representatives of the other party to such exchange. Such commission shall be
paid quarterly as bandwidth is available for use by the Company, and shall be
payable even following the term hereof, provided that no amount shall be payable
with respect to any bandwidth available for use by the Company following five
years following the end of the Consulting Term. If an exchange involves the
payment by the Company of cash, then the Consultant shall nonetheless be
eligible for the commission provided in this Section 3(b)(iv) for the bandwidth
received by the Company, reduced by the amount of cash paid on a pro rata basis.
If an exchange involves the receipt by the Company of both cash and bandwidth,
then the Consultant would be potentially eligible for the commissions payable
under both Section 3(b)(iii) and Section 3(b)(iv).
(c) One percent of any rebates or credits to a customer
arising from a sale for which commissions are payable under Section 3(b) shall
be deducted from the commissions from such sale, or the commissions for any
other sale, payable under Section 3(b).
(d) Consultant shall be paid $100,000 upon the execution of
this Consulting Agreement.
(e) Consultant shall be reimbursed by the Company for his
reasonable expenses for travel from his home in Dallas, Texas on Company
business, including without limitation travel to the Company's headquarters in
St. Louis, Missouri and his reasonable living expenses while in St. Louis on
Company business, in accordance with the Company's general reimbursement
policies.
(f) The sale of Dark Fiber or Bandwidth, and the terms
thereof, must be approved by the chief executive officer of the Company, in his
sole and absolute discretion. This Consulting Agreement, and the retention by
Company of the Consultant, imposes no obligation on the Company or Chief
Executive Officer to approve any terms or any sale.
(g) Consultant at his sole discretion may elect to take up to
50% of any commissions payable under Section 3(b) in the form of common stock of
the Company, such stock to be valued at the fair market value thereof. Prior to
the listing of such common stock on a stock exchange or Nasdaq National Market,
the fair market value of the stock shall be determined by the Board of Directors
of the Company or the Compensation Committee, whose determination shall be final
and binding on the parties hereto. Following such listing of the
3
<PAGE> 4
common stock, the fair market value shall be the closing price on the date the
Company receives the cash payment giving rise to the obligation to pay
Consultant a commission hereunder (regardless of when Consultant makes an
election to receive such commission in the form of common stock). Consultant
may make the election provided herein with respect to any amount to be paid to
him as a commission upon written notice received by the Company prior to the
Company paying to a Consultant any such commission. Such election shall apply
only to the commissions specifically identified in such notice, and shall not
apply to any other commissions.
4. Third-Party Confidentiality. Consultant shall not disclose
to the Company or induce the Company to use any secret or confidential
information belonging to persons not affiliated with the Company. Consultant
acknowledges that the Company has disclosed that the Company is now, and may be
in the future, subject to duties to third parties to maintain information in
confidence and secrecy. By executing this Consulting Agreement, Consultant
consents to be bound by any such duty owed by the Company to any third party.
5. Inventions, Etc.; Confidentiality
(a) Any and all ideas, inventions, discoveries, patents,
patent applications, continuation-in-part patent applications, divisional patent
applications, technology, copyrights, derivative works, trademarks, service
marks, improvements, trade secrets and the like, which are developed, conceived,
created, discovered, learned, produced and/or otherwise generated by Consultant,
whether individually or otherwise, during the time that Consultant is retained
by the Company, whether or not during working hours, that relate to (i) the
business and/or activities of the Company, (ii) the Company's anticipated
research or development, or (iii) any work performed by Consultant for the
Company, shall be the sole and exclusive property of the Company, and the
Company shall own any and all right, title and interest to such property. The
Consultant assigns and agrees to assign to the Company any and all right, title
and interest in and to any such ideas, inventions, discoveries, patents, patent
applications, continuation-in-part patent applications, divisional patent
applications, technology, copyrights, derivative works, trademarks, service
marks, improvements, trade secrets and the like, whenever requested to do so by
the Company, at the Company's expense, and the Consultant agrees to execute any
and all applications, assignments or other instruments which the Company deems
desirable or necessary to protect such interests.
(b) Section 5(a) shall not apply to any invention for which no
equipment, supplies, facilities, or confidential and trade secret information of
the Company was used and which was developed entirely on the Consultant's own
time, unless (i) the invention relates (A) to the Company's business or (B) to
the Company's actual or demonstrably anticipated research or development or (ii)
the invention results from any work performed by the Consultant for the Company.
4
<PAGE> 5
(c) Consultant acknowledges that Consultant's work for the
Company is expected to bring him or her into close contact with various
confidential business data of the Company and its clients not readily available
to the public. Accordingly, Consultant:
(i) covenants and agrees that (A) during the
Consulting Term, except pursuant to appropriate safeguards on
confidentiality and only in connection with the business of the
Company, and (B) after the Consulting Term, on any basis for any
reason, Consultant shall not use or disclose to anyone except
authorized personnel of the Company, whether or not for his benefit or
otherwise, any confidential matters (collectively, "Confidential
Matters"), concerning the Company or its suppliers, consultants, agents
or clients, whether former, current or potential (collectively, the
"Clients"), including without limitation, all confidential technical
information of the Company, secrets, trade secrets, formulas,
proprietary software, copyrights, Client lists, lists of Consultants,
confidential evaluations, mailing lists, details of consultant
contracts, pricing policies, sales data and reports, margins,
operational methods and processes, marketing plans or strategies,
business acquisition plans, new personnel acquisition plans, financial
information and other confidential business affairs, learned by
Consultant concerning the Company, its Clients, or a third party,
including without limitation, any subsidiaries, partners, affiliates,
shareholders, Consultants, lenders, suppliers, consultants, agents or
joint venture partners of the Company (collectively, "Affiliates"); and
(ii) covenants and agrees that (A) all confidential
memoranda, notes, sketches, lists (including, without limitation,
mailing and customer lists), records, other confidential documents and
computer diskettes (and all copies thereof) made or compiled by
Consultant or made available to her concerning the Company, its Clients
and any Affiliates are the sole property of the Company, and (B) if
such documents are in the possession or control of Consultant,
Consultant shall deliver them, without retaining any copies thereof, to
the Company promptly at the end of the Consulting Term, or at any other
time upon request by the Company.
6. Non-Competition Agreement.
(a) Consultant covenants and agrees that Consultant shall not,
directly or indirectly, as a principal, employee, partner, consultant, agent or
otherwise, compete or assist in competitive activity with the Company, within
the areas in which the Company then operates, during the Consulting Term and for
a period of one year thereafter (the period of time during which Consultant is
restricted from such competition pursuant to the foregoing provisions is
hereinafter referred to as the "Restricted Period") without the express prior
written consent of the Company only if any payment is being made. Without
limiting the generality of what might constitute competitive activity,
Consultant acknowledges and agrees that any fiber-optic competitive access
provider, competitive or incumbent local exchange carrier or inter-exchange
carrier shall constitute competitive activity.
5
<PAGE> 6
(b) During the Restricted Period, Consultant shall not
directly or indirectly, alone or in concert with others, solicit or accept the
business of any customer (or any person or entity whom the Company or any of its
Consultants or agents has solicited as a prospective customer) ("Customer") (nor
provide any services to any Customer) which was a Customer of the Company at any
time during the Consulting Term.
(c) During the Restricted Period, Consultant shall not,
directly or indirectly, alone or in concert with others, solicit or encourage
any employee of the Company, or an employee of any person or entity with which
the Company has an agreement through which the Company and the person or entity
are to act in concert with respect to the business of the Company (an "
Employee"), to leave their respective employment or hire any Employee of the
Company or any person who was an Employee of the Company at any time within the
one (1) year period prior to the date first above written.
(d) During the Restricted Period, Consultant shall not,
directly or indirectly, alone or in concert with others, encourage any
third-party consultant which is then under contract with the Company to cease to
work for the Company or any third-party consultant.
(e) Notwithstanding anything in this Section 6 to the
contrary, Consultant may perform under the terms of that certain agreement dated
April 1, 1998 between Consultant and his former employer IXC Carrier, Inc.
7. Non-Waiver of Rights. The Company's failure to enforce at
any time any of the provisions of this Consulting Agreement or to require at any
time performance by the Consultant of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Consulting Agreement, or any part of it, or the right of the
Company thereafter to enforce each and every provision in accordance with the
terms of this Consulting Agreement. The Consultant's failure to enforce at any
time any of the provisions of this Consulting Agreement or to require at any
time performance by the Company of any of the provisions hereof shall in no way
be construed to be a waiver of such provisions or to affect either the validity
of this Consulting Agreement, or any part of it, or the right of the Consultant
thereafter to enforce each and every provision in accordance with the terms of
this Consulting Agreement.
8. Other noncompetition obligations. Consultant represents
and warrants to the Company that Consultant is not a party to any agreement
containing a noncompetition provision or other restriction with respect to the
nature of any services or business that Consultant is entitled to perform or
conduct for the Company.
9. Limited Liability. With regard to the services to be
performed by Consultant pursuant to the terms of this Consulting Agreement,
neither Consultant nor any Consultants or agents of Consultant shall be liable
to DTI, or to anyone who may claim any
6
<PAGE> 7
right due to this relationship with DTI, for any action or omission in the
performance of said services on the part of Consultant or on the part of the
agents or Consultants of Consultant, except when said acts or omissions of
Consultant or such agents or Consultants are due to willful misconduct or gross
negligence. DTI shall hold Consultant free and harmless from any obligations,
costs, claims judgments attorneys fees and attachments arising from or growing
out of the services rendered to DTI pursuant to the terms of this Consulting
Agreement, except when the same shall arise due to the intentional misconduct or
gross negligence of Consultant, and Consultant is determined to have committed
intentional misconduct or gross negligence by the arbitration proceedings
provided herein.
10. Assignments. This Consulting Agreement shall be freely
assignable by the Company and shall inure to the benefit of, and be binding
upon, the Company, its successors and assigns and/or any other corporate entity
which shall succeed to the business presently being operated by the Company,
but, being a contract for personal services, neither this Consulting Agreement
nor any rights hereunder are assignable by Consultant.
11. Governing Law/Arbitration. This Consulting Agreement shall
be interpreted in accordance with and governed by the laws of the State of
Missouri without regard to its conflict of law rules. Any dispute arising out of
or relating to this Agreement or the breach, termination or validity hereof,
other than Section 5 and Section 6, shall be settled by arbitration in St. Louis
County, Missouri in accordance with the commercial arbitration rules then in
effect of the American Arbitration Association. The parties consent to the
jurisdiction of the Supreme Court of the State of Missouri, and of the United
States District Court for the Eastern District of the State of Missouri for
injunctive, specific enforcement or other relief in aid of the arbitration
proceedings or to enforce judgment of the award in such arbitration proceeding.
The award entered by the arbitrator(s) shall be final and binding on all parties
to arbitration. Each party shall bear its respective arbitration expenses and
shall each pay its pro rata portion of the arbitrator's charges and expenses.
[The arbitrator(s) shall not award punitive, exemplary or consequential
damages.]
With respect to disputes arising out of Section 5 and Section
6 of this Agreement, the parties agree that exclusive venue and jurisdiction for
any action brought under this Consulting Agreement shall lie in the County of
St. Louis, Missouri.
12. Amendments. No modification, amendment or waiver of any of
the provisions of this Consulting Agreement shall be effective unless in writing
and signed by the parties hereto.
13. Notices. Any notices to be given by either party hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed, certified or registered mail, postage prepaid, as follows: to the
Company at Digital Teleport, Inc., 11111 Dorsett Road, St. Louis, Missouri
63043, Attn.: Richard D. Weinstein, President; and to Consultant at 3 Wood
7
<PAGE> 8
Acre Drive #78, Whitney, Texas 76692; or to such other address as may have been
furnished to the other party in writing.
14. Reflection and Advice of Counsel Encouraged. This
Consulting Agreement places restrictions on Consultant's right to seek
employment or consult with certain employers or to engage in businesses
competitive with the Company's business. By signing this Consulting Agreement,
Consultant acknowledges that he or she has had ample time to reflect on these
restrictions and has sought the advice of counsel with respect to this
Consulting Agreement.
15. Entire Agreement. This Consulting Agreement is the entire
agreement between the parties and supersedes any previous oral or written
agreement or understanding between the Company and Consultant with respect to
the subject matter hereof, including without limitation that certain consulting
agreement dated April 20, 1998. There are no representations, warranties,
promises or undertakings other than those expressly contained in this Consulting
Agreement.
16. Severability. Subject to severability provisions integral
to any paragraph of this Agreement, the unenforceability, invalidity or
illegality of any provision of this Agreement shall not affect or impair the
continuing enforceability or validity of any other part of this Agreement, all
of which shall survive and be valid and enforceable.
17. Counterparts. This Consulting Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
18. Headings. The headings in this Consulting Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Consulting Agreement.
19. Relationship Consultant and the Company agree that the
relationship contemplated by this Agreement is that of a consultant and not an
employee. Consultant agrees to pay all applicable taxes with respect to the
compensation provided hereunder and hold Company harmless with respect to same
or with respect to any determination that Consultant should be considered an
employee of the Company. Consultant agrees that he is not entitled to any
benefits or remuneration from the Company other than as expressly set forth
herein, including without limitation any medical or vacation benefits, or any
options of the Company. The Company will issue the Consultant a Form 1099 with
respect to the compensation paid to him hereunder unless otherwise required by
law.
8
<PAGE> 9
IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement as of the date first above written.
DIGITAL TELEPORT, INC.
By: /s/ Richard D. Weinstein
--------------------------
Name: Richard D. Weinstein
Title: President
CONSULTANT
/s/ H. P. Scott
-----------------------------
H.P. Scott
9
<PAGE> 1
DTI Holdings, Inc.
Computation of Ratio of Earnings to Fixed Charges
Exhibit 12.1
<TABLE>
<CAPTION>
Nine Months Ended
Fiscal Year Ended June 30, March 31,
1995 1996 1997 1997 1998
---- ---- ---- ---- ----
SELECTED HISTORICAL DATA
Earnings were calculated as follows:
<S> <C> <C> <C> <C> <C>
Income (loss) before taxes (286,732) (786,375) (1,851,764) (1,902,277) (4,864,286)
Add: Fixed charges 204,784 1,672,114 1,454,130 1,576,443 4,044,536
Deduct: Capitalized Interest (9,516) (1,227,149) (562,750) (562,750) (182,000)
--------- ---------- ---------- ---------- ----------
Earnings................................... (91,464) (341,410) (960,384) (888,584) (819,750)
========= ========== ========== ========== ==========
Fixed charges were calculated as follows:
Amortization of deferred financing costs 0 0 0 0 106,110
Interest expense 162,777 384,859 51,023 152,937 3,697,605
Portion of rentals attributable to interest 32,491 60,106 55,857 76,256 58,821
Loan commitment fees 0 0 784,500 784,500 0
Capitalized interest 9,516 1,227,149 562,750 562,750 182,000
--------- ---------- ---------- ---------- ----------
Fixed charges.............................. 204,784 1,672,114 1,454,130 1,576,443 4,044,536
========= ========== ========== ========== ==========
Ratio fixed earnings to fixed charges n/a n/a n/a n/a
Deficiency 296,248 2,013,524 2,414,514 2,465,027 4,864,286
</TABLE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to the Registration Statement
No. 333-50049 of DTI Holdings, Inc. on Form S-4 of our report dated September
10, 1997 (July 13, 1998 as to Notes 13 and 14) appearing in the Prospectus,
which is a part of such Registration Statement.
We also consent to the reference to us under the headings "Summary Consolidated
Financial and Operating Data", "Selected Consolidated Financial and Operating
Data" and "Experts" in such Prospectus.
/s/ DELOITTE & TOUCHE LLP
St. Louis, Missouri
July 13, 1998
<PAGE> 1
EXHIBIT 25.1
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
DTI HOLDINGS, INC
(Exact name of obligor as specified in its charter)
Missouri 43-1674259
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
11111 Dorsett Road
St. Louis, Missouri 63043
(Address of principal executive offices) (Zip code)
----------------------
12-1/2% Series B Senior Discount Notes
due 2008
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
---------------------------------------------------
Name Address
---------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE> 3
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 13th day of April, 1998.
THE BANK OF NEW YORK
By: /s/THOMAS B. ZAKRZEWSKI
--------------------------------
Name: THOMAS B. ZAKRZEWSKI
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 5,004,638
Interest-bearing balances .......... 1,271,514
Securities:
Held-to-maturity securities ........ 1,105,782
Available-for-sale securities ...... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell...... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................34,916,196
LESS: Allowance for loan and
lease losses ..............581,177
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,334,590
Assets held in trading accounts ...... 2,035,284
Premises and fixed assets (including
capitalized leases) ................ 671,664
Other real estate owned .............. 13,306
Investments in unconsolidated
subsidiaries and associated
companies .......................... 210,685
Customers' liability to this bank on
acceptances outstanding ............ 1,463,446
Intangible assets .................... 753,190
Other assets ......................... 1,784,796
-----------
Total assets ......................... $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ................ $27,270,824
Noninterest-bearing ......12,160,977
Interest-bearing .........15,109,847
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 14,687,806
Noninterest-bearing .........657,479
Interest-bearing .........14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase. 1,946,099
Demand notes issued to the U.S.
Treasury ........................... 283,793
Trading liabilities .................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,245,014
With remaining maturity of more than
one year through three years.......... 0
With remaining maturity of more than
three years ......................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,473,588
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 2,193,031
-----------
Total liabilities .................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 25,428
Cumulative foreign currency transla-
tion adjustments .................. ( 16,342)
------------
Total equity capital ................ 4,818,697
-----------
Total liabilities and equity
capital ........................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi )
Alan R. Griffith ) Directors
- --------------------------------------------------------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE AUDITED
CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEAR ENDED JUNE 30, 1997 AND THE
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR THE NINE MONTHS ENDED MARCH 31,
1998
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> YEAR 9-MOS
<FISCAL-YEAR-END> JUN-30-1997 MAR-31-1998
<PERIOD-END> JUN-30-1997 MAR-31-1998
<CASH> 4,366,906 263,231,384
<SECURITIES> 0 0
<RECEIVABLES> 159,268 708,477
<ALLOWANCES> 48,000 167,000
<INVENTORY> 0 0
<CURRENT-ASSETS> 4,549,938 263,974,628
<PP&E> 34,000,634 60,824,950
<DEPRECIATION> 1,235,640 2,620,640
<TOTAL-ASSETS> 39,849,136 338,467,861
<CURRENT-LIABILITIES> 6,269,614 7,037,000
<BONDS> 0 268,856,985
28,889,165 0
0 0
<COMMON> 300,000 300,000
<OTHER-SE> (5,029,867) 4,222,985
<TOTAL-LIABILITY-AND-EQUITY> 0 338,467,861
<SALES> 0 0
<TOTAL-REVENUES> 2,033,990 2,122,574
<CGS> 0 0
<TOTAL-COSTS> 3,087,667 4,848,153
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 152,937 3,697,605
<INCOME-PRETAX> (1,851,764) (4,864,286)
<INCOME-TAX> (1,214,331) (2,020,000)
<INCOME-CONTINUING> (637,433) (2,725,579)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (637,433) (2,844,286)
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
DTI HOLDINGS, INC.
OFFER TO EXCHANGE ITS 12 1/2% SERIES B SENIOR DISCOUNT NOTES
DUE 2008 ("EXCHANGE NOTES") FOR ALL OF ITS OUTSTANDING
12 1/2% SENIOR DISCOUNT NOTES DUE 2008 ("PRIVATE NOTES")
PURSUANT TO ITS PROSPECTUS DATED _______________, 1998
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON _____________, 1998,
UNLESS EXTENDED BY THE COMPANY (THE "EXPIRATION DATE"). TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- ----------------------------------------------------------------------------------------------------------------------------------
Delivery To: The Bank of New York, Exchange Agent
By Overnight Courier or Hand: By Facsimile:
By Mail The Bank of New York (212) 571-____
The Bank of New York 101 Barclay St., Floor 7E (for Eligible Institutions
101 Barclay St., Floor 7E Corporate Trust & Agency Services Window only)
New York, New York 10286 New York, New York 10286 Confirm by Telephone
Attention: Reorganization Section Attention: Reorganization Section (212) 815-____
List below the Private Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, the certificate numbers and
principal amount of Private Notes should be listed on a separate signed schedule
affixed hereto.
----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF PRIVATE NOTES 1 2 3
----------------------------------------------------------------------------------------------------------------------------------
Aggregate
Principal
Certificate Amount of Principal
Name(s) and Address(es) of Registered Holder(s) Number(s)* Private Amount
(Please fill in, if blank) Total Note(s) Tendered**
----------------------------------------------------------------------------------------------------------------------------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
--------------- -------------- ---------------
Total
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed if Private Notes are being tendered by book-entry
transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have
tendered ALL of the Private Notes represented by the Private Notes indicated
in column 2. See Instruction 2. Private Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple
thereof. See Instruction 1.
[ ] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution________________________________________
Account Number_________________________ Transaction Code Number_______
[ ] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)______________________________________
Widow Ticket Number (if any)_________________________________________
Date of Execution of Notice of Guaranteed Delivery___________________
Name of Institution which guaranteed delivery _______________________
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE
THE FOLLOWING:
Account Number________________________ Transaction Code Number_______
<PAGE> 2
Name of Institution which guaranteed delivery_________________________
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number_________________ Transaction Code Number____________
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO HOLDS PRIVATE NOTES ACQUIRED
FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES AND WISH TO RECEIVE COPIES OF THE PROSPECTUS AND COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO FOR USE IN CONNECTION WITH
RESALES OF EXCHANGE NOTES RECEIVED FOR YOUR OWN ACCOUNT IN EXCHANGE FOR
SUCH PRIVATE NOTES.
Name:_____________________________________________________
Address:___________________________________________________
Aggregate Principal Amount of Private Notes so held: $______________
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
The Company reserves the right, at any time or from time to time, to
extend the Exchange Offer at its sole discretion, in which event the term
"Expiration Date" shall mean the latest time and date to which the Exchange
Offer is extended. The Company shall notify the holders of the Private Notes of
any extension by means of a press release or other public announcement prior to
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
This Letter of Transmittal is to be completed by a holder of Private
Notes if certificates are to be forwarded herewith. If a tender of certificates
for Private Notes, if available, is to be made by book-entry transfer to the
account maintained by the Exchange Agent at The Depository Trust Company (the
"Book-Entry Transfer Facility") pursuant to the procedures set forth in "The
Exchange Offer--Book-Entry Transfer" section of the Prospectus, unless delivery
of such certificates is to be made by book entry transfer through the ATDP
system to the Exchange Agent's account maintained by DTC. Holders of Private
Notes whose certificates are not immediately available, or who are unable to
deliver their certificates or confirmation of the book-entry tender of their
Private Notes into the Exchange Agent's account at the Book-Entry Transfer
Facility (a "Book-Entry Confirmation") and all other documents required by this
Letter to the Exchange Agent on or prior to the Expiration Date, must tender
their Private Notes according to the guaranteed delivery procedures set forth in
"The Exchange Offer--Guaranteed Delivery Procedures" section of the Prospectus.
See Instruction 1. Delivery of documents to the Book-Entry Transfer Facility
does not constitute delivery to the Exchange Agent.
2
<PAGE> 3
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to DTI Holdings, Inc., a Missouri
corporation (the "Company"), the aggregate principal amount of Private Notes
indicated in this Letter of Transmittal, upon the terms and subject to the
conditions set forth in the Company's Prospectus dated ______________, 1998 (the
"Prospectus"), receipt of which is hereby acknowledged, and in this Letter of
Transmittal, which together constitute the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount at maturity of its 12 1/2% Series B
Senior Discount Notes due _____________ 2008, which have been registered under
the Securities Act of 1933, as amended (the "Exchange Notes"), for each $1,000
principal amount at maturity of its issued and outstanding 12 1/2% Senior
Discount Notes due 2008, of which $506,000,000 aggregate principal amount at
maturity was outstanding on the date of the Prospectus (the "Private Notes" and,
together with the Exchange Notes, the "Notes"). The capitalized terms which are
not defined herein are used herein as defined in the Prospectus.
Subject to, and effective upon, the acceptance for exchange of the
Private Notes tendered hereby, the undersigned hereby sells, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Private Notes as are being tendered hereby and hereby irrevocably
constitutes and appoints the Exchange Agent as attorney-in-fact of the
undersigned with respect to such Private Notes, with full power of substitution
(such power of attorney being an irrevocable power coupled with an interest),
to:
(a) deliver such Private Notes in registered certificated form, or
transfer ownership of such Private Notes through book-entry transfer at
the Book-Entry Transfer Facility, to or upon the order of the Company,
upon receipt by the Exchange Agent, as the undersigned's agent, of the
same aggregate principal amount at maturity of Exchange Notes; and
(b) receive, for the account of the Company, all benefits and otherwise
exercise, for the account of the Company, all rights of beneficial
ownership of the Private Notes tendered hereby in accordance with the
terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Private Notes
tendered hereby and that the Company will acquire good, marketable and
unencumbered title thereto, free and clear of all security interests, liens,
restrictions, charges, encumbrances, conditional sale agreements or other
obligations relating to their sale or transfer, and not subject to any adverse
claim when the same are accepted by the Company. The undersigned hereby further
represents that any Exchange Notes acquired in exchange for Private Notes
tendered hereby will have been acquired in the ordinary course of business of
the person receiving such Exchange Notes, whether or not such person is the
undersigned, that neither the holder of such Private Notes nor any such other
person has an arrangement or understanding with any person to participate in the
distribution of such Exchange Notes and that neither the holder of such Private
Notes nor any such other person is an "affiliate," as defined in Rule 405 under
the Securities Act of 1933, as amended (the "Securities Act"), of the Company.
The undersigned has read and agrees to all of the terms of the Exchange Offer.
The undersigned also acknowledges that this Exchange Offer is being
made in reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the Exchange Notes issued in exchange for the Private Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Notes are acquired
in the ordinary course of such holders' business and such holders have no
arrangement with any person to participate in the distribution of such Exchange
Notes. However, the Company does not intend to request the SEC to consider, and
the SEC has not considered, the Exchange Offer in the context of a no-action
letter, and there can be no assurance that the staff of the SEC would make a
similar determination with respect to the Exchange Offer as in other
circumstances. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes and has no arrangement or understanding to
participate in a distribution of Exchange Notes. If any holder is an affiliate
of the Company, is engaged in or intends to engage in or has any arrangement or
understanding with respect to the distribution of the Exchange Notes to be
acquired pursuant to the Exchange Offer, such holder (i) could not rely on the
applicable interpretations of the staff of the SEC and (ii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for Private
Notes acquired as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), it represents that the Private Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making or other trading activities and acknowledges that it will deliver
a prospectus in connection with any resale of such Exchange Notes; however, by
so acknowledging and by delivering a prospectus, such Participating
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The Company has agreed that, subject to the provisions of the Notes
Registration Rights Agreement, the Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating Broker-Dealer in
connection with resales of Exchange Notes received in exchange for Private Notes
which were acquired by such Participating Broker-Dealer for its own account as a
result of market-making or other trading activities, for a period ending 120
days after the Expiration Date or, if earlier, when all such Exchange Notes have
been disposed of by such Participating Broker-Dealer. In that regard, each
Participating Broker-Dealer by tendering such Private Notes and executing this
Letter of Transmittal, agrees that, upon receipt of notice from the Company of
the occurrence of any event or the discovery of any fact which makes any
statement contained or incorporated by reference in the Prospectus untrue in any
material respect or which causes the Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
therein, in light of the circumstances under which they were made, not
misleading, such Participating Broker-Dealer will suspend the sale of Exchange
Notes pursuant to the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission and has furnished copies
of the amended or supplemented Prospectus to the Participating Broker-Dealer or
the Company has given notice that the sale of the Exchange Notes may be resumed,
as the case may be. If the Company gives such notice to suspend the sale of the
Exchange Notes, it shall extend the 120-day period referred to above during
which Participating Broker-Dealers are entitled to use the Prospectus in
connection with the resale of Exchange Notes by the number of days during the
period from and including the date of the giving of such notice to and including
the date when Participating Broker-Dealers shall have received copies of the
supplemented or amended Prospectus necessary to permit resales of the Exchange
Notes or to and including the date on which the Company has given notice that
the sale of Exchange Notes may be resumed, as the case may be.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Private Notes tendered hereby. All
authority conferred or agreed to be conferred in this Letter of Transmittal and
every obligation of the undersigned hereunder shall be binding upon the
successors,
3
<PAGE> 4
assigns, heirs, executors, administrators, trustees in bankruptcy
and legal representatives of the undersigned and shall not be affected by, and
shall survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer--Withdrawal of Tenders" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the Exchange Notes (and, if applicable,
substitute certificates representing Private Notes for any Private Notes not
exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Private Notes, please credit the account indicated above maintained
at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under
the box entitled "Special Delivery Instructions" below, please send the Exchange
Notes (and, if applicable, substitute certificates representing Private Notes
for any Private Notes not exchanged) to the undersigned at the address shown
above in the box entitled "Description of Private Notes."
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE
TENDERED THE PRIVATE NOTES AS SET FORTH IN SUCH BOX ABOVE.
4
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4) (SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Private Notes not To be completed ONLY if certificates for Private
exchanged and/or Exchange Notes are to be issued in the Notes not exchanged and/or Exhcange Notes are to
name of and sent to someone other than the person or persons be sent to someone other than the person or
whose signature(s) appear(s) below on this Letter of Transmittal, persons whose signature(s) appear(s) below on
or if Private Notes delivered by book-entry transfer which are this Letter of Transmittal or to such person or
not accepted for exchange are to be returned by credit to an persons at an address other than shown above in
account maintained at the Book-Entry Transfer Facility other the box entitled "Description of Private Notes"
than the account indicated above. on this Letter of Transmittal.
Issue: Exchange Notes and/or Private Notes to:
Name(s) .....................................................
(PLEASE TYPE OR PRINT) Mail: Exchange Notes and/or Private Notes to:
.............................................................
(PLEASE TYPE OR PRINT) Name(s) ....................................................
Address ..................................................... (PLEASE TYPE OR PRINT)
.............................................................
(ZIP CODE) ............................................................
(PLEASE TYPE OR PRINT)
[ ] Credit unexchanged Private Notes delivered by
book-entry transfer to the Book-Entry Transfer Facility
account set forth below. Address ....................................................
- ----------------------------------------------------------------
(Book-Entry Transfer Facility ............................................................
Account Number, if applicable) (ZIP CODE)
- ---------------------------------------------------------------- -------------------------------------------------------------
IMPORTANT: A BOOK-ENTRY CONFIRMATION OR THIS LETTER OF TRANSMITTAL OR A FACSIMILE
HEREOF (TOGETHER WITH THE CERTIFICATES FOR PRIVATE NOTES OR AND ALL OTHER REQUIRED
DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETION.
- ------------------------------------------------------------------------------------------------------------------------------------
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(Complete Accompanying Substitute Form W-9 on reverse side)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature(s) of Owner Date
Area Code and Telephone Number ..............................................................
If a holder is tendering any Private Notes, this Letter of Transmittal
must be signed by the registered holder(s) as the name(s) appear(s) on the
certificate(s) for the Private Notes or on a securities position listing or by
any person(s) authorized to become registered holder(s) by endorsements and
documents transmitted herewith. If signature is by a trustee, executor,
administrator, guardian, officer or other person acting in a fiduciary or
representative capacity, please set forth full title.
See Instruction 3.
Name(s): .......................................................................................................................
.................................................................................................................................
(Please Type or Print)
Capacity: ......................................................................................................................
Address: .......................................................................................................................
.................................................................................................................................
(Including Zip Code)
SIGNATURE GUARANTEE
(If required by Instruction 3)
Signature(s) Guaranteed by
an Eligible Institution: .......................................................................................................
(Authorized Signature)
.................................................................................................................................
(Title)
.................................................................................................................................
(Name and Firm)
Dated: ..................................................................................................................., 1998
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 6
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE
OFFER OF DTI HOLDINGS, INC. TO EXCHANGE ITS 12 1/2%
SERIES B SENIOR DISCOUNT NOTES DUE 2008 FOR ALL OF
ITS
OUTSTANDING 12 1/2% SENIOR DISCOUNT NOTES DUE 2008
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND NOTES; GUARANTEED DELIVERY
PROCEDURES.
This Letter of Transmittal is to be completed by holders of
Private Notes if certificates are to be forwarded herewith. If tenders are to be
made pursuant to the procedures for delivery by book-entry transfer set forth in
"The Exchange Offer--Book-Entry Transfer" section of the Prospectus, unless
delivery of such certificates is to be made by book entry transfer through the
ATDP system to the Exchange Agent's account maintained by DTC. Certificates for
all physically tendered Private Notes, or Book-Entry Confirmation, as the case
may be, as well as a properly completed and duly executed Letter of Transmittal
(or manually signed facsimile hereof) and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at the address set
forth herein on or prior to the Expiration Date, or the tendering holder must
comply with the guaranteed delivery procedures set forth below. Private Notes
tendered hereby must be in denominations of principal amount at maturity of
$1,000 and any integral multiple thereof.
Holders of Private Notes whose certificates for Private Notes
are not immediately available or who cannot deliver their certificates and all
other required documents to the Exchange Agent on or prior to the Expiration
Date, or who cannot complete the procedure for book-entry transfer on a timely
basis, may tender their Private Notes pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures"
section of the Prospectus. Pursuant to such procedures, (i) such tender must be
made through an Eligible Institution (as defined below), (ii) prior to the
Expiration Date, the Exchange Agent must receive from such Eligible Institution
a properly completed and duly executed Letter of Transmittal (or a facsimile
thereof) and Notice of Guaranteed Delivery, substantially in the form provided
by the Company (by telegram, telex, facsimile transmission, mail or hand
delivery), setting forth the name and address of the holder of Private Notes and
the amount of Private Notes tendered, stating that the tender is being made
thereby and guaranteeing that within five New York Stock Exchange ("NYSE")
trading days after the date of execution of the Notice of Guaranteed Delivery,
the certificates for all physically tendered Private Notes, or a Book-Entry
Confirmation, and any other documents required by this Letter of Transmittal
will be deposited by the Eligible Institution with the Exchange Agent, and (iii)
the certificates for all physically tendered Private Notes, in proper form for
transfer, or Book-Entry Confirmation, as the case may be, and all other
documents required by this Letter of Transmittal, are received by the Exchange
Agent within five NYSE trading days after the date of execution of the Notice of
Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE
PRIVATE NOTES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF
THE TENDERING HOLDERS, BUT THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. INSTEAD OF DELIVERY BY MAIL, IT IS
RECOMMENDED THAT HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE, PROPERLY
INSURED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO
THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE. DO NOT SEND THIS LETTER OF TRANSMITTAL OR ANY PRIVATE NOTES TO THE
COMPANY.
See "The Exchange Offer" section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF PRIVATE NOTES WHO TENDER BY
BOOK-ENTRY TRANSFER); WITHDRAWAL RIGHTS
Tenders of Private Notes will be accepted only in the
principal amount at maturity of $1,000 and integral multiples thereof. If less
than all of the Private Notes evidenced by a submitted certificate are to be
tendered, the tendering holder(s) should fill in the aggregate principal amount
at maturity of Private Notes to be tendered in the box above entitled
"Description of Private Notes--Principal Amount Tendered." A reissued
certificate representing the balance of nontendered Private Notes will be sent
to such tendering holder, unless otherwise provided in the appropriate box on
this Letter of Transmittal, promptly after the Expiration Date. ALL OF THE
PRIVATE NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN
TENDERED UNLESS OTHERWISE INDICATED.
Except as otherwise provided herein, tenders of Private Notes
may be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth above on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Private Notes to be withdrawn, the aggregate
principal amount of Private Notes to be withdrawn and (if certificates for such
Private Notes have been tendered) the name of the registered holder of the
Private Notes as set forth on the certificate for the Private Notes, if
different from that of the person who tendered such Private Notes. If
certificates for the Private Notes have been delivered or otherwise identified
to the Exchange Agent, then prior to the physical release of such certificates
for the Private Notes, the tendering holder must submit the serial numbers shown
on the particular certificates for the Private Notes to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Private Notes tendered for the account of an
Eligible Institution. If Private Notes have been tendered pursuant to the
procedures for book-entry transfer set forth in "The Exchange Offer--Book-Entry
Transfer" section of the Prospectus, the notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawal of Private Notes, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of tenders of Private
Notes may not be rescinded. Private Notes properly withdrawn will not be deemed
to have been validly tendered for purposes of the Exchange Offer, and no
Exchange Notes will be issued with respect thereto unless the Private Notes so
withdrawn are validly retendered. Properly withdrawn Private Notes may be
retendered at any subsequent time on or prior to the Expiration Date by
following the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be determined by the
Company, in its sole discretion, whose determination shall be final and binding
on all parties. Neither the Company, any employees, agents, affiliates or
assigns of the Company, the Exchange Agent nor any other person shall be under
any duty to give any notification of any irregularities in any notice of
withdrawal or incur any liability for failure to give such notification. Any
Private Notes which have been tendered but which are withdrawn will be returned
to the holder thereof without cost to such holder as promptly as practicable
after withdrawal.
3. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES
If this Letter of Transmittal is signed by the registered
holder of the Private Notes tendered hereby, the signature
6
<PAGE> 7
must correspond exactly with the name as written on the face of the certificates
or on a securities position listing without any change whatsoever.
If any tendered Private Notes are owned of record by two or
more joint owners, all of such owners must sign this Letter of Transmittal.
If any tendered Private Notes are registered in different
names on several certificates or securities positions listings, it will be
necessary to complete, sign and submit as many separate copies of this Letter of
Transmittal as there are different registrations.
When this Letter of Transmittal is signed by the registered
holder or holders of the Private Notes specified herein and tendered hereby, no
endorsements of certificates or separate bond powers are required. If, however,
the Exchange Notes are to be issued, or any untendered Private Notes are to be
reissued, to a person other than the registered holder, then endorsements of any
certificates transmitted hereby or separate bond powers are required. Signatures
on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than
the registered holder or holders of any certificate(s) specified herein, such
certificate(s) must be endorsed or accompanied by appropriate bond powers, in
either case signed exactly as the name or names of the registered holder or
holders appear(s) on the certificate(s), and the signatures on such
certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or bond
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to the Company of
their authority to so act must be submitted.
ENDORSEMENTS ON CERTIFICATES FOR PRIVATE NOTES OR SIGNATURES
ON BOND POWERS REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FIRM WHICH
IS A MEMBER OF A REGISTERED NATIONAL SECURITIES EXCHANGE OR A MEMBER OF THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR BY A COMMERCIAL BANK OR
TRUST COMPANY HAVING AN OFFICE OR CORRESPONDENT IN THE UNITED STATES (AN
"ELIGIBLE INSTITUTION").
SIGNATURES ON THIS LETTER OF TRANSMITTAL NEED NOT BE
GUARANTEED BY AN ELIGIBLE INSTITUTION, PROVIDED THE PRIVATE NOTES ARE TENDERED:
(I) BY A REGISTERED HOLDER OF PRIVATE NOTES (WHICH TERM, FOR PURPOSES OF THE
EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY
SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS THE HOLDERS OF SUCH
PRIVATE NOTES) WHO HAS NOT COMPLETED THE BOX ENTITLED "SPECIAL ISSUANCE
INSTRUCTIONS" OR "SPECIAL DELIVERY INSTRUCTIONS" ON THIS LETTER OF TRANSMITTAL
OR (II) FOR THE ACCOUNT OF AN ELIGIBLE INSTITUTION.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Private Notes should indicate in the
applicable box the name and address to which Exchange Notes issued pursuant to
the Exchange Offer and/or substitute certificates evidencing Private Notes not
exchanged are to be issued or sent, if different from the name or address of the
person signing this Letter of Transmittal. In the case of issuance in a
different name, the employer identification or social security number of the
person named must also be indicated. A holder of Private Notes tendering Private
Notes by book-entry transfer may request that Private Notes not exchanged be
credited to such account maintained at the Book-Entry Transfer Facility as such
holder may designate hereon. If no such instructions are given, such Private
Notes not exchanged will be returned to the name or address of the person
signing this Letter of Transmittal.
5. TAX IDENTIFICATION NUMBER.
Federal income tax law generally requires that a tendering
holder whose Private Notes are accepted for exchange must provide the Company
(as payor) with such holder's correct Taxpayer Identification Number ("TIN") on
Substitute Form W-9 below, which, in the case of a tendering holder who is an
individual, is his or her social security number. If the Company is not provided
with the current TIN or an adequate basis for an exemption, such tendering
holder may be subject to a $50 penalty imposed by the Internal Revenue Service.
In addition, delivery to such tendering holder of Exchange Notes may be subject
to backup withholding in an amount equal to 31% of all reportable payments made
after the exchange. If withholding results in an overpayment of taxes, a refund
may be obtained.
Exempt holders of Private Notes (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. See the enclosed Guidelines of
Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9
Guidelines") for additional instructions.
To prevent backup withholding, each tendering holder of
Private Notes must provide its correct TIN by completing the Substitute Form W-9
set forth below, certifying that the TIN provided is correct (or that such
holder is awaiting a TIN) and that (i) the holder is exempt from backup
withholding, (ii) the holder has not been notified by the Internal Revenue
Service that such holder is subject to backup withholding as a result of a
failure to report all interest or dividends or (iii) the Internal Revenue
Service has notified the holder that such holder is no longer subject to backup
withholding. If the tendering holder of Private Notes is a nonresident alien or
foreign entity not subject to backup withholding, such holder must give the
Company a completed Form W-8, Certificate of Foreign Status. These forms may be
obtained from the Exchange Agent. If the Private Notes are in more than one name
or are not in the name of the actual owner, such holder should consult the W-9
Guidelines for information on which TIN to report. If such holder does not have
a TIN, such holder should consult the W-9 Guidelines for instructions on
applying for a TIN, check the box in Part 2 of the Substitute Form W-9 and write
"applied for" on the form in lieu of its TIN. Note: Checking this box and
writing "applied for" on the form means that such holder has already applied for
a TIN or that such holder intends to apply for one in the near future. If such
holder does not provide its TIN to the Company within 60 days, backup
withholding will begin and continue until such holder furnishes its TIN to the
Company.
7
<PAGE> 8
6. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to
the transfer of Private Notes to it or its order pursuant to the Exchange Offer.
If, however, Exchange Notes and/or substitute Private Notes not exchanged are to
be delivered to, or are to be registered or issued in the name of, any person
other than the registered holder of the Private Notes tendered hereby, or if
tendered Private Notes are registered in the name of any person other than the
person signing this Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the transfer of Private Notes to the Company or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE
NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE PRIVATE NOTES SPECIFIED
IN THIS LETTER OF TRANSMITTAL.
7. DETERMINATION OF VALIDITY.
The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Private Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for which, may, in the view
of counsel to the Company, be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under the caption "The Exchange Offer" or any
conditions or irregularity in any tender of Private Notes of any particular
holder whether or not similar conditions or irregularities are waived in the
case of other holders.
The Company's interpretation of the terms and conditions of
the Exchange Offer (including this Letter of Transmittal and the instructions
hereto) will be final and binding. No tender of Private Notes will be deemed to
have been validly made until all irregularities with respect to such tender have
been cured or waived. Although the Company intends to notify holders of defects
or irregularities with respect to tenders of Private Notes, neither the Company,
any employees, agents, affiliates or assigns of the Company, the Exchange Agent,
nor any other person shall be under any duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders
will be accepted. All tendering holders of Private Notes, by execution of this
Letter of Transmittal, shall waive any right to receive notice of the acceptance
of their Private Notes for exchange.
9. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES.
Any holder whose Private Notes have been mutilated, lost,
stolen or destroyed should contact the Exchange Agent at the address indicated
above for further instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as
requests for additional copies of the Prospectus and this Letter of Transmittal,
may be directed to the Exchange Agent, at the address and telephone number
indicated above.
8
<PAGE> 9
<TABLE>
<CAPTION>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
PAYOR'S NAME: THE BANK OF NEW YORK
====================================================================================================================================
<S> <C> <C>
SUBSTITUTE
FORM W-9
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PAYOR'S REQUEST FOR
TAXPAYER
IDENTIFICATION NUMBER TIN:____________________________
("TIN") AND PART 1-PLEASE PROVIDE YOUR TIN IN THE BOX AT SOCIAL SECURITY NUMBER OR
CERTIFICATION RIGHT AND CERTIFY BY SIGNING AND DATING BELOW EMPLOYER IDENTIFICATION NUMBER
==========================================================================================
PART 2--TIN APPLIED FOR [ ]
==========================================================================================
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form
is my correct Taxpayer
Identification Number (or I
am waiting for a number to be
issued to me).
(2) I am not subject to backup
withholding either because:
(a) I am exempt from backup
withholding, or (b) I have
not been notified by the
Internal Revenue Service (the
"IRS") that I am subject to
backup withholding as a
result of a failure to report
all interest or dividends, or
(c) the IRS has notified me
that I am no longer subject
to backup withholding, and
(3) any other information provided on
this form is true and correct.
SIGNATURE____________________________________ DATE___________
====================================================================================================================================
You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to backup
withholding because of underreporting of interest or dividends on your tax
return and you have not been notified by the IRS that you are no longer subject
to backup withholding.
====================================================================================================================================
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
====================================================================================================================================
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange, 31 percent
of all reportable payments made to me thereafter will be withheld until I
provide a number.
- --------------------------------------------- ---------------------
SIGNATURE DATE
====================================================================================================================================
</TABLE>
9
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY FOR
TENDER OF 12 1/2% SENIOR DISCOUNT NOTES
DUE 2008 OF DTI HOLDINGS, INC.
This form or one substantially equivalent hereto or an Agent's
message relating to the guaranteed delivery procedures must be used to accept
the Exchange Offer of DTI Holdings, Inc., a Missouri corporation (the
"Company"), made pursuant to the Prospectus, dated ______, 1998 (the
"Prospectus"), if certificates for the outstanding 12 1/2% Senior Discount Notes
due 2008 of the Company (the "Private Notes") are not immediately available or
if the procedure for book-entry transfer cannot be completed on a timely basis
or time will not permit all required documents to reach The Bank of New York
(the "Exchange Agent") on or prior to 5:00 p.m., New York City time, on the
Expiration Date of the Exchange Offer. This Notice of Guaranteed Delivery may be
delivered or transmitted by telegram, telex, facsimile transmission, mail or
hand delivery to the Exchange Agent as set forth below. See "The Exchange
Offer -- Procedures for Tendering" in the Prospectus. In addition, in order to
utilize the guaranteed delivery procedure to tender Private Notes pursuant to
the Exchange Offer, a completed, signed and dated Letter of Transmittal (or a
manually signed facsimile thereof) must also be received by the Exchange Agent
on or prior to 5:00 p.m., New York City time, on the Expiration Date.
Capitalized terms used herein but not defined herein have the respective
meanings given to them in the Prospectus.
Delivery To:
THE BANK OF NEW YORK, Exchange Agent
<TABLE>
<CAPTION>
<S> <C> <C>
By Mail By Overnight Courier or Hand:
The Bank of New York The Bank of New York By Facsimile:
One Wall Street - 27 One Wall Street - 27 (212) 571-3080
New York, New York 10286 Corporate Trust & Agency Services Window
Attention: Reorganization New York, New York 10286 Confirm by Telephone
Section Attention: Reorganization Section (212) 815-2742
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED
DELIVERY VIA FACSIMILE OTHER THEN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO
GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO
BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and
the related Letter of Transmittal, the undersigned hereby tenders to the Company
the principal amount of Private Notes set forth below, pursuant to the
guaranteed delivery procedures described in the Prospectus under the caption
"The Exchange Offer-Guaranteed Delivery Procedures."
<TABLE>
<S> <C>
Principal Amount of Private Notes Tendered:*
$ _________________________________________
Certificate Nos. (if available) If Private Notes will be delivered by book-entry
transfer to The Depository Trust Company, provide
___________________________________________ account number.
Total Principal Amount Represented by
Private Notes Certificate(s):
$__________________________________________ Account Number___________________________
___________
*Must be in denominations of principal amount of $1,000 and any integral multiple thereof
</TABLE>
<PAGE> 2
- --------------------------------------------------------------------------------
AN AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE
THE DEATH OR INCAPACITY OF THE UNDERSIGNED, AND EVERY OBLIGATION OF THE
UNDERSIGNED HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS OF THE UNDERSIGNED.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
X____________________________________ ___________________________
X____________________________________ ___________________________
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number:_____________________________________
Must be signed by the holder(s) of Private Notes as their name(s)
appear(s) on certificates for Private Notes or on a security position listing,
or by person(s) authorized to become registered holder(s) by endorsement and
documents transmitted with this Notice of Guaranteed Delivery. If signature is
by trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
set forth his or her full title below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Capacity:________________________________________________________________
Address(es):_____________________________________________________________
GUARANTEE
The undersigned, a member of a registered national securities exchange,
or a member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States, hereby guarantees that the certificates representing the principal
amount of Private Notes tendered hereby in proper form for transfer, or timely
confirmation of the book-entry transfer of such Private Notes into the Exchange
Agent's account at The Depository Trust Company pursuant to the procedures set
forth in "The Exchange Offer -- Guaranteed Delivery Procedures" section of the
Prospectus, together with one or more properly completed and duly executed
Letter(s) of Transmittal (or a manually signed facsimile thereof) or an Agent's
message with any required signature guarantee and any other documents required
by the Letter of Transmittal, will be received by the Exchange Agent at the
address set forth above, no later than five New York Stock Exchange trading days
after the date of execution hereof.
________________________ ________________________________
Name of Firm Authorized Signature
________________________ ________________________________
Address Title
_______________________ Name:_____________________________
Zip Code (Please Type or Print)
Area Code and Tel. No.__________________ Dated:____________________________
NOTE: DO NOT SEND CERTIFICATES FOR PRIVATE NOTES WITH THIS NOTICE OF
GARANTEED DELIVERY. ACTUAL SURRENDER OF PRIVATE NOTES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
<PAGE> 1
EXHIBIT 99.3
DTI HOLDINGS, INC.
OFFER TO EXCHANGE ITS 12 1/2% SERIES B SENIOR DISCOUNT
NOTES DUE MARCH 1, 2008 FOR ALL OF ITS OUTSTANDING
12 1/2% SENIOR DISCOUNT NOTES DUE MARCH 1, 2008
To: Brokers, Dealers, Commercial Banks
Trust Companies and Other Nominees:
DTI HOLDINGS, Inc., a Missouri corporation (the "Company"), is
offering, upon and subject to the terms and conditions set forth in the
Prospectus, dated ______________, 1998 (the "Prospectus"), and the enclosed
Letter of Transmittal (the "Letter of Transmittal"), to exchange (the "Exchange
Offer") its 12 1/2% Series B Senior Discount Notes due March 1, 2008 (the
"Exchange Notes"), which have been registered under the Securities Act of 1933,
as amended, for any and all of its outstanding 12 1/2% Senior Discount Notes due
March 1, 2008 (the "Private Notes" and, together with the Exchange Notes, the
"Notes"). The Exchange Offer is being made in order to satisfy certain
obligations of the Company contained in the Notes Registration Rights Agreement
dated February 23, 1998, between the Company and the Initial Purchasers of the
Private Notes referred to therein.
We are requesting that you contact your clients for whom you
hold Private Notes regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Private Notes registered in your
name or in the name of your nominee, or who hold Private Notes registered in
their own names, we are enclosing the following documents:
1. The Prospectus;
2. The Letter of Transmittal for your use and for the
information of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the
Exchange Offer if certificates for Private Notes are not
immediately available or time will not permit all required
documents to reach the Exchange Agent prior to the
Expiration Date (as defined below) or if the procedure for
book-entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for
whose account you hold Private Notes registered in your
name or the name of your nominee, with space provided for
obtaining such clients' instructions with regard to the
Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9; and
6. Return envelopes addressed to the Bank of New York the
Exchange Agent for the Private Notes.
<PAGE> 2
Brokers, Dealers, Commercial Banks
Trust Companies and Other Nominees:
____________________,1998
Page 2
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________________, 1998, UNLESS
EXTENDED BY THE COMPANY (THE "EXPIRATION DATE"). PRIVATE NOTES TENDERED PURSUANT
TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, a duly executed and
properly completed Letter of Transmittal ( or facsimile thereof), with any
required signature guarantees and any other required documents, should be sent
to the Exchange Agent, all in accordance with the instructions set forth in the
Letter of Transmittal and the Prospectus.
If holders of Private Notes wish to tender, but it is
impracticable for them to forward their certificates for Private Notes prior to
the expiration of the Exchange Offer or to comply with the book-entry transfer
procedures on a timely basis, a tender may be effected by following the
guaranteed delivery procedures described in the Prospectus under "The Exchange
Offer--Guaranteed Delivery Procedures."
The Company will not pay any fees or commissions to brokers,
dealers or other persons for soliciting exchanges of Notes pursuant to the
Exchange Offer. The Company will, however, upon request, reimburse brokers,
dealers, commercial banks and trust companies for reasonable and necessary costs
and expenses incurred by them in forwarding the Prospectus and the related
documents to the beneficial owners of Private Notes held by them as nominee or
in a fiduciary capacity. The Company will pay or cause to be paid all stock
transfer taxes applicable to the exchange of Private Notes pursuant to the
Exchange Offer, except as set forth in Instruction 6 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Exchange Offer,
or requests for additional copies of the enclosed materials, should be directed
to the Bank of New York, as Exchange Agent, at its address and telephone number
set forth on the front of the Letter of Transmittal.
Very truly yours,
DTI HOLDINGS, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE
YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF
EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS
EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
<PAGE> 1
EXHIBIT 99.4
DTI HOLDINGS, INC.
OFFER TO EXCHANGE ITS 12 1/2% SERIES B SENIOR
DISCOUNT NOTES DUE 2008 FOR ALL OF ITS OUTSTANDING
12 1/2% SENIOR DISCOUNT NOTES DUE 2008
To Our Clients:
Enclosed for your consideration is a Prospectus, dated
________________, 1998 (the "Prospectus"), and the associated Letter of
Transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange
Offer") of DTI Holdings, Inc., a Missouri corporation (the "Company"), to
exchange its 12 1/2% Series B Senior Discount Notes due 2008, which have been
registered under the Securities Act of 1933, as amended (the "Exchange Notes"),
for any and all of its outstanding 12 1/2% Senior Discount Notes due 2008 (the
"Private Notes"), upon the terms and subject to the conditions described in the
Prospectus and the Letter of Transmittal. The Exchange Offer is being made in
order to satisfy certain obligations of the Company contained in the Notes
Registration Rights Agreement dated February 23, 1998, by and among the Company
and the Initial Purchasers of the Private Notes referred to herein.
This material is being forwarded to you as the beneficial
owner of the Private Notes carried by us in your account but not registered in
your name. A TENDER OF SUCH PRIVATE NOTES MAY ONLY BE MADE BY US AS THE HOLDER
OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us
to tender on your behalf the Private Notes held by us for your account, pursuant
to the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as
possible in order to permit us to tender the Private Notes on your behalf in
accordance with the provisions of the Exchange Offer. THE EXCHANGE OFFER WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON __________________, 1998, UNLESS
EXTENDED BY THE COMPANY (THE "EXPIRATION DATE"). ANY PRIVATE NOTES TENDERED
PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE
EXPIRATION DATE.
<PAGE> 2
Your attention is directed to the following:
1. The Exchange Offer is for any and all Private Notes.
2. Any transfer taxes incident to the exchange of Private
Notes pursuant to the Exchange Offer will be paid by the
Company.
3. The Exchange Offer expires at 5:00 p.m., New York City
time, on ______________, 1998, unless extended by the
Company.
If you wish to have us tender your Private Notes, please so
instruct us by completing, executing and returning to us the instruction form
enclosed herein. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION
ONLY AND MAY NOT BE USED BY YOU TO TENDER PRIVATE NOTES.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the
enclosed material referred to therein relating to the Exchange Offer made by DTI
Holdings, Inc. with respect to its Private Notes.
This will instruct you to tender the Private Notes held by you
for the account of the undersigned, upon and subject to the terms and conditions
set forth in the Prospectus and the related Letter of Transmittal.
Please tender the Private Notes held by you for my/our account
as indicated below:
12 1/2% Senior Discount Notes due 2008......... Aggregate Principal Amount
of Private Notes
/ / Please do not tender any Private -----------------
Notes held by you for my account.
Dated: ____________, 1998 ------------------------------
Signature (s)
------------------------------
------------------------------
------------------------------
Please print name(s) here
------------------------------
------------------------------
Address(es)
------------------------------
Area Code and Telephone Number
------------------------------
Tax Identification or
Social Security No.(s)
NONE OF THE PRIVATE NOTES HELD BY US FOR YOUR ACCOUNT WILL BE
TENDERED UNLESS WE RECEIVE WRITTEN INSTRUCTIONS FROM YOU TO DO SO. UNLESS A
SPECIFIC CONTRARY INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR SIGNATURE(S)
HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL THE PRIVATE NOTES
HELD BY US FOR YOUR ACCOUNT.
3
<PAGE> 1
EXHIBIT 99.6
___________________, 1998
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
DTI Holdings, Inc., a Missouri corporation (the "Company"), proposes to
make an offer (the "Exchange Offer") to exchange up to $506,000,000 aggregate
principal amount at maturity of its 12 1/2% Series B Senior Discount Notes due
March 1, 2008 (the "Exchange Notes"), for a like principal amount of its
outstanding 12 1/2% Senior Discount Notes due March 1, 2008 (the "Private
Notes"). The terms and conditions of the Exchange Offer are set forth in a
prospectus (the "Prospectus") included in the Company's registration statement
on Form S-4 (File No. 333-_________), as amended (the "Registration Statement"),
filed with the Securities and Exchange Commission (the "SEC"), proposed to be
distributed to all record holders of the Private Notes. The Private Notes and
the Exchange Notes are collectively referred to herein as the "Notes."
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Prospectus.
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about _______________, 1998. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Private Notes to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Private Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time,
on ________ , 1998, or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (confirmed in writing) or written notice to you
before 9:00 A.M., New York City time, on the business day theretofore scheduled
as the Expiration Date.
1
<PAGE> 2
The Company expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any
Private Notes not theretofore accepted for exchange. The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
2. You will establish an account with respect to the Private Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Private Notes by causing
the Book-Entry Transfer Facility to transfer such Private Notes into your
account in accordance with the Book-Entry Transfer Facility's procedures for
such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (and confirmation of book-entry transfers of
Private Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the Private
Notes, to ascertain whether: (i) the Letters of Transmittal, certificates and
any such other documents are duly executed and properly completed in accordance
with instructions set forth therein and that such book-entry confirmations are
in due and proper form and contain the information required to be set forth
therein, and (ii) the Private Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed, or where book-entry confirmations are not in
due and proper form or omit certain information, or any of the certificates for
Private Notes are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President and Chief Executive Officer (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such officer in writing, you are authorized to waive any
irregularities in connection with any tender of Private Notes pursuant to the
Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer-Procedures for Tendering," and Private Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein. Notwithstanding the provisions of this paragraph 5, Private Notes which
the President and Chief Executive Officer or any other
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designated officer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Private Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private Notes are registered in
two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Private
Notes provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Private
Notes to the transfer agent for split-up and return any untendered Private Notes
to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Private Notes properly tendered and you, on behalf of the Company, will exchange
such Private Notes for Exchange Notes and cause such Private Notes to be
canceled. Delivery of Exchange Notes will be made on behalf of the Company by
you at the rate of $1,000 principal amount at maturity of Exchange Notes for
each $1,000 principal amount at maturity of the Private Notes tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Private Notes by the Company; provided, however, that in all
cases, Private Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Private Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and, except as described in the section of the
Prospectus captioned "The Exchange Offer - Procedures for Tendering," duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. Unless otherwise
instructed by the Company, you shall issue Exchange Notes only in denominations
of $1,000 principal amount at maturity or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Private
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Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on
or prior to the Expiration Date in accordance with the terms of the Exchange
Offer.
10. The Company shall not be required to exchange any Private Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Private Notes tendered
shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Private Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Private Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them (or effected such book-entry transfer).
12. All certificates for reissued Private Notes, unaccepted Private
Notes or for Exchange Notes (other than those effected by book-entry transfer)
shall be forwarded by (a) first-class certified mail, return receipt requested,
under a blanket surety bond obtained by you protecting you and the Company from
loss or liability arising out of the nonreceipt or nondelivery of such
certificates or (b) by registered mail insured by you separately for the
replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein or
as may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates for the Private Notes deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting
in reliance upon any certificate, instrument, opinion, notice, letter, telegram
or other document or security
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delivered to you and reasonably believed by you to be genuine and to have been
signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a proper
person or persons;
(f) may rely on and shall be protected in acting upon written
or oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities, and the written opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the written opinion of such counsel; and
(h) shall not advise any person tendering Private Notes
pursuant to the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of Private Notes or as to the market value of the Private
Notes or as to any decrease or appreciation in market value of any Private Notes
that may or may not occur as a result of the Exchange Offer or as to the market
value of the Exchange Notes; provided, however, that in no way will your general
duty to act in good faith and without gross negligence or willful misconduct be
limited by the foregoing.
15. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery or such other forms as may be approved from time
to time by the Company, to all persons requesting such documents and to accept
and comply with telephone requests for information relating to the Exchange
Offer, provided such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company will furnish you
with copies of such documents at your request.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to, Richard D. Weinstein, President and
Chief Executive Officer of the Company, and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the aggregate principal amount of Private Notes which
have been duly tendered pursuant to the Exchange Offer and the items received by
you pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of
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such other information as it or he or she reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Private Notes tendered, the
aggregate principal amount of Private Notes accepted and the identity of any
Participating Broker-Dealers and the aggregate principal amount of Exchange
Notes delivered to each, and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a period of
time at least equal to the period of time you preserve other records pertaining
to the transfer of securities, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials as instructed by the Company.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any loss, liability, cost
or expense, including attorneys' fees and expenses arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Private Notes reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Private Notes; provided, however, that anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is confirmed by letter, of the written assertion of a claim
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against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate, at its own expense, in the
defense of any such claim or other action, and, if the Company so elects, the
Company may assume the defense of any pending or threatened action against you
in respect of which indemnification may be sought hereunder, in which case the
Company shall not thereafter be responsible for the subsequently-incurred fees
and disbursements of legal counsel for you under this paragraph so long as the
Company shall retain counsel reasonably satisfactory to you to defend such suit;
provided, that the Company shall not be entitled to assume the defense of any
such action if the named parties to such action include both you and the Company
and representation of both parties by the same legal counsel would, in the
written opinion of your counsel, be inappropriate due to actual or potential
conflicting interests between you and the Company. You understand and agree that
the Company shall not be liable under this paragraph for the fees and expenses
of more than one legal counsel for you.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required, in certain
instances, to deduct thirty-one percent (31%) with respect to interest paid on
the Exchange Notes and proceeds from the sale, exchange, redemption or
retirement of the Exchange Notes from holders who have not supplied their
correct Taxpayer Identification Number or required certification. Such funds
will be turned over to the Internal Revenue Service in accordance with
applicable regulations.
23. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Private Notes and, upon receipt of a
written approval from the Company, shall deliver or cause to be delivered, in a
timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Private Notes, your check in the amount of
all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Private Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles.
25. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement. Without
limitation of the foregoing, the parties hereto expressly agree that no holder
of Private Notes or Exchange Notes shall have any right, benefit or remedy of
any nature whatsoever under, or by reason of, this Agreement.
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26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
constitute one and the same agreement.
27. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, MO 63043
Facsimile: (314) 253-6610
Attention: Richard D. Weinstein President and
Chief Executive Officer
With a copy to:
Bryan Cave LLP
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
Facsimile: (314) 259-2020
Attention: J. Mark Klamer
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee Administration
30. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 17, 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement,
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you shall promptly deliver to the Company any certificates for Notes, funds or
property then held by you as Exchange Agent under this Agreement.
31. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
DTI HOLDINGS, INC.
By:___________________________
Name: Richard D. Weinstein
Title: President and Chief
Executive Officer
Accepted as the date first above written:
THE BANK OF NEW YORK, as
Exchange Agent
By:___________________________
Name:
Title:
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SCHEDULE I
FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
I. ACCEPTANCE FEE Waived
Our Acceptance Fee includes review of all relevant documentation,
closing of transaction, setting up of records and opening accounts.
II. ADMINISTRATIVE FEE
Our administrative fee covers all duties of the Exchange Agent
including distributing exchange offer documents to the Book-Entry
Transfer Facility, receipt and examination of required exchange offer
documentation, reporting to company, calculation of and delivery to
participants and the Book-Entry Transfer for Facility. Fees shall be
billed upon closing.
III. OUT-OF-POCKET EXPENSES
All out-of-pocket expenses including but not limited to postage,
express mail, telecopier, long distance telephone, wire transfer
charges, courier expenses, or other expense incurred by the Bank during
its acceptance and administration shall be billed at cost as incurred.
IV. EXTRAORDINARY SERVICES
Charges for the performance of any service not of a routine
administrative nature or not contemplated at closing and specifically
covered elsewhere in this schedule of fees will be determined by
___________________.
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